Which of the following statements with regard to preventive detention

Which of the following statements with regard to preventive detention in India is / are correct ?

The detenu has no rights other than those mentioned in clauses (4) and (5) of Article 22 of Constitution of India
The detenu has a right to challenge the detention order on the ground that he was already in jail when the detention order was passed
The detenu can claim bail on the ground that he has been in prison beyond twenty-four hours without an order of the magistrate

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1 and 2 only

2 only

3 only

1, 2 and 3

Answer is Right!

Answer is Wrong!

This question was previously asked in

UPSC CDS-1 – 2016

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Statement 1 is incorrect because a detenu has rights beyond Article 22(4) and (5), such as the right to challenge the detention order itself in court on grounds like vagueness of grounds, malafide intent, or exceeding the powers given by the law. Statement 3 is incorrect because Article 22(2), requiring production before a magistrate within 24 hours and the right to bail, applies to ordinary arrests, not preventive detention (as per Article 22(3)). Statement 2 is correct. A preventive detention order can be challenged if the person is already in custody and the grounds are not fresh or relevant to preventing future prejudicial acts after release. The Supreme Court has held that preventive detention cannot be used to keep a person in custody who is already in jail under normal law unless there are compelling fresh reasons.

Preventive detention is distinct from punitive detention; constitutional safeguards under Article 22, particularly clauses (4) and (5), apply, but not all rights applicable to ordinary arrest/detention (like mandatory production before magistrate within 24 hours) are available. The detention order can be challenged in court on various grounds.

Article 22(4) states that no law providing for preventive detention shall authorize detention for more than three months unless an Advisory Board has reported sufficient cause. Article 22(5) grants the detenu the right to be informed of the grounds of detention and to make a representation against the order.

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