Preventive Detention and Article 22

Preventive Detention and Article 22, Purpose and Supreme Court Judgments

Preventive detention is detaining a person in order to prevent a situation of crime that a person can possibly commit Check all details about Preventive Detention Laws in India and Article 22.

Table of Contents

The Supreme Court has questioned Tamil Nadu state government’s move to issue frequent preventive detention orders under the Tamil Nadu Goondas Act.

What is Preventive Detention?

When a person is detained/taken into custody without any trial & conviction by a court.
It is only a precautionary measure and is based on suspicion.

Purpose

Not to punish a person for a past offence but to prevent him from committing an offence in the near future.
To protect state’s security & maintain Public Order.

Rights available to a Detainee under Article 22

Period of detention: No Preventive detention law shall authorise detention for more than 3 months.
- To detain an individual beyond the period of three months authorisation is needed by an Advisory Board.
- Advisory Board Consists of a judge of a high court, among other members.
Rights of detenu:
- The grounds of detention should be communicated to the detenu.
  - Exception: Facts considered to be against the public interest need not be disclosed.
- He should be afforded an opportunity to make representation against the detention order.

Who has the power to make laws related to Preventive Detention?

Under the 7th Schedule, this power has been divided between the Parliament and the state legislatures.
Exclusive power of Parliament: To make a law of preventive detention for reasons connected with:
- Defence
- Foreign Affairs
- Security of India
Concurrent power: Both the Parliament as well as the state legislatures can concurrently make a law of preventive detention for reasons connected with:
- Security of a state
- Maintenance of public order
- Maintenance of supplies and services essential to the community
Preventive detention laws by states: Goondas Act,1982 (Tamil Nadu), Gujarat Prevention of Anti-Social Activities Act, 1985 (PASA)

Did You Know?

The 44th Constitutional Amendment Act (1978) reduced the period of detention without obtaining the opinion of the Advisory board from 3 to 2 months. But this provision is not implemented yet.
Unlike India, no democratic country in the world has made preventive detention law an integral part of the Constitution.

Preventive Detention Laws in India

Preventive Detention laws in India refer to the provisions of Indian law that allow for the detention of individuals without trial, in order to prevent them from committing an act that would pose a threat to public order or national security. In India, preventive detention laws are governed by various acts. These laws give the government broad powers to detain individuals deemed to be a threat to national security or public order for a specified period of time, without the need for trial or charge.

The provisions regarding preventive detention in India are governed by Article 22. Persons who are detained or arrested are protected by this article. Therefore, Article 22 does not apply before the arrest or imprisonment of a person or group of people; it only does so later. It should be observed that Articles 21 and 22 work well together in this situation.

A person can be put in custody for two reasons. One is if an individual has committed a crime. Second when an individual has the potential to commit a crime in the future. The custody arising out of the latter is preventive detention under which, an individual is deemed likely to commit a crime. Laws made by the government on it are,

Preventive Detention Act, 1950. Expired in 1969.
Maintenance of Internal Security Act (MISA), 1971. Repealed in 1978.
National Security Act (NASA), 1980.
Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985. Repealed in 1995.
Prevention of Terrorism Act (POTA), 2002. Repealed in 2004.
Unlawful Activities (Prevention) Act (UAPA), 1967, as amended in 2004, 2008, 2012 and 2019. etc

Article 22 of Indian Constitution

Article/Clause	Details
Article 22	This article provides for the protection of the life and personal liberty of individuals and lays down the procedure for preventive detention. According to this article, no person can be detained without being informed of the grounds for such detention, and no person can be detained for more than three months without a judicial review.
Article 22(2)	This clause requires the state to provide for a judicial review of the detention within a period of five weeks from the date of detention unless the individual is otherwise released earlier.
Article 22(3)	This clause allows for the detention of individuals without a trial in certain circumstances, such as when a state of emergency has been declared.
Article 22(4)	This clause provides that any person who is detained under preventive detention laws has the right to be represented by a legal practitioner of their choice, and has the right to be informed of the grounds for their detention.
Article 22(5)	This clause requires the government to keep a record of all detentions and to place this record before both houses of Parliament.

Types of Detention

Punitive Detention: This type of imprisonment is used to punish a person for an offence they committed after being found guilty in court. It occurs under any ordinary law.

