The Menace of Arbitrary Detention in India

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Power corrupts; absolute power corrupts absolutely.

– Lord Atkin

Liberty is one of the most quintessential aspects of a human’s life. The liberty is not a state-gifted right to an individual, and it is innate to every human being. The existence of freedom is fundamental to the existence of human society. The freedom is what makes a man, a human and if freedom is denied to a human, it will amount denying humanity to him. The concepts of liberty and arbitrariness have always been at daggers drawn. The former is a splendid reflection of the rule of law philosophy, and the latter is a symbol of authoritarianism. This is rightly said that the greatest value of freedom is realized by those who are deprived of it for some reasons or the others. Nobody can realize, experience and understand the importance of freedom better than those who are deprived of it.

Detention: Meaning, legal provisions, and the scope.

The term ‘detention’ is frequently used in the process of law or even by common men in ordinary parlance to indicate the curtailment of someone’s liberty by taking him into custody. Though the term ‘detention’ has many a time appeared in the Indian Criminal Procedure Code, 1973, or some other enactments, it has neither been specifically defined in this Code or any other enactments. The word ‘arrest’ has also not been defined in the Code or the IPC or any other enactments.

The Black’s Law Dictionary defines ‘detention’ as “The act or fact of holding a person in custody; confinement or compulsory delay.” It also defines, ‘Secret detention’ as “The holding of a suspect in an undisclosed place, without formal charges, a legal hearing, or access to legal counsel, and without the knowledge of anyone other than the detaining authority. This ‘secret detention’ as defined in Black’s Law Dictionary is to a great extent close to nature, meaning, and characteristics of arbitrary detention. It basically means; detaining someone without a proper authority of law or if by the authority of law then maybe detaining through illegal procedures and thereafter not giving the detainee a fair opportunity of hearing or recourse to his legal counsel or access to his family members or friends and other fair legal rights which an arrested person is legally entitled to after being detained.

The Constitutional Provisions in India relating to arrest or detention.

Article 21 of the Constitution of India declares that “no person shall be deprived of his life or personal liberty except according to procedure established by law” In the landmark judgment of Maneka Gandhi v. Union of India the Supreme Court of India held that, “The procedure established by law which affects the liberty of a citizen must be right, just and fair and should not be arbitrary, fanciful or oppressive and that a procedure which doesn’t satisfy the said test would be violative of Article 21 of the Constitution.”

Article 22, clause (1) of the Constitution of India, 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”. Clause (2) of Article 22 lays down that “Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate”.

The Provisions of Criminal Procedure Code, 1973, relating to arrest or detention.

The provisions relating to arrest are primarily dealt with in chapter 5 of the Code of Criminal Procedure, 1973. Section 41 of this Code mainly deals with the situations when a police officer may arrest without warrant. The most of the arbitrary detentions are generally made under this section as the power assigned to the Police under this section are elephantine in nature. This is pertinent to note what the ‘Law Commission of India’ observed in its 177th report on ‘Law relating to arrest.’ It observes that “Arrest of a person without a warrant and without an order from a Magistrate seriously invades the liberty of a citizen. In case of an arrest under a warrant, a judicial authority has applied his mind to the facts and circumstances of the case whereas, in a case of an arrest without warrant by the police, and the matter rests more in the realm of police officer’s subjective satisfaction.”

The Police, their power and the reasons behind the arbitrary detention

The elephantine, unguided and the arbitrary power provided to the Police is the fundamental reason behind the menace of arbitrary detention. The guidelines issued by the Supreme Court of India in relation to arrest by the police, in one of its landmark judgments of DK Basu v. State of West Bengal are still not complied with by the Police, as we come across the regular news reports of the rampant violations of the same on by the police machinery. It is an open secret that false criminal cases or mischievous charges are often registered against a person by his opponent, business competitor or by other enemies in league with the police so that such person can be easily harassed and humiliated by the police and get him detained on those false charges. It is again pertinent to mention another observation of the ‘Law Commission of India’ in its one hundred seventy-seventh report, where it notes that, “Power of arrest is the most important source of corruption and the extortions by the Police officers. From the moment a case is registered by the police on a cognizable complaint, they get the power to arrest any person who may be ‘concerned in the offense,’ either on the basis of the complaint itself or on credible information otherwise received.”

