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Unsettled Matter Of Preventive Detention v/s Article 22: A Critical Analysis

The purpose of writing this paper was solely to analyse current democratic situation and its compatibility with preventive detention. This opportunity turned into a holistic learning experience as while working on this I got the chance to learn and gain in-depth knowledge about article 22, preventive detention and their contradictory existence since decades.  The preventive detention laws were inelegantly used by the executives in the past and nothing much has changed in the present too.

The gross misuse and wrongful implementation of such laws not only leaves long lasting mental and physical impact to the detenu and their family but also affects the society at large by creating fear in the minds of people and making them question the authenticity of democracy and reliableness of their constitutional rights.

While winding up the paper it bought me to a conclusion that scrapping the law completely is however not feasible for the government as they have their own concerns about the country's safety otherwise it would've been done till now.  Rather, it is possible that we look forward to introduce certain necessary amendments in article 22 which ends the tag of incomplete code. Adding to it, amendments to restrict its use, to prevent its misuse for accomplishing unlawful purposes and most importantly making provisions for helping the detenu who was wrongfully detained.

Thus, there's a high priority need to make the preventive detention laws compatible with the modern democracy by taking some serious actions otherwise the country will lose its true democratic essence and will put the society in danger. Doctrinal method of research was used while working on this. The article starts with the descriptive explanation of article 22, preventive detention and how it violates the human rights. It includes critical analysis on the implementation of preventive detention.

The supreme law, our Constitution provides certain fundamental rights to the citizens of India in order to protect them and succour them to live with freedom and dignity. One of them is Article 22, the rights embodied in this article are given to an individual under the circumstances of punitive and preventive detention, means, providing protection to people against arrest and detention[1].

The first three clauses that is, neither the person should remain uninformed about their grounds of arrest nor they should be denied the right to be represented 2, any person who is arrested should be brought forward before the magistrate within twenty-four hours; No such person shall be detained for more than twenty-four hours without the magistrate's  permission3 and lastly, the third clause states exceptions that these rights are inaccessible to enemy aliens and to those detained under any preventive detention law4. The first two clauses allude to punitive detention and the safeguards given in those cases.

Punitive detention is arresting a person after he/she has already committed an offence. This kind of detention or arrest is done third clause which draws the most attention by averring that these protections would be inaccessible to those under preventive detention.

As the name says preventive, this kind of detention is a preventive measure priorly and   habitually done on the basis of an executive authority's guts or intuition that a particular person might do something unlawful in the future. The main object of such detention is to protect the state's security and to maintain public order5. Thus, a person who is suspicious in the eyes of the executives may become a detenu.

Doesn't it sound prejudicial? indeed yes. The action of anticipation taken by the authorities is neither reliable nor logically and morally correct as it may include their personal hatred or some other motive. Moreover, in today's democracy arresting somebody on the basis of beliefs, thoughts, intuition or just on reasonable probability6 even without having any evidence that he/ she might do something in the future violates human rights, a person's freedom and calls for many heated debates.

Contrarily, it may become beneficial for the country if there's a serious threat and the grounds are valid with reliable sources but it is absolutely abuse of power and violation of liberty if it's done to suppress somebody's voice or done with political motive.

The clauses four to seven states certain norms for those detained under any preventive detention law like no Person should be kept under preventive detention for more than 3 months until and unless the advisory board says7, the detaining authority must communicate the grounds of such act to the detenu;

The detained person should get a chance to be represented8. Lastly, power is also prescribed to the parliament in order to allow the extension of detention period without seeking the advisory board's opinion in certain class or classes of cases9. The only thing is that, the country is disquieted with the terms class or classes of cases as neither the constitution nor the government defines and classifies them. Moreover, it is not reasonable to guess which class of act would be dangerous in the future and which not.

Preventive detention though may come out to be a helpful tool to protect the country but only in the time of some external aggression/ war or some terrorist activities. Thus, unlike our constitution which allows preventive detention even in peacetime with no justification, most of the other democracies of the world stick to applying preventive detention during emergency only10[2].  The concept of preventive detention still remains a burdensome part and raises substantial queries to the liberty of the individual.

