Amita vs Union Of India & Anr on 11 August 2005

Introduction

This case is a writ petition filed by a visually challenged girl in the Supreme Court of India on the grounds of her being rejected on the basis of her disability for the post of probationary officer in the Banking services recruitment board, Chennai.

Facts

An advertisement was released by the Banking services recruitment board Chennai for the appointment of a probationary officer. Seeing the advertisement, Amita, a visually challenged girl applied for the post. The criteria for the post were as follows.

1. The candidate must be a graduate from any recognized university.
2. The candidate should not be less than 21 years of age and not more than 30 years of age.
   These criteria also included any other qualifications mentioned by the government of India.
   The petitioner sent her application along with a demand draft. She mentioned in her application that she is visually impaired so that the board can make the necessary arrangements regarding providing of scribe for the examination. After a few days her application was returned to her and it was mentioned there that ‘As we don’t hire visually challenged candidates for the post of probationary officer, your application is rejected.’ Aggrieved by the decision of the board, Amita filed a writ petition in the supreme court of India under Article 32 of the constitution of India.
   The petitioner was also allowed to amend her petition in which she prayed for the following reliefs.
3. An order of mandamus should be passed in order to allow her to sit for the entrance examination.
4. The board in the instant case has not given her an equal opportunity which is a violation of articles 14, 16, 19, and 21.
5. An order of mandamus should be passed whereby a proper action should be taken keeping in view the rights of persons with a disability, equal opportunities Act 1995.

Arguments on behalf of the petitioner

The learned counsel on behalf of the petitioner argued that the denial of opportunity by the Board only on the ground of her disability is erroneous on the face as the advertisement only mentioned that the candidates applying for the post should be more than 21 and less than 30 years of age and should be a graduate. The petitioner had fulfilled these criteria. The order of the Board has violated article 14, 16, 19, and 21 of the constitution.

Arguments on behalf of the respondent

The learned counsel on behalf of the respondent argued that the post of a probationary officer is not earmarked for the visually challenged so the rejection of application of the writ petitioner is valid.

Judgment

It was held that the order of the Board cannot be sustained as the writ petitioner has fulfilled all the criteria mentioned in the advertisement, hence she cannot be rejected only on the grounds of her visual impairment. It was also found that the petitioner also applied for the same post in Bangalore and she was given the admit card for the entrance test even after mentioning that she is visually impaired. This clearly proves that visual impairment cannot be a reason for the rejection of the application.

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Introduction

An ordinance is a rule made by the government or any person in authority. The Uttar Pradesh government has recently passed an ordinance under Article 213(1) of the constitution against the unlawful conversion of religion. The said ordinance was passed by the state cabinet of Yogi Adityanath and promulgated by Anandiben Patel, the Governor. The new ordinance criminalizes the unlawful religious conversion which is done for the sole purpose of marriage and also declares such marriage as void. Other states like Assam, Karnataka, Haryana, and Madhya Pradesh have announced similar laws. The main aim of the ordinance is to curb the hike of unlawful religious conversion in the country. Some people call it the law against the so-called “love jihad”. Many religious conversions are done forcibly, therefore the ordinance prevents and punishes a person converting the religion for the sole reason of marriage. This new law imposes a 10-year jail term for the offenders.

