Arrest & Preventive Detention — Article 22 — KSLU Constitutional Law Notes

Preventive Detention & the Arrested Person — Article 22

There are two very different reasons the State can lock someone up: because of what they have done (punitive — after a trial), or because of what the State fears they are about to do (preventive — without a trial). The second is extraordinary: imprisonment on suspicion, before any crime. Article 22 is the set of safeguards that keeps that power from becoming limitless.

Two kinds of custody, two sets of rights

Article 22 splits into two halves:

A. Rights of an ordinarily arrested person

— 22(1) and 22(2):

To be informed of the grounds of arrest as soon as may be.
To consult and be defended by a lawyer of his choice.
To be produced before a magistrate within 24 hours (excluding travel time), and not detained longer without the magistrate’s authority.

These rights do not apply to an enemy alien or to a person detained under a preventive detention law.

B. Safeguards under preventive detention

— 22(4) to 22(7):

22(4) — detention beyond three months needs the approval of an Advisory Board reporting sufficient cause (subject to laws made under 22(7)).
22(5) — the grounds of detention must be communicated to the detenue as soon as may be, and he must get the earliest opportunity to make a representation against the order.
22(6) — facts which it is against the public interest to disclose need not be disclosed.

Preventive detention means detention without trial, to prevent an apprehended future act (public order, security), not to punish a past crime. Examples of such laws: the National Security Act, COFEPOSA.

💡 EXAM TIP — punitive vs preventive detention

The trap. Treating preventive detention like an ordinary arrest.

What to write. Punitive detention punishes a past offence after trial; preventive detention prevents a feared future act without trial. The 24-hour-magistrate and full lawyer rights of 22(1)-(2) do not apply to preventive detention, which has its own (weaker) safeguards in 22(4)-(7).

Why it scores. The distinction is the spine of every Art 22 answer.

🧩 WORKED EXAMPLE — one ground of detention revoked

Facts. A detenue is given two grounds for his detention; the authority later revokes one ground; the State argues the remaining ground is enough.

Rule. Where a detention rests on several grounds and one is irrelevant, vague or bad, the whole order is vitiated — because it is impossible to say how far the bad ground influenced the detaining authority’s subjective satisfaction.

Apply. Once one ground falls away, the court cannot assume the authority would have detained on the surviving ground alone; the satisfaction is tainted.

Conclusion. The detention order is invalid and the detenue must be released.

Article 22(5), Constitution of India: “When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority… shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.”

In Simple Terms: even someone jailed on mere suspicion must be told why and must get the earliest chance to argue against it.

flowchart TD
    A22["Article 22"]
    A22 --> ORD["Ordinary arrest 22(1)-(2)"]
    ORD --> O1["Grounds of arrest"]
    ORD --> O2["Lawyer of choice"]
    ORD --> O3["Magistrate within 24 hours"]
    A22 --> PD["Preventive detention 22(4)-(7)"]
    PD --> P1["Advisory Board beyond 3 months"]
    PD --> P2["Grounds + earliest representation 22(5)"]

Case Laws

A.K. Gopalan v State of Madras (1950) — early, narrow view of preventive detention and Art 21 (later widened by Maneka).
[C-7] Maneka Gandhi v Union of India (1978) — any procedure depriving liberty must be fair, just and reasonable; Arts 14, 19, 21 read together.
Rekha v State of Tamil Nadu (2011) — preventive detention is an exception and must be used with great caution; safeguards strictly enforced.

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