Article 22

Background and evolution

Article 22 has two parts. The first protects people arrested under ordinary criminal law. The second allows preventive detention, in which a person is detained not for a crime committed but to prevent possible future harm to security, public order or essential supplies. The framers, writing in the context of Partition violence and threats to security, accepted preventive detention as a necessary evil but tried to limit it with safeguards.

India has had a series of preventive detention laws: the Preventive Detention Act, 1950; the Maintenance of Internal Security Act (MISA), 1971, widely used during the Emergency; the National Security Act (NSA), 1980; and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974. States also have their own laws, such as the Goondas Acts and Public Safety Acts.

Key features and provisions

• 22(1): an arrested person must be informed of the grounds of arrest as soon as may be and has the right to consult and be defended by a legal practitioner of their choice.
• 22(2): an arrested person must be produced before the nearest magistrate within 24 hours, excluding travel time, and cannot be detained beyond that without the magistrate's authority.
• 22(3): clauses (1) and (2) do not apply to enemy aliens or to persons detained under preventive detention laws.
• 22(4): preventive detention cannot exceed three months unless an Advisory Board of persons qualified to be High Court judges reports sufficient cause.
• 22(5): the detaining authority must communicate grounds of detention as soon as may be and give the earliest opportunity to make a representation.
• 22(6): facts considered against the public interest need not be disclosed.
• 22(7): Parliament may prescribe circumstances for detention beyond three months without Advisory Board opinion, the maximum period, and the procedure for Advisory Boards.
• 44th Amendment (1978): reduced the period without Advisory Board review to two months and changed Board composition, but this provision has never been brought into force.