Arbitrary arrest and arbitrary detention refer to the arrest and the detention of an individual in a case where there is neither likelihood nor evidence that the individuals have committed a crime against the legal statute, or where no proper due process of law and order has taken place.
The individuals who are arbitrarily arrested are not shown or explained why they are being arrested and are not shown any arrest warrant . A vast majority of arrests are held incommunicado where the whereabouts of the accused are not disclosed to his family, his associates or the public population. The individuals who are arbitrarily arrested and detained have to face the physical and the psychological torture while they are interrogated.
This research paper places a great deal of emphasis on article 22 of the Indian constitution. The paper also focuses on the rights of an arrested person and a significant number of cases under it. The paper also emphasizes on the power and the procedures used by the police and the impact it has on the fundamental rights. The paper also aims at understanding preventive detention in India and the constitutional sanctions and safeguards.
Keywords: Arbitrary arrest, detention, Safeguards, Preventive detention, rights, procedures
Based on the procedure established by the law, no person should be deprived of his right to life and personal liberty.
Article 21 of the constitution of India has guaranteed this right. The procedural requirements which are implemented by the legislature which have to be met under any law dealing with the deprivation of an individual’s right to life and personal liberty has been specified in article 22 of the constitution. Based on provision contained under article 22 :
(1) No person who is arrested should be detained in custody without being informed of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner who would be of his choice.
(2) Every person who has been arrested and detained in custody should be produced before the nearest magistrate within a period of twenty-four hours of such arrest which excludes the time necessary for the journey from the place of arrest to the court of the magistrate and no such person should be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clause (1) and (2) should apply –
(a) To a person who for the time being is an enemy alien; or
(b) To a person who is arrested or detained under any law which provides for preventive detention.
(4) No law providing for preventive detention should authorize the detention of a person for a period longer than three months unless—
(a) An Advisory Board which consists of persons who are, or have been, or are qualified to be appointed as the Judges of a High Court has reported before the expiration of the period of three months and there is in its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorize the detention to any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or
(b) Such person is detained in according to the provisions of any law made by Parliament under sub clauses (a) and (b) of clause (7).
(5) When any individual has been detained in pursuance of an order which has been made under any law that provides for preventive detention, the authority making the order shall, as soon as may be, communicate to such an individual the grounds on which the order has been made and shall afford him with the earliest opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority which is making any such order as is referred in that clause to disclose the facts which such authority has considered as being against the public interest to disclose.
(7) Parliament may by law prescribe—
(a) the circumstances in which, and the class or classes of cases under which, a person may be detained for a period which extends longer than three months under any law that has provided for preventive detention without obtaining the opinion of an Advisory Board according to the provisions of sub-clause (a) of clause (4);
(b) the maximum period for which any individual may in any class or classes of any of the cases be detained under any law which provides preventive detention; and
(c) The procedure has to be complied with by an Advisory Board in an inquiry under sub-clause (a) of clause (4).
The draft article of 15A was much debated on 15th and 16th September, 1949. It had not been a part of the Draft constitution of 1948. The Chairman of the drafting committee had proposed to insert certain provisions which were almost the same as article 22 with minute differences. It included clause (1), clause (2), clause (3), clause (4) and clause (7) from article 22. The draft article was supposed to provide safeguards for the persons arrested and detained but also at the same time specify the exceptions for the persons who have been subjected to preventive detention.
According to the Chairman of the drafting committee, the draft article of 15A was introduced in order to compensate for dropping “due process” in draft article 15.
This new draft article turned the statutory safeguards into constitutional guarantees for the detainees. It protected personal liberty from the arbitrary arrest and detention. Some individuals were critical of the draft article as it did not go far enough. One of the amendments which were proposed included the necessity of providing the accused with a lawyer of their choice. This amendment was accepted by the Assembly.
Some of the members pointed out that provisions regarding the Advisory board were very vague and did not include guidelines for functioning or safeguards for protecting the rights of the detained persons. Due to this, the Chairman responded by proposing to amen clause (4) which gave the Parliament the power of framing laws and setting out a procedure which was required to be followed by the Advisory board.
This got accepted by the Assembly. The draft article which had been amended was adopted on 16th September, 1949.
Objectives of study
The objectives of this paper are:
1) To highlight the constitutional umbrella over arbitrary arrest and detention and elaborating the rights given to an accused.
2) To understand the recommendations of NPC , NHRC and Law Commission on the law of arrest.
3) To focus on the concept of preventive detention in India with respect to constitutional sanctions and safeguards.
