Ans. Article 22 of the Indian Constitution provides specific safeguards for individuals who are arrested or detained, particularly under preventive detention laws. These safeguards are designed to protect the rights of individuals and ensure that the power of preventive detention is not misused.

Safeguards for Ordinary Law Arrests

For individuals arrested under ordinary laws, Article 22 confers the following rights:

Right to be informed of the grounds of arrest: The arrested person must be informed of the reasons for their arrest.
Right to consult and be defended by a legal practitioner: The arrested person has the right to consult and be defended by a lawyer of their choice.
Right to be produced before a magistrate within 24 hours: The arrested person must be presented before a magistrate within 24 hours of arrest, excluding the time necessary for the journey.
Right to be released after 24 hours unless the magistrate authorizes further detention: If the magistrate does not authorize further detention, the arrested person must be released after 24 hours.

These safeguards are not available to enemy aliens or individuals arrested or detained under preventive detention laws.

Safeguards for Preventive Detention

For individuals detained under preventive detention laws, Article 22 provides the following protections:

Maximum Detention Period: The detention of a person cannot exceed three months unless an advisory board, consisting of judges of a high court, reports sufficient cause for extended detention.
Communication of Grounds of Detention: The grounds of detention must be communicated to the detained person. However, facts considered against the public interest need not be disclosed.
Opportunity to Make Representation: The detained person must be afforded an opportunity to make a representation against the detention order.

Article 22 also authorizes the Parliament to prescribe:

The circumstances and classes of cases in which a person can be detained for more than three months without obtaining the opinion of an advisory board.
The maximum period for which a person can be detained in any class of cases under a preventive detention law.
The procedure to be followed by an advisory board in an inquiry.

The 44th Amendment Act of 1978 reduced the period of detention without obtaining the opinion of an advisory board from three to two months. However, this provision has not yet been brought into force, so the original period of three months still continues.

Criticism of Preventive Detention Laws in a Democracy

Preventive detention laws are often criticized in democratic societies for several reasons:

Arbitrary Powers: These laws confer arbitrary powers on the state, allowing for the detention of individuals without trial and conviction by a court. This can lead to misuse and abuse of power.
Negation of Individual Liberty: Preventive detention negates the fundamental principle of individual liberty, which is a cornerstone of democratic societies. It allows for the deprivation of liberty based on suspicion rather than proven guilt.
Lack of Judicial Oversight: The absence of immediate judicial oversight in preventive detention cases can lead to violations of human rights and lack of accountability.
Contrary to Democratic Principles: No democratic country in the world has made preventive detention an integral part of their constitution as India has. It is seen as contrary to the principles of democracy, which emphasize the protection of individual rights against state overreach.

In conclusion, while preventive detention laws are intended to protect national security and public order, they are often viewed as repugnant in a democracy due to their potential for abuse and their impact on individual freedoms.

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