The Article 22 the 44th Amendment Wrote, and Which Was Never Brought Into Force

Taken together they would convert the Advisory Board from a body chosen by the detaining Government into a body chosen by the judiciary, and would remove the single largest hole in article 22.

Why it has never been brought into force

Because section 1(2) of the Amendment Act left commencement to the Central Government, and the Supreme Court has held that it will not compel the Government to act.

A.K. Roy v. Union of India, AIR 1982 SC 710, is worked in [The Advisory Board in Practice, and A.K. Roy]. Its holding on this point is that the Court could not issue a mandamus obliging the Central Government to bring section 3 into force: Parliament having left the question to the unfettered judgment of the Central Government, it is not for the Court to compel the Government to do what, according to the mandate of Parliament, lies in its discretion to do when it considers it opportune; the executive is responsible to Parliament, which can censure it, and it would be anomalous for the inaction of the executive to have the approval of Parliament while the Court showed its disapproval by mandamus.

The Court nonetheless recorded its unease in terms a student should quote: in leaving commencement to the Government's judgment, Parliament could not have intended that the Government might exercise a kind of veto over its constituent will by never bringing a provision into force; and Parliament having seen the necessity of a provision like section 3, it is not open to the Central Government to sit in judgment over the wisdom of its policy.

That was in 1981, more than two and a half years after the rest of the Amendment had been notified. More than four decades have passed since.

How to state the law in an answer

There is a right way and a wrong way, and the difference is worth marks.

Wrong. "Under article 22(4) as amended by the 44th Amendment, a person cannot be detained for more than two months without the opinion of an Advisory Board headed by a sitting High Court judge."

Right. "Article 22(4) permits detention for up to three months without a favourable report from an Advisory Board of persons who are, have been, or are qualified to be appointed as, Judges of a High Court. Section 3 of the Constitution (Forty-fourth Amendment) Act 1978 would reduce the period to two months, require the Board to be constituted on the recommendations of the Chief Justice of the appropriate High Court with a serving Judge as Chairman, and omit clause (7)(a) altogether; but it has never been brought into force, and the Supreme Court declined to compel its commencement in A.K. Roy v. Union of India, AIR 1982 SC 710."

The second version states the current law, the reform, and the reason the reform is not law. That is a complete answer.

Where the evidence for the proposition is

Not in a textbook. In the Constitution's own official text.

The Legislative Department's diglot edition prints article 22(4) as it stands, and beneath it a footnote beginning "Cl. (4) shall stand substituted by the Constitution (Forty-fourth Amendment) Act, 1978, s. 3 (date yet to be notified) as", followed by the substituted clause in full. It prints similar footnotes against clause (7), recording that sub-clause (a) shall stand omitted by section 3(b)(i) and that sub-clauses (b) and (c) shall stand re-lettered, in each case "(date to be notified)".

A footnote in the official text is the best possible authority for a negative proposition of this kind, and it is worth telling a student where to look.

A worked example

A person is detained on 1 March 2026 under the National Security Act. The reference to the Advisory Board is made on 2 April, the Board reports on 25 May that there is sufficient cause, and the Government confirms the detention on 1 June for twelve months.

Which text of article 22 applies? The text as it has stood since 1950. The recasting by section 3 of the Constitution (Forty-fourth Amendment) Act 1978 was never notified.

How long may he be held before the Board's opinion? Three months, not two. Article 22(4)(a) permits detention beyond three months only where an Advisory Board has reported sufficient cause before the expiry of three months, and here the report of 25 May is within that period.

How is the Board constituted? Under article 22(4)(a) as it stands, of persons who are, have been, or are qualified to be appointed as, Judges of a High Court; the amendment would have required a serving or retired Judge as Chairman and appointment on the Chief Justice's recommendation, and it is not in force.

Would the position differ if the amendment had been notified? Yes in two respects: the outer period would be two months, so a report of 25 May would be too late; and a Board not constituted as the amended clause requires would be no Board at all.

What does a student write? That the amendment exists, that it was never brought into force, that article 22 therefore reads as it did in 1950, and that an answer stating the two month rule as the law is wrong.

What it does NOT mean

It does not mean the 44th Amendment failed. Almost all of it is in force, including the changes to articles 352, 358 and 359 that are the subject of Module II. Only section 3 is outstanding.

It does not mean the Government acted unlawfully. On A.K. Roy, the discretion was Parliament's to confer and it conferred it.

It does not mean the reform is dead. A notification could be issued at any time. Nothing has repealed section 3.

It does not affect the emergency changes. The article 359 amendment that made articles 20 and 21 non-suspendable is section 40 of the same Act, and it is in force.

Quick revision

• Section 3 of the Constitution (Forty-fourth Amendment) Act 1978 substitutes article 22(4) and omits article 22(7)(a).
• Five changes: two months instead of three; Board constituted on the Chief Justice's recommendations; a serving High Court Judge as Chairman; other members serving or retired Judges; and the without-a-Board route abolished.
• Section 1(2) left commencement to the Central Government; every section except section 3 was notified.
• A.K. Roy v. Union of India, AIR 1982 SC 710: no mandamus to compel commencement, but the Government may not veto Parliament's constituent will or sit in judgment on the wisdom of its policy.
• The official text of the Constitution prints the substituted clause in a footnote marked "date yet to be notified". That is the authority to cite.

Test yourself

1. Is the period in article 22(4) two months or three? Three. The two month rule is in section 3 of the 44th Amendment, which has never been brought into force.

2. Who would constitute the Advisory Board under the substituted clause, and who does now? Under the substituted clause it would be constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court, with a serving Judge as Chairman. At present the appropriate Government appoints it under section 9(2) of the National Security Act 1980.

3. Why could the Supreme Court not order the Government to bring section 3 into force? Because section 1(2) of the Amendment Act left commencement to the Central Government's judgment, so on A.K. Roy the Court would not compel by mandamus what Parliament had left to the Government's discretion.

4. What would happen to article 22(7)(a) if section 3 were notified? It would be omitted altogether, sub-clause (b) would become (a) and sub-clause (c) would become (b), so Parliament could no longer authorise detention beyond the period without any Advisory Board.

5. Where can a student verify that section 3 is not in force? In the Legislative Department's official text of the Constitution, which prints the substituted clause (4) and the omissions from clause (7) in footnotes marked "date yet to be notified" and "date to be notified".