The rule of law and lively democracy can be sustained only by the laws that govern the police and the police operating strictly within the contours of the corpus juris.

– Justice V.R Krishna Iyer

The Absence of Pragmatic Legal Recourse for Common Man

Let us delve little deeper to analyze some more reasons behind many arbitrary detentions made by the police in India on a daily basis. Is it so because a common man is remediless in case he is arbitrarily arrested by the police or does he have legal recourse to ensure the punishment of the violator of his freedom? What motivates police personnel to make arbitrary arrests on such a large scale on a daily basis, as we come across such news reports? Is there any legal mechanism in place to punish the police officer making such an arbitrary arrest? The answer to these questions is in both ‘Yes’ and ‘No.’ Legally speaking – Yes, pragmatically speaking – No. Let us analyze it in a detailed manner. If an arbitrary or unlawful arrest is made by the police, the police officer can be prosecuted under section 342 for wrongful confinement, if this wrongful confinement is for 3 or more days then under 343 and it if it for ten or more days then under section 344. But, the hindrance lies in the fact that if such a police officer who has made the arrest is “not removable from his office save by or with the sanction of the government,” he cannot be prosecuted for his action except with the previous sanction of the concerned government. This protection has been provided in section 197 of the Criminal Procedure Code. But, the government hardly grants previous sanctions to prosecute a police officer for wrongful confinement. Only in some rare cases where there is a lot of public and Media pressure, it does grant this sanction.

Let us consider a case where an arrest is made by a police officer of lower rank, for whose prosecution, no previous sanction of the government is required. This situation is actually possible and frequently happens an as large number of arrests are made by the lower ranks police personnel to whom the protection of section 197 does not extend. So, even in this kind of situation, if a person who has been subjected to arbitrary and unlawful arrest, anyhow musters up courage to stand and fight against the guilty police personnel by prosecuting him for wrongful confinement then the probability is extremely high seeing the past records that the entire might of police department may jump in his defence and start further harassing and be tormenting the person to withdraw his complaint against such police official. Few exceptional cases where this further harassment by the police department for taking the complaint back is not likely to happen, maybe in the case where the person prosecuting the police official for subjecting him to arbitrary and unlawful arrest is wealthy and powerful. Due to this apprehension in the minds of the common people, no one dares to challenge the police, and one cannot reject this apprehension to be unfounded.

The other option that rests with the victim of arbitrary or unlawful arrest is to make a complaint to the higher authorities, but that generally is of no avail, unless a lot of Media and public pressure is put upon the higher authorities or state apparatus to act against the erring officer or unless the superior officer is deadly honest and committed to the philosophy of the rule of law. But that too is again an impracticable proposition as the Media, and the public, in general, considers these arbitrary arrest made by the police on a routine basis as a petty issue and a part of the huge police power and their common rights. So, the public and Media don’t outrage on these routinely unlawful arrest made by the police. If in certain cases, the disciplinary action is instituted against the erring officer, then the victim can merely act as a witness, he doesn’t have any role to play in the disciplinary proceeding. Everything goes according to their discretion. In this manner, a victim of arbitrary or unlawful arrest is left with no other option but to suffer it by considering it his fate. Theoretically, he may have some rights, but practically he is remediless.

How can the Situation be ameliorated?

The root cause of arbitrary detention can be understood in terms of an evil correlation between the unguided power of the police and the lack of accountability and transparency in their functioning. Lord Atkin’s famous statement that “Power corrupts; absolute power corrupts absolutely” gives us a good opportunity to fathom this ignominious correlation between the unguided power of the police and the unaccountability and the non-transparency in their functioning. The illegitimate consolidation of power creates a harmonious ambiance for arbitrariness to flourish. The lack of transparency and accountability in power provided provides a scope and an opportunity for the power holders to exercise powers arbitrarily and thereafter camouflage their arbitrariness by mutualizing their power, position, and office. So any effort to eradicate this menace of arbitrary detention will have to constitute the process of ravaging this evil engagement of power with unaccountability and non-transparency. In the precious words of Justice V.R Krishna Iyer, as noted in his book ‘Off the Bench’ “The rule of law and lively democracy can be sustained only by the laws that govern the police and the police operating strictly within the contours of the corpus juris.”

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