Key features of the ordinance

India is a multi-cultural and dynamic country with many types of religions and beliefs. By a religious conversion, a person accepts a new set of beliefs that is different from the previous religion. No person should be forced to convert to a different religion. The UP government ordinance has tried to stop these types of forced conversion. Some of the key features of the ordinance are:
• Prohibits unlawful conversion by force, misrepresentation, undue influence, deception or fraudulent action, by greed, or by marriage. It also prohibits conversion done with minor or scheduled caste or scheduled tribe woman.
• The State legislature was not in session, therefore the Governor took immediate action and had passed this ordinance. The Governor has the power to pass such an ordinance under Article 213(1) of the Indian constitution.
• The ordinance is extended to the whole state of Uttar Pradesh.
• The ordinance considers the unlawful conversion of religion as a cognizable and non-bailable offense.
• The term of imprisonment is up to 10 years for the offense.
• Inter-religious marriages are not banned under this ordinance.
• The reconversion of the immediate previous religion will not be considered as unlawful conversion under this ordinance.
• The ordinance also prohibits mass conversion. When two or more person converts to other religion then it is known as mass conversion.
• The conversion done for the sole purpose of marriage is considered an invalid conversion and the marriage is held null and void.
• Some of the main rules for conversion are: the person converting has to give a declaration to District Magistrate or the Additional District Magistrate before 60 days of such conversion. The religious convertor should five 1 month advance notice if such conversion. A police inquiry should be done when such notice or declaration is received by Magistrate.
• The burden of proof lies on the person who is charged with such an offense.
Religion conversion “by marriage” – How it affects the rights of the people
The Chief Minister of Uttar Pradesh had promised to bring an effective law against the love jihad a few days before the ordinance. The Allahabad High Court dismissed a plea of a married couple in the month of October 2020. In that case, the woman was Muslim by birth and she converted to Hinduism in June, which is exactly one month and 2 days before her marriage. The said conversion has been done for the purpose of marriage. Therefore the court held that religious conversion solely for marriage was not acceptable. Even in the 2014 case, the Allahabad High Court has held that conversion of religion done to spreads the tenets of a particular religion would impinge the freedom of conscience under Article 25 of the Constitution.
Article 25 of the constitution empowers the people of the country with religious freedom. Every person has the right to profess, practice, and propagate their religion freely. Everyone is allowed to change his religion at their discretion and no one can be forced to change his religion. The ordinance prohibits and punishes the conversion of religion under force or coercion. Therefore, the ordinance would the freedom of religious conscience with Article 25 of the constitution.
In one way, the ordinance protects the spirit of freedom of religion by prohibiting forced and fraudulent conversions. But on the other hand, it also violates the freedom of individual liberty. The right of choice and liberty is highly affected by the ordinance. The ordinance prohibits the conversion of religion which is done “by marriage” also, therefore this weakens individual freedom. The ordinance weakens freedom and increases the communal feeling. The term “love jihad” has not received any legal recognition, therefore an ordinance against it would affect the fundamental rights of the people. The ordinance considers every religious conversion as unlawful except it has been approved and certified by the state.
Both the judgments of Allahabad High Court in the Priyanshi and Noor Jahan case has not taken the issue of liberty into consideration. Two matured individuals have the freedom to choose a partner in their life. Such right to choose the life partner is implicit under the right to life and personal liberty under Article 21 of the Indian Constitution. The meaning of personal liberty was widely expanded when Section 377 of the Indian Penal Code was decriminalized. In this country, if two persons of the same gender are allowed to live together, then why two persons of different religions by marriage convert their religion cannot live together.
The Allahabad High Court on 11th November 2020 observed that the right to choose a person as a life partner irrespective of their religion is a right under Article 21, which enshrines the right to life and personal liberty. In this case, the husband and wife filed petitions for quashing the FIR and the couple contended that they were in the age of majority and competent to the contract of marriage and they had already been living together as a couple for 1 year. The court held that the individuals are grown up and were living together for 1 year, therefore, it is their right of choice. So, the FIR was quashed and the writ petition was succeeded.
A person’s decisions about his or her marriage are personal to them, the state cannot ask the people to justify their personal choices. It is not the duty of the people to justify their decision regarding their personal life. The ordinance gives power to the State in taking decisions about other citizen’s personal choices. The right to liberty, privacy, autonomy, and human dignity under Article 21 of the Indian Constitution is clearly violated. The right of privacy was upheld in the KS Puttuswamy case, but the ordinance obstructs the basic element of the right to privacy. The personal autonomy is destroyed unreasonably and the conditions to satisfy the lawful conversion are intruding on the personal liberty and privacy of the people. The people have the right to change the faith and it is a part of their fundamental right of choice. There is no need for social approval for personal choices or decisions.

Conclusion

The ordinance strangely places the burden of proof on the person who has converted his or her religion rather than the person who alleged such conversion as unlawful. The ordinance is an anti-law of love jihad. Instead of bringing an anti-law, the government could have amended the provisions of the Special Marriage Act. The inter-faith marriages have to be promoted in our county, only the Special Marriage Act can do that. The ordinance puts social pressure and places a barrier in a person’s right to choose his life decisions. An investigation happens after the declaration of conversion, therefore this clearly violates the right to privacy and dignity of the individual. Many people have opposed this ordinance, as it is deliberately oppressive in nature. The prohibition of religious conversion by force or undue influence protects the rights of the people, but on the other hand, religious conversion by marriage considered unlawful by the ordinance is violating the rights of the people.

