Preventive Detention

Three rights: to be told why, to a lawyer, and to a magistrate in twenty-four hours.

The switch

Clause (3): "Nothing in clauses (1) and (2) shall apply, (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention."

This is the sentence students get wrong, and getting it wrong wrecks the answer. Clause (3) does not qualify the first half. It removes it. A detenu has no article 22 right to a lawyer of his choice and none to be produced before a magistrate, because the clauses conferring them do not reach him.

The second half: preventive detention

Clause (4) sets the ceiling: "No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported", within those three months, "that there is in its opinion sufficient cause for such detention", or the person is detained under a law made by Parliament under clause (7).

Clause (5) is the real protection: "the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."

Clause (6) takes part of it back: nothing in clause (5) requires the authority "to disclose facts which such authority considers to be against the public interest to disclose." Clause (7) empowers Parliament to prescribe the circumstances and classes of cases in which detention may exceed three months without a Board, the maximum period, and the Board's procedure.

The amendment that never started. Section 3 of the Constitution (Forty-fourth Amendment) Act 1978 was to replace clause (4), cutting three months to two and requiring a Board recommended by the Chief Justice of the appropriate High Court and chaired by a serving Judge. The official text as on 1 May 2026 still prints that substitution as "date yet to be notified". Clause (4) above is the law.

What the Court will and will not read into article 22

Facts. A.K. Roy v. Union of India, AIR 1982 SC 710, 1982 SCR (2) 272, decided 28 December 1981 by a Bench of five. Roy, a member of Parliament, was detained under the National Security Ordinance 1980, later the National Security Act 1980, for activities prejudicial to public order. Petitioning under article 32, he argued that the Advisory Boards under section 9 were bad because the Forty-fourth Amendment had not been notified, and that a detenu may be represented by a lawyer before the Board.

Held. Since section 3 of the Forty-fourth Amendment was not in force, "Article 22(4) in its unamended form will continue to be a part of the Constitution", and the Boards fell to be tested against clause (4) as it stands; nor would the Court order the Government by mandamus to notify the amendment. On the lawyer: "the right to consult and to be defended by a legal practitioner of one's choice, which is conferred by clause (1), is denied by clause (3)(b) to a person who is detained under any law providing for preventive detention."

The Court then read a set of requirements out of articles 21 and 14. If the detaining authority appears before the Board with a lawyer, denying the detenu one "would be in breach of Article 14". He may be assisted by a friend who is not a practitioner, since he may be "tongue tied, nervous, confused or wanting in intelligence". He may lead evidence in rebuttal, though not cross-examine. His household must be told in writing of the order and the place of detention, and he should be held near his own residence, segregated from convicts, and treated consistently with human dignity.

Why it matters. It shows where the line falls. What article 22 expressly denies, a court will not restore by invoking natural justice: the lawyer is refused because clause (3)(b) refuses him. What article 22 is silent about, a court fills from article 21 as read after [Article 21: From Gopalan to Maneka], because the procedure attendant on detention must be fair, just and reasonable.

Where the reading of article 22 began

Facts. A.K. Gopalan v. State of Madras, 1950 AIR 27, 1950 SCR 88, decided 19 May 1950 by a Bench of six. Gopalan, detained under the Preventive Detention Act 1950, petitioned under article 32 for habeas corpus.

Held. The Act, except section 14, contravened no article. Section 14, which forbade a detenu to disclose the grounds of his detention to the court, offended clause (5) and was void, but was severable. On clauses (4) and (7), the majority held that Parliament may prescribe either the circumstances or the classes of cases in which detention may run beyond three months without a Board; Fazl Ali and Mahajan JJ. dissented, holding both were required.

Why it matters. Gopalan also held that article 19 has no application to a law relating directly to preventive detention, so a detention statute answered to article 22 alone. That reading, discussed in [Article 21: From Gopalan to Maneka], made the second half of article 22 the whole of a detenu's protection.

What happens when even that is suspended

Facts. Additional District Magistrate, Jabalpur v. S.S. Shukla, 1976 AIR 1207, 1976 SCR 172, decided 28 April 1976 by a Bench of five, during the Emergency, when a Presidential order under article 359(1) suspended the right to move any court to enforce article 21.

Held. By four to one, "no person has any locus standi to move any writ petition under Art 226 before a High Court for habeas corpus" to challenge a detention order as illegal or mala fide, because "Article 21 of the Constitution is the sole repository of rights to life and personal liberty against State."

