Anything arbitrary in nature is against our constitution because when we talk about democracy, arbitrariness is the worst nightmare one can imagine. If the decisions are taken arbitrarily no reasoning for the same has been given then it would no longer be a democracy and it will become a dictatorship rule as this is one of the key differences between the countries with democracy and dictatorship.
A citizen’s rights which are guaranteed in our constitution can only be ensured when there are checks and safeguards on the arbitrary and unreasonable conduct of the government. No person can be punished unless he has done any offence described by any law and the only authority to punish has been given to the judiciary.
According to the Merriam-Webster dictionary, Arrest is defined as “the taking or detaining in custody by authority of law”. Whenever a person is arrested his all rights are get ceased like the right to equality, freedom, right to life and liberty and all, so arrest is an eminently sensitive issue as it has the power to cease one’s rights. So to limit and balance this power of government, one should have safeguards against arrest, every time it is not the person arrested must have done the offence and let’s not talk about the lengthy process of trials in courts that an arrestee has to go through.
“Justice delayed is justice denied”.
There are two reasons and types for detention for which arrests are done:
- Punitive Detention
Punitive detention is the detention which is done to punish a person for an offence committed by him after the trial and the conviction in court.
- Preventive Detention
Preventive detention is detention which is done to prevent the person from committing an offence shortly and not to punish him like punitive detention.
Safeguards against arbitrary arrest
Now let’s see what the provisions are made for arrest and then we discuss the rights against arrest.
Firstly, the Constitution of India under article 22 defines rights against arrest as follows:
“22. Protection against arrest and detention in certain cases.
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply—
- To any person who for the time being is an enemy alien; or
- To any person who is arrested or detained under any law providing for preventive detention.
- *(4) No law providing for preventive detention shall
Authorise the detention of a person for a longer period than three months unless—
- An Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as Indian constitution provides several fundamental rights and as Judges of a High Court have reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or
(b) such a person is detained by the provisions of any law made by Parliament under subclauses (a) and (b) of clause (7).
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts that such authority considers to be against the public interest to disclose.
(7) Parliament may by law prescribe—
*(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board by the provisions of sub-clause (a) of clause (4);
**(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
- the procedure to be followed by an Advisory Board in an inquiry under ***[sub-clause (a) of clause (4)].”
According to Article 22 Rights against arrest are:
- An arrestee has a right to know the grounds of arrest and the police have a duty to tell the same.
- The arrestee has a right to consult and be defended by a lawyer.
- Within 24 hours of arrest, the arrestee must be presented before the magistrate.
- A person can be arrested for a maximum of 3 months under preventive detention but can be extended by Advisory Board.
- But these above-mentioned rights have some exceptions which are described in clauses 22(3)(a), 22(3)(b), 22(6) and 22(7): when the arrestee is an alien enemy when the arrest is done under preventive detention when to disclose the grounds is against the public interest, and parliament has full power to prescribe the circumstances under which the detention can be extended more than 3 months without the permission of advisory board and can make the procedure to be followed by the advisory board in an inquiry order.
Secondly, the Code of Criminal procedure Chapter V deals with the arrest of persons and the procedure to follow while arresting and after that. Specifically, in section 46 of CrPC, it is defined as how an arrest is to be made.
Thirdly, In the D.K. Basu Versus State of West Bengal judgement, the court laid down certain basic “requirements” to be followed in all cases of arrest or detention till legal provisions are made on that behalf as a measure to prevent custodial violence.
The requirements read as follows:
- The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name clear identification and name tags with their designations. The particulars of all such police personnel who handle the interrogation of the arrestee must be recorded in a register.
- That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
- A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up shall be entitled to have one friend or relative or other person know to him or have interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
- The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
- The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or detained.
- An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
- The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee and the police officer affecting the arrest and copy provided to the arrestee.
- The arrestee should be subjected to a medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by the Director, of Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a penal for all tehsils and districts as well.
- Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illega Magistrate for his record.
- The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
- A police control room could be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.”
The court also opined that failure to comply with the above requirements, apart from rendering the official concerned liable for departmental action, would also render him liable to be punished for contempt of court and the proceedings for contempt of court could be instituted in any High Court of country, having territorial jurisdiction over the matter.
As we can see there are many legislations which are trying to provide rights against arrest but there are so many exceptions and loopholes in this legislation, using which the government and authorities override and infringe on the people’s rights. We can take an example of the Sedition law, the Unlawful Activities (Prevention) Act.
Sedition law is also called draconian law by scholars because of its nature and the danger it inflicts on the democracy of India as the person arrested under this sedition, UAPA have no right to bail and usually, we see in the news the accused are acquitted after 40 years,30 years, 20 years because of the slow process of trails and many of them are still in jails without even knowing the charges against them, what about their rights they were in jails in their most precious young age when they can educate, build their career, what is their future now. These questions must be answered. And to reduce the misuse and lack of checks on power there is a need to legislate more efficient laws.
Written By- Nitin Kumar
Lovely Professional University