^[1] Priyanshi @ Km. Shamren v. State of Uttar Pradesh, Writ C No. 14288 of 2020.

^[2] Noor Jahan Begum @ Anjali Mishra v. State of Uttar Pradesh, Writ C No. 57068 of 2014.

^[3] Navtej Johar v. Union of India, (2018) 1 S.C.C. 791.

^[4] Salamat Ansari v. State of Uttar Pradesh, 2020 S.C.C. OnLine All 1382.

^[5] Justice K.S Puttuswamy v. Union of India, Writ Petition (CIVIL) No. 494 of 2012.

^[6] Shafin Jahan v. Asokan K.M, (2018) 16 S.C.C. 368.

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Abstract

Association of Dead People Vs State of Uttar Pradesh & Ors. was one of the most interesting cases that had come before the Allahabad High Court. After 18 years of struggle of Lal Bihari and other people who were declared dead by their relatives for their property were identified as alive by the Hon’ble High court, this reinstated the rights of the petitioners over the property that was supposed to be meant for them.

Facts of the case

The origin of the proceeding was based on a report by TIME magazine. Lal Bihari herein the petitioner had gone back to his native place in U.P to claim a loan against the ancestral property as collateral. When he approached the revenue officials he discovered that he was listed as a deceased person as per the records and books of the officials. It was later found out that his cousins had bribed the officials to declare him dead so that they get 1/5th share of the property that they could only claim if Lal Bihari was dead. He added the word mritak or dead, to his name and to demonstrate that he was living he got arrested, attempted to run for Parliament, kidnaped the child of the uncle who had taken his property, undermined murder, offended judges, tossed flyers posting his protests at legislators in the State Assembly and requested a widow’s benefits for his better half. Each time he was either pounded by police or reprimanded for burning through authorities’ time. When he couldn’t find any way to reestablish his identity, he formed an association with dead people. It is observed that there were many cases wherein people were declared as dead even though they were alive.
Laws charged against the respondent/accused
The laws that helped to regain the identity of the living dead were:

1. The Protection of Human Rights Act, 1993
2. The Indian Penal Code
3. Article 21 in The Constitution Of India 1949
4. Section 36 in The Protection of Human Rights Act, 1993
5. Section 14 in The Protection of Human Rights Act, 1993

Case Analysis

• The victims of such scenarios were usually widows, sick people, or simple people who were vulnerable and powerless. One such petitioner was Jhulari Devi who was declared dead and chased out of her family farm after the death of her son.
• This case questions the credibility of the documents that are given by the governmental officials.
• The High Court observed that “…it was clear that what had taken place was an organized crime against the poor, hapless and helpless agriculturists confronted with the muscle power of land mafias who could arrange, in collusion with those in charge of keeping land revenue records, to get interpolations made by showing persons who are otherwise alive, ‘dead’ on paper. Having achieved this, the agriculturists were kicked out of their holdings. This was even worse than serfdom. A virtual reminder that the zamindar’s zamindari may have been abolished but has given way to organized gun-toting agricultural land grabbers whom the official record keeper has adopted and accepted..”, this statement enunciates about the involvement of criminal activity and corruption in the nation.
• The court stated that it was not fair if the case was not closed soon, as many agriculturists have suffered and are borderline poor thus deteriorating their living conditions. These cases have virtually become a phenomenon of violation of human rights. According to Article 21, every citizen has the right to life and nobody can steal it until its death itself.

Judgment

• The Hon’ble court gave an opportunity for those people who were declared dead to reinstate their status as alive so that they can exercise their rights as living people.
• The case was further assigned to Human Rights Commission along with all the documents and records of the current legal proceedings.
• The cases which have been processed and filed before the Chief Judicial Magistrate, and those cases which are yet to be filed may continue to be filed.

Conclusion

The efforts made by Lal Bihari to protect and seek justice for the living dead are immense. He made several attempts to prove that he is alive and not dead. This case has given the powerless the power to get justice. Many elderly people, widows, and vulnerable categories of people have been subjected to such a crime. and through the association formed by Lal Bihari, many victims have got relief.

