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A Detailed Analysis Of Right Against Arrest And Detention

Right Against Arrest And Detention

  • Article 22 of the Constitution guarantees an arrested person the right to be informed of the grounds for arrest. ( Interestingly Draft Art. 15A was never really a part of the Constitution, it was added subsequently towards the end to compensate for not including Due process clause in Art. 21).
  • to not be denied the right to consult and be represented by a counsel of her choice; and to be produced before the nearest magistrate within twenty-four hours of being arrested.
  • These rights are crucial as it is important for protection of personal liberty which is mentioned in Art. 21, Arrest is a legal process which curtails the liberty that is so guaranteed, this right is imperative to keep checks on police atrocity.
  • The origin of Article. 22 can be dated to the tyranny that our forefathers have been at the receiving end of an oppressing British Yolk.
The article thus guarantees to a person arrested or detained:
  1. Right to be informed of the grounds of the arrest or detention;
  2. to be informed as soon as may be;
  3. right to consult a legal practioner
  4. right to be defended by a legal practitioner;
  5. right to be produced before the nearest magistrate, within a period of twenty-four hours;
  6. right to be released if he is not produced before the nearest magistrate within the said period.

In the International domain, the law of arrest and detention originated with the concept of right to liberty and security. This right to liberty can be traced back to the English Magna Charta (1215).

The Magna Charta had guaranteed the protection only to feudal noblemen and it didn't provide any such safeguards to the others against any arbitrary exercise of their rulers, in cases of arrest and detention
  • The Bill of Rights and the Habeaus Corpus Act also spoke about protection from Arbitrary Arrest.
  • The Article aims to protect the citizens from Arbitrary Arrest & Detention.
  • Violation of right to liberty and security.
  • Miscarriage of justice.
It is pivotal to note that some of these rights were already a part of Criminal Procedure Code and the same has been raised to that of a Constitutional status.

An amendment was suggested by Mr. MV. Kamath to replace the word as soon as maybe with the word Immediately.

MR. MV. Kamath also wanted to introduce a clause stating that the prisoner should be protected from any physical or mental attack.

We are ware of the frequent cases of physical or mental ill-treatment to which detenus were subjected during the British regime, especially during the dark days of 1942 and immediately thereafter. In one or two prisons where I myself was detained, I personally knew of cases, where detenus in C class were beaten mercilessly and also subjected to all sorts of third-degree methods of torture.

There were cases where detenus were given no cloths to wear and were made to shiver in severe cold in a state of nudity, The idea for this was taken from the Bonn Constitution of Germany, there were legitimate concerns of lack of Due process Clause.
  • The Indian Courts have dealt this matter extensively and time and again have spelt out guidelines against arrest and detention.
  • However, the Indian Laws are silent as to the status of the evidence that are collected as a result of the illegal arrest and detention.
  • the Court has understood the law of arrest as requiring a balance between the human rights of an arrestee and protecting societal interest in reducing crime rates.
  • the Court held in Maneka Gandhi Case that any law authorising deprivation of liberty should be 'reasonable, even handed and geared to the goals of community good and State necessity'.

The then existed Criminal Procedure Code provided that the persons to be arrested must be charged with some offence, and the warrant should mention the reasons for the arrest, and should contain a clear accusation against the person sought to be arrested.

Some of the procedural requirements under the Code resemble those under article 22, e.g.
  1. the officer concerned has to take or send the arrested person, without unnecessary delay, before a competent magistrate, or an officer in charge of a police station.
  2. He cannot detain the arrested person in custody for more than twenty-four hours excluding the time necessary for the journey from the place of arrest to the magistrate's court.
  3. He has to report to the district magistrate in all such cases, as well as the fact whether they are bailed out or not
  • The Constitution of India did not define the term "arrest" and it was defined in case of State of Punjab v. Ajaib Singh.
  • The Court defined the term as "indicating physical restraint of a person under the authority of the law in respect of an alleged accusation or default or violation of the law.
  • The Apex Court held that the term Arrest means restraining liberty of a person and hence submitting a person in custody under CrPC amounts to arrest. The Court declared that the term arrest and custody are synonyms. It is a mode of taking a person into custody.
  • Article 21 of the Constitution provides the authority to State to arrest and detain a person, but such detention is according to 'procedure established by law' and the maximum time limit up to which such detention could continue without judicial sanction fixed by Article 22 as 24 hrs.
  • While dealing with Article 22 of the Constitution, Article 21 is very important because arrest and detention deprive a person from his personal liberty.

  • In DK Basu V. State of Bengal, the Apex Court had elaborated various guidelines which are to be followed by the police officials while arresting.
  • The Court insisted on certain things to be necessarily followed by police, these are - on the wearing of proper uniform with visible name tag, preparing a memo of arrest which is compulsorily attested by two witnesses, communicating the information about arrest to the family member, the arrestee should be subject to medical examination every 48 hours during his custody by a panel of approved doctors.
  • The Copies of all the memo of arrest should be submitted to the magistrate.
  • In Joginder Sharma V. UP it was stated that the arrestee shall have the right to inform a friend of the arrest.

NHRC Guidelines

  • 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.
  • 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.
  • 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.

Preventive Detention: A Worm's Eye View

  • The Indian Constitution specifically empowers both the Central and the State Legislatures to pass laws for "Preventive Detention". Entry 9 in List I of the Seventh Schedule to the Constitution empowers the Central Legislature to legislate for matters relating to "preventive detention for reasons connected with Defense, Foreign Affairs, or the security of India" and persons subjected to such detention.
  • Similarly, Entry 3 in List III of the same Schedule confers powers on Central and State Legislatures concurrently to legislate for matters relating to "preventive detention for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community" and persons subjected to such detention.
  • This legislative power stands limited by the Chapter III of the Constitution which guarantees various fundamental rights to persons and / or citizens.3 Unlike other kinds of legislative power, the power to pass preventive detention laws attracts the specific attention of Article 22 of the Constitution.
  • It affords the detainee the right to represent against the detention, and the reason for the detention should also be communicated to him.

Preventive Detention And Examples

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) which provides for preventive detention when it is necessary to prevent smuggling,
the National Security Act, 1980 which provides for preventive detention to secure the defence of India, national security and friendly relations with foreign states, the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Blackmarketing Act) which authorises preventive detention of persons who are likely to disrupt the maintenance of supplies of essential commodities to the community.

These legislations prescribe one year as a maximum time for detaining. The Preventive Detention Act of 1950 was passed within a month of passing of our Constitution.
  1. First, rather than even attempt at trying to demarcate specific kinds of conduct that could empower executive officials to use preventive detention powers, the PDA simply copied the entire Entry from the Legislative lists and retained the broadest possible scope of power.
  2. Second, the PDA did not restrict the use of this power to only senior officials and continued with the colonial policy of allowing even commissioners of police to detain first and seek approval later.
  3. Third, the PDA reduced the level of scrutiny to regulate executive officers using this power from the prevailing colonial standards, by excluding the word "reasonable" as a test for executive satisfaction.
  4. Fourth, the PDA crafted a procedure for deciding representations against detention that gave fewer rights to detained persons than practices from wartime Britain or existing provincial laws in colonial India: There was no right to legal representation for Advisory Board proceedings.
Written By: Shashwata Sahu, Advocate, LL.M., KIIT School of Law

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