Written By Kitanjalee Singh
“Freedom is not a gift bestowed upon us by other men, but a right that belongs to us by the laws of God and nature.”
– Benjamin Franklin
The liberty of an individual refers to freedom from bodily confinement rather than broader action freedom. As a result, as a precondition to the Fundamental Rights guaranteed to every citizen of India, the Constitution guarantees those rights even to someone who has been arrested or detained. Articles 21 and 22 create an accused person’s righteousness in order to defend himself from any wrongful action taken against him during the arrest process. This research mainly concentrates on the rights of an arrested and detained individual. With the help of some recent case studies, this research also shows how these rights are being affected by arbitrary actions. The motive of the researcher behind the research is to analyse rather than safeguarding the individual liberty as the implementers of law, the officials take undue advantage of the accused as the minimum threshold which has been set for the violations of rights is painfully inadequate and thus, it can be said that Article 22 is suborning these ideals because the consequences for the authorities are so minimal that one can easily get away with it.
As enshrined in Article 21 of the Constitution of India –
“No person shall be deprived of his life or personal liberty except according to a procedure established by law.”
Irrespective of the position or status a person may be holding, the right to life and personal liberty is available to all. This right is available as much to a footpath dweller as it is to the Prime Minister of the country. It is the most cherished freedom that our Constitution bestows on all citizens.
Though arrest and detention are severe intrusions into an individual’s liberty, police officers are empowered to make arrests if needed to protect society’s interests, it is a discretionary power that should be exercised in compliance with the law. Therefore, the police must be well-versed in the legal requirements relating to arrest, as well as the Supreme Court’s guidance and decisions on arrest, to exercise this power effectively, particularly when arresting vulnerable members of society. Furthermore, when applying the provisions relating to detention, the police must behave in a legitimate and impartial manner. Malice or vindictiveness have no place in this world. Police officers must defend themselves and project an impression of being law enforcers rather than lawbreakers.
The Indian Constitution establishes the framework within which the State must offer protections against any potential infringement on our rights. The tremendous scientific and technological progress of the contemporary period is supposed to have had a significant impact on reducing the rigours of outdated and inhumane arrest and incarceration practices. In this light, the researcher has conducted an analytical and objective examination of the “arbitrary arrest and detention”.
STATEMENT OF PROBLEM
The Constitution of India confers various fundamental rights to people and also details various regulations for the deployment of arbitrary arrest and detention by the Union and States. The alacrity with which arbitrary arrest and detention has thus been deployed as a law enforcement tool has alarmed some, and the personal motivated use of these powers is what has often attracted the most criticism. The police officers are provided with several rights such as to arbitrarily arrest and detain an individual, which should be used judiciously, alongside respecting the rights of that particular individual. The statement of the problem on which this research is relied upon is that despite knowing, these officers tend to violate the rights of the arrested and detained individual. As a result, there is a necessity for a balance between police officer’s rights, obligations and responsibilities of their actions. Thus, to curb the growing number of violations of these arrested and detained people, people must become mindful of their legal rights.
The research question which will be dealt with in the research work is that –
“Is Arbitrary Arrest or Detention – A Violation of Fundamental Rights and Freedom?”
The hypothesis made by the researcher about the possible outcome is:
- Despite the fact that India has incorporated safeguards against arbitrary arrest and detention in its legal system, there is still an increasing number of arbitrary arrests and detentions. Indian law is weak and inadequate, which results in India’s failure to protect the person from arbitrary arrest and detention.
The objective of this research work is to ascertain whether the power given to the prosecutors of arbitrary arrests and detention is necessary or not as these powers are often broken and misused, and also, no one is there to monitor their compliance with these rules and put a heavy punishment on them for the violation.
REVIEW OF LITERATURE
- Anupama Singh, Law of Arrest – A Study in the Context of Constitutional Guarantee against Arbitrary Arrest and Detention.
It is an analytical and objective study of the law of arrest under the Indian Constitution and the interpretation of the law through judicial dicta.
