However, there are contentious provisions in the Article, which include:

♤ The Article 22 (3) denies the rights provided in Article 22 (1) and Article 22 (2) to the person who is an ‘enemy alien’ or if a person is arrested or detained under a law providing for preventive detention.

♤ It bases the formulation of preventive detention laws in the name of ‘national security’ and ‘maintenance of public order’, which are not clearly defined in the Constitution.

♤ It undermines the principle of ‘innocent until proven guilty’ by sanctioning the use of past criminality as a basis for imposing coercive force on citizens (by externing them) without them actually being adjudged guilty of committing a criminal act.

However, under certain circumstances the freedom of the individual needs to be superseded in the interests of the state. Its necessity can be understood from the following:

♤ In the Constituent Assembly debates, Dr B.R. Ambedkar argued that the government shall have to detain a person endangering the security of the nation and public services.

♤ Secessionist movements, which threaten national security and integrity require a strict law to enable the state to counter them.

♤ The Supreme Court has held that in the matter of preventive detention, once the detaining authority is subjectively satisfied about the various offences labelled against the detenu, habituality in continuing the same, difficulty in controlling him under normal circumstances, he/she is free to pass appropriate order to detain him/her.

Further, safeguards have been provided in the Article 22 itself in case of preventive detention such as limit on the duration of detention, communication of grounds of detention, affording him the earliest opportunity of making a representation against the order etc.

In a diverse country like India where a lot of subversive activities are carried out within the country and there is a threat from other non-state actors, the idealism needs to be balanced by the adoption of realism. Also, timely judicial intervention and further strengthening of procedural safeguards would prevent the space for misuse.