Article 22: Protection Against Arrest and Detention
This article provides safeguards for individuals who are arrested or detained under two types of detention:
- Punitive Detention – Arrest after committing a crime, followed by a trial and punishment.
- Preventive Detention – Detention without committing a crime but based on suspicion that the person may act against the law.
Protections in Case of Arrest (Punitive Detention)
If a person is arrested for committing a crime, they have the following rights:
✅ Right to know the reason for arrest – The police must inform them why they are being arrested.
✅ Right to legal help – They can hire a lawyer to defend themselves.
✅ Right to be presented before a magistrate within 24 hours – The police cannot keep them in custody beyond this period without permission from a judge.
✅ Right to be released if no further detention is approved – If the magistrate does not approve further detention, they must be set free.
🚨 Exceptions: These safeguards do not apply to enemy aliens or those arrested under preventive detention laws.
Example:
🔹 A person is arrested for theft. The police must inform them of the reason, allow them to contact a lawyer, and present them before a magistrate within 24 hours.
Protections in Case of Preventive Detention
If a person is detained based on suspicion (to prevent them from committing a possible crime), these safeguards apply:
✅ Cannot be detained for more than 3 months – Beyond this period, a special Advisory Board must review the case.
✅ Advisory Board must have High Court judges – They will decide if detention should continue.
✅ Right to know the grounds of detention – The detained person must be informed why they are being held (except in cases affecting public interest).
✅ Right to oppose detention – The person can file an appeal against their detention.
✅ Parliament’s power over preventive detention –
- Parliament can extend detention beyond 3 months without Advisory Board approval.
- It can set the maximum detention period.
- It can decide the procedure for Advisory Boards.
Example:
🔹 A person suspected of being involved in terrorist activities can be detained under preventive detention laws. However, they must be informed of the reason for detention and have the right to appeal.
(C) Important Preventive Detention Laws in India
India has several laws for preventive detention:
- Preventive Detention Act (1950) – Expired in 1969.
- Maintenance of Internal Security Act (MISA) (1971) – Repealed in 1978.
- Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) (1974) – Still in force.
- National Security Act (NSA) (1980) – Used for national security.
- Prevention of Black Marketing and Essential Commodities Act (1980) – Controls black marketing.
- Terrorist and Disruptive Activities (Prevention) Act (TADA) (1985) – Repealed in 1995.
- Prevention of Illicit Traffic in Narcotic Drugs Act (1988) – Used for drug control.
- Prevention of Terrorism Act (POTA) (2002) – Repealed in 2004.
- Unlawful Activities (Prevention) Act (UAPA) (1967, amended in 2004, 2008, 2012, 2019) – India’s main anti-terrorism law.
🚨 Interesting Fact:
Unlike India, most democratic countries do not have preventive detention as a regular constitutional provision. It was used in Britain only during World War I and II.
Key Takeaways:
✔️ Punitive detention ensures legal protection after a crime is committed.
✔️ Preventive detention allows authorities to detain someone before a crime happens but with some safeguards.
✔️ Parliament has the power to make preventive detention laws stricter if needed. 🚀
Conclusion
Article 22 provides important safeguards against wrongful arrest but also allows preventive detention, which is a controversial issue. While it helps in national security, it can also be misused. Hence, proper checks and balances are necessary.