- Abhinav Sekhri, Article 22 — Calling Time on Preventive Detention
This essay is an attempt to persuade the legal community to reconsider the perceived necessity of preventative detention, and more crucially, to reconsider our complacent assumption that the Constitution’s control of preventive detention is sufficient.
DEFINITION OF THE TERMS
THE INDIAN LEGAL SYSTEM
MISUSE OF ARBITRARY ARREST
ILLEGAL ARREST AND DETENTION
RIGHTS OF AN ARRESTED PERSON
- HISTORICAL ANTECEDENTS
The law of arrest and detention originated with the concept of the right to liberty and security, in the international sphere. This right to liberty can be traced back to the English Magna Charta (1215) and the United States Declaration of the Rights of Man and Citizen (1789). The Protection against arbitrary arrest and detention is one of the main dimensions of the right to the liberty and security of a person.
A second important development in the recognition of the right to personal liberty was the promulgation of the Habeas Corpus Acts of England in 1640 and 1679. The Acts codified to some extent and perfected an ancient remedy. A citizen could employ a habeas corpus proceeding to challenge detention by the King and Council, and Great Britain eventually accepted habeas corpus as the standard procedure by which the legality of any imprisonment could be tested.
A third significant human rights document is the French Declaration of the Rights of Man and the Citizen of 1789. The Declaration proclaimed a number of the “natural and imprescriptible rights of man,” including freedom from arrest and detention except in conformity with the law.
In this manner, the provisions of these international instruments effectively prohibit states from manipulating their legislative systems to achieve oppressive ends.In this manner, the provisions of these international instruments effectively prohibit states from manipulating their legislative systems to achieve oppressive ends.
- DEFINITION OF THE TERMS
As per the Webster Dictionary, Arrest means to take or keep in custody by authority of law. This word, arrest, is derived from the French Word, “Arreter” which means “to stop” or “stay” and signifies a restraint on a person’s movement. Though, a proper definition of arrest still can’t be found on any statute.
Initially, the Indian legal system did not have a clear description of arrest. However, in the case of State of Punjab v. Ajaib Singh, the Supreme Court took notice and described the word Arrest as it appears in Article 22 of the Indian Constitution. 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.” Thus, the Apex Court held that the term Arrest means restraining the liberty of a person and hence submitting a person in custody under CrPC amounts to arrest. The Court declared that the terms arrest and custody are synonyms. It is a mode of taking a person into custody.
The Human Rights Committee’s experts state that “arbitrariness” is not as equal to “against the law” but was interpreted “more broadly to include elements of inappropriateness, injustice, lack of predictability, and due process of law, as well as elements of reasonableness, necessity, and proportionality.”
Detention is defined as, “the act of confining a person to a certain place, whether or not in the continuation of arrest, and under restraints which prevent him from living with his family or carrying out his normal occupational or social activities.”
The words “a judicial or other authority” mean a judicial or other authority under the law whose status and tenure should afford the strongest possible guarantees of competence, impartiality and independence.
THE INDIAN LEGAL SYSTEM
The Constitution of India guarantees to its citizen the right to life and personal liberty against the arrest power of the State and at the same time it provides the State to deprive a person of his personal liberty, but it is within the scope of ‘procedure established by law’. Arrest or detention are per se constitutionally justifiable on the grounds which reasonably justify them along with the restrictions which it consequently imposes on Article 19 of the Constitution i.e., guaranteed freedoms. Power to arrest is granted to police forces, magistrates, and a small degree to private individuals under the Criminal Procedure Code, and under other statutes, power to arrest is given to various officials such as customs, railways, excise, etc. However, Article 21 of the Constitution gives the state the power to arrest and detain an individual, but such detention must follow “procedure established by law” and the maximum time limit for such detention without judicial sanction is set at 24 hours by Article 22. The arrest must be carried out within the bounds of the law. Thus, it can be said that Article 21 states that a person’s liberty can be revoked in accordance with the procedure established by law, and Article 22 provides safeguards to the person who has been deprived of that liberty.
