Physical liberty is an essential fundamental right ensured by the Article 21 of the Constitution of India[1]. It is the most treasured right for any human being which is the reason why power to arrest is often misused by the police for extorting monies and valuable properties.

According to The National Police Commission's Third Report, 60% of total arrests were uncalled for and were excessive2. The report also states that 42% of the expenditure in the jails was over persons who shouldn’t have been arrested in the first place[2]. The essay will look at laws which give police the power to arrest and its subsequent misuse.

It will also focus on answering whether preventive laws should exist or not. Lastly, it will look at Supreme Court’s stance on this matter with respect to its judgments. Law Commission report on arrests will also be mentioned.

The Legality And The Reality of Arrest Laws

The Chapter V of The Code of Criminal Procedure[3] (hereinafter referred to as the Code) entails the obligations and powers provided to the police when making arrests. Chapter 5 contains section 41 to 603. From these sections, police are vested with various powers such as to arrest a person without a warrant, arrest someone who doesn’t provide his/her name or place of residence, search the place where the arrested person may have entered or believed to have entered, chase the offender to other jurisdictions, search the arrested person and seize offensive weapons and lastly, the power to capture an arrested person if he/she escapes from lawful custody.

It also entails the procedure required to be followed and the duties of an officer while making an arrest. Section 151 of Chapter XI[4] deals with preventive arrests. It empowers police to arrest a person without a warrant or orders from a Magistrate if they believe that such person is about to commit a cognizable offence. These powers are conferred to the police by the Code for the purpose of aiding the police in upholding the law, prevention of crime, punishing the offenders, reassuring the community and pursuance of justice.

While bestowing these powers, the Code also provides the police vast discretion to arrest a person even in a case of a bailable offence, cognizable as well as non-cognizable. This discretion is further extended to making preventive arrests which provides the police with drastic power of arrest which contributes to abuse of power and police corruption in India. This results in miscarriage and obstruction of justice.

This opportunity of misuse of power stems from the generality and vagueness of the language in the Code. Words like reasonable, credible, reasonably and if it appears to such officer in Section 41, 42 and 151 respectively are objective in India but in reality, their usage is quite subjective in nature. Police officers manipulating these sections are rarely proceeded against because of fear of consequences.

Furthermore, there is no in-house mechanism in the department which could keep a check on police misconduct, giving the police an unrestricted freedom to continue such unscrupulous activities2. Not only does this excessive power lead to obstruction of justice and corruption in the police department, it also infringes upon our fundamental rights bestowed to us by the Constitution.

Infringement of Fundamental Rights By Preventative Laws

Section 1514 empowers the police to make arrests without a warrant before a crime is committed. This provision was created during the British rule which has been adapted by the Independent India. It allowed the rulers to make arrest under the mask of reasonable restriction.

It is at the pure discretion of the police to determine whether the accused is designing to commit a cognizable offence[5]. It is clearly a violation of the fundamental rights provided to us by the Constitution1. Preventative arrest is an anticipatory measure for prevention of crime, but it has been continually misused with malicious intent. Under the Code, the maximum amount of time a person can be detained for is 24 hours. But there have been multiple cases where people have been detained for over a year. Police, on occasions, have detained people solely because they belong to certain caste. This is a clear infringement of Article 14[6] of the Constitution.

Hence, preventive arrest questions one’s fundamental rights. The constitutional validity of preventative arrest was questioned in Ahmed Noormohmad Bhatti v. State of Gujarat[7]. A three-Judge bench of the Supreme Court held that a law cannot be held arbitrary for the sole reason that it might be misused by the concerned authority. But on the other hand, Supreme Court has also taken cognisance of the misuse and has questioned the police on their comprehension of public order.

For example, in V. Shantha v State of Telangana and Ors[8], The Supreme Court revoked the preventive arrest under Telengana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders Land Grabbers Act, 1986.

