ARBITRARY ARREST AND DETENTION IN REFERENCE WITH RIGHT TO LIFE

ABSTRACT:

Article 22[1] is a part of the fundamental rights mentioned in the Constitution, Article 22 is divided into two important parts, the first part provides protection and rights in case of arbitrary arrest and also safeguards against detention. Detention is where a person is not arrested but is suspicious to be involved in a crime. This Article 22 is a part of Article 21[2] which says that No person shall be deprived of his life or personal liberty except according to a procedure established by law. Arbitrary arrest or detention is wrong as per law and takes away the right to personal liberty of a person. In this article we will see the meaning of Article 21 and how arbitrary arrest or detention will violate the right under Article 21, we will also understand the topic through some important case laws.

Keywords: Article 21, Article 22, life and personal liberty, Arbitrary.


INTRODUCTION:

The Indian Constitution provides its citizens with numerous rights and such rights are moral as well as legal which give its citizens the right to do something. Every human being born, is provided with certain rights which are just, fair and reasonable without any prejudices. Article 21 is the Bedrock of the constitution and it is a source of many other rights;  life and personal liberty under Art 21 includes various rights under its heading like  Right to travel abroad, Right to livelihood, Right to health and medical assistance, Right to shelter, Right to enjoyment of a pollution free environment and many more. 

However such rights will be violated if a person is arrested or detained without explaining the reason behind such arrest or detention; So the constitution of India provides certain remedies if a person is arbitrarily arrested or detained. Under the Indian legal system every person is considered as innocent until he or she is proven guilty; therefore an arbitrary arrest or detention will be a violation of a person’s right under Article 21 of the constitution. [3]  

PERSPECTIVE UNDER INTERNATIONAL SCENARIO:

Under the International Law Right to Personal Liberty and Security and Freedom from Arbitrary Arrest and Detention are included under the human rights. Here personal liberty means that a person must be arrested or detained only as per law and not otherwise. The right to security of the person and protection from arbitrary detention is given under Article 9 of the ICCPR (International convention on civil and political rights).[4]

ARBITRARY ARREST AND DETENTION UNDER THE INDIAN LAW:

ARTICLE 21[5]: PROTECTION OF LIFE AND PERSONAL LIBERTY- “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The right to life and personal liberty of a person will be infringed, if a person is arrested or detained without following the procedure established by law. Arrest or detention is a method of taking away the personal liberty of a person. Arrest can be done but, it has to be done following the procedure established by law. The state can arrest, can detain, can convict a person but the only condition is to follow the due procedure of law.  

Now let us see what is meant by ‘Procedure established by law’, in the case of Maneka Gandhi v. Union of India (1978)[6], the Supreme Court held, 

a) Law is not merely the law enacted by the legislature. It includes rules of natural justice, ordinances, rules made by the Supreme Court, High Court, etc.

b) Procedure established by law must be just, fair and reasonable and not arbitrary, fanciful and oppressive. 

c) Personal liberty is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man.

Arbitrary arrest or detention will take away the personal liberty of a person protected under Article 21, therefore Article 22 was introduced to protect the rights of a person mentioned in Article 21. Article 22 of the constitution protects a person from arbitrary arrest and detention, the word arbitrary means that the arrest or detention is done without following the procedure established by law. 

Meaning of life and Personal Liberty through some cases

In Munn v. Illinois (1877) [7]the meaning of life has been quoted as “By life, something more is meant than mere animal existence.” Further expanded upon by Bhagwati J. in Francis Coralie v. NCT of Delhi (1981)[8]: “Right to life will include the right to live with dignity and many more things that are a part of human dignity; it also includes the bare necessities of life such as clothing, shelter, food, education, freedom to express oneself, freedom to move freely and many more.” 

Meaning and scope of personal liberty first came up for consideration in Kharak Singh v. State of UP (1963)[9]In that case, certain police regulations, without statutory basis, authorised police to keep certain persons under surveillance, which included domiciliary visits at night. The petitioner alleged that this regulation violated his fundamental right to movement in Art 19(1)(d) and personal liberty under Art 21. Ayyanagar J., speaking for majority, held that ‘personal liberty’ was used in the article as a compendious term to include within itself all the varieties of rights which go to make up the ‘personal liberties’ of a human being other than those dealt within several clauses of Article 19(1). In Govind v. State of MP (1975)[10], SC upheld regulations similar to the one invalidated in Kharak Singh case because the regulations had statutory basis. Also in AK Gopalan V. State of Madras[11], it was held that personal liberty means the protection from arbitrary arrest and detention.