These procedural safeguards existed before the Constitution under the Criminal Procedure Code of 1898; they were taken from the CrPC and inserted into the Constitution under the fundamental right clause. The drafters reasoned that including these clauses in the Constitution would restrict Parliament and Legislative Provinces’ ability to infringe or abrogate this right. As a result, the Constituent Assembly incorporated these clauses in response to criticism that the old code’s Article 15, which is now Article 21 of the Constitution, encroached on life and personal liberty. Since Article 21 states that personal liberty can be taken away by the procedure established by law, it was a contentious issue whether to use the words “due process” or ” procedure established by law” in Article 21. Thus, after much debate, the Constituent Assembly decided to substitute ” procedure established by law” in lieu of “due process” as compensation for the content of the law of “due process.” Article 22 was later adopted into the Constitution as the old Code’s Article 15 A.
The Judiciary plays a vital role in making various safeguards enshrined under Constitution more efficient and substantive through ‘Judicial Activism,’ or in other words, the Judiciary provided significant procedural prerequisites in the exercise of the state’s arrest and detention power through Judicial Activism.
Indeed, not only the judiciary, but also the Law Commission, the National Human Rights Commission, and others have proposed that various provisions be introduced into the CrPC in order to make the constitutional safeguards on arrest and detention more substantive and efficient. As a result of the judiciary’s and commissions’ attempts to make arrest laws more efficient and reliable, the CrPC was revised twice to make reforms in the law of arrest, in 2005 and 2008, but police continue to abuse and misuse their arrest power. Hence Article 32 and 226 of the Constitution provides the judicial remedy in cases of violation of arbitrary arrest and detention. A person can approach the Supreme Court or High Court under the writ of Habeas Corpus to challenge the legality of arrest and detention.
Consequently, in cases of violation of arbitrary arrest and detention, Articles 32 and 226 of the Constitution of India offer a judicial remedy. Under the writ of Habeas Corpus, an individual can approach the Supreme Court or a High Court to challenge the legality of their arrest and detention.
MISUSE OF ARBITRARY ARREST
Despite the incorporation of several Constitutional and Statutory requirements, as well as recommendations from the National Human Rights Commission, the National Police Commission and several Supreme Court guidelines, this is still a big scope of improvement. A number of studies have found that the police have widely exploited and misused their existing arrest power. It is a discretionary authority exercised by the state through its law enforcement authorities, which provides enough opportunity for harassment and police violence in the name of malfeasance. As a result of reviewing these reports and statistics, it appears that India is failing to comply with the International Standards and achieve the aspiration and goals of protecting individual human rights.
The government appears to have failed to safeguard its citizens against arbitrary arrest and detention since the crime rate continues to rise rather than decrease. The Report of Human Rights Watch on ‘Police Brutality and Abuse in India’ found that police are the main cause of such violation. Thus, in our country, citizens are subjected to police brutality and a refusal to investigate crimes.
3.1 ILLEGAL ARREST AND DETENTION
Arrests and detention without a reasonable cause is a persistent problem. They are sometimes made in retribution for police abuse accusations, in exchange for payments, or for political reasons or the influence of influential local figures. They also acknowledge using illegal compulsion, such as torture, to compel confessions to the allegations they fabricate. Police frequently fail to follow procedures set by the Supreme Court in D K Basu v. West Bengal, such as bringing a suspect before a magistrate within 24 hours of his or her detention.
For instance, in the landmark case of Rudul Shah Vs. State of Bihar, Mr. Rudul Shah was arrested for the murder of his wife in 1953. Though he was acquitted on 3 June 1968 by the Court of Sessions, Muzaffarpur, Bihar but still was detained for more than another 14 years and was released from jail on October 16, 1982. The petitioner asks for his release on the ground that his detention is unlawful, through the Habeas Corpus writ petition under Article 32 of the Indian Constitution.
In the case of Joginder Kumar v. State of Uttar Pradesh, the Apex Court determined that an arrested individual being kept in custody has the right to have one friend, relative, or another person concerned about his welfare informed about his arrest and where he is being held if he so desires. When the arrested person is brought to the police station, the officer must advise him of his right. It will be required that an entry be made in the journal as to who was notified of the arrest. The magistrate is responsible for ensuring that these standards have been met.