From a bird’s eye view it is important to understand the intricacies of arbitrary arrest and detention.
Persons who undergo arbitrary arrest and detention may be subjected to violence which causes physical and psychological torture. Without a voice, victims of arbitrary arrest and detention remain trapped in prison systems where they might suffer malnutrition, disease as well as abuse. Due to this separation, even the families suffer and they might get into severe economic hardship in case the bread winner of the family has been arbitrarily arrested and detained.
1. When it comes to arrest and detention of a person, what protections come under the umbrella of constitutional provisions?
2. What are the recommendations of NPC, NHRC and Law Commission on the law of arrest?
3. What are the constitutional sanctions and safeguards under the purview of preventive detention in India?
The research methodology used for this research paper is doctrinal research. The focus has been laid on statutes, some of the landmark judgments and other legal sources. Apart from this, secondary sources like articles, books and research papers have also been used.
The literature for the research paper is reviewed under the following headings:
1. “Protection of arbitrary arrest and detention under International Law” by Laurent Marcoux Jr. – Boston College International and Comparative Law review:
This research paper clarifies the extent to which Internal law can protect an individual from arbitrary arrest and detention. Codifying the shared aspirations of mankind in juridical texts has been a difficult task. This paper highlights the historical origin of the concept of freedom against arbitrary arrest and detention in Early European documents like Magna Carta. The paper then provides a detailed explanation of article 9 of the Universal Declaration of Human Rights where the concepts arbitrary, arrest, detention and exile are explained. The objective of the paper is focusing on the personal liberty of a person within a state rather than with their expulsion from a country of which they are nationals.
2. “General principles of Human Rights Law recognized by all nations: Freedom from arbitrary arrest and detention” by Linda J. Maki- CWSL Scholarly Commons:
This paper focuses on the general principles of Human Rights Law by evaluating the Municipal law of the states. The collective responsibility of the nations is promotion of Human Rights on an International level versus the interest of a state in preserving its exclusive jurisdiction in local affairs which is an obstacle to the International development of the Human Rights. The paper also analyzes the municipal laws of different countries to identify the common denominators in the principles of Human Rights Law.
3. “Law of arrest: A study in the context of Constitutional guarantee against arbitrary arrest and detention” by Anupama Singh, National Law University:
This dissertation highlights the evolution of the protection provided against arbitrary arrest and detention. Then it mentions the definitions of the terms under arbitrary arrest and detention. It also focuses on elaborating the law of arrest under the Indian Legal system. Further, it provides an overview of the role of judiciary in developing the law of arrest and detention. Then it emphasizes on the recommendations of the National Police Commission, National Human Rights Commission and Law Commission.
4. “Provisions against arbitrary arrest and detention in India” by Aditi Singh- LexForti Legal News Network:
This article provides a brief introduction about the International Covenant on Civil and Political rights referred as the Covenant which recognizes the rights of arbitrary arrest and detention. Then it provides the meaning of the word arrest which refer to the deprivation of personal liberty under some assumed legal authority. Then the article mentions the right guaranteed under article 21of the constitution and the provision under the criminal procedure code regarding arrest and detention. It also provides an overview of the safeguards under article 22.
5. “Preventive detention laws in India: A tool for executive tyranny” by Jasir Aftab- The Leaflet:
The author of this article by emphasizing the evolution of preventive detention laws in India and jurisprudence of safeguards against their misuse developed by the Supreme Court mentions how the current legal system is unable to prevent their misuse which is done by the executive branch of the State. The author also argues that either the preventive detention laws must be reformed or they should be struck off altogether.
6. “India: Arbitrary detention of several defenders for protesting against the CAA”- International Federation for Human Rights:
The Observatory was informed by reliable sources about the arbitrary detention of seven human rights defenders in Delhi who participated in the peaceful protest against the Citizenship Amendment Act 2019. Two officers from North-east Delhi were arrested. However, they were granted a bail but later on re-arrested by a Special Investigation team. The Observatory condemned the arbitrary detention and judicial harassment of the two officers.
Arbitrary arrest and detention: protection provided under the constitutional umbrella
Of all the rights given to the individuals, right to life and personal liberty guaranteed by the constitution under article 21 is considered to be the most precious right.
If such a sanctity of life and liberty did not exist then there would be no distinction between a lawless society and a society which is governed by laws . The right under article 21 cannot be denied unless there is a procedure established by the law, this procedure must be just and fair which has been held in the case of Menaka Gandhi v. Union of India . Therefore, a procedure denying liberty should be arbitrary and oppressive . There are some safeguards provided within the constitutional umbrella. These safeguards are not available in situations where the arrest and the detention has been undertaken for an alien enemy or relates to any law associated with preventive detention.
