Arrest – Depriving Crime or Depriving Right?

Image Credits – APRN

All, irrespective of a person’s position or rank, have the right to personal liberty. The right is as much available to a walker as it is to the country’s Prime Minister. It is the most valued freedom that our Constitution grants to all individuals. The Indian Constitution establishes a framework whereby the State must protect against a probable invasion of liberty. The phenomenal development in science and technology in the contemporary period would, without a doubt, have significantly impacted the harshness of antiquated and detention techniques. In our Criminal Justice System, the term “arrest” refers to the restriction of an individual’s personal liberty by holding him in custody. Such arrest should conform to statute and should only be conducted for the public interest to prevent crime and for the preservation of law and order in society.

Under the Code of Criminal Procedure, 1973 the detention authority is conferred to the police and private individuals under exceptional circumstances. The power to arrest is an extremely critical power that must be handled with care and discretion. Furthermore, an arrest is unquestionably a significant infringement of a citizen’s right to personal liberty, which is protected under Articles 21 and 22 of the Indian Constitution. These articles expressly state that an arrest must be carried out in exact compliance with the law. The intention of denying a person their right to liberty is either to prevent them from committing a crime or to assure their appearance at trial.

Law of Arrest under the Indian Legal System

The legislation on arrests and detainment, in particular, has been adapted from the British government in its original form. The police have the authority to safeguard a person’s rights and keep the peace in society. However, the principles by which they are controlled are based on traditional British statutes which show signs of despotism and arbitrariness. In defiance of the changing times, the legislation has, however, remained intact and nonetheless, has been implemented in its medieval form, forcing police to engage in unethical, corrupt behavior and adopt ruthless methods.

Today, the police appear to have lost much of the trust that people had previously placed in them. Even though several laws under the Constitution and Statutory Code are in effect, there is sufficient evidence to indicate those police officers deliberately break the law while on the job and carry out arbitrary arrests and detentions. The right to personal liberty is paramount and is ensured to every citizen of this country, hence it is ultimately up to the State to keep any attempts at infringement of such a right, at bay.

Initially, the Indian legal system did not have a precise definition of arrest, but in the case of State of Punjab v. Ajaib Singh, the Supreme Court decided to take notice of the same and clarified the term “Arrest” as it now appears in Article 22 of the Indian Constitution. Concerning an alleged allegation of default or breach of the law, the court defined the word as denoting the individual under the power of law to be physically confined. The Supreme Court concluded that the term “arrest” refers to the restriction of an individual’s personal liberty and that detaining a person and holding him in custody is equivalent to arrest. The court ruled that the terms “arrest” and “custody” are interchangeable. It is a method of apprehending someone.

The Constitution of India guarantees its citizens’ right to life and liberty against the authority of the State to apprehend a person and, the same system provides for the State to strip a person of his liberty, but all of it falls within the ambit of the procedure which has been established by law.  The State is nonetheless authorized under Article 21 of the Constitution to detain and imprison a person, where the arrest is under the procedure established by law and the maximum timeframe, until such custody may continue without any legal penalty, is set at 24 hours by Article 22. The arrest must, however, be carried out within constitutional bounds.

An arrest is constitutionally permissible for the reasons that properly justify imprisonment and its limits on protected rights under Article 19 of the Constitution. Authority to arrest is granted to police forces, magistrates, and, to a finite degree, to private individuals as well, under the CrPC, while authority to apprehend is granted to various officials such as customs, and others by other statutes. When it comes to Article 22 of the Indian Constitution, Article 21 is essential since arrest and imprisonment take away the personal liberty of a person.

Therefore, Article 22 acts as a safeguard for the individual who has been robbed of his liberty. The procedure established by law was a contentious topic in the Legislative Assembly at a point in time, since it enabled the State to deny a person his life and personal liberty. The term liberty is extremely important; in its most basic definition, it means the willingness and capacity to do what one desires without being affected by any other source – internally or externally. Therefore, the State is attempting to limit the rights of the people while still promoting the general welfare to maintain peace and order.