These increasing percentages of arbitrary or unlawful arrests and detention are made even in bailable offences and non-cognizable offences. Along with this, bail is not even provided to people who are entitled to it, and at times, people are detained even after it is proven that the suspicion levelled against them was incorrect.
Illegal detention and arrest, has unambiguously, a diminishing and demoralizing effect on a person. He gets enraged, alienated and resentful. However, a balance must be struck between governmental security on the one hand and individual liberty on the other. It has now become a necessity to have some checks on this power, as well as a greater public understanding of people’s rights, in order to create a balanced system.
3.2 CUSTODIAL TORTURE
The Prevention of Torture Bill, 2010 of United Nations Convention against Torture (UNCAT) clearly states in Section 3 of the Bill that:
“Whoever, being a public servant or being abetted by a public servant or with the consent or acquiescence of a public servant, intentionally does any act for the purpose to obtain from him or a third person such information or a confession which causes,—
(i) grievous hurt to any person; or
(ii) danger to life, limb or health (whether mental or physical) of any person, is said to inflict torture:
Provided that nothing contained in this section shall apply to any pain, hurt or danger as aforementioned caused by any act, which is inflicted in accordance with any procedure established by law or justified by law.”
From the above, we can deduce that Custodial Torture is a form of torture that generally happens when a person alleged of any crime is under the custody of law enforcement officials.
The Supreme Court has held that Custodial torture is a naked violation of human dignity and degradation which destroys, to a very large extent human personality.
3.2.1 CASE STUDIES
In Inderjeet v State of Uttar Pradesh, the Supreme Court ruled the punishment that includes elements of torture is unconstitutional. Apart from Article 21, the Court has ruled that the practice of keeping inmates sentenced to death in solitary confinement is unconstitutional under Article 20(2). A person serving a death sentence is confined in jail so that he can be executed when the time comes. Except for criminal offences, no punitive confinement can be imposed on him by the jail authorities. He is not to be held in solitary confinement because that would be punishing him for the same offence twice, which would be a violation of Article 20. (2).
In Raghubir Singh v Haryana, the Supreme Court stated that the SC is gravely worried by the diabolical recurrence of police torture, which has left horrific scars on the minds of ordinary individuals, warning them that their lives and liberties are in jeopardy because the guardians of the law are destroying human rights.
In the case of Sunil Batra (II) v Delhi Administration the Court reiterated that handcuffs and irons scream barbarism, which runs counter to our purpose of human dignity and social justice.
In Kishore Singh Vs. State of Rajasthan, the Hon’ble SC observed that nothing can be more cowardly and despicable than a person being beaten up in police custody, and nothing injures our constitutional culture more than a State official acting irrationally and disregarding human rights.
Torture has remained a popular weapon in the hands of the law-enforcing authorities to extract information and confessions, as well as to oppress underprivileged sections of society. In India, the police force enjoys a high level of impunity, and all governments prefer not to set a precedent by imposing exemplary punishments on responsible personnel for the simple reason that the functioning of any government is heavily reliant on the law-enforcement forces. They are the government’s troubleshooters, as well as providing important assistance to their political masters. Hence, no government would like to displease them. The Executive, on the other hand, fails to recognise that the people are the true source of power and that the police, paramilitary, and army are all public servants. However, rather than serving the people, they frequently use torture and brutality. It is quite improbable that the incidence of torture in detention in our county will decrease unless this changes.
3.3 EXTRAJUDICIAL KILLINGS
At some point of time in life, a person falls for some kind of offence or crime. The punishment for these offences and crimes is what the law is made for. Now, as the preventers of our Indian Constitution, the authorities should live up to the desires of our forefathers, who made it for a bright future of our very own country, India.
Though these authorities take the law into their hands and end up committing extrajudicial killings, these officers forget that the accused is still a human, who has fundamental rights, endowed by the Constitution of India. They need to understand that upon proving their offence, they may be punished by the court but the investigating officers have no right to take the life of the accused.
