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