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Preventive Detention

Article 22 makes the minimum procedural requirements which must be included in any law enacted by legislature in accordance of which a person is deprived of his personal liberty. Article 22(1) and (2) are also called Rights of an arrested person.

Policy and safeguards

Rights of an Arrested Person Article 22(1) and 22(2):

  • A person cannot be arrested and detained without being informed why he is being arrested.
  • A person who is arrested cannot be denied to be defended by a legal practitioner of his choice. This means that the arrested person has right to hire a legal practitioner to defend himself/ herself.
  • Every person who has been arrested would be produced before the nearest magistrate within 24 hours.
  • The custody of the detained person cannot be beyond the said period by the authority of magistrate.

The Article 22(1) and 22(2) make the above provisions. However, Article 22(3) says that the above safeguards are not available to the following:

  • If the person is at the time being an enemy alien.
  • If the person is arrested under certain law made for the purpose of “Preventive Detention”

The first condition above is justified, because when India is in war, the citizen of the enemy country may be arrested. But the second clause was not easy to justify by the constituent assembly. This was one of the few provisions which resulted in stormy and acrimonious discussions.

Preventive Detention Laws

A person can be put in jail / custody for two reasons. One is that he has committed a crime. Another is that he is potential to commit a crime in future. The custody arising out of the later is preventive detention and in this, a person is deemed likely to commit a crime. Thus Preventive Detention is done before the crime has been committed.

The definition of Preventive detention itself is so confusing. For example:

  • How one can say that a person will do a crime in future?
  • What are the implications of arresting a person without having committed a crime?
  • Why Preventive Detention in peacetime. Isn't it against the safeguards of our own citizens as provided by Article 22?

The preventive detention laws are repugnant to modern democratic constitutions. They are not found in any of the democratic countries. In England, the preventive detention law was resorted to only during the time of war. Of the provisions of the “Preventive Detention” are unlawful in most countries like USA & UK, then why we India has such thing?

The answer of above question is as follows:

India is a country having multi-ethnic, multi-religious and multilingual society. Caste and communal violence is very common in India. Apart from that the circumstances at the time , when our constitution came in force demanded such provisions. This is evident from following statement of Dr. Bhimrao Ambedkar:

“….in the present circumstances of the country, it may be necessary for the executive to detain a person who is tempering either with the public order or with the defense services of the country. In such case, I don't think that the exigency of the liberty of an individual shall be above the interests of the state” Dr. B R Ambedkar.

However, the provisions of the constitution seem to be ambiguous and this ambiguity has been tried to do away with some provisions. These provisions are mentioned in Article 22 (1), 22(5), 22 (6).