This article 22 offers protection to individuals who have been arrested or detained. Thus, Article 22 becomes relevant only after a person or group has been arrested or detained, not prior to that. It is essential to recognize that Article 21 and Article 22 complement one another. 

Types of Detention

• Punitive detention: This form of detention aims to punish a person for a crime they have committed, following a trial and conviction in a court of law.
• Preventive detention: This involves detaining an individual without trial and conviction by a court. Its goal is not to punish someone for a past crime but to prevent them from committing an offense in the foreseeable future. Therefore, it serves merely as a precautionary measure based on suspicion. 

Rights Given Under Punitive Detention

Rights Granted Under Punitive Detention Article 22 (1) provides several rights to a person arrested or detained under standard law: 

• Right to be informed of the grounds of arrest: Upon being arrested, a detained person has the right to understand the reasons for their arrest. This information is necessary for them to defend themselves and prepare for their trial or request bail.
• Right to consult and be defended by a legal practitioner: The police cannot refuse an arrested person the opportunity to consult or meet with a legal practitioner (like an advocate, counselor, etc.) of their choosing. In the Hussainara Khatoon case, the Supreme Court ruled that “If an accused cannot afford a legal practitioner, they have the right to request free legal representation from the state.” This case highlights the right to free legal aid, which is also referenced in Article 21..

Article 22 (2) grants the following rights to individuals who are arrested or detained under standard law: 

• Produced before a magistrate: Individuals have the right to be brought before a magistrate within 24 hours, not including travel time. 
• Right to be released: There is a right to be released after 24 hours, unless the magistrate allows for further detention.

Article 22(3) outlines exceptions to the protections against punitive detention. According to this provision, these safeguards do not apply to: 

• Any person currently regarded as an enemy alien or 
• Any person detained or arrested under a preventive detention law.

Supreme court ruling: The Supreme Court clarified that the arrest and detention mentioned in the initial part of Article 22 do not pertain to arrests made under court orders, civil arrests, arrests for non-payment of income taxes, or the deportation of an alien. These provisions are applicable only to acts of a criminal or quasi-criminal nature or activities harmful to public interest. 

Protection in case of Preventive Detention

The second segment of Article 22 offers protection to individuals who are arrested or held under a preventive detention law. This protection applies to both citizens and non-citizens and encompasses the following aspects: 

• Period of detention: Article 22 (4) states that no legislation permitting preventive detention shall authorize holding an individual for longer than three months. To extend an individual’s detention beyond the three-month period, permission from an advisory board, including a high court judge and other members, is required.
• Rights of detenu: Article 22 (5) ensures specific rights for a person detained under preventive detention law. 
  • Reason for detention: The reasons for the detention must be communicated to the detainee. However, the facts deemed contrary to public interest do not need to be revealed.
  • Opportunity to make representation: The detainee should be given the chance to make a representation against the order of detention. 
• Exceptions: Article 22 (6) clarifies that nothing in clause 5 obligates the authorities issuing the detention order to reveal information they consider to be against public interest. 
• Powers of Parliament: Article 22 (7) grants Parliament the authority to define the following: 
  • Extension of detention: The scenarios and categories of cases in which an individual may be held for over three months under a preventive detention law without seeking the advisory board’s opinion; 
  • Maximum period: The maximum duration for which a person can be detained in any category of cases under a preventive detention law; and 
  • Procedure for inquiry: The process that an advisory board should follow during an inquiry. 

Authority to make law on preventive detention

• Provisions in the 7th schedule: Under the 7th Schedule of the Indian Constitution, the legislative power with regard to preventive detention has been divided between the Parliament and the state legislatures. 
• Exclusive power of Parliament: The Parliament has exclusive authority to make a law of preventive detention for reasons connected with: Defence, Foreign Affairs and The security of India.
• Concurrent power: Both the Parliament as well as the state legislatures can concurrently make a law of preventive detention for reasons connected with: The security of a state, maintenance of public order and maintenance of supplies and services essential to the community. 

Relevant Supreme Court Judgements

• Ahmed Noor Mohamad Bhatti vs State of Gujarat, 2005: A three-Judge Bench of the Supreme Court upheld the validity of the power of the Police under section 151 of the Criminal Procedure Code 1973. According to Section 151 a person can be arrested and detained without a warrant to prevent the commission of a cognizable offence. The court opined that, this preventive detention act is a necessary tool in the hands of the executive which authorises them to arrest any person from whom reasonable suspicion arises that he can commit any cognizable offence or his activities are prejudicial to law and order to state and the police can arrest that person without warrant.

• Rekha vs State of Tamil Nadu, 2011: In the case, the Supreme Court of India stated that Prevention detention is, ordinarily, repugnant to democratic ideas. The court held that, in a case of preventive detention, the laws should be strictly interpreted, as the detained individual is not entitled to hire a lawyer to present his case before the detaining authorities. Also the order for preventive detention is merely passed on the basis of suspicion, it is not always backed by any kind of evidence or proof of guilt. 
• V. Shantha vs State of Telangana, 2017: The court held that the preventive detention laws are not an alternative to normal legal processes.
• Shaik Nazneen vs The State of Telangana, 2022: In June 2022, while hearing this case, the Supreme court bench opined that preventive detention cannot be used to counter ordinary law and order situations. It is an “exceptional power” of the State which affects the personal liberty of the individual and has to be employed sparingly.