Preventive Detention: It is to hold someone in custody without a court trial and conviction. Its goal is to deter someone from committing an offence in the near future rather than to punish them for a prior offence. As a result, it is purely based on suspicion and is merely a precaution.

Protection under Punitive Detention

Protection under Preventive Detention

Article 22 (1) gives the following rights to an individual who is arrested or detained under an ordinary law:

Right to know the reason(s) for one’s arrest: A person in custody has a right to be told of the reason(s) for one’s arrest at the moment of arrest. so that he can prepare for the trial, make his own defence, or ask for bail.
Right to consult with and be represented by the lawyer: Police cannot prevent an arrested individual from meeting with or consulting with the counsel of their choice. like a lawyer, a counsellor, etc In the Hussainara Khatoon case, the Supreme Court ruled that “one accused has the right to obtain free legal representation from the state if he cannot afford a lawyer.”

Article 22 second part ensures protection for an individual who has been arrested or detained under a preventive detention law. The protection has been ensured to both citizens as well as aliens and includes the following:

Extent of detention: The detention of a person cannot exceed three months unless the advisory board reports sufficient cause for extended detention. Judges of a high court are part of this Board.
Provide reason for detention: The grounds of detention should be communicated to the detente. Although, the facts considered to be against the public interest should not be revealed.
Opportunity to make representation: The detente should be afforded an opportunity to make representation against the detention order.

Article 22 also authorises the Parliament to prescribe

The circumstances and the classes of cases in which a person can be detained for more than three months under a preventive detention law without obtaining the opinion of an advisory board;
The maximum period for which a person can be detained in any class of cases under a preventive detention law; and
The procedure is to be followed by an advisory board in an inquiry.

Preventive Detention Act 1950

It was enacted to strengthen human detention in instances involving state conditions, such as national defence, the maintenance of peace and public order, and foreign affairs.
The Act was challenged in the court of law in the matter of AK Gopalan versus The State of Madras, where it was cleared by the court that an individual’s freedom did not qualify as ensured under Article 21.
A narrow view has been adopted by the Supreme Court of Articles 21 and 22, which refused to consider whether there were any flaws in the legal method.
The Supreme Court in the Maneka Gandhi case significantly widened and interpreted the term “personal liberty” to its widest degree.
The higher court held that Article 21 does not preclude Article 19 and that any legislation depriving a citizen of personal liberty must pass the scrutiny of both Articles 21 and 19.

Supreme Court Judgments on Preventive Detention

AK Gopalan v. State of Madras: the court ruled that Article 22 of the Constitution provides complete procedural safeguards with regard to preventative detention.
Anil Dey v. State of West Bengal: The Supreme Court concluded that courts cannot evaluate whether the detaining authority is objectively competent by looking past its subjective satisfaction.
Alijav v. District Magistrate, Dhanbad: According to the Supreme Court, preventive detention does not penalize a person for an offence they committed, whereas criminal processes do.
Ankul Chandra Pradhan v. Union of India: The goal of Preventive Detention is to prevent the inmate from doing anything that could endanger the state’s security, not to punish them.
Supreme Court in July 2022 observed that these powers accorded to the State were “exceptional” and that since they affect the liberty of an individual, they should be used sparingly.
- The court had also noted that these powers should not be used to control ordinary law and order problems.

Preventive Detention UPSC

The laws governing preventative detention need to be revised or modified in order to comply with the Right to Life and Liberty since they are not totally fair and reasonable. Some detractors compare a security to the fundamental tenant of human rights. India is a large nation with extensive borders and a variety of identities, and as a result, the neighbouring nations are hostile to it. These security-related laws, rules, and practices have the responsibility of protecting India’s sovereignty, independence, and dignity under these circumstances.

Other Important Articles
Article 19 of Indian Constitution	Article 16 of Indian Constitution
Article 15 of Indian Constitution	Article 14 of Indian Constitution

Preventive Detention FAQs

What is mean by preventive detention?

Preventive detention is detaining a person in order to prevent a situation of crime that a person can possibly commit.

What are the types of detention?

The detention is to two types Punitive and Preventive detention.

For how much a time one can be detained under Preventive detention?

Period of detention under preventive detention is three months.

What is Article 22 in Indian Constitution?

Under Article 22, No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.