Introduction:
Everyone in society has certain duties, rights, and privileges. Although, most people believe in ‘Live and Let Others Live’, yet, there are few who deviate from this normal behavior and indulge in anti-social elements. This arduous task of protecting the law-abiding citizens and punishing the law-breakers vests with the State or the Government which performs it with the instrumentality of the law. The state performs dual responsibility of protection and detection of crime in society. While performing this dual responsibility, the State has to maintain an equilibrium between the general public and the individual’s rights and liberty. The Indian Constitution alongside the International Human Rights Laws perceives the magnitude of the power of the State to incarcerate a person and keep up licitness.
Background
Humanity is above all. Regardless of what an individual is, he/she is to be treated as a human being irrespective of the fact that such an individual is a law-breaker.
The State has enormous power and resources to indict an individual and with such power comes the abuse. One of the affairs that impose a major threat to the liberty of a citizen is “Arrest”.
The word “arrest” is extracted from the Old French word “arester” signifying “to stop or stay”[1] and signifies a restraint of a person. In the United States and France, the term “collared” is sometimes also used.[2] An arrest is a demonstration of detaining and taking a person into custody in the light of the fact that the individual has been associated with or has executed an interdicted act. Arrest involves a limitation in the freedom of an individual arrested and along these lines, encroaches on the essential human right of freedom.
An accused person has certain rights throughout any examination; investigation or legal proceeding of offense with which he is charged, and he ought to be secured against arbitrary or unlawful capture.
Laws in India![]()
There is not much direct evidence of the laws regarding the privileges of the detained individual in ancient India but the study of the ideas of state, organization of equity, law, and police organization shows few traces of humanistic methodology towards the captured individuals or detainees. A lot of people believe in rebirth, therefore, they dread that they will be punished in the afterlife for the wrongdoings in this life. Therefore, they prefer to live a moral life as Atharva Veda also describes, Man is not an individual. He is a social organism. God loves only those who serve others.[3]
In ancient India, there were humanistic approaches to arrest. Certain categories of people were granted immunity from being arrested. Brihaspati mentioned some as:
- engaged in study
- about to marry
- sick
- one afflicted by sorrows
- insane
- infant
- intoxicated
- very old man
- woman, etc.[4]
Ashoka additionally underlined the human aspect of the judicial organization. He called upon the Nagara-Vyavaharakas(city Judges) to watch over the torment or imprisonment should not lead to the accidental death of the blamed individual. He had a view that the residents should not be tormented or detained without sufficient reasons.[5]
The basic fundamental of criminal law in India is that “Everyone is innocent unless his/her guilt is proved”. It is better for 99 guilty persons to go free than for one innocent person to be punished. Article 21 of the Indian Constitution states, “No human shall be denied his right to life and personal liberty except if established by law” which implies that the procedure must be reasonable, clear, and not subjectively or harsh. Certain rights and protections are given to the blamed person not only during the trial but also before and after trial to avoid premature delivery of justice and equity. The amalgamation of the accompanying two laws:
- The Constitution of India
- The Code of Criminal Procedure (CrPC), 1973, gives various rights to a captured individual:
1. Right to Know the Grounds of Arrest
It is the statutorily recognized rights of an arrested individual to be educated about the grounds of capture.
Article 22(1) of the Indian Constitution clearly states the protection against arrest and detention in certain cases. To completely embrace and authorize the Rule of Law to assist society, restraining the liberty of certain people is important but that should be done on reasonable grounds. The detaining authority needs to educate the grounds regarding capture so that the detenu can prepare for his defense and apply for bail.
Section 50 of the CrPC says that each police officer with the power to capture somebody without a warrant must illuminate the individual getting arrested about the wrongdoing for which he is captured and other pertinent grounds for the capture. This is the obligation of the detaining authority which they can’t refuse. In the landmark case D.K BASU V. STATE OF WEST BENGAL,[6] the Supreme Court of India has enumerated the guidelines to be trailed by arresting authorities in the event of arrest or detention. This decision has also led to the incorporation of Section 50A of CrPC. Section 50A imposes a legal obligation on the police by expressing that any family member or confidant of the arrested individual should be elucidated about the grounds.