Judicial Intervention


For Development of Law of Arrest and Detention

When it comes to judicial involvement in matters of arrest and detention, two classic cases, Joginder Kumar v. State of Uttar Pradesh and D.K Basu v. State of West Bengal, are consistently at the forefront. In the aforementioned cases, the court established standard guidelines which are to be followed by a police officer while depriving an individual of their freedom and liberty. In the case of Joginder Kumar v. State of Uttar Pradesh, the Supreme Court incorporated guidelines that allow every individual deprived of his or her liberty by arrest and detention, to inform a friend or relative of his or her arrest and ordered the law enforcement officers, including the person informed of the arrest, to enter into the journal of the case.

Essentially, the court issued these instructions to place a constraint on the authority provided to police for detainment and arrest of a person, stating that the guarantee against arbitrary arrest and imprisonment stems from Articles 21 and 22 of the Indian Constitution which cannot be infringed. While a comprehensive protocol for an arrest by the police officer had been decided by the court in D.K Basu v. State of West Bengal to avoid arbitrary arrest and imprisonment, the court also stressed that some measures must inevitably be taken by the police.

These include the officer-in-charge must be dressed in a proper uniform with a visible name tag, drafting of an arrest statement that two of the witnesses are obliged to provide, informing the family relative about the arrest, and so forth. Some of these recommendations have been effectively integrated into the Code for Criminal Procedure Act, through Section 41 added by the Criminal Procedure (Amendment) Act, 2008.

A provision relating to the safety and health of arrested individuals was also added by the Code of Criminal Procedure (Amendment) Act, 2008. It stipulates that the police must ensure that the health and safety of the alleged offender are properly protected and that they must ensure rigorous implementation of the Code or any other legislation during an arrest.

Cases of Arbitrary Arrest and Detention

Through Judicial Activism, the judiciary has played a pivotal part in reducing the danger of arbitrariness in the procedure for arrest. In India, the practice of the misuse of authority to arrest is prevalent, despite several Constitutional and legal measures that have been put in place to prohibit arbitrary arrest and imprisonment. Therefore, the judiciary has taken a proactive approach to protect an individual’s rights and prevent arbitrary police arrest. A key priority in a free society is the protection of individuals against oppression and exploitation by the police and other law enforcement officials.

In the well-known case of Maneka Gandhi v. Union of India, Supreme Court of India, the court stated that everyone has the right to a just and fair trial.  Article 21 provides for a reasonable and fair method, which no one should be allowed to take away in any case. As a result, the derivation of liberty should likewise be within the bounds of the principle of justice and reasonableness. In several judgments, the judiciary has pronounced that the right to liberty is an important right of an individual which cannot be taken away by the State under any condition until there is no other alternative available except to restrict liberty.

In the Joginder Kumar judgment, the Supreme Court expressed concerns regarding the misuse and abuse of the State’s arrest power and laid down a few guiding principles to the law enforcement officers to prevent the State from arbitrary deprivation of liberty. The court stated that arrests must be made regularly, however, only after an initial investigation. It also stated when an arrest is made, the officer in question must justify and explain such an arrest. As a result, the court rebuked the cop’s actions and ordered the arrests must be made only when they are absolutely required and there is no other option.

According to the Court, such arrests should only be made for the stated reasons: to assure the individual’s appearance before the court, or to prohibit the individual from committing other crimes, tampering with the evidence, or threatening witnesses. The court determined that unwarranted and needless arrests will potentially cause harassment and individuals to lose trust in our justice system. In the State of Madhya Pradesh v. Shobharam, the Supreme Court held that informing an arrested individual about the reason for his detention is a necessary rule that cannot be disregarded under any circumstances.

The Apex Court also used judicial interpretation to try and prohibit arbitrary arrest and imprisonment and created the idea of compensating those who are wrongfully arrested. It also stated that wherever an individual approaches the court to contest the lawfulness of his detention and arrest and asserts that his right has been violated, the court has authority in these circumstances to grant the victim monetary recompense.

Thus, the legislation offers enough tools to avoid arbitrary loss of freedom, but most Indians ignore these rights, either because they are analphabetic or due to poverty, which prevents the individual from obtaining a fair chance at justice. The judgment of the courts to grant monetary compensation has, however, not proven to be dissuasive unless the wrong police officer is personally held responsible, not only for the department but also for certain criminal offenses.