Right to be informed about grounds of the arrest
Article 22(1) states that no person who has been arrested should be detained in custody without informing them the grounds of such an arrest. The Supreme court had held in Madhu Limaye case that there was a failure of authorities in informing the grounds of arrest to Madhu Limaye and a then member of Lok Sabha, arrested and detained under preventive detention leading to his release.
Manner of communication of the grounds of arrest
The manner of communicating the grounds of arrest emphasizes that it should be easy to comprehend.
In Harikishan v. State of Maharshtra, Supre,me court held that if the accused is not able to converse in English then the detenue must be made understood the grounds of his arrest in a language he can understand and in a script that he is able to read . The same had been reiterated in the case of Firoz Khan v. State of Manipur that if in case the detenue is illiterate or semi-literate, the ground of arrest should be communicated in a language in which he can read.
The time of the communication of the grounds of arrest
Article 22(1) also states that the grounds of arrest must be communicated as soon as may be. This condition had been acknowledged in the case of Tarapade De v. State of West Bengal even though the Court was not able to find any lack from the side of the authorities for disclosing the grounds of arrest to the appellant in this case. In Sunil Chainani case which was under the Narcotic Drugs and Psychotropic Substances Act, 1985, obligation was discharged when the accused had been apprehended for flushing the white powder in toilet and the police orally communicated the grounds of arrest to the accused.
Grounds of arrest
In the case of Vimal Kishore v. State of Uttar Pradesh , the words “grounds of arrest” were examined under article 22(1) with respect to two situations, one where an individual is arrested with a warrant and the other one where an individual is arrested without a warrant. If the arrest is with the warrant, the reasons for the arrest are mentioned on the warrant and it is read over to the accused at the time of arrest. In case the arrest is without a warrant, the accused should be told that a certain offence has been committed by him because of which he would be placed on the trial. He must be informed about the act committed by him which amounts to an offence.
When is a detention illegal?
According to article 22(1) no person who has been arrested shall be detained into custody without making him aware about the grounds for his arrest. If the person is not informed then the detention becomes invalid or unlawful but it cannot be stated that his initial arrest himself becomes illegal . In the case of Moin Aktar , the Delhi High Court had held that there was no element of illegality in the initial arrest of petitioner as sufficient compliance was there under article 22(1) when he was subjected to the grounds of arrest.
Right to legal counsel
The constitution guarantees a safeguard in article 22(1) against the abuse of executive authority and gives the accused the right to consult and be defended by a legal counsel based on the choice of the accused. An unenumerated right to counsel has also been mentioned in the case of Menaka Gandhi v. Union of India. The Supreme Court also extends the right of legal aid to any person whoever is incapable of engaging a legal counsel due to economic deprivation.
Right to counsel during interrogation
The examining of the right to counsel presents with a question whether the counsel can be present during interrogation or not.
The Supreme Court depended on the Miranda decision while taking a decision in the case of Nnadini Sathpathy v. P.L. Dani and held that the presence of a lawyer during the process of interrogation should be recognized with respect to the context of article 20(3) which includes right to silence. Considering the right to counsel and giving meaning to the right to silence in the case of Selvi v. State of Karnataka the court adopted a similar view. The court in this case held that intrusive methods of interrogation such as narcoanalysis test were unconstitutional if the accused is unable to get access to legal advice.
Right to produce before the nearest magistrate
According to article 22(2) the arrestee has to be produced before the nearest magistrate within 24 hours of such an arrest taking place and no person should be detained without the authority of the magistrate. This safeguard inculcates the applicability of a judicial mind to the arrest in order to determine its legality and pronounce the regularity of procedure which is adopted. The accused after being produced before the magistrate, may be either released on bail or might be remanded into custody. If the accused has been released on bail, the bail bond will ensure his attendance in trial.
Recommendations made by the NPC, NHRC and Law Commission on the Law of Arrest
The National Police Commission has given several recommendations on the necessary exercise of the power to arrest in certain cases. The third report of the National Police Commission61 suggests certain guidelines for making arrests.
It also recommends that that the police ought to justify the arrest made during the investigation of a cognizable case in any of the following circumstances- if the police comes to know that accused gets involved in a grave offence like murder, dacoit, robbery, rape etc and because of this the police feels that he is dangerous to society and is very likely to escape from the grip of law or likely to commit other offences in the near future or is a habitual offender. In such situations, the police can restrain his movement at any cost in order to protect the society from such grave offences. The police officer is also required to record the reason of each arrest in the case diary and any arrest has taken place without the warrant would involve some preliminary investigation to a level.
