Article 22 Read Whole

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.

Clause (4). 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 before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention, provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).

Clause (5). When any person is detained in pursuance of an order made under any law providing for preventive detention, 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). Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.

Clause (7). Parliament may by law prescribe (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).

The shape of the article in one view

Read that table downwards and the design is plain. Clause (3) is the hinge. Everything before it is the ordinary law of arrest; everything after it is a separate and weaker regime for a person against whom nothing has been alleged as an offence.

The three things this article does that matter most

It makes preventive detention constitutional. Once article 22(3)(b) speaks of "any law providing for preventive detention", the existence of such laws is assumed by the Constitution. A challenge to a detention statute can therefore never be that preventive detention is as such unconstitutional. It has to be that this statute, or this order, fails some condition.

It supplies the conditions. The three month rule, the Advisory Board, the communication of grounds and the opportunity to represent are constitutional requirements, not statutory concessions. Parliament cannot take them away by ordinary law, and a detention statute that omitted them would be void.

It leaves a hole in clause (7)(a). Parliament may prescribe circumstances in which a person may be held longer than three months without obtaining the opinion of an Advisory Board at all. That is the widest gap in the article, and [Article 22(7): What Parliament May Prescribe] shows what has and has not been done with it.

The amendment that was passed and never brought into force

This is the single most commonly misstated fact in the subject, and the official text itself records it.

Section 3 of the Constitution (Forty-fourth Amendment) Act 1978 substitutes clause (4) with a new clause reducing three months to two months, requiring the Advisory Board to be constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court, and requiring its Chairman to be a serving Judge of that High Court. The same section omits sub-clause (a) of clause (7) altogether, which would remove the power to detain beyond the period without any Board at all.

The Legislative Department's print carries these as footnotes reading, in terms, "(date yet to be notified)" and "(date to be notified)". They have never been notified. The old clauses are the law today.

An answer that states the two month rule as the current position is wrong, and it is wrong in a way an examiner will notice, because the point is precisely the kind of thing an LL.M. paper on this subject is testing. [The Article 22 the 44th Amendment Wrote, and Which Was Never Brought Into Force] works through what the amendment would do and why it matters that it has not.

A worked example running through the whole article

Farida is picked up in Pune on 3 March.

If she is arrested on suspicion of an offence, clauses (1) and (2) apply. She must be told the grounds of her arrest as soon as may be; she may consult and be defended by a lawyer of her choice; and she must be produced before the nearest magistrate within twenty four hours, excluding travelling time. Those constitutional requirements are worked out in ordinary law by sections 47 and 58 of the Bharatiya Nagarik Suraksha Sanhita 2023.

If instead the State Government makes an order under section 3 of the National Security Act 1980, clause (3)(b) switches all of that off. She need not be produced before a magistrate at all, and the constitutional right to counsel in clause (1) does not apply to her.

What she gets instead is clause (5): the grounds on which the order was made, communicated as soon as may be, and the earliest opportunity of making a representation. Clause (6) allows the authority to withhold facts it considers against the public interest to disclose. Under clause (4) she cannot be held beyond three months unless an Advisory Board has reported sufficient cause before those three months expire.

And the ordinary law adds to that. Section 8 of the National Security Act requires the grounds to be communicated ordinarily within five days, and sections 10 to 12 govern the reference to the Board and the confirmation of the order. Those are statutory, not constitutional, and Parliament could change them; the clause (4) and (5) requirements it could not.

What it does NOT mean

Clause (3) does not put the detenu outside Part III. It disapplies clauses (1) and (2) of article 22, and nothing else. Articles 14, 19, 21 and 32 continue to apply. That was not obvious in 1950, and [A.K. Gopalan and the Compartment Theory] explains why, but it has been settled since 1978.

Clause (5) is not a right to be told the evidence. It is a right to be told the grounds. The difference, and the extent to which the material relied on must nonetheless be supplied, is worked in [The Documents Relied On, and the Right to an Effective Representation].

The Advisory Board is not a court. It does not try anything, it does not take evidence in the ordinary sense, and the detenu has no right to be represented before it by a lawyer. [The Advisory Board in Practice, and A.K. Roy] takes that up.

Article 22 is not the only source of a detenu's protection. A great deal of what actually protects a detenu today comes from article 21 as read after 1978 and from the courts' insistence on the quality of the satisfaction and the grounds. The article is the floor.

Quick revision

• Article 22, marginal heading: protection against arrest and detention in certain cases.
• Clauses (1) and (2): grounds of arrest, counsel of choice, magistrate within 24 hours excluding journey time.
• Clause (3): those two clauses do not apply to an enemy alien or to a preventive detainee. This is the hinge.
• Clause (4): no detention beyond three months unless an Advisory Board of High Court Judges, serving, former or qualified, reports sufficient cause before the three months expire.
• Clause (5): communicate the grounds as soon as may be, and afford the earliest opportunity of representation.
• Clause (6): facts against the public interest need not be disclosed.
• Clause (7): Parliament may allow detention beyond three months without a Board, fix a maximum period, and prescribe the Board's procedure.
• The 44th Amendment's substitute clause (4), two months and a serving Judge as Chairman, has never been notified.

Test yourself

1. Which clause of article 22 is the hinge of the whole article, and why? Clause (3). It switches off clauses (1) and (2) for an enemy alien and for a preventive detainee, and everything after it exists because of that withdrawal.

2. A detention statute provides that a person may be held for six months without any reference to an Advisory Board. Is it valid? Only if Parliament has made it under article 22(7)(a), which permits prescribing the circumstances and classes of case in which detention beyond three months without a Board is allowed. A State legislature could not do it, and a Union law that did not purport to act under clause (7)(a) could not either.

3. Is the three month period in clause (4) now two months? No. The 44th Amendment's substitution has never been brought into force; the official text prints it in a footnote marked "date yet to be notified". Three months remains the constitutional limit.

4. Does a preventive detainee have a constitutional right to a lawyer? Not under article 22(1), which clause (3)(b) disapplies. Whether one arises from article 21 or before the Advisory Board is a separate question, answered in [The Advisory Board in Practice, and A.K. Roy].

5. Name the two safeguards in clause (5) and say who owes them. Communication of the grounds on which the order has been made, and the earliest opportunity of making a representation against the order. Both are owed by the authority making the order.