Preventive Detention under Article 22

Preventive detention means detention intended to prevent a person from committing a possible future act, rather than to punish a past offence after trial. Article 22 permits preventive-detention laws but subjects detention under them to specific procedural safeguards. These protections differ from those governing arrest in ordinary criminal cases.

Grounds of detention and representation

Under Article 22(5), the detaining authority must communicate the grounds of detention to the detainee as soon as practicable. It must also provide the earliest opportunity to make a representation against the detention order.

• The communication of grounds must be sufficient to make the constitutional right of representation meaningful.
• Under Article 22(6), the authority may withhold facts whose disclosure it considers contrary to the public interest.

Time limit and Advisory Board review

Under the operative Article 22(4), a preventive-detention law generally cannot authorise detention beyond three months unless an Advisory Board reports sufficient cause for continued detention before that period expires.

• The Advisory Board must consist of persons who are, have been, or are qualified to be appointed as High Court judges.
• Even after a favourable Advisory Board report, detention cannot exceed the maximum period permitted by the applicable law and any parliamentary prescription.

Parliamentary regulation and limits of ordinary safeguards

Under Article 22(7), Parliament may prescribe the circumstances and classes of cases in which detention beyond three months may occur without an Advisory Board opinion. Parliament may also prescribe the maximum period of detention and the procedure followed by Advisory Boards.

• Under Article 22(3), the protections in clauses (1) and (2) do not apply to persons detained under preventive-detention laws.
• Thus, a preventive detainee cannot claim under Article 22 the ordinary guarantees of consulting and being defended by a legal practitioner or production before a magistrate within 24 hours.
• Clauses (4) to (7) therefore contain the safeguards specifically applicable to preventive detention.