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Difficulty: HardFundamental Rights, Directive Principles, and Fundamental Duties

With reference to the constitutional safeguards against arrest and preventive detention under Article 22 of Part III of the Constitution of India, consider the following statements:

1. The constitutional safeguard requiring an arrested person to be produced before the nearest magistrate within 24 hours applies equally to punitive detention and preventive detention.
2. Parliament holds exclusive legislative competence to enact laws pertaining to preventive detention for reasons connected with the security of a State and maintenance of public order.
3. The constitutional maximum period for detaining a person under a preventive detention law without obtaining an opinion from an Advisory Board remains three months, as the provision of the 44th Constitutional Amendment Act reducing it to two months was never brought into force.

Which of the statements given above is/are correct?

  1. 3 onlyAnswer
  2. B
    1 and 2 only
  3. C
    2 and 3 only
  4. D
    1, 2 and 3

Answer

Only statement 3 is correct.
Statement 3 is the only correct statement. Under Article 22(4) of the Constitution, a person cannot be held under preventive detention for more than three months without an Advisory Board's recommendation. Although the 44th Amendment Act of 1978 sought to reduce this duration to two months, that specific amendment provision was never brought into force by executive notification. Meanwhile, Statement 1 fails because Article 22(3) deprives preventive detainees of the 24-hour magistrate production right, and Statement 2 fails because state security and public order preventive detention fall under Entry 3 of the Concurrent List, allowing both Parliament and State Assemblies to legislate.

Step-by-Step Solution

1
Analyze Statement 1 regarding procedural safeguards for preventive detention.
Statement 1 is incorrect.
Article 22(3) of the Constitution explicitly states that the protection under clauses (1) and (2)—including the right to be informed of the grounds of arrest, the right to consult a legal practitioner, and the mandate to be produced before a magistrate within 24 hours—does NOT apply to any person arrested or detained under preventive detention laws.
2
Analyze Statement 2 regarding legislative competence for preventive detention.
Statement 2 is incorrect.
Under the Seventh Schedule of the Constitution, legislative power over preventive detention is divided: Parliament has exclusive power under Entry 9 of the Union List (List I) for reasons connected with Defense, Foreign Affairs, or the Security of India. However, under Entry 3 of the Concurrent List (List III), both Parliament and State Legislatures possess legislative power for preventive detention connected with the security of a State, public order, or maintenance of essential supplies.
3
Analyze Statement 3 regarding the enforcement status of the 44th Constitutional Amendment Act.
Statement 3 is correct.
The 44th Amendment Act, 1978 amended Article 22(4) to reduce the maximum period of preventive detention without Advisory Board approval from 3 months to 2 months. However, this section of the Amendment Act was never formally notified by the Central Government, leaving the 3-month period intact in operative constitutional law.

Key Concept

Constitutional safeguards and legislative division regarding Preventive Detention under Article 22
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Topics

Fundamental Rights, Directive Principles, and Fundamental Duties

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