In the State of Maharashtra v. S. Patil Ravikant, the court did not direct the officer to pay the compensation amount as he acted under the pretext of official duty and ordered the State to pay the amount, however, in the subsequent case of Arvinder Singh Bagga v. State of Uttar Pradesh, the previous decision was upheld by the court and the State was directed to recover the compensation amount from the officer. As a result, it is clear from the decisions which had been taken in numerous instances that the judiciary is worried about the preservation of the arrested person’s rights as well as his or her dignity, by asserting that a person’s dignity is essential and should be protected in all situations.

Deprivation of Right to Liberty and other Fundamental Rights

Law values an individual’s freedom of movement so highly that it cannot be hampered or impeded by anybody unless there are compelling reasons to arrest him.”

Lord Denning

Depriving someone of their own liberty is extremely painful and causes immeasurable suffering. The above-mentioned assertion has been reiterated by the Courts in their decisions. Even the Constitution of India states in Article 13 that fundamental rights are the ones that cannot be infringed, even by the State. Fundamental rights put limitations on the state authority and an obligation on the State to not violate these restrictions for any situation. In R.C. Cooper v. Union of India, the Judge stated that basic rights are essential, concentrating primarily on the authority of the State to arrest and the purpose of the State’s conduct in using that power being ignorance of the real intent of the Indian Constitution.

We emphasize, and we believe it is essential to reaffirm, that the seriousness of the harm to the society caused by anti-social actions can never be an acceptable basis for infringing a citizen’s personal liberty unless done so in compliance with the Constitution and laws. The history of personal liberty is primarily one strict adherence to process. Over the years, the procedural observance has been the last line of defense against indiscriminate attacks on personal liberty. The sole protection of an individual’s personal liberty under our Constitution is that he will not be robbed of it unless and until he follows the legal procedure.

In the case of Joginder Kumar, the court defined the right to personal liberty, stating that robbing an individual of his or her liberty is very painful and causes unfathomable harm to the individual and his or her reputation. The court in the aforementioned case highlighted that having the authority to arrest is one thing, but justifying it is another; a police officer cannot arrest a person only because it is legal for him to do so; he must also be able to explain the arrest in addition to his power to do so.

The court went on to say that the law of arrest contains “individual duties, obligations, and responsibilities” on one side and “balancing individual rights, liberties, and privileges” on the other. Thus, the court cited the National Police Commission’s report, which identifies the wrongful use of the arrest powers provided to the police and one of the main causes is malfeasance in the regime of security and law enforcement agencies, indicating that nearly 60% of arrests made by public officials are not justified and mostly unnecessary.

The court, while strongly condemning the practice of conducting indiscriminate arrests, stated that a law enforcement officer must be able to explain the arrest. Arresting a person and keeping him in police custody may do irreparable damage to a person’s reputation and self-esteem., while realizing this, the court further laid down that no one can be arrested based on a single accusation of committing a crime against him. It would be appropriate for a police officer to only arrest someone when sufficient evidence is found and the police officer is satisfied after some inquiry to substantiate the veracity of the legal complaint filed against them. As a result, he can arrest someone based on reasonable suspicion of their complicity and the necessity for an arresting effect.

In the D.K Basu case, comprehensive guidelines for making arrests in the frame of reference of the importance of personal liberty were issued by the court, and it was stated that a person who has been arrested/detained, has the right to be informed about the premises of his arrest, as well as the right to take counsel and be defended. It stated that no individual must be held in custody without first being notified of the reasons for arrest and their rights in conjunction with such arrest, and it also specified additional requirements to be met while arresting someone.

According to the Indian Penal Code, detaining individuals without recording their arrest can be penalized with imprisonment for as long as 7 years, if done corruptly or intentionally.

The judiciary is committed to the protection of the basic dignity of an arrested person and is making continuous efforts to carry out the Constitutional and Human Rights safeguarded in the favor of the arrested person.


Security against unauthorized intervention by others is provided by the Constitution of India as a basic right to its citizens. Article 22 serves as protection for those whose personal liberty has been taken away due to arrest and imprisonment. Arrest and detention, being a state authority, which has the consequence of directly infringing on a person’s liberty, should be used in conformity with the law. The Indian criminal justice system is sacred, and its principles must operate within the bounds of and per the Constitution’s guarantees. Within the constitutionally permitted boundaries, it is the State’s obligation to investigate methods and means to regulate crime and criminality.