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T.Muhammed Faisi Vs State of Kerala

Abstract

After confronting the government for 35 years the LP school residence in Elambra in Manjeri Municipality got justice from Kerala High Court. The decision was made on 29th July 2020 where the Bench of Hon’ble Chief Justice Mr. S. Manikumar and Hon’ble Mr. Justice Shaji P Chaly decreed that the children of the village had the Right to Education thus the government should provide necessary facilities. The judgment enunciated about what is Right to Education.

Facts of the Case

Elambra is located on the outskirts of the Manjeri Municipality. It is a socially and educationally backward area, the majority of the population including members of Scheduled Caste/ Scheduled Tribes consists of middle-class families, with agriculture and coolie work as their vocation. An instant writ petition was filed by the petitioner stating that there were no primary schools within the radius of 3 km and for many years the local people of Elambra were making continuous efforts to build Government LP School there. Several representations were made to different authorities but no actions were taken. Later when the absence of land was given as the reason, the local people brought to land for construction of the school. Even after this, the authorities did not take any action to build a school in Elambra.

Arguments made by the petitioner

The petitioners made the following contentions seeking justice and the Right to Education:
• The petitioners have approached multiple authorities for the building of a school in Elambra. Even though the reports and surveys made these authorities stated that Elambra is a socially backward village and it needs a school, there was no action taken and thus they failed to discharge their duties.
• The counsel for the petitioner also stated that the case has been pending in the court for the last 35 years and it has made the place educationally backward.
• Another contention made was that the land was purchased by the people for the construction of school buildings and Municipality is willing to construct the building. All that is required is a sanction for establishing a Government LP School.
• According to Rule 6 of the Kerala Right of Children to Free and Compulsory Education Rules, 2011, learned counsel for the petitioner submitted that in respect of children in Standards I to V, a school shall be established within a walking distance of 1 km of the neighborhood.

Arguments made by the Respondent

The contentions made by the respondents against the claims made by the petitioners were:
• It was submitted that there were schools nearby so there was no need for the school to be constructed in that area.
• It was argued that according to the rules laid down in Rules 2 and 2(a) of Chapter V of the Kerala Education Rules, 1959, starting new schools is a policy decision of the government and individual requests cannot be entertained.
• The petitioner cannot seek a writ of mandamus, based on the order passed by Kerala State Human Right Commission

The rationale of the Court

1. The court referred to the Preamble of the Constitution to understand the rights that are assured by it.
2. Articles 21, 38, 39(a), and (f), 41, and 45 of the Constitution were analyzed with several case laws to understand the scope and applicability of these articles.
3. Art.21 states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Right to education is a part of this Article. Article 38 and 39(a) states the importance of security and welfare as well as the right to adequate means of livelihood. Education is a way to live in today’s contemporary world. Article 41 talks about the Right to work, education, and public assistance in certain cases. Article 45 is provision for free and compulsory education for children.
4. When all these sections are studied keenly the constitution states that the petitioner has the right to education as it is a part of social and economic welfare.
5. The court held the scope of Article 21 A.
6. The court also stated that “…… correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action….”

Judgment

The Hon’ble Kerala High Court passed a judgment stating that the petitioner will be given relief on the basis of decisions and discussions during the legal proceedings. It allowed the petition filed and also instructed the government authorities of Kerala to sanction the establishment of Government LP School, at Elambra within a period of three months. The court directed the municipality to take necessary and rapid steps for the construction of the school.

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“The extent to which human rights are respected and protected within the context of its criminal proceeding is an important measure of society’s civilisation”^[1]

 – Justice P.N. Bhagwati.

Introduction

Everyone has a right to be treated with respect and dignity; everyone has basic and fundamental rights enshrined to them under the law regardless of the person’s status, circumstance or nature, even if the person is behind bars. Article 5 of the Universal Declaration of Human Rights proclaims that, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. Subsequently Article 7 of the International Covenant on Civil and Political Rights, 1966 creates an obligation for the State parties to it that, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The prisoners usually face stigma—the government’s effort is to avoid their contact with the society and takes away the freedom of mobility. This in turn denies a chance of a prisoner to get reformed. The Supreme Court in the landmark case of Union of India v. V. Sriharan^[2], declared that the sentences in which the court orders that the convicted persons should spend the whole life or at least a minimum number of years behind bars and puts those terms beyond the scope of remission by the government, are valid sentences, but only the Supreme Court and High Courts would have the power to order such terms^[3].