3.3.1 CUSTODIAL DEATH
Custodial death is described as an unnatural death caused by police officers’ torture or harsh, inhuman, or humiliating treatment, whether it occurs during an inquiry, interrogation, or otherwise. It is possibly one of the most heinous crimes that can be committed in a civilised society regulated by the rule of law.
In the landmark case of D. K. Basu v. State of West Bengal, the Hon’ble Supreme Court stated that –
“Custodial death is one of the worst crimes in a civilised society governed by the Rule of Law. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? The answer, indeed, has to be an emphatic, No.”
In the annals of human rights protection, this decision is monumental. The rulings establish essential criteria for preventing police brutality and torture in detention. They address the basic issues of fundamental rights protection, police criminalization elimination, and policing reform. The judgment also laid stress on India’s ratification of the UN Convention against Custodial Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (1984).
In the case of Nilabati Behera v. State of Orissa, there were multiple injuries found on the body of Suman Behera, petitioner Nilabati Behera’s son. The allegation was made that it is a case of custodial death since Suman Behera died as a result of the multiple injuries inflicted on him while he was in police custody, and later his dead body was thrown on the railway track. The Supreme Court adduced that the prisoners and detainees are not deprived of their fundamental rights as envisaged under Article 21 and such restrictions are imposed on the enjoyment of their fundamental rights which are permitted by law. It is clear from the observations of the Supreme Court that no one including the police officers has the right to take away the right to life of the arrested person which is protected under Article 21.
In Shyamsunder Trivedi v. State of Madhya Pradesh And Ors, the Supreme Court correctly recognised that in the absence of direct evidence, indicting responsible police officers becomes increasingly difficult. The Court ordered the insertion of Section 114-B into the Indian Evidence Act 1872. This would ensure that if an injury occurs while the individual is in custody, the court will assume that the police officer in charge is to blame. As a result, the burden of proof is reversed. The Law Commission made this suggestion not once, but twice (in its 113th and 152nd reports), it has yet to become law, despite the fact that the measure was presented in 2017.
The police force has the right to injure or kill the criminal, where it is imminently necessary for the maintenance of peace and order.
No provision in Indian law that expressly enables police officers to engage in criminal contacts; nevertheless, several enabling clauses can be interpreted in various ways to provide police personnel specific rights to deal with criminals.
- If it is done for self-defence purpose by the police officer.
- Section-96 of the Indian Penal Code (IPC) gives the right to every human being, right to private defence which is a natural and an inherent right.
- Similarly, Section-100 of IPC, Section-46 of the Code of Criminal Procedure (CrPC), etc. lay down similar provisions for extrajudicial killings and cases of culpable homicide investigations.
At times, the investigating officers take the laws into their hands and punish the offenders, though they know that they are the ones who are supposed only to aid the judiciary in finding the truth of the case.
In the PUCL vs State of Maharashtra case (2014), the Supreme Court was dealing with writ petitions questioning the genuineness of 99 encounter killings by the Mumbai Police in which 135 alleged criminals were shot dead between 1995 and 1997. Therefore, to curb the growing advantage of the encounters taken by the authorities, the Supreme Court laid down the following 16 point guidelines as the standard procedure to be followed for a thorough, effective, and independent investigation in the cases of death during police encounters.
The Supreme Court rebuked the police in the controversial case of Prakash Kadam vs Ramprasad Vishwanath Gupta, declaring that fake “encounters” were nothing more than “cold-blooded murders,” and that those who committed them should be sentenced to death, putting fake encounters in the category of “rarest of rare cases.” The Apex Court also said that the police deserve harsher punishment for harassing the law than customary since the encounter philosophy is a criminal philosophy, and officers who succumb to such a heinous philosophy behave knowingly and in violation of their responsibilities.
Thus, it can be incorporated that encounter killings must be probed independently since they jeopardise the rule of law’s credibility. There is an ardent need to ensure that there is a rule of law in a society that is followed by both state authorities and the general public.
Along with this, it should be ensured that there is proper physical custody of the accused to prevent any attack by them from attacking police officers. Furthermore, the criminal justice system must be completely overhauled, and necessary policy changes must be implemented.
Hence, it is the solemn obligation of the State to encourage the police force to deter antisocial elements and at the same time restrict the blatant abuse of power.
