Article 22: Safeguards Against Arbitrary Arrest and Detention in India

Article 22 of the Indian Constitution provides protection against arbitrary arrest and detention, outlining safeguards for individuals in custody. It distinguishes between punitive and preventive detention, with specific provisions for each. While punitive detention penalizes individuals post-conviction, preventive detention aims to prevent potential offenses without trial. Article 22 emphasizes the need for a fair process, particularly in cases of preventive detention.

Understanding Article 22: Safeguards Against Arbitrary Arrest and Detention

Article 22: It provides safeguards for individuals who have been taken into custody (arrested) or detained.

• Types of Detention Under the Indian Constitution: Indian constitution mandates two kinds of detention which are –
  • Punitive Detention: Punitive detention serves as a penalty for an individual following their conviction for a crime by a court of law after a trial.
  • Preventive Detention: Preventive detention refers to the confinement of an individual without a court trial or conviction, aimed not at penalizing for past actions but at averting potential future offenses. 
    • Hence, it is precautionary in nature and based on suspicion.
• Article 22 can be segregated into two parts: The first part of article 22 deals with the cases of ordinary law and the second part deals with the cases of preventive detention law.

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• Ordinary Law: Its protections are not extended to an enemy alien or a person arrested or detained under a preventive detention law. 
  • Exclusions from Article 22 Protections: The Supreme Court has declared that the provisions for arrest and detention outlined in the first section of Article 22 are not applicable to cases such as an arrest ordered by a court, civil arrest, arrest for non-payment of income tax, or the removal of a foreigner from the country. 
  • Scope of Protections under Article 22: These protections are reserved exclusively for acts that are criminal or quasi-criminal in nature or conduct that is detrimental to the public good.
• Preventive Detention Law: The second part of Article 22 which deals with preventive detention is generally based on laws approved by the parliament.
  • It protects an arrested person from arbitrary and ambiguous arrest. 
  • It is available to both citizens and aliens.

• Restriction on Legal Counsel in Preventive Detention: Under Article 22(3)(b) of the Constitution of India, it is explicitly stated that a person detained under a preventive detention law  shall not be entitled to consult or be defended by a legal practitioner until the grounds of detention are disclosed to them. 
  • However, it does not prevent the state government from providing legal counsel to the detained person if it chooses to do so.
• Discretionary Provision of Legal Assistance: The state government has the discretion to provide legal assistance to ensure a fair and just process for the detained individual
• Parliamentary Authority on Preventive Detention: Under Article 22 the Parliament is authorized to outline 
  • Circumstances for Exceeding the Three-Month Detention Period: The circumstances and the classes of cases in which detention of a person can exceed the three month period under a preventive detention law without obtaining the opinion of an advisory board.
  • Maximum Time Period: for which a person can be detained under such law
  • Procedures for Advisory Board Inquiries: The procedure to be followed by an advisory board during inquiry.

• Reduced Detention Period: The time period of detention without obtaining the opinion of the advisory board was reduced from three to two months by the 44th Amendment Act of 1978. 
  • But this provision has not yet been implemented, so the original period of three months still continues.

Legislative Powers For Making Any Law Preventive Detention 

Legislative Authority for Preventive Detention: The legislative authority (law-making powers) related to preventive detention is divided between the Parliament and the state legislatures by the Constitution. 

• Parliament’s Exclusive Powers: The Parliament holds the exclusive power to enact preventive detention laws related to defense, foreign affairs, and national security. 
• Concurrent Jurisdiction: Meanwhile, both the Parliament and state legislatures have the concurrent jurisdiction to legislate preventive detention concerning state security, public order, and maintaining essential community services and supplies.

• Repeal of the Preventive Detention Act, 1950: The Preventive Detention Act,1950 was repealed in 1969 due to concerns over human rights violations, its misuse as a tool for political suppression.
• Laws with Features of Preventive Detention: However, there are certain laws in India which have the features of Preventive Detention. Those are 
• Maintenance of Internal Security Act (MISA), 1971
• Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974
• National Security Act (NSA), 1980
• Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985
• Prevention of Terrorism Act (POTA), 2002
• Unlawful Activities (Prevention) Act (UAPA), 1967
• Controversies and Judicial Scrutiny of Preventive Detention Laws: These laws have often been contentious and criticized for their potential misuse against political dissenters and marginalized communities. 
• • The constitutional validity of such acts, especially with regard to the right to personal liberty, has been a subject of intense debate and judicial scrutiny.

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Conclusion

Article 22 plays a crucial role in safeguarding individual liberty against arbitrary detention, balancing state security needs with personal freedoms. 

• Despite its protections, preventive detention laws have faced criticism and calls for reform due to their potential misuse. 
• The ongoing debate highlights the importance of ensuring these laws are applied justly and transparently. Ensuring a fair process for all detained individuals remains a cornerstone of India’s democratic values.

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