Status of Prisoners in India

Theoretically, punishment provided for a particular offence should correspond to the harm that would plausibly result from conduct of the perpetrator. Ideally, stipulation of punishment in penal law involves quantification and scaling of both the harms, the harm plausibly result from the prohibited human conduct (in the form of crime) and the harm to be inflicted (in the form of punishment) on the wilful perpetrator, by the legislature^[4].  As far as the current state of prisoners in India is concerned—it’s atrocious. The Prison Statistics India Report, 2015 indicates that, “67 per cent of India’s prison population comprises of under trial prisoners. This number has been consistently high, at an average of 66.97 per cent over the last 15 years”^[5]. Furthermore, these trends aren’t current in nature. According to the latest amnesty report of India, about 415 persons died in the custody of police and security forces due to torture between 1 January 1985 and 1 November 1991. Examining the cases of custody death, the same reports points out that not more than 42 magisterial enquiries were conducted; judicial enquiries were ordered in 20 cases; criminal charges were framed in 52 cases; police officers were arrested in 25 cases and only in 3 cases the guilty were known to have been convicted by the Court^[6]. Therefore, it can be conclusively stated that the status of prisoners under the criminal judicial system has always been appalling.

Additionally even though the right to personal liberty is a fundamental right recognized by our Constitution, in the case of A.K. Gopalan v. Union of India^[7], the Supreme Court took the view that the right to personal liberty guaranteed by article 21 was not violated if the deprivation of personal liberty was permissible by “procedure established by law” and it was immaterial and of no consequence whether that law was just or unjust, fair or unfair, reasonable or unreasonable^[8]. There is herein, an unquestionable need to reform the criminal justice system and protect the rights of the prisoners.

Rights of Prisoners in India

Prisoners are some of the worst victims of the violation of fundamental rights. Over the past 30 years, the Supreme Court of India has reiterated the Principle “imprisonment does not spell farewell to fundamental rights”^[9]. Thus, the Court has cordially declared that for a prisoner the fundamental rights are enforceable reality, though restricted by the fact of imprisonment. 

Keeping the severity of prisoners’ rights in mind, the Supreme Court said that Article 21 of the Constitution is available to the prisoners because the prisoner does not become a non-person. The Court says that it is not justified to aggravate the pain and suffering of the prisoners which is already inherent in the process of incarceration^[10].

According to the Supreme Court, while physical assaults are to be totally eliminated even pushing the prisoners into a solitary cell, denial and necessary facility, transferring prisoners to a distant prison, allotment of degrading labour, assigning him/her to desperate or tough gang, etc. must satisfy Articles 21, 11 and 19 of the Constitution. The young inmates must be separated and freed from exploitation by adults. Any harsh isolation from society for long or lengthy cellular detention can be inflicted only consistently with fair procedure. Subject to discipline and security, prisoners must be given their right to meet his fellowmen/fellow women, interviews, visits and confidential communication with lawyers nominated by the competent authorities.

In a comprehensive judgment delivered in Rama Murthy v. State of Karnataka^[11] on December, 1996, the Supreme Court observed that there were nine major problems that affected the prison system in India and required immediate attention. These include: “overcrowding, delay in trial, torture and ill-treatment, neglect of health hygiene, insubstantial food and adequate clothing, prison vices, deficiency in communication, streamlining of jail visits and management of open air prisons”^[12]. While issuing show cause notices to central and State Governments on the relevant points, the Court has emphasised, inter alia that “the need to consider the enactment of a new prison law on the lines suggested by the National Human Rights Commission, and the formulation of a new Model Jail Manual for the country as whole”^[13].

The following rights of prisoners have been recognised under the various Indian laws governing prisons, for instance, the Prisoners Act, 1900; Identification of Prisoners Act, 1920; Transfer of Prisoners Act, 1950; and several other etc. by the Supreme Court and High Court rulings as well as those recommended by Expert Committees.

