Aditi Singh | Army Institute of Law, Mohali | 1st October 2020
Introduction
The International Covenant on Civil and Political Rights (hereinafter referred to as ‘the Covenant’) recognizes the rights against arbitrary arrest and detention. Article 9 of the Covenant states that, “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.”[1] It also recognizes the rights of individuals subjected to such unlawful processes, entitled to take proceedings before a court to be determined without delay[2] and the right to compensation[3]. Furthermore, the Universal Declaration of Human rights also mentions the same as, “No one shall be subjected to arbitrary arrest, detention or exile”[4].
Herein, it’s pertinent to note that while elaborating on the concept of arbitrary arrests, it’s also imperative to emphasize on ‘liberty’. Liberty in general terms is freedom from unreasonable physical restrictions and coercion whereas Dicey defined it as, “a right, not to be subjected to imprisonment, arrest or other physical coercions in any manner that doesn’t admit legal justifications.”[5]
Legal systems around the world focus massively on the right to liberty; India, guarantees the same. The right to personal liberty is a fundamental right provided by the Constitution of India (hereinafter referred to as ‘the Constitution’), granted under Article 21. It mandates that, “No person shall be deprived of life or personal liberty except according to procedure established by law”[6]. Therefore, it’s clear that nobody has the authority to infringe any individual’s right to liberty unless it’s through lawful measures in accordance with the ‘procedures established by law’.
Arbitrary Arrest: Meaning
The word ‘arrest’ implies deprivation of personal liberty under some real or assumed legal authority[7]. In a particular situation there’s always a necessity for the apparent exercise of power i.e. of taking another person into custody, is done by an appropriate legal authority. Such suitable authority is said to arrest the individual, although it’s not necessary that the arrest might be lawful. Since personal liberty is a basic human right, therefore, it is a mandatory requirement for arrests to be permitted only in cases wherein it’s absolutely necessary and lawful. Therefore, in common parlance the word [arrest] means the “seizure” of a person by a valid authority. However, in the technical field of law it might bring some difficulties and conditions.
However, arbitrary cannot exactly be substituted with ‘illegal’. Arbitrariness of action is not only limited to illegality but it’s also unjust and incompatible with the principles of natural justice and human dignity[8]. In simple terms an act which violates justice and reasonableness would constitute as arbitrary. The United Nations have defined arbitrary arrest as, “an arrest authorised by law fails adequately to protect human rights because—the means, circumstances or physical force attendant on the arrest exceed the reasonable requirements of affecting arrest”[9]. This is primarily, the reason why proper balancing of individual liberty and societal safety is extremely important[10].
The Indian Legal System
Personal Liberty under Article 21
The Supreme Court in the case of Maneka Gandhi v. Union of India[11], held that, “the sweep of article 21 is much wider than was supposed to be earlier” which lead to the Apex Court further observing the significance of article 21 and making the abridgement of personal liberty a matter of grave concern[12]. It is necessary that the “procedure established by law” in the cases of arbitrary arrest specifically, be just and lawful; there should be a complete absence of arbitrariness and oppressive mala fide actions. Hence, it has now become absolutely imperative to examine and test the constitutional ambit and validity of laws relating to arrest in India.
Provisions under the Criminal Procedure Code
The general law of arrest and detention under the Indian Law is laid down the Criminal Procedure Code of 1973 (hereinafter referred to as ‘the Code’). According to this Code, an arrest can be made only in respect of the commission of an offence and in pursuance to a warrant of arrest issued by a court exercising jurisdiction under the provisions of the Code. These warrants are issued in a certain procedure—as specified in the Code[13], and there’s a requirement to be charged with an offence, with a reason and a clear accusation as well. Furthermore, Section 151 of the Code circumscribes the legal authority of arrest which can be exercised only in cognizable cases[14]. As far as the police officers and limitation are concerned, under Section 23 of the Police Act, 1861, the duties of the police officers are prescribed providing the police officers to, “obey and execute all orders and warrants lawfully issued”.Herein the Code does allow arrests without a warrant under certain specified circumstances,[15] however, it is a necessity that the officer doing the same complies with the provisions of article 22 of the constitution, as well as with those of Code.
Article 22
The constitutional rights in context of criminal jurisprudence are contained in article 20, 21 and 22 of the Constitution. Article 20 prohibits ex post facto operation of criminal law and provides immunity against double jeopardy and protection against self-incrimination while article 21 as mentioned above protects the life and liberty of individuals.
Article primarily focuses on providing protection against arrest and detention to people. The said article thus, provides certain safeguards and guarantees to a person arrested or detained,
The right to be informed, ‘as soon as may be’ of the grounds of the arrest or detention; right to consult a legal practitioner; and the right to be defended by a legal practitioner[16].
Right to be produced before the nearest magistrate, within a period of twenty-four hours; and the right to be released if he is not produced within the nearest magistrate within the said period of 24 hours[17].
