Article 22 grants protection to persons who are arrested or detained. Detention is two types, namely, punitive and preventive. Punitive detention is to punish a person for an offence committed by him after trail and conviction in a court. Preventive detention, means detention of aperson without trail 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. Therefore, preventive detention is only a precautionary measure and based on suspicion.
The Article 22 has is divided into two parts:-
- The first part is about the cases of ordinary law.
- and the second is about the cases of preventive detention law.
Note;- Part first is generally known to all . Now, we discuss about the second part of this article is about the case is preventive detention law.
The second part of this artcile grants protection to persons who are arrested or detained under a preventive detention law. This protection is applicable to both citizens and aliens and including the following:
1. The detention of a person cannot exceed three months unless an advisory board reports suffecient cause for extended detention. The board is to consist of judges of a high court.
2. The ground of detention should be communicated to the detenu. However, the facts considered to be against the public interest need not be disclosed.
3. The detenu should be affouded an funity to make a representation against the detention order.
Article 22 also authorises the Parliament to prescribe:-
(a) The circumstances and the classes of the cases in which a person can be detained for more than three months under a preventive detention law without obtaineding 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.
(c) The precedure 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 legeslatures 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 serveces essential to the community.
