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Journal of La-w 9 Scnie/t Focuity of L or,
(/of .~tll-HIN, 17. 31-32i University of Pashor.
Jan-uary8 Jly 1999.

Implementation of International Standards

on Arrest in India

Dr. Sangita Bhli

1. INTRODUCTION
The question ofhuman rights is concerned with interpersonalrelationships
and with the relationshipof the individual to government authority at all levels
fom local to international. The close relationship between respectfor human
rights and maintenance of peace and rule of law was proved to many by
Second World War. Thus a common realisation emerged that without the
maintenance of the rule of law violations of rights occur which foment
rebellion. For United Nations this realisationhas become axiomatic. A galaxy
of United Nations instruments since Universal Declaration of Human Rights
have implicity and explicitly recognised rhat law enorceent ofcias have a
vital role to play to protect human rights defe fundaental feedoms,
maintain public order and general welfare in a democratic society through
polices ard.practiceswhich are law.d. human and disciplined. But in some
law enforcemert circles the old myths continue to survive that in order to
enforce the law it is necessary to bend the rules a little. SUch tendenci s make
the alreadv challenging tasc of Ia enforcement more diflcult The history has
shoym us agair and again that when the law enforcers become law breakcers the
result is an assault on human dignity and rule of law and creation of more
barers to effective Policing. The practical efects of police violations are
ultfold. These erode public confdece, exacerbate civil unrest, hamper
efective prosecution In courts, isolate the police fom community, result in the
gu go ng fee and innocent being punished. The persistent tendency ofthe
police to refuse to recognise the fundamental rights (fthe people reflects irself
in indiscriminate arrests, use of torture> disappearances and summary and

* Lecturer. Depatment of Laws, P.U.Chanigarh- 16001 4.

1.'hetr law enfbrement officials includes all officersoflwhoercspoepwrs
especiaLy the -powre of arrest and detention. It concludes military officers also, where they
are veste w the poice powers'. Commentary on Code of Conduct for Law Enrcement
Officials in Human Fights and Law Enforcement', United Nations, New York, 1997

2.aIid. P.
3. Protection Against Torture is contained in Declaration on the Protection of AL Persons
from Being subject'- to Torture and other Cruel, inhuman or Degrading Treatment or
Punishment, 1984 and Convention Agaist Torture and other Cruel, inhuman or Degrading
treatment or Pnishmert, 1984, For the text of the Declaration and Convention nTorture
cf Human Rights: A Compilation of Intemational instruments. New York, Unied Nations,
1994, Vol. 1, P. 293.
arbitrarv executions etc. The adverse effects of such pohce excesses on the
rle of law have established the urgent need for internatonal remedial
measures and their implementation through national eforts. Recently within
the United Nations system priorty has been accorded to the search ofsolutions
to the massive and flagrant violation of human rights by the enforcement
op cicials.

2. UNITED NATIONS AND SAFEGUARDS AGAINST ARBITRARY

ARREST
Until now there 1s no comprehensive set of standards for the protection of
the individual against arbitrary arrest.6 But such protection is envisaged by two
foundational instruments on human rights namely Universal Declaration of
Human Rights 1948 and International Convenient on Civil and Political Rights
1966 as well as in a number of other instruments promulgated by General
Assembly and other organs of the United Nations, specifying and securing the
protection of human rights. These international standards cn arrest deal with
three important aspects of arrest viz. how far arrest could be justified under
law, the legality of the process to make arrest and the consequences of the
violation of the standards on arrest

i. MEANING OF ARREST
Arrest deprives a person of his right to personal liberty. it can cause
incalculable harm to the reputation and self-esteem of the person. Realising this
Universal Declaration of Human rights proclaimns 'Everyone has a right to life,
liberty and security of person" as well as, 'No one shall be subjected to
arbtrary arrest or detention or exile.8 This prohibition has been reaffirmed in
international Covenant on Civil and Political Rights in a broader way. It
provides, 'Everyone has a right to liberty and security of person. No one shall
be deprived of his liberty except on such grounds and in accordance with such

4. Protection against enforced disappearance is ensured by 'Declaration on the Protection of

All Persons from Enforced Disappearance', 1992. For text of ibid. P. 401 (Hereinafter
referred to as Declaration on Disappearance).
5. Protection against arbitrary and summary executions has been provided by 'Iminciplas on
Effective Prevention and Investigation