• Right to be lodged appropriately based on proper classification,
• Special right of young prisoners to be segregated from adult prisoners,
• Rights of women prisoners^[14],
• Right to healthy environment and timely medical services,
• Right to bail,^[15] Section 436-A of the Criminal Procedure Code, lays down the right of an under trial to apply for bail once he/she has served one-half of the maximum term of sentence he/she would have served had he/she been convicted. The section further lays down what the court may order on a bail application filed under this section on hearing the public prosecutor. 
• Right to speedy trial,^[16]
• Right to free legal services,^[17]
• Right to have interviews with one’s lawyer,
• Section 12(2) of the Prisons Act, 1894 and the Apex Court in the case of Veena Sethi v. State of Bihar^[18]regulates, “Right against being detained for more than the period of sentence imposed by the Court”,
• Right to protection against being forced into sexual activities,
• “Right against arbitrary use of handcuffs and fetters”, was established to in the case of Prem Shankar Shukla v. Delhi Admn.^[19]
• Provided under Franics Mullin v. Union Territory of Delhi^[20], Right against torture, cruel and degrading punishment. Furthermore, it has also been observed that, “Right to be compensated for violation of human rights”^[21],
• Several rights have further been defined in the case of Sunil Batra (II) v. Delhi Admn.^[22] Right not be punished with solitary confinement for a prison offence; Right to air grievances to effective remedy; Right to evoke the writ Habeas Corpus against prison authorities for excesses; Right to visit and access by family members of prisoners; Right to write letters to family and friends and to receive letters, magazines, etc.; Right to reformative programmes; Right to information about prisons rules,
• Right against arbitrary prison punishment.

Life in prison and rights of prisoners are the topics which have been at the centre of human rights discourse since long time. In the celebrated judgment in Sunil Batra (II) case^[23], Justice Krishna Iyer ruled that a prisoner is not denuded of his or her basic human rights upon incarceration although the exercise of these rights may be circumscribed by the very nature of imprisonment. He frowned against solitary confinement and ruled that putting iron bars or fetters on prisoners is unconstitutional, unless it is imperative in the interest of security^[24].

Conclusion

Therefore, the task of protecting human rights that prisoners are entitled to and of implementing progressive ruling of the Supreme Court and High Courts and recommendations made by various commissions and committees on prison reforms including radical reforms suggested by the National Human Rights Commission call for a thorough restructuring and reorganisation of prisons in India^[25]. Conclusively, there is a strong need to increase awareness and remove the social stigma surrounding convict rights under the criminal judicial system, prompting efficient working, regularization and implementation of their rights.

^[1] P.N. Bhagwati, Human Rights in the Criminal Justice System, 27 JILI 1, 1 (1985).

^[2] 2015 SCC OnLine SC 1267.

^[3] Shubham Patel & Shivam Yadav, New Dimensions in Sentencing vis-a-vis Rights of Prisoners, 6.2 NULJ 31, 31 (2017).

^[4] K.I. Vibhute, Right to Human Dignity of Convict under Shadow of Death and Freedoms Behind the Bars in India: A Reflective Perception, 58 JILI 15, 16 (2016). 

^[5] Aparna Chandra & Keerthana Medarametla, Bail and Incarceration: The State of Undertrial Prisoners in India, Approaches to Justice in India (2017).

^[6] R.S. Saini, Custodial Torture in Law and Practice with Reference to India, 36 JILI 166, 166 (1994).

^[7] AIR 1950 SC 27.

^[8] R.V. Kelkar, Law of Arrest: Some problems and Incongruities, 22 JILI 314, 315 (1980).

^[9] Charles Sobraj v. Supt., Central Jail, AIR 1978 SC 1514

^[10] Sunil Batra v. Delhi Admn., 1978) 4 SCC 494.

^[11] AIR 1997 SC 1739                                                                                                      

^[12] Arvind Tiwari, Human Rights, Ethics & Prison Administration in India: A Critical Overview, 2 RMLNLUJ 43, 60 (2010).

^[13] Ibid.

^[14] Sheela Barse v. State of Maharashtra, AIR 1983 SC 378.

^[15] Motiram v. State of M.P., AIR 1978 SC 1594.

^[16] Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360.

^[17] M.H. Hoskot v. State of Maharashtra, AIR 1978 SC 1548.

^[18] AIR 1983 SC 339.

^[19] AIR 1980 SC 1535.

^[20] AIR 1981 SC 746.

^[21] Rudul Shah v. State of Bihar, AIR 1983 SC 1086.

^[22] (1980) 3 SCC 488.

^[23] Ibid.

^[24] Soli J. Sorabjee, Human Rights Jurisprudence of the Supreme Court of India, 3 SCC J-26, J-28 – J-29 (2009).

^[25] Supra, note 12.

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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 (9^th 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, 9^th 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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