Section 55 of the CrPC states that if the detaining officer has authorized his/her subordinate to capture the individual then that subordinate will have to inform the detenu about the delegation.
Section 75 of CrPC expresses that police authorities executing the warrant must communicate the substance to the captured individual and outfit the warrant of the capture when needed.
2. Right to be produced before the Magistrate
According to Article 22(2) of the Indian Constitution and Section 55 of CrPC, regardless of whether the arrest is made without or with a warrant by a cop, the arrested individual has a right to be produced before a Magistrate immediately within 24 hours of the capture. If the officials neglect to do as such, then he/she would be responsible for illegitimate detention.
Also in THE BHAGALPUR BLINDING CASE,[7] the Supreme Court has strongly urged upon the State and its law-maintaining specialists to ensure that this constitutional and legal requirement should be strictly observed. This provision helps a Judicial Magistrate to keep an eye on the investigation and take necessary actions.
Section 76 of CrPC expresses that the captured individual must be produced in court within 24 hours of his detention excluding the duration which is needed for the journey excursion from the spot of arrest to the Magistrate Court.
3. Right to be Informed about the Bail
Section 50(2) of CrPC states that every police officer arresting any person other than a person accused of a non-bailable offense is needed to illuminate the captured individual that he is qualified to be emancipated on bail and that he may arrange for sureties on his behalf.
4. Right to a Reasonable, Just, and Rapid Trial
There isn’t any predetermined law regarding this. But the Article 14 of the Indian Constitution states that “the State shall not deny to any person equality before the law or equal protection of law within the territory of India”. The principle of natural justice must be considered in respect of both parties.
In the Supreme Court of India’s judgment of HUSSAINARA KHATOON V. HOME
SECRETARY, STATE OF BIHAR,[8] under-trial prisoners in Bihar were released, some of whom had been detained as under trials for terms longer than the maximum punishable imprisonment period specified in the law, waiting for the trial procedure. The Court noticed that the trial must be discarded as diligently as could be expected under the circumstances.
5. Right to Counsel a Lawyer and Free Legal Guidance
Article 22(1) of the Indian Constitution provides that each captured individual has the right to pick and appoint his advocate to defend him in the courtroom for whatever wrongdoing he may/may not have executed.
Article 39-A is a Directive Principles of State Policy which points out that the State has to provide free legal assistance to individuals in need. In HUSSAINARA KHATOON V. HOME SECRETARY, STATE OF BIHAR,[9] Supreme Court stated this right as a Constitutional right.
Section 41 D of CrPC permits a prisoner to consult his/her lawyer during their cross-examination also.
Section 303 also allows the supposed convict/ criminal the right to be protected by an attorney of his choice regardless of whether the criminal procedures against him have started.
Section 304 allows every accused to have legal aid to the detriment of the State in case he/she has no adequate way to have it.
6. Right to Silence
Indian law does not specifically mention this right. The ‘right to silence’ is a principle of common law and it implies that typically courts or councils of reality should not be welcomed or urged to close, by parties or prosecutors, that a suspect or a blamed is liable simply because he/she hasn’t answered the questions that were put before him/her by the detaining authorities or by the Court. The Justice Malimath Committee expounds on the starting point of the right to silence that “it was essentially the right to refuse to answer and incriminate oneself in the absence of a proper charge. Not initially, the right to refuse to reply to a proper charge.”[10]
Article 20(3) of the Indian Constitution talks about self-incrimination. No one should be forced to give evidence or be a witness against himself. In NANDINI SATPATHY V. P.L DANI,[11] an individual blamed for corruption was brought in the police station to respond to the rundown of inquiries. So, he took the protection under this article and chose not to answer the questions. Police later charged him under section 179 of the CrPC for not answering the questions. The Supreme Court expressed that not answering those questions is protected under Article 20(3) and therefore, Section 179 can’t be applied.