Therefore as mentioned in Article 22, a person arrested or detained, must at that time, be provided with the reason for such arrest or detention and must be well informed about the further proceedings against him, he also has the right to consult and be defended by a lawyer of his own choice. 

IMPORTANT CASE LAWS:

In Maneka Gandhi V. Union of India[12]the court widely interpreted the term ‘personal Liberty’ and stated that Article 19 is a part of Article 21, hence any law which is depriving the personal liberty of a person would have to stand the test of Article 21 and Article 19.  

In the case of Kario @ Mansingh Malu And Ors. vs State Of Gujarat on 10 September, 1968[13]it was said that under Article 21 No authority in India can take away the life and personal liberty of a person except according to a procedure established by law whereas Article 22 advances the purpose of Article 21, by providing rights to a person who is arbitrarily arrested or detained. 

In the case of Additional Secretary vs Smt. Alka Subhash Gadia And Anr on 20 December, 1990[14] it was clearly stated that “Article 21 permits the State to deprive a person of his life or personal liberty, provided it is done strictly according to procedure established by law, this permission is expressly controlled by Article 22 in cases both of punitive and preventive detention. Thus, the provisions of Articles 21 and 22 read together, make it clear that a person can be deprived of his life or personal liberty according to procedure established by law, and if the law made for the purpose is valid, the person who is deprived of his life or liberty has to challenge his arrest or detention, as the case may be, according to the provisions of the law under which he is arrested or de- tained.”[15]

The Court in the case of Yoginder Singh v/s State of Punjab[16] observed that the person who is under arrest has the right to inform his family, friend or any other relative. After the accused is arrested, it is the duty of the police officer to inform about the rights of the accused. At the time of arrest all the details, like the name of the relative, must be noted down in a diary. 

It was held in the case of Joginder Kumar v. State of U.P.[17] that a detenu has the right to know the reason behind his detention and to inform his location to any third person. 

CONCLUSION: 

In India we have witnessed many such cases where a person is arbitrarily arrested or detained which is totally against the Right to life and personal liberty provided under Article 21 of the Indian Constitution. Arbitrary arrest or detention violates the fundamental right of the citizen under Article 21, therefore the constitution makers introduced Article 22 in the constitution to protect the right to life and personal liberty by protecting the person from arbitrary arrest and detention. As per the provisions of Article 22 a person can be arrested and detained by following the due procedure of law or procedure established by law. Hence Article 21 is said to be the Bedrock of the constitution and also it is a source for many other articles like Article 22.  


[1]   India Const. art. 21.

[2]   India Const. art. 22.

[3] Helplinelaw, Rights of an arrested person in India – Helplinelaw.com Helplinelaw.com (2020), http://www.helplinelaw.com/employment-criminal-and-labour/RAPI/rights-of-an-arrested-person-in-india.html .‌

[4] Ohchr.org (2020), https://www.ohchr.org/Documents/HRBodies/CCPR/GConArticle9/Submissions/RightPersonalLibertyAndSecurity.doc#:~:text=Everyone%20has%20the%20right%20to,as%20are%20established%20by%20law. .‌

[5]  India Const. art. 21.

[6] Maneka Gandhi v. Union of India, (1978) AIR 597, 1978 SCR (2) 621.

[7] Munn v. Illinois, 94 U.S. 113 (1877). 

[8] Francis Coralie Mullin v. Administrator, Union Territory of Delhi AIR 1981 SC 746.

[9] Kharak Singh v. State of U.P. AIR 1963 SC 1295.

[10] Govind v. State of M.P. AIR 1975 SC 1378.

[11] AK Gopalan vs The State Of Madras AIR 1950

 SC 27.

[12] Supra note 6 at 2.

[13] Kario alias Mansingh Malu and ors. Vs State of Gujarat (1969) 10 Cri LJ 66.

[14]Additional Secretary To The Government Ofindia & Ors Vs. Smt. Alka Subhash Gadia & ANR [1990] INSC 396 (20 December 1990).  

[15] Additional Secretary To The … vs Smt. Alka Subhash Gadia And Anr on 20 December, 1990, Indiankanoon.org (2020), https://indiankanoon.org/docfragment/1348574/?big=0&formInput=arrest+and+detention+article+21.

[16] Joginder singh vs The State of Punjab AIR 1953 SC 364.

[17] Joginder Kumar v. State of Uttar Pradesh AIR 1994 SC 1349.

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