Therefore, it can be deduced that both the extra-judicial killings are done by the police officers, but with a slight variation, due to the plea of self-defence by the police officers in encounters, while such a plea is not found in the cases of custodial death.
RIGHTS OF AN ARRESTED PERSON
The benefit of the presumption of innocence of the accused until he is proved guilty at the end of a trial on legal evidence is one of the main pillars of our legal system. Even the rights of the accused are protected in a democratic society; even if someone is accused of a crime, he does not become a non-person. One of the primary reasons behind giving certain rights to an accused is that the officials may end up misusing those powers given by the government.
Although the police have been given certain authorities to aid in the apprehension of suspects, these authorities are subject to specific limitations. These limitations are primarily in place to protect the interests of the individual who is about to be detained, as well as the general public. The installation of constraints can be viewed as a respect of the arrested person’s rights to some extent.
The following are the rights of an arrested person:-
Right to Silence
Article 20 (3) of the Indian Constitution guarantees the right against self-incrimination – “No person accused of any offence shall be compelled to be a witness against himself.”
By the virtue of the case of Nandini Satpathy vs Dani (P.L.), the provision of the Right to Silence was granted to the accused, wherein nobody can forcibly extract statements from the accused, who has the right to keep silent during the course of interrogation (investigation).
Along with this, in 2010, the Supreme court also made narco-analysis, brain mapping and lie detector test a violation of Article 20(3).
Right to know the ground of arrest
Article 22(1) of the Indian Constitution provides that –
“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.”
Right to be taken in front of a Magistrate
Article 22(2) of the Constitution of India states that –
“Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 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.”
Right to be released on bail
Section 50(2) in the Code of Criminal Procedure, 1973 states that –
“Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.”
Right of not being Detained for more than 24 hours without Judicial Scrutiny
Section 57 in the Code of Criminal Procedure, 1973 clearly states that –
“Person arrested should not be detained for more than twenty- four hours. No police officer shall detain in custody a person arrested without a warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty- four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.
Right to a Free and Truthful Trial
Every individual is equal before the law, according to Article 14 of the Constitution, which has the inevitable implication that all parties in a matter must be treated similarly.
Initially, the right to speedy trial though not provided in the Indian Constitution, but was added as a part of Article 21 by the Supreme Court in the case of Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar.
Despite the various safeguards in the Criminal Procedure Code as well as the Constitution, it is widely assumed that the powers given to the police are still being misused today. It is also alleged that police officers often threaten detained individuals and take advantage of their position to extort money. There have also been several accounts of incarceration abuse, leading many to conclude that depriving arrested people of their civil rights has become normal in recent years. Indisputably, it is the responsibility of the police to protect the rights of society. It’s important to note that this society encompasses everybody, even those who have been arrested. Therefore, the police must continue to defend the accused person’s rights. In light of the above, it can be said that a police officer must ensure that handcuffs are not used excessively, that the accused is not threatened unnecessarily, that the detained person is aware of the reasons for his arrest if he is eligible for bail, and of course, that he is produced before a Magistrate within twenty-four hours of his arrest. Thus, the task before India is to strengthen human rights by strengthening the law enforcement system in its domestic criminal administration while also ensuring that social development and national unity are not jeopardised.
In this Research paper, I sought to demonstrate that India’s constitutional regulation on arbitrary arrest and detention is not deficient in making, but in considering the police officials as the protectors of law, who are essentially nothing more than those who blatantly infringe the law themselves, under the cover of duty and effectuate arbitrary arrests and detention, despite various safeguards under the Constitutional and Statutory Law, being in place.
It is the State’s legally obligated responsibility to explore ways and means to control crime and criminality within the constitutionally permissible parameters. The fact that the current criminal justice system has failed to contain the rising crime rate underscores the urgent need for the State to go beyond the outdated law of arrest and detention and embrace a constitutionally valid and scientifically successful approach to deal with crime and criminals.