7. Right to be examined by a Medical Practitioner
As per Section 54 of CrPC, a detained person can request for his/her examination by an individual from the medical field. If the detained person, when he is produced before a Magistrate or at any time throughout his detention in custody, alleges that the examination of
his body can provide evidence for his/her innocence or can establish the commission of an act by the other person against his/her body, the Magistrate shall if requested by the arrested person can direct the examination by the registered doctor unless he/she thinks that the request is created for vexation or delay or for defeating the justice.
8. Other Rights
Keeping the principle of natural justice in mind various other rights have been provided- Females to not be arrested when the sun is set and in the absence of a lady constable except in certain circumstances.
Section 55-A of CrPC expresses that it is the only responsibility of the police officer to maintain reasonable health and safety of each detained person.
Section 358 states that the unlawful detention of an individual will create his right to compensation.
Section 41-B points out that the detaining authority conducting the investigation or arrest should produce a visible and valid badge where his/her name and designation are mentioned. Additionally, he/she will have to make a cash memo with details of the date and time of the arrest and get it signed by at least one relative or anyone honorable person in the vicinity of the detained and countersigned by that detained person.
Section 41-C states that any detaining authority must inform the District and the State headquarters within 12 hours of any detention.
Section 46 mentions the mode of the arrest of a blamed person which includes submission to the custody by the accused, physically touching the body, or to a body.
The police authority must not cause the death of the suspect while trying to capture him/her except when the individual to be captured is accused of an offense punishable with death or life imprisonment or when he/she is resisting the arrest violently.
The detaining authorities have to mention all the information about the arrest in a diary-like the person accompanying the detained person, the person to whom the information about the detention is given, etc.
Present Scenario
Many cases concerning the abuse of the powers of the State and the law-maintaining authorities have come into the limelight. The famous encounter of the Gangster Vikas Dubey has led to various questions about the legality of the police action and the executive killings.
The National Human Rights Commission and the Supreme Court have framed the guidelines to be followed in custodial deaths like intimidation about the death within 24 hours, post mortem reports, etc.[12]
As per the CBI, the FIR filed by police was fake. This fake FIR led to the detention of Father-Son Jeyaraj and Benniks. They were innocent and didn’t violate any lockdown guidelines. They were brutally beaten to death by the detaining authority. This custodial death brought a lot of attention to the actions taken by the police to prove innocent guilty.[13] Recently, the arrest of Republic TV’s Editor-in-Chief Arnab Goswami by the Maharashtra Police was considered as arbitrary and indiscriminate.[14]
Laws in America
In the USA, the fundamental rights of a citizen are stated in the Fifth, Sixth, and Eighth Amendments of the “Bill Of Rights” of the U.S Constitution.
Fifth Amendment states that nobody shall be compelled in any criminal suit to be a witness against himself/herself, nor be stripped away from his life and property, in the absence of the due process of law.
In RILEY V. CALIFORNIA,[15] the US Supreme Court held that the search without the warrant and forfeiting the digital contents of a cell phone during detention is unlawful and unconstitutional.
Sixth Amendment states that the suspect shall enjoy a speedy and fair trial and be informed about the grounds of the accusation, have witnessed in his favor or confront the witnesses against him, and to have the guidance of counsel for his defense.
Eighth Amendment states that no unusual or cruel punishments be inflicted nor excessive fines imposed on the accused.[16]
During the detention or interrogation of the suspect, the detention authority must inform him/her of certain Constitutional Rights also known as “Miranda Rights” which are:
“You have the right to remain silent. You have the right to have an attorney present when we question you, and if you cannot afford an attorney one will be appointed for you. If you waive these rights and talk to us, anything you say may be used against you in court. Do you understand these rights?”
