Article 22 OF THE INDIAN CONSTITUTION
Article 22 of the Indian constitution extends protection against arrest and detention in certain cases.
Article 22 grants protection to persons who are arrested or detained.
Under Article 22 Detention is of two types –
What is Punitive Detention?
What is preventive detention?
Preventive Detention means detention of a person without trial and conviction by a court.
Its purpose is not to punish a person for a past offense but to prevent him from committing an offence in the near future.
Thus, Preventive Detention is only a precautionary measure and is based upon suspicion.
Article 22 of the Indian constitution has two parts –
1. The first part deals with the cases of Ordinary Law.
2. The second part deals with the cases of Preventive Detention Law.
The first part of Article 22 confers following rights for the person who is arrested or detained under an ordinary law.
- No person who is arrested shall be detained in custody without informing him of the grounds of his arrest.
- He shall be entitled to consult the attorney of his choice & defend himself.
This should be done to protect his right to freedom.
Example – Supreme court in the Joginder Singh case (1994)
Supreme Court said that the arrested person has the right to have his friends, relatives, and some other known people informed of his ground of arrest so that he will be able to defend himself.
No person shall be merely arrested on the grounds of suspicion.
- The arrested person shall be produced before the nearest Judicial Magistrate within 24 hours of his/her arrest.
- No Person shall be detained in custody beyond the period for which his detention is authorized by the Magistrate.
NOTE – These above safeguards are not available to an enemy alien or a person arrested or detained under a PREVENTIVE DETENTION LAW.
Who are enemy aliens?
an enemy alien is any native, citizen, denizen, or subject of any foreign nation or government with which a domestic nation or government is in conflict and who is liable to be apprehended, restrained, secured, and removed.
The second part of Article 22 grants protection to persons who are arrested or detained under a preventive detention law.
These protection includes –
- The detention of a person cannot exceed three months unless an advisory board reports sufficient cause for extended detention.
This board consists of Judges of a high court.
- The grounds for detention should be communicated to the detenu.
However, the facts considered to be against the public interest need not be disclosed.
- The detenu should be afforded an opportunity to make a representation against the detention order.
NOTE – The above protections are available to both citizens as well as aliens.
Is preventive Detention Legal?
Yes, it is legal. But special grounds have to be there else it will violate the right to freedom of movement of an individual.
Example – When there is violence somewhere & if there is someone who can spark that violence, the person can be arrested on grounds of Preventive Detention. It will not be a violation of Article 22.
NOTE – Explanation is for understanding only.
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