top of page

AN OVERVIEW OF SAFEGUARDS AGAINST ARBITRARY ARREST AND DETENTION

Abstract

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


Introduction

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.


Research Problem

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.


Research questions

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?


Research methodology

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.


Literature review

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.


Analysis