These rights come from the historic case called MIRANDA V. ARIZONA.[17] If the detaining officers fail to give Miranda a warning then the statement or confession recorded is assumed to be involuntary. So, they can’t be used against the accused individual anywhere in the criminal procedure.
Present Scenario
The famous “Black Lives Matter” protest was in the news. George Floyd was killed because of the disproportionate use of coercive actions against black people in police custody. This death undermined the Rule of Law.
International Perspective
The Universal Declaration of Human Rights has special provisions related to the detention of an individual. These have been given customary international law status, thereby imposing obligations on the States irrespective of their participation in the treaties.
Article 9 of the International Covenant on Civil and Political Rights (ICCPR) highlights the right to freedom and security of a person except in the case of procedure established by law. It is not in the favour of arbitrary capture or detention.
The Working Group on Arbitrary Detention focuses on the investigation of arbitrary restriction on the freedom of an individual and to seek and receive information from the concerned authorities and act on it.[18]
The fundamental international legal rules and organizations focus on preventing the unlawful restriction on liberty and the rule of law and the principle of natural justice is followed.
Whose Laws Are Better, India’s or US’s?
The rights given to the suspect or arrested person are very similar both in India and the USA. But, the Indian concept of ‘Dharma’ was wider than the American Concept ‘Due Process Clause’. The rights given to an arrested person are more as compared to the USA. It not only involves what is just and legal but also involves what is moral and natural. According to the National Human Rights Commission, in 2020, at least 17,146 are reported dead in judicial and police custody which means nearly 5 die in a day.[19] In 2019, more than 1,000 people were killed by police in the US, according to Mapping Police Violence, a research group.[20] Even though the laws in India are strict the deaths are higher as compared to the US. The flaws are in the awareness and accountability system of our country otherwise Indian laws are better as compared to the USA.
Conclusion
State and law-maintaining officials are entrusted with powers to ensure the balance in the society, but, sometimes these powers are misused violently causing the death of justice. A lackadaisical administration can harm more than it can do good. There is an immediate need to bring alterations in the Criminal Justice Administration to ensure that the primary duty of the State is not to punish the wrong-doer but to reform that individual.
References:
[1] https://www.lexico.com/definition/arrest
[2] Hérail, René James and Edwin A. Lovatt, Dictionary of Modern Colloquial French, p. 194.
[3] http://www.iosrjournals.org/iosr-jhss/papers/Vol19-issue12/Version-1/N0191218591.pdf
[4] Ibid
[5] Ibid
[6] 1997, 1 SCC 416
[7] 1981 SCC (1) 627
[8] Writ petition No. 57 of 1979
[9] Ibid
[10] http://www.legalservicesindia.com/article/1635/Rights-of-Arrested-Person.html#:~:text=Article%2022( 2)%20of%20the,legal%20practitioner%20of%20his%20choice.%E2%80%9D
[11] 1978 AIR 1025
[12] https://indianexpress.com/article/explained/vikas-dubey-kanpur-encounter-law-nhrc-guidelines-explain ed-6501890/
[13]https://www.ndtv.com/india-news/tamil-nadu-thoothukudi-custodial-deaths-cbi-chargesheet-says-father-son-tortured-by-accused-cops-between-7-45-pm-to-3-am-2316240#:~:text=Chennai%3A,deaths%20 that%20angered%20the%20nation
[14] https://www.thehindu.com/news/cities/mumbai/mhrc-asks-raigad-sp-to-produce-all-material-documents-in-arnab-arrest-case/article33042933.ece
[15] 573 U.S 373 (2014)
[16] https://www.isba.org/public/guide/yourrightsifarrested
[17] 1966 U.S Supreme Court
[18] https://www.ohchr.org/EN/Issues/Detention/Pages/WGADIndex.aspx
[19] https://www.business-standard.com/article/current-affairs/five-deaths-in-police-custody-every-day-ove r-10-years-but-few-convictions-120080600355_1.html
[20] https://www.cnbc.com/2020/06/01/george-floyd-death-police-violence-in-the-us-in-4-charts.html
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