Why it matters. Article 22's safeguards are worth only as much as the remedy enforcing them. Khanna J. dissented, holding that even without article 21 the State has no power to take life or liberty "without the authority of law". His view is now treated as correct, and the Forty-fourth Amendment made article 21 non-suspendable in an Emergency.

The distinction that carries the marks

A worked example

Farida is served with an order of detention under a preventive detention statute. Five days later a document headed "grounds" says she has been acting in a manner prejudicial to public order. No incident, date or place is given. She asks for the police reports behind the order, and for a lawyer before the Advisory Board. Both are refused.

Step one, which half of article 22 applies? The second. Clause (3)(b) removes clauses (1) and (2) the moment the detention is under a preventive detention law, so the twenty-four hour rule and counsel of choice are not available to her at all.

Step two, was clause (5) complied with? It requires the grounds "as soon as may be" and "the earliest opportunity of making a representation against the order". Unexplained delay is the classic reason such an order fails, and this is her strongest point: no representation is possible against an allegation with no particulars. Vague grounds defeat the right clause (5) confers, so they are attacked as a breach of that clause, not as an error of fact.

Step three, the documents and the lawyer. Clause (6) protects the authority only as to "facts which such authority considers to be against the public interest to disclose." It does not licence a blanket refusal, and the authority must have applied its mind to each item withheld. As to the lawyer, on A.K. Roy she has none, unless the Government itself appears through a legal practitioner or adviser; she may in any event be assisted by a friend.

Step four, the ceiling and the remedy. Unless the Board reports sufficient cause within three months, clause (4) forbids further detention; the maximum after confirmation is whatever the statute fixes, and section 13 of the National Security Act 1980 sets it at twelve months. Her remedy is habeas corpus under article 32 or 226, in which the court asks not whether she is dangerous but whether a competent authority made the order on a permitted ground, whether clause (5) was complied with, and whether the Board reported in time.

What it does NOT mean

It does not mean preventive detention is unconstitutional. The Constitution authorises it, and an answer arguing that it violates article 21 without confronting article 22 has argued against the text.

It does not mean the court reviews the grounds. The satisfaction is the detaining authority's and its sufficiency is not justiciable. What is justiciable is whether there was a ground of the kind the statute allows, whether it was communicated, whether it could be answered, and whether the machinery was followed. Orders are quashed for delay, vagueness and non-application of mind, almost never for being wrong.

It does not mean three months is a maximum. It is the point beyond which a Board's report becomes necessary; the maximum is whatever the statute fixes under clause (7)(b). Nor did the Forty-fourth Amendment shorten it: section 3 of that Act has never been notified, and a student who writes that the period is now two months is stating a provision that has not commenced.

Quick revision

• Article 22 is two documents in one. Clauses (1) and (2): arrest. Clause (3): the switch. Clauses (4) to (7): preventive detention.
• Clause (3)(b) removes counsel of choice and the twenty-four hour rule from a detenu altogether, rather than limiting them.
• Clause (4): no detention beyond three months without an Advisory Board of persons qualified to be High Court Judges.
• Clause (5) is the working safeguard: grounds as soon as may be, and the earliest opportunity of making a representation. Clause (6) allows facts to be withheld in the public interest. Clause (7) is Parliament's power to go beyond three months and fix the maximum.
• The Forty-fourth Amendment's substituted clause (4), two months and a serving Judge as Chairman, has never been notified.
• A.K. Roy: no lawyer, because clause (3)(b) says so, unless the State has one; but a friend's help, rebuttal evidence, notice to the family, segregation and dignity in custody, all read in through article 21.
• Gopalan: clause (7) is satisfied by prescribing either the circumstances or the classes of cases; section 14 of the 1950 Act was void for offending clause (5).
• ADM Jabalpur: with article 21 suspended, no habeas corpus at all, Khanna J. dissenting.
• MU set this at question 4 of both 2018 papers, QP 33855 and 33856, printing it as "Prevention Detention".

Test yourself

1. Set out the structure of article 22 and explain the effect of clause (3).

2. A detenu asks to be represented by counsel before the Advisory Board. Answer him, then say when the answer changes.

3. What does clause (5) require, and why is a vaguely worded ground a breach of it rather than merely a weak case?

4. Is three months the maximum period of preventive detention? Explain by reference to clauses (4) and (7).

5. On what grounds will a court set aside a detention order, and on what grounds will it refuse?