Moreover, I argued that the persistence to continue with the same legal view and approach is also liable, therefore, all branches of State are to be held responsible, as it is evidentiary that after having identified that the problem lies in the implementation, the next step is to consider what can be done to redress this. One cannot just leave Articles 14, 19, and 21 as bulwarks to protect personal liberty against abuse of arbitrary arrest and detention by the executive; the need of the hour is that the judiciary must enforce stricter rules and regulations, for it will no longer be shackled by only the text of Article 22.
The history of arbitrary arrest and detention cases in India shows that all three branches of State have, at different times, in different situations made apparent their contentment with upholding a regime where personal liberty can be thrown into the dustbin. Considering this inglorious institutional past, perhaps it is time to look elsewhere, because we know that at the end of the day, the outlines provided for the protection of the rights of an arrested and detained individual has always been reduced to paper, though a ray of hope stays with cases, where the apex court clarified in the two landmark judgments i.e., Joginder Kumar and D.K Basu, that apart from interpreting the Constitution, it may additionally also provide various safeguards which were not even incorporated in the Indian law. Thus, although the role of the judiciary is pivotal in protecting the rights of a person, yet, there are certain instances of difference in the approach which have been witnessed while analyzing various cases. Thus, rather than carving out exceptions, it is proposed that a common norm and procedure be established. Alternatively, the special rules could be applied to everyone, regardless of the post, position, or other factors.
Despite various provisions laid down by the Constitution of India, people are still being violated by the authorities, and the rights of arbitrary arrest and detentions are often reduced to rules and regulations inscribed on a mere piece of paper, therefore there are some steps which I hope may prove as a support to the people who have seen the enforcers of the law, openly flouting the rules themselves. Some suggestions are:
- Firstly, the government should enlist the assistance of non-governmental organisations, wherein, they can collaborate with them to raise awareness, and consequently, the citizens will become aware of their rights, which may help in avoiding these violations. As only the mere awareness of rights may contribute to a big reduction of violations.
- Secondly, in cases related to arbitrary arrest and detention, I firmly believe that the government should be held vicariously liable for the actions of its employees. If police actions are arbitrarily and unlawfully conducted, the government should be held accountable.
- Thirdly, there is an ardent need for the independence of the police from political interference, and steps must be taken to improve efficiency and modernize training. Accountability and transparency in the law enforcement agency should also be ensured.
- Next, there should be periodic reviews of the lawfulness of arrest and detention, which will help any state to know the loopholes and the areas to work upon, which will enable them to help the victims directly.
- Lastly, the government should work to restore public confidence in the police. These will aid in lowering the crime rate, as most cases of human rights abuses go unreported and unregistered due to the apprehension or intimidation of police in the minds of those who are subjected to them. A rebranding of the police force is required so that they are viewed as allies rather than enemies of society and its people.
Eventually, measures must be taken into consideration only if they do not intervene with the state’s responsibility to uphold law and order and the maintenance of peace in society, as well as individual liberty and rights. As a result, careful enforcement of the laws is needed.
- Rights of Arrested Person available at http://www.legalservicesindia.com/article/1635/Rights-of-Arrested-Person.html
- Extract from Constituent Assembly Debate, Vol. VII (September 15, 1949).
- Refer D.K. Basu Guidelines provided under Law Commission of India, 17th Report on Law relating to Arrest at https://lawcommissionofindia.nic.in/reports/177rptp1.pdf
- Ratanlal and Dhirajlal, The Code of Criminal Procedure, 1773 (Lexis Nexis, 17th ed., 2009).
- Icelandic Human Right Centre at http://www.humanrights.is/the-human-rights/project/humanrightscasesandmaterials/humanrightsconceptsideasandfora/substantivehumanrights/therightst oliberty/
- The French Revolution and the Organization of justice at https://www.justice.gc.ca/eng/rp-pr/csj-sjc/ilp-pji/rev5/index.html
- M.P.Jain, Indian Constitutional Law 98 (Kamal Law House, Calcutta, 6th ed., 2010).
- Human Right Watch (2009) Broken System Dysfunction, Abuse, and Impunity in the Indian Police Human Rights Violations by Police, p. 41, available at http://www.hrw.org/sites/default/files/reports/india0809web.pdf