The Rights of the Accused Person in India

Avik Chakravorty

PREVENTIVE DETENTION is a right of the indicted according to the Indian Constitution 

Under Article 22 of the Indian Constitution custodial detention without informing the detainee at the earliest what the basis for the arrest might be is a violation of the rights of the accused person in India. It's, therefore, neither permissible nor shall the person be denied his right to find a lawyer for consultation purposes and be defended by the legal counsel or any of the criminal lawyers in India of the person’s liking.

Clauses (1) and (2) will not apply to anyone as of now to persons detained or arrested regardless of the law that would provide for preventive detention.

There isn’t any law that would make preventive detention permissible authorizing detention for three months or more. The exception to the rule is -

Persons of an advisory board with the requisite qualifications to be appointed as High Court judges have reverted prior to the expiry of the stipulated period with its considered opinion that the probable cause of detention is valid. Except that this clause shall not authorize detention extending the specified term by any Parliamentary law.

Detention of persons pursuant to a legal mandate permitting and authorizing preventive detention, shall, on a priority basis, convey to the person the basis of the order that has been passed or authorized and shall give him the opportunity at the earliest of representing opposing the order.

Preventive detention means the detention of a person without trial in such circumstances that the evidence before the authority is not sufficient to make out a legal charge or to secure the conviction of the detainee by legal proof, but still may be sufficient to justify his detention. The object of preventive detention is to prevent a person from doing something. No offense is proven, nor is the accused charged and the justification is suspicion or reasonable probability and not criminal conviction which only can be warranted by legal evidence. The object of the framers of the Constitution to give Constitutional status to preventive detention was that though they recognized the need for such laws, they wanted to provide safeguards to prevent abuse of power. The procedural requirements are mandatory and any violation would render the detention invalid.

Similar to IPC Section 498A which is often misused by female spouses falsely accusing their male counterparts of domestic violence leading to frivolous lawsuits, there are certain rights of the accused person in India which one ought to be aware of for protecting oneself. A must-read to know how to protect yourself against IPC Section 498a? to be aware of your rights and how you can legally enforce your rights in this regard.

For expert advice in this regard or if you have any legal queries or concerns you can find a lawyer at


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