Thus, accepting these laws was a journey full of hardship. However, they're still a part of our constitution even if it's an unfit feature. The scope of writing this paper was to analyse and understand that in the current time where people are becoming more rebellious and aware of their freedom and equal dignity it's high time either to bring certain necessary amendments in the preventive detention laws or scrap them.  

History v/s Present
The preventive detention laws were first introduced in 1950 initially for one year only. But it was extended several times in the form of Maintenance of internal security act 1971, Unlawful Activities prevention act 1967, National security Act 1980 and many more11. Since then, India has managed to never be without preventive detention laws. These laws were inherited from the colonial time and they were like dark shadows covering the luminous country India which believed in equal protection and rights.

It is evident that these laws were fully criticised back then too. Furthermore, The British rulers used preventive detention laws as a tool to suppress who stood against them and after independence our governments or even present government continued to use this as their weapon. Thus, nothing much has changed. Surprisingly, even in this modern democracy instead of coming to a solution for the betterment of people, the government started using these laws more frequently.

In recent times over 5558 people were detained in Uttar Pradesh during the CAA protest.12 The number varied in different states. Not to forget, the most vulnerable phase of democracy was witnessed by the Kashmiris during the time when article 370 was held unconstitutional. This incident was very similar to what British rulers did to our leader by suppressing their voice.  The government immorally booked many political leaders, activists and speakers who they thought would   protest against their decision.

Many eminent leaders, even the chief minister of J&K Mehbooba Mufti was detained by the government.13 Why were such people detained? What harm a chief minister itself would do to the state?  What a strange message would have been conveyed to the rest of the world. They were detained not because the government was sure they would spread hatred or provoke violence but because the government was clearly not open to face criticism and their agitation.

Thus, grossly violated their right to freedom of speech and expression. 14 and the government also made question marks on the notoriety of such people. Not only in Kashmir but the government has acted as a dictator to keep the voices low and hidden of the people who stood just to raise their voice and express their views even if it was through speeches or protest. The government cannot and should not act in such a way till it is peaceful and does not call for violence or go against the country's peace and order.

India being the biggest democracy in the world should not be found internally drained due to loopholes like these. It is the duty of the government to maintain the reputation and esteem of the country and to protect the rights and dignity of the citizens.

They should focus on conveying a positive aspect rather than letting and giving a chance to the international media to fetch that the government itself is indulged into suppressing the voices of young leaders.

For instance, several students like Kanhaiya Kumar, Umar Khalid, Dalit Activist Chandrashekhar Azad, Dr. Kafeel khan were some in the list of people detained by the government without even framing charges against them.15 The only thing common in all the above names is that they were budding leaders and speakers who took a step forward and represented the youth of the country and believed to have equal right in expressing their views.  But just like any other time, the government with the fear of being criticised or as the government says with the fear of violence did not wait much and ultimately their voices were cracked down.

The Politically motivated detentions cost these young leaders their precious years of life and confidence.   The bigger picture of muzzling the voices of such activists and leaders was the authoritative impression of the government, breaking the faith to speak and leading to more fear in the minds of thousands of people who placed confidence and trusted the democracy and lastly, the government playing dirty politics thus, making them lose hope in the judiciary as well.

The detenus are kept as long as the government thinks is right i.e., even beyond the maximum period of three months.  For e.g., Dalit activist Chandrasekhar Azad who was granted bail by the honourable supreme court stating that his detention was politically motivated, but he was further kept into detention for fifteen months under another preventive detention law just because the government wanted to do things their way. 16 This is only one out of many instances of the sinful activities of the executives where they depraved the freedom of the individual by turning blindsided and inhuman for their own motive.

The impact of such brutality is beyond our imagination. One could bear the pain if they really committed any wrongful act. Yet abiding with such physical and mental torture without doing anything and just because the government's intuition for the person was not right is such a heavy trauma to experience and carry for rest of the life. Furthermore, it ruins the reputation of the individual arrested and leaves them in the vicious cycle of fear and future uncertainty.

