Article 21A: Right to Education
This was introduced by the Constitution (Eighty sixth Amendment) Act, 2002. According to this, the State shall
provide free and compulsory education to all children of the age of six to fourteen years in such manner as the
State may, by law, determine.
Protection against arrest and detention
Although Article 21 does not impose a limitation on the legislature in so far as the deprivation of life or personaly
liberty is concerned, yet a legislative Act providing for such deprivation is subject to the procedureal safeguards
provided in Article 22 and if it does not provide for any of these safeguards it shall be declared unconstitutional.
However, Article 22 does not apply uniformly to all persons and makes a distinction between:
(a) alien enemies,
(b) person arrested or detained under preventive detention law, and
(c) other persons.
So far as alien enemies are concerned the article provides no protection to them. So far as persons in category
(c) are concerned, it provides the following rights (These rights are not given to persons detained under preventive
detention law).
(i) A person who is arrested cannot be detained in custody unless he has been informed, as soon as he
may be, of the grounds for such arrest.
(ii) Such person shall have the right to consult and to be defended by a legal practitioner of his choice.
(iii) A person who is arrested and detained must be produced before the nearest magistrate within a period
of twenty-four hours of such arrest, excluding the time of journey. And such a person shall not be
detained in custody beyond twenty-four hours without the authority of magistrate.
Preventive Detention
Preventive detention means detention of a person without trial. The object of preventive detention is not to
punish a person for having done something but to prevent him from doing it. No offence is proved nor any
charge formulated and yet a person is detained because he is likely to commit an act prohibited by law. Parliament
has the power to make a law for preventive detention for reasons connected with defence, foreign affairs or the
security of India. Parliament and State Legislatures are both entitled to pass a law of preventive detention for
reasons connected with the security of State, the maintenance of public order, or the maintenance of supplies
and services essential to the community.
Safeguards against Preventive Detention
Article 22 (amended by the 44th Constitution Amendment Act, 1978)1
contains following safeguards against
preventive detention:
(a) such a person cannot be detained for a longer period than three months unless:
(i) An Advisory Board constituted of persons who are or have been or are qualified to be High Court
judges has reported, before the expiration of the said period of three months that there is, in its
opinion sufficient cause for such detention.
(ii) Parliament may by law prescribe 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 the procedure to
be followed by an Advisory Board.
(b) The authority ordering the detention of a person under the preventive detention law shall:
1. The Change proposed by the Constitution (Forty-fourth Amendment) Act, 1978 have not been notified as yet.
(i) communicate to him, as soon as may be, the grounds on which the order for his detention has been
made, and
(ii) afford him the earliest opportunity of making the representation against the order.
It may, however, be noted that while the grounds for making the order are to be supplied, the authority making
such order is not bound to disclose those facts which it considers to be against the public interest.
This was introduced by the Constitution (Eighty sixth Amendment) Act, 2002. According to this, the State shall
provide free and compulsory education to all children of the age of six to fourteen years in such manner as the
State may, by law, determine.
Protection against arrest and detention
Although Article 21 does not impose a limitation on the legislature in so far as the deprivation of life or personaly
liberty is concerned, yet a legislative Act providing for such deprivation is subject to the procedureal safeguards
provided in Article 22 and if it does not provide for any of these safeguards it shall be declared unconstitutional.
However, Article 22 does not apply uniformly to all persons and makes a distinction between:
(a) alien enemies,
(b) person arrested or detained under preventive detention law, and
(c) other persons.
So far as alien enemies are concerned the article provides no protection to them. So far as persons in category
(c) are concerned, it provides the following rights (These rights are not given to persons detained under preventive
detention law).
(i) A person who is arrested cannot be detained in custody unless he has been informed, as soon as he
may be, of the grounds for such arrest.
(ii) Such person shall have the right to consult and to be defended by a legal practitioner of his choice.
(iii) A person who is arrested and detained must be produced before the nearest magistrate within a period
of twenty-four hours of such arrest, excluding the time of journey. And such a person shall not be
detained in custody beyond twenty-four hours without the authority of magistrate.
Preventive Detention
Preventive detention means detention of a person without trial. The object of preventive detention is not to
punish a person for having done something but to prevent him from doing it. No offence is proved nor any
charge formulated and yet a person is detained because he is likely to commit an act prohibited by law. Parliament
has the power to make a law for preventive detention for reasons connected with defence, foreign affairs or the
security of India. Parliament and State Legislatures are both entitled to pass a law of preventive detention for
reasons connected with the security of State, the maintenance of public order, or the maintenance of supplies
and services essential to the community.
Safeguards against Preventive Detention
Article 22 (amended by the 44th Constitution Amendment Act, 1978)1
contains following safeguards against
preventive detention:
(a) such a person cannot be detained for a longer period than three months unless:
(i) An Advisory Board constituted of persons who are or have been or are qualified to be High Court
judges has reported, before the expiration of the said period of three months that there is, in its
opinion sufficient cause for such detention.
(ii) Parliament may by law prescribe 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 the procedure to
be followed by an Advisory Board.
(b) The authority ordering the detention of a person under the preventive detention law shall:
1. The Change proposed by the Constitution (Forty-fourth Amendment) Act, 1978 have not been notified as yet.
(i) communicate to him, as soon as may be, the grounds on which the order for his detention has been
made, and
(ii) afford him the earliest opportunity of making the representation against the order.
It may, however, be noted that while the grounds for making the order are to be supplied, the authority making
such order is not bound to disclose those facts which it considers to be against the public interest.
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