Preventive Detention

In one line

The State may lock a person up for what it fears he will do, without a charge or a trial, and article 22 both permits that and limits it.

In the wording a student can write in an exam: article 22 contains two distinct sets of guarantees addressed to two different situations, and clause (3) is the switch between them. Clauses (1) and (2) give a person arrested in the ordinary way the grounds of his arrest, a legal practitioner of his choice, and a magistrate within twenty-four hours. Clause (3) then provides that nothing in clauses (1) and (2) applies to an enemy alien or to a person detained under a law providing for preventive detention. Clauses (4) to (7) are all such a person has: a ceiling of three months unless an Advisory Board reports sufficient cause, and the grounds of detention with the earliest opportunity of representing against the order.

Why the Constitution has this at all

Two kinds of detention have to be separated first, and the difference is not one of degree. Punitive detention is imprisonment for something already done: a charge, a trial, a burden of proof on the prosecution and a sentence at the end, which is the process [Article 20: The Protections of an Accused] deals with. Preventive detention is confinement to stop something that has not yet happened. There is no charge and no trial, because there is as yet nothing to try. The detaining authority acts on its own satisfaction that the person is likely to act in a manner prejudicial to some stated interest, so the order is a precaution against the future, not a punishment for the past.

Most constitutions, if they allow such a power at all, leave it to emergency legislation. India's writes it into the chapter on fundamental rights, so a detention law cannot be attacked merely for being one, and the Seventh Schedule distributes the subject between entry 9 of the Union List and entry 3 of the Concurrent List. The guarantee of liberty and the authority to detain without trial sit in the same Part, four lines apart.

The provision, in two halves

Article 22 is headed Protection against arrest and detention in certain cases, and it reads as two documents bound together.

The first half: ordinary arrest

Clause (1): "No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice."

Clause (2): "Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest", excluding travelling time, "and no such person shall be detained in custody beyond the said period without the authority of a magistrate."