Between detention and arrest, there is no distinction; no buffer zone where liberty is suspended

Every arrest deprives liberty and, therefore, must be a last resort in a liberal democracy. Even words may amount to arrest if they are calculated to bring to a person's notice that he is under compulsion and he, thereafter, submits to such compulsion. Indeed, the word "arrest" is a legal term of art.

At a time when there is a widespread conversation about institutional decay, with some expressing concerns that the Supreme Court has become an executive-minded court, a two-judge bench led by Justice Ujjal Bhuyan -- Justice A S Chandurkar was the other judge -- has given a bold judgment that drastically restricts the power of the police to detain people before their formal arrest. In Prabir Purkayastha (2024), too, a violation of Article 22(1) for not supplying grounds of arrest was the basis of his release. In last week's verdict, the right to production before a magistrate within 24 hours under Article 22(2) was in question. Unfortunately, the 44th constitutional amendment (1978) that was aimed at humanising preventive detention in Article 22(4) has not been notified even after 48 years. This shows successive governments' lack of commitment to due process. Interestingly, Article 22(1) and (2) in essence incorporated guarantees -- right to counsel of choice and production before a magistrate within 24 hours -- that were already part of the colonial government's Code of Criminal Procedure,1898.

Justice Bhuyan is showing, time and again, that every appointment to the apex court is extremely important. Judges sitting even in smaller benches not only greatly contribute to our constitutional jurisprudence but can help reinforce the people's trust in the judiciary.

Criminal law is the most direct expression of the relationship between a state and its citizens. Criminal sanction is the most coercive method of regulating an individual's behaviour that a state can deploy. Criminal law's promise as an instrument of safety is matched only by its power to destroy. Today, we are making excessive use of criminal law by not only adding new crimes but also mindlessly enhancing the punishments. No precise number of criminal offences is available, but central laws alone provide for as many as 7,305 criminal offences. Criminal law is entry number 1 of the Concurrent List: State criminal statutes provide for thousands of additional crimes. The progressive view among criminologists is that criminal justice policy is largely irrelevant in reducing the incidence of crime. Incarceration rates are higher in countries whose capacities to regulate the macroeconomy and contain inequality are weak. The "culture of control" is also a product of market and economic dynamics. Incarceration impinges on the autonomy of the individual.

As per the National Crime Records Bureau, in 2024, we recorded 58,85,867 cognisable crimes, with 35,44,608 under IPC/BNS and 23,41,259 under special and local laws. In most crimes, there are several suspects and accused who are arrested. About 72.6 per cent of prisoners are undertrials -- they have not been convicted of any crime.

Article 22 is unequivocal in the provision that every arrested person must be produced before a magistrate within 24 hours. In reality, though, the police often detain suspects for hours prior to formally entering their arrest in the record. At a time when civil liberties are being curtailed with bail provisions being made far more stringent, Justice Bhuyan has yet again reminded us of the apex court's jurisprudence and how fundamental rights are to be interpreted.

In Sakal Papers (1961), the Constitution Bench had already held that " [The] Constitution must be interpreted in a broad way and not in a narrow and pedantic sense... while considering the nature and content of those rights the Court must not be too astute to interpret the language of the Constitution in so literal a sense as to whittle them down."

Similarly, in M Nagaraj (2006), the Court had said that people's rights are not a gift from the state. Part III of the Constitution does not confer fundamental rights; rather, it confirms their existence.

With such an understanding of civil liberties, it was not difficult for Justice Bhuyan to hold that the 24-hour period starts the moment a person is detained and the police get the power to restrict their liberties. Justice Bhuyan rightly observed that Article 22(2) uses the expressions "arrested" and "detained" in conjunction. So, arrest and detention cannot be artificially separated. The two words are synonymous. He overruled the judgments of the Orissa, Madras and Kerala High Courts that tried to distinguish between the two terms. Justice Bhuyan held that "the Constitution does not recognise any detention dehors arrest". He went on to observe that "any attempt to draw an artificial distinction between 'arrest' and 'detention' would dilute or negate the fundamental protection guaranteed by the Constitution under clause (2) of Article 22. Such an endeavour should be avoided."

In unequivocal terms, Justice Bhuyan held that Article 22 neither mandates any time for inquiry nor investigation nor medical examination nor anything else. Article 22 permits exclusion only of the time in reaching the court of the magistrate. No buffer zone can be created where the liberty of an individual is curtailed for investigating purposes prior to formal arrest. Such a buffer zone is unconstitutional.

you may like

Justice Bhuyan based his observations on Justice V Krishna Iyer's judgment in Niranjan Singh (1980), which acknowledged that explanations like the police have taken a man into informal custody but not arrested him or have detained him for interrogation but not taken him into formal custody are unfair evasions of the straightforwardness of the law.

While Article 22(2) does not explicitly provide for production before a judicial magistrate, Justice Bhuyan did have an opportunity in this case to interpret the word "magistrate" as a judicial magistrate and not an executive magistrate. Section 15 of BNSS,2023 authorises state governments to appoint any police officer not below the rank of Superintendent of Police as Special Executive Magistrate (SEM). A person arrested by the police should not ideally be produced before a fellow police officer. Is not the separation of powers a basic feature of our Constitution? Recently, student activists and CJP leaders in Delhi were produced before the SEM, who was a police officer and whose remand order is questionable on several counts.

The writer is vice-chancellor, Chanakya National Law University, Patna. Views are personal