Additionally, Clauses (4) to (7) provide safeguards against preventive detentions under article 22. It is noteworthy that the object of the right to be informed of the grounds of arrest is to enable the person to make an application to the appropriate court for bail[18]. Furthermore, it has been held in the case of Madhu Limaye v. State[19], that “merely informing the person that an arrest has been made without giving any particulars of the alleged act for which the action has been taken against him, isn’t sufficient compliance with article 22(1)”. The phrase, ‘as soon as may be’ has been held to mean as early as is reasonable in the circumstances of the case, although it has been said that no definite period of time can be laid down as reasonable in all the cases[20]. Additionally in the proceedings for the writ of habeas corpus if the court finds that a reasonable amount of time has passed without the arrested person being informed the grounds of his arrest, the court may order an immediate release. Despite all the provisions mentioned in clause (1) of the article, a few might be misinterpreted as unmitigated. For instance in the case of Janardan v. State of Hyderabad[21], the Court held that, this article doesn’t guarantee an absolute right to be supplied of a lawyer by the state. This right is only to have the ‘opportunity’ to engage a competent legal practitioner of one’s choice. Further, this right isn’t only limited to persons arrested as such but also individuals who are in danger of abridgement of their personal liberties.
Under Clause (2) of the article there’s also the necessity to comply with the 24 hours provision which arises as soon as a person is arrested, and a compliance with the clause at anytime afterwards doesn’t satisfy the constitutional requirements[22]. In the case of Harharanand v. Jailor[23], the court agreed with the right to release provided under the article and observed that the arrested person is entitled to be released immediately. It has further been held by the Court that “nearest magistrate refers to a magistrate acting in a judicial capacity, as under S. 167 of the Code”[24].
The protection of Article 22 has been extended to arrests made under the orders of a speaker of a legislative assembly for committing the contempt of the house[25]. And certain rights under the article were extended also to persons who were in danger of losing their personal liberty[26]. Furthermore, a break was made from the traditional meaning of the word arrested when the court refused to distinguish between the different types of arrests and held that, “arrest is arrest whatever the reason”.[27]
Conclusion
The extent to which human rights are respected and protected within the context of its criminal proceedings is an important measure of society’s civilisation[28]. Arbitrary arrests are still a massive problem not only in India, but all over the world. Needless to say, authorities sometimes exceed their powers and restrictions neglecting the fundamental rights enumerated in the Constitution i.e. right to personal liberty as well rights against unfair arrest and detention which is granted to every individual in this country. The Supreme Court of India strives to uphold the principles defined by International Conventions and the UDHR precisely regarding these particular rights and although there’s still scope for more improvement, certain demarcations and clarities need to be incorporated in the Statutes. A new innovation has been introduced to improve the present position by making certain offences cognizable but without allowing the police the power to arrest without warrant in the recent amendment to the Child Marriage Restraint Act, 1929 by inserting a provision of “offences cognizable for certain purposes[29]”. Since the present basis of classification isn’t very suitable and might not be supportive to just and fair arrests, this amendment is a change in the right direction against arbitrary arrests and detentions[30].
If there is a failure to comply with the legal standards set for the arrest in the various statutes and legislations, the arrest would constitute as illegal from the very beginning. In the immediate circumstances the rule comes as a protection to the person who has been a victim of illegal enforcement of legal processes; since an illegal arrest by a police officer is an unwarranted attack on the liberty of a person which derives its basis and existence from the legal and constitutional sources[31].
The courts have invariably taken a stricter view of arbitrary arrest and have interpreted the provisions of the law in such a way as to restrict the powers as far as possible, and its because of the constant vigilance of the judiciary that the possibilities of arbitrary arrest have been minimized under the Indian Law.
[1] Article 9 (1), ICCPR.
[2] Article 9 (4), ICCPR.
[3] Article 9 (5), ICCPR.
[4] Article 9, UDHR.
[5] Dicey, Constitutional Law 207 – 208 (9th ed.).
[6] INDIA CONST., art. 21.
[7] R.V. Kelkar, Law of Arrest: Some Problems and Incongruities, 22 JILI 314, 314 (1980).
[8] Report of the Third Committee, 9th December, 1958 (A/4045); at 43 – 49.
[9] B.P. Srivastava, Right against Arbitrary Arrest and Detention Under Article 9 of the Covenant as recognized and protected Under the Indian Law, 11 JILI 29, 32 – 33 (1969).
[10] Supra, note 7.
[11] AIR 1978 SC 597.
[12] G. Narasimhulu v. Public Prosecutor, A.P., AIR 1978 SC 429.
[13] The Criminal Procedure Code, No. 2 of 1974, § 75, 77, 81 and 86.
[14] Ibid, § 2, cl. (c).
[15] Ibid, § 41, cl. 1; and § 55, cl. 1.
[16] INDIA CONST. art. 22(1).
[17] INDIA CONST. art. 22(2).
[18] Vimal Kishore v. State of U.P., AIR 1956 All. 59.
[19] AIR 1959 Punj. 506.
[20] Tarapada De v. State of West Bengal, AIR 1951 SC 174.
[21] 1951 SCR 344.
[22] State of U.P. v. Abdul Samad, AIR 1962 SC 1506.
[23] AIR 1954 All 601.
[24] Supra, note 20.
[25] Gunupati v. Nafisul, AIR 1954 SC 636.
[26] Slate of Madhya Pradesh v. Shobha Ram, AIR 1966 SC 1910.
[27] Id.
[28] P.N. Bhagwati, Human Rights in the Criminal Justice System, 27 JILI 1, 1 (1985).
[29] Child Marriage Restraint (Amendment) Act, 1978 § 7.
[30] Supra, note 7, at 321.
[31] D.C. Pandey, Search for and Action against Illegal Arrest, 22 JILI 328, 328 – 329 (1980).
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