India’s arrest safeguards are under scrutiny after police arrested over 100 students, despite a government promise to withdraw cases against non-violent demonstrators. The July 25 assurance had ended seven weeks of protests at Jantar Mantar. Such episodes undermine the legitimacy of law enforcement and erode public trust in government.
The arrests have raised concerns about the effectiveness of India’s arrest safeguards, which exist on paper but often fail in practice. The Constitution of India guarantees certain rights to arrested persons, including the right to be informed of the grounds of arrest and the right to consult an advocate of their choice.
Every arrest made by the state must comply with constitutional norms, which are tested as per the guarantees provided to arrested persons under Articles 14, 21, and 22 of the Constitution. Article 21 protects life and personal liberty, including the right to be treated with human dignity, even in custody.
The Supreme Court has consistently emphasized the importance of protecting the rights of arrested persons. In the case of Francis Coralie Mullin v. Union Territory of Delhi (1981), the court held that the right to life under Article 21 includes the right to live with human dignity. The court has also ruled that the procedure by which the state deprives a person of their right to life and personal liberty must be just, fair, and reasonable.
The newly framed Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has replaced the Code of Criminal Procedure, 1973, but it retains provisions that provide safeguards to arrested persons. The guidelines of Joginder Kumar and DK Basu remain in force, emphasizing the importance of protecting the rights of arrested persons.
The requirement of reasonability and credibility would prevent the misuse of such powers. The word “reasonable” brings in the requirement of honest belief based on facts. The words “reasonable” and “credible” have reference to the mind of the police officer receiving information, and such information must afford sufficient materials for the exercise of an independent judgment at the time of making an arrest.
The Supreme Court has worked to constitutionalize the police power of arrest, emphasizing the importance of protecting the rights of arrested persons.
The court directed that the state action must be fair, just, and reasonable and that using any kind of torture to extract information is impermissible. The most important part of the judgment was that the police officer making an arrest should bear an accurate and clear identification and name tags showing their designations, and must prepare an arrest memo at the time of arrest and such memo must be attested by at least one witness.
Implementation of these safeguards will depend on the professionalism, integrity, and accountability of the police administration and the executive machinery. They must prioritize training in constitutional rights, human rights, de-escalation techniques, crowd psychology, crisis negotiation, gender sensitivity, and juvenile justice.
A National Constitutional Policing Standard Operating Procedure could help translate constitutional guarantees into everyday policing and ensure that the rights of arrested persons are protected. This procedure would prioritize citizen protection over coercive policing.
All police personnel, particularly constables, should undergo mandatory annual training in constitutional rights, human rights, de-escalation techniques, crowd psychology, crisis negotiation, gender sensitivity, and juvenile justice. A National Constable Training Manual should be prepared incorporating the principles laid down in various Supreme Court judgments and the BNSS, 2023.
Peaceful assemblies should be managed through dialogue, persuasion, and graded response, with negotiation as the first option. The use of firearms, pellet guns, chemical irritants, and other potentially lethal or indiscriminate force should be prohibited against peaceful protesters. Where the use of a baton becomes unavoidable to prevent imminent violence, it should be proportionate, used only as a measure of last resort, and directed at lower limbs while avoiding the head, neck, spine, chest, abdomen, and other vulnerable parts of the body except where immediate defense of life is legally justified.
Every arrest should be body-worn camera recorded from commencement to completion. Police officers should not seize or switch off an arrested person’s mobile phone except where authorized by law and necessary for investigation, and any such seizure must be documented through a lawful seizure memo while preserving the person’s right to communicate with relatives and legal counsel.
Despite the impressive jurisprudence, the gap between constitutional law and police practice remains disturbingly wide. Police reforms cannot succeed through statutory amendments alone; they require institutional transformation. The implementation of constitutional guarantees ultimately depends upon the professionalism, integrity, and accountability of the police administration and the executive machinery, as seen in the case of Venezuela intervention challenges.
The need for police reform is evident, and it is essential to address the issue of war crimes and ensure that those responsible are held accountable.
Institutional transformation requires a commitment to upholding the rights of arrested persons and ensuring that police practices align with constitutional guarantees. This can be achieved through training and education, as well as the implementation of policies and procedures that prioritize citizen protection and safety.
Ultimately, the protection of human rights and the prevention of abuse of power require a collective effort from the government, the police, and the community. By working together, it is possible to create a system that prioritizes justice, equality, and human dignity, as seen in the debates on voting bans in Ghana.