The apex court observed:
An order of preventive detention, though based on the subjective satisfaction of the detaining authority, is nonetheless a serious matter, affecting the life and liberty of the citizen under Articles 14, 19, 21 and 22 of the Constitution…If the power is misused, or abused for collateral purposes, and is based on grounds beyond the statute, takes into account extraneous or irrelevant materials, it will stand vitiated as being in colourable exercise of power.

The power of preventative should only be used in cases where a cognizable offence is about to be committed and there remains no other alternative than to arrest the accused to prevent the crime. But such procedures are not followed and instead, Section 1514 is used for police’s personal gain. For instance, four people were arrested under the section in order to crack down the political support to Sri Lankan Tamils in Chennai[9]. If the laws are misused in such a way, should preventive arrest laws exist? One argument in support of Section 1514 is that India is a multi-religious, multi-lingual country and as a result prone to religious conflict. But this is no justification for police misconduct.

In order to prevent misuse, all preventive arrest laws should carry scope for judicial review to restrict its use. If a person is arrested, then proper evidence should be produced justifying the arrest. Similar position was upheld by the Supreme Court in the case of Prabhu Dayal Deorah v. District Magistrate, Kamrup[10].

The Court observed that if a citizen’s fundamental right is being breached then it is our duty to see if the procedure has been rigorously followed.

Constitution allows for exceptions to fundamental rights, but such exceptions must follow the due process laid down by the law as held in Maneka Gandhi v. Union of India[11].

Supreme Court Decisions And Law Commission Reports

The Supreme Court has taken initiative in the past decade or two in curbing the vast discretionary power of arrest being misused by placing restriction and imposing safeguards. The objective of such restrictions is to curb and regulate misuse and at the same time ensure the discharge of executionary functions by the police.

In Joginder Kumar v State of U.P.[12], the Supreme Court dealt with power of arrest and its exercise. It observed that a realistic approach should be made when balancing individual rights and privileges and the collective rights of the society. The case at hand should decide where the emphasis should be put on, the accused or the society. The court also referred to the judgement of Smt. Nandini Satpathy v P.L. Dani[13].

It agreed that a rivalry exists between the rights of the accused and the interests of a society as a whole. The court also drew a parallel to American jurisdiction where the current trend is placing more emphasis on society’s interest on convicting law-breakers than the protection of the accused. The constitutional rights of the accused are not given much importance when the societal interests are concerned. (Couch v. United States[14]) The Supreme Court suggested that the Indian jurisdiction cannot be absolute in its exercise and should be relative due to increase in crime in recent times. It also mentioned The Royal Commission restrictions on power of arrests.

The ultimate directions given by the court for enforcement of fundamental rights were threefold:

• Firstly, the arrested has the right to have a close friend or relative be informed that he/she is arrested and the location of such detention.
• Secondly, it is the duty of the police officer to inform the arrested person of the above mentioned right.
• Thirdly, an entry should be made in the Diary noting down the person who was informed of the arrest.

It is the duty of the Magistrate to make sure that when the arrested person is reproduced before him, all the guidelines have been conformed with2.

D.K. Basu v. State of West Bengal[15] is another landmark case where the Supreme Court has given an eleven-set of preventive measures which need to be fulfilled in every case of arrest and detention. Failure to comply with these requirements shall result in the offence of contempt of court by the concerned police officer and also culpable to departmental action.

Guidelines prescribed the court included:

• the right of arrested person to contact his lawyer
• right to medically examined every 48 hours
• right to get his/her relative informed about the arrest
•  to be produced in front of Magistrate within 24 hours, memo to be prepared in front of a witness
•  arrest to be recorded in a diary
• the memo and the diary to be shown to the magistrate
• information about the arrest to be communicated to all districts
• the arresting officer is required to have identification and the arrested person to be informed of his right to have someone notified.

These guidelines were passed keeping in mind the increase in illegal arrests and custodial deaths 2.