In the judgment of Joginder Kumar v State of U.P , the Supreme Court recognizes that the power to arrest can only be exercised on reasonable satisfaction and on justifiable as well as reasonable grounds. The court also specifies that the power to arrest should exercised according to the guidelines of N.P.C
The NHRC has provided several recommendations based on guidelines in the case of D.K Basu v. State of West Bengal . These recommendations include that Police officers to bear clear identification and name tags with designations while arresting a person, entries should be made in the diary etc. The recommendations also include that no force should be applied and handcuffs or leg chains can only be allowed if there is there is forcible resistance on the while arrest an accused person. However, minimum force can be used and it should be strictly in accordance with the law. Dignity of individual should be protected at all costs.
NHRC and Law Commission both laid a lot of emphasis on the Supreme Courts guidelines which are given in the above cases. The guidelines include that a person should be immediately be informed about the grounds of his arrest, the grounds must be communicated in a language which he or she understands, any family member or a relative or friend are also required to be informed about the arrest of the accused and its grounds, an entry of the person so informed ought to be made in the diary. These guidelines are also to be included in the Criminal Procedure Code as per the recommendations of the National Human Rights Commission.
The accused should be informed about various rights, such as right to bail, if charged under bailable offence, right to be defended by lawyer of his choice or right to free legal aid at State expense, right to get medical assistance, person to be produced before the magistrate within twenty four hours of his arrest excluding the time taken in the journey etc .
For Implementation of the Guidelines of D.K. Basu Case, NHRC has provided Following Steps to Be Taken:
1. All the safeguards and rights in the context of arrest and detention should be incorporated in a handbook in all languages as possible and distributed to every police station. These rights should be put on notice board of every police station in two languages. For effective implementation it should be required to get publicity through media in both electronic and print form.
2. A Complaint Redressal Mechanism should be set up in every police station under which complaints against the violation of any provision can be lodged and corrective measures can be taken. The notice board which displays guidelines must also indicate the location of the Complaints Redressal Mechanism and the functioning of the Complaint Redressal Mechanism must be transparent and its reports accessible how that body can be approached
3. All the Govt. Organization such as Courts, Hospitals, Universities etc and Non Governmental Organizations should work in collaboration to implement the rights and safeguards and create awareness about these safeguards to the widest possible reach.
4. There is an urgent need for sensitization and training of the police officers and strict action must be taken when there is a violation of these safeguards and police officers are not only liable for departmental inquiries but also for criminal charge levied against him.
As stated above, the right to life and personal liberty is one of the most crucial rights which cannot be violated except by a procedure established by law. The point of contention is whether India is living up with the International standard.
Though the Constitution has provided number of safeguards and statutory law and from time to time Judiciary also keeps an eye on this right to prevent it from being violated. Undoubtedly, India has adopted the International principles for arbitrary arrest and detention and incorporated these principles successfully under the legal system. However, despite of providing so many provisions against arbitrary arrest and detention, India still experiences an arbitrary violation of these rights by the police.
The approach of the Judiciary is monitored while dealing with the cases involving arbitrary arrest and detention under Constitution and Criminal Procedure Code. One of her arguments presented in this regard is that the Judiciary is acting in a very double standard manner as on one hand it talks about Constitutional principles of arrest and detention and on the other hand it talks in very lofty manner about the ideals of Constitution, giving priority to rights of citizens.
When the interpretation of the Criminal Procedure Code is considered, it adopts a different way and rather than insisting on citizen’s rights and lofty ideals, it emphasizes on supporting the State in exercising the power to arrest and adopting State centric approach.
A dichotomy can be observed in the initiative taken by the Judiciary. The Judiciary while complying with the Criminal Procedure Code in cases of arrest and detention is carving out some exceptions. Special treatment is provided to a particular category of person by treating them as special groups. The Judiciary alleges that these special groups should have special privileges with respect to law of arrest which can be described as special procedure to be followed while arresting them by police. From this, it can be interpreted that the Judiciary is making a class distinction. It is not treating all classes alike or counting them on equal footing. It is giving special safeguards to particular categories of the people which is against the principle of equality as provided under Article 14.
C. Research papers:
2. Protection from Arbitrary Arrest and Detention Under Internationa.pdf
3. General Principles of Human Rights Law Recognized By All Nations_.pdf
This article is written by H. Aishwarya of PES University, Ring road Campus.