5. Protection Against Arrest and Detention

Article 22 grants protection to persons who are arrested or detained. Detention is of two types, namely, punitive and preventive. Punitive detention is to punish a person for an offence committed by him after trial and conviction in a court. Preventive detention, on the other hand, means detention of a person without trial and conviction by a court. Its purpose is not to punish a person for a past offence but to prevent him from committing an offence in the near future. Thus, preventive detention is only a precautionary measure and based on suspicion.

The Article 22 has two parts-the first part deals with the cases of ordinary law and the second part deals with the cases of preventive detention law.

(a) The first part of Article 22 confers the following rights on a person who is arrested or detained under an ordinary law:

(i) Right to be informed of the grounds of arrest.

(ii) Right to consult and be defended by a legal practitioner.

(iii) Right to be produced before a magistrate within 24 hou including the journey time.

(iv) Right to be released after 24 hours unless the magistr authorises further detention.

These safeguards are not available to an enemy alien or a person arrested or detained under a preventive detention law.

The Supreme Court also ruled that the arrest and detention in the first part of Article 22 do not cover arrest under the orders of a court, civil arrest, arrest on failure to pay the income tax, and deportation of an alien. They apply only to an act of a criminal or quasi-criminal nature or some activity prejudicial to public interest.

(b) The second part of Article 22 grants protection to persons who are arrested or detained under a preventive detention law. This protection is available to both citizens as well as aliens and includes the following:

(i) The detention of a person cannot exceed three months unless advisory board reports sufficient cause for extended detentio The board is to consist of judges of a high court.

(ii) The grounds of detention should be communicated to the deten However, the facts considered to be against the public inter need not be disclosed.

(iii) The detenu should be afforded an opportunity to make representation against the detention order.

Article 22 also authorises the Parliament to prescribe (a) 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; (b) the maximum period for which a person can be detained in any classes of cases under a preventive detention law; and (c) the procedure to be followed by an advisory board in an inquiry.

The 44th Amendment Act of 1978 has reduced the period of detention without obtaining the opinion of an advisory board from three to two months. However, this provision has not yet been brought into force, hence, the original period of three months still continues.

The Constitution has divided the legislative power with regard to preventive detention between the Parliament and the state legislatures. The Parliament has exclusive authority to make a law of preventive detention for reasons connected with defence, foreign affairs and the security of India. Both the Parliament as well as the state legislatures can concurrently make a law of preventive detention for reasons connected with the security of a state, the maintenance of

public order and the maintenance of supplies and services essential to the community.

The preventive detention laws made by the Parliament are:

(a) Preventive Detention Act, 1950. Expired in 1969.

(b) Maintenance of Internal Security Act (MISA), 1971. Repealed in 1978.

(c) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974.

(d) National Security Act (NASA), 1980.

(e) Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act (PBMSECA), 1980.

(f) Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985. Repealed in 1995.

(g) Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988.

(h) Prevention of Terrorism Act (POTA), 2002. Repealed in 2004.

(i) Unlawful Activities (Prevention) Act (UAPA), 1967, as amended in 2004, 2008, 2012 and 2019.

It is unfortunate to know that no democratic country in the world has made preventive detention as an integral part of the Constitution as has been done in India. It is unknown in USA. It was resorted to in Britain only during first and second world war time. In India, preventive detention existed even during the British rule. For example, the Bengal State Prisoners Regulation of 1818 and the Defence of India Act of 1939 provided for preventive detention.