The Supreme Court issued a stern warning to state police personnel in light of the arrest procedure being flouted, leading to the violation of the fundamental rights of individuals. This particular transgression involved physical abuse at the time of arrest and, later, in custody. Sadly, such cases are not uncommon in India.
The arrest procedure is provided clearly and comprehensively in the Bharatiya Nagarik Suraksha Sanhita, 2023. Over the years, the Supreme Court too has created an extensive set of safeguards during arrest in line with the constitutional principles of liberty and dignity.
The accused has several rights at the time of arrest, such as the right to be informed about the grounds of arrest, the right to meet an advocate, the right to inform friends/relatives about the arrest and place of custody and so on. These safeguards are in place to protect the accused’s right to life and individual liberty under Article 21. Further, Article 22 also requires that the accused be produced before a magistrate within 24 hours of the arrest.
The experience of an arrest can be particularly traumatic if the process involves the application of excessive force and degradation. Even if the arrest is proved to be illegal later, its effects on a person’s social and professional life are grave. The police plays a pivotal role in the legal system and is often the first point of contact in case of a wrong being committed. High-handedness and illegality on the police’s part can shake the confidence of the public in the judicial system which, in turn, affects the rule of law.
Unfortunately, arrest guidelines are frequently disregarded by the police. There are numerous instances of the police deploying excessive force or perpetrating physical and mental abuse in custody or even making unjustified arrests. The only remedy for an illegal arrest is to get compensation by filing a writ petition. The remedy for illegal detention is a habeas corpus petition before the constitutional courts. While illegal arrests and detentions are frequently exposed in habeas corpus petitions in the high courts and the Supreme Court, the majority of the cases go unreported. Given the police’s conduct, the Supreme Court, in a groundbreaking verdict, held that in case of an illegal arrest, the arrest will stand vitiated and the accused will be released on bail (Directorate of Enforcement versus Subhash Sharma).
There is an urgent need to safeguard the sacrosanct fundamental rights of individuals by preventing illegal arrests and ensuring police accountability. Some measures are worth contemplating. First, consolidating periodic data about illegal arrests, detentions and their duration is a must. The way the National Crime Records Bureau compiles state-wise and year-wise data on crime, the same can be done for illegal arrests and detentions to understand the gravity of the issue. Second, a conducive environment must be created to allow people to complain against police high-handedness. In its first report, the National Police Commission had recommended that the State facilitate a mechanism where complaints against the police are looked into seriously and disposed of by high-ranking officials in the police department or by an independent authority. Judicial action was recommended for graver offences like rape in custody or grievous hurt/murder in custody.
The Delhi High Court has observed that censure is not sufficient in cases of illegal arrest and awarded Rs 50,000 as compensation, to be drawn from the errant police officer’s salary, for detaining a person illegally for 30 minutes. The same can act as a good example of dealing with such cases.