Imagine living in these conditions, such graceless actions not only leave a long-lasting impact on the mental health of the detenu but also affects their families, the minds and trust of thousands of people who believed in democracy and on their rights given by the constitution. This also shatters the thought of believing in the opportunity of taking a stand for what they thought was right. The inhuman treatment, physical and mental harassment experienced by the people during their tenure of detention cannot be compensated with anything.  The after effects of such incidents may come with serious mental illness, further life and career blurred and unforgettable fear in the mind.

All in all, the executives cannot foolishly continue to use such laws according to themselves until and unless necessary, as it creates a sense of terror among people and affects the society at large. Thus, in order to stay together as a united country, it is important to respect each other's freedom and dignity and further take necessary steps to address the problems faced by such preventive detention laws in order to bring a solution which may be helpful to the society plus take care of the country too.
When we say democracy, it is followed by an important quote By The People, For The People And Of The People. Since, the sole objective of democracy is to work for the benefit of the people, these preventive detention laws should not fit in. Our fundamental rights protect, empower and promote the development of each citizen in every aspect. But still, there are few things that are in desperate need to be taken care of.

The contradictory existence of article 22 and preventive detention laws has been the subject of many debates from a very long time. Curious to think, what made the government continue with these laws even after they were continuously opposed. The high time for doing something in this matter was also a very long time back. Nevertheless, we can still expect something as Reckless implementation of these laws poses constant threat to the people and is a time-consuming process for the judiciary. 17

Article 22 though provides safety regarding arrest matters but it's time to rethink and conclude that it is not a complete code.18 India is achieving several milestones in development and these tiny irregularities cause huge destruction and pulls back the achievements of the country by showing where we lag behind.  Most of us want these laws to be scrapped, but the government has their own concern for the safety of the nation and it is true we cannot just remove them as it is sometimes necessary to use such kind of detention when the country is in danger.

But we could find its alternatives which will not be against the international standards or introduce certain amendments Like, limiting the scope of using these laws during emergency only 19 [1] Further, reducing the power in the hands of executives and giving more to the judiciary itself and letting the apex court take the charge to preserve the true essence of democracy. We could also start with equal punishments if the detainment was used by somebody as their tool to accomplish their own purposes and Importantly, making provisions to provide certain help or compensation to the detenu and to their family. Though any form of monetary compensation cannot cover the distress faced by them but we can try to introduce some rehab centres or any medical help centres if the detenu has faced certain mental and physical harassment even after being innocent.  
Concluding, these preventive detention laws are clearly abuse to humanity. No such law should remain if they in any form interrupt with the freedom and dignity of the individual. At last, the constitution should get rid of this dark cloud and free the people from the fear by either making it more adjustable by amendments or by totally scrapping it as for now because it does not, at all suit the criteria of democracy.

  1. The constitution of India, art. 22
  2. The constitution of India, art. 22
  3. The constitution of India, art. 22
  4. The constitution of India, art. 22
  5. The constitution of India, art. 22
  6. The constitution of India, art. 22
  7. The constitution of India, art. 22
  8. The constitution of India, art. 22
  9. The constitution of India, art. 22
  10. Shah Ishfaq, Preventive detention Legal service India. (2019)
  11. J.N. Pandey, The constitutional law of India,154,155 (Central Law Agency, Allahabad, 10th edn., 1980)
  12. Naman Jain, Rowlatt Act in disguise: The Preventive Detention laws in India, The Law Blog, (2020)
  13. Ravi Nitesh, Democracy is not about detention and suppressing dissent, The Kashmir Times, 8/11/2020, available at,
  14. The constitution of India, art. 19
  15. Naman Jain, Rowlatt Act in disguise: The Preventive Detention laws in India, The Law Blog, (2020)
  16. Naman Jain, Rowlatt Act in disguise: The Preventive Detention laws in India, The Law Blog, (2020)
  17. Naman Jain, Rowlatt Act in disguise: The Preventive Detention laws in India, The Law Blog, (2020)
  18. J.N. Pandey, The constitutional law of India,154,155 (Central Law Agency, Allahabad, 10th edn., 1980) 
  19. Harshit Sharma, Preventive Detention: An Evil Of Article 22, Journal on contemporary issues of law, VOL.3 ISSUE 11 (2017)
Written By: Amrita Talwar, BBA LLB (1st Year) - University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University, Dwarka.
Email: [email protected], Ph no: 704275252

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