In conclusion, the question of balancing the rights of the accused and the societal interests at the same time is a complex one. The procedure regarding arrest laws entailed by the Code of Criminal Procedure3 provides the police drastic and excessive power which continues to be misused for personal gain to this day. Illegal arrests not only lead to obstruction of justice, it also infringes upon Article 211 and Article 22[16], fundamental rights provided to everyone under the Constitution.

The Supreme Court has taken cognizance of such misuse of power and increase in prevent arrests and custodial deaths. It has taken steps along with The Law Commission to curb such misuse. The apex court issued guidelines in Joginder Kumar v. State of U.P 6. and D.K. Basu v. State of Bengal10 which every policeman is required to follow while making arrests. To conclude, arrest and preventive laws are necessary for the smooth functioning of the society, but such laws require to be under stricter judicial scrutiny to ensure fair use.

Bibliography

• INDIA CONST. art. 21.
• "Consultation Paper on Law Relating to Arrest". 2001. Law Commission of India.
• The Code of Criminal Procedure, 1973, Sec. 41-60, Acts of Parliament,1973 (India).
• The Code of Criminal Procedure, 1973, Sec.151, Acts of Parliament,1973 (India).
• INDIA CONST. art. 14.
• Ahmed Noormohmed Bhatti V. State of Gujarat (2005), SC 2115 (India).
• V. Shantha v State of Telangana and Ors (2017), SC 2625 (India).
• Gross misuse: on States using 'Goondas Act' The Hindu, https://www.thehindu.com/opinion/editorial/gross-misuse-on-states-using-goondas-act/article18709310.ece (last visited Mar 10, 2019)
• Prabhu Dayal Deorah Etc. Etc vs The District Magistrate, Kamrup & ... (1973) SCR (2) 12 (India).
• Maneka Gandhi vs Union of India (1978) SCR (2) 621 (India).
• Joginder Kumar vs State Of U.P (1994) 1994 SCC (4) 260 (India).
• Nandini Satpathy vs Dani (P.L.) And Anr (1978) 1978 SCR (3) 608 (India).
• Couch vs United States (1972) 409 US 332,336
• Shri D.K. Basu, Ashok K. Johri vs State of West Bengal, State Of U.P (1997) 1 SCC 416 (India)
• INDIA CONST. art. 22.
• Ankul Chandra Pradhan Vs. Union of India (1997), SC 2814 (India).

End-Notes:

1. INDIA CONST. art. 21.
2. Consultation Paper on Law Relating to Arrest". 2001. Law Commission of India.
3. The Code of Criminal Procedure, 1973, Sec. 41-60, Acts of Parliament,1973 (India).
4. The Code of Criminal Procedure, 1973, Sec.151, Acts of Parliament,1973 (India).
5. Ankul Chandra Pradhan Vs. Union of India (1997), SC 2814 (India).
6. INDIA CONST. art. 14.
7. Ahmed Noormohmed Bhatti V. State of Gujarat (2005), SC 2115 (India).
8. V. Shantha v State of Telangana and Ors (2017), SC 2625 (India).
9. Gross misuse: on States using 'Goondas Act' The Hindu, https://www.thehindu.com/opinion/editorial/gross-misuse-on-states-using-goondas-act/article18709310.ece (last visited Mar 10, 2019)
10. Prabhu Dayal Deorah Etc. Etc vs The District Magisrate, Kamrup & ... (1973) SCR (2) 12 (India).
11. Maneka Gandhi vs Union Of India (1978) SCR (2) 621 (India).
12. Joginder Kumar vs State Of U.P (1994) 1994 SCC (4) 260 (India).
13. Nandini Satpathy vs Dani (P.L.) And Anr (1978) 1978 SCR (3) 608 (India).
14. Couch vs United States (1972) 409 US 332,336
15. Shri D.K. Basu, Ashok K. Johri vs State of West Bengal, State Of U.P (1997) 1 SCC 416 (India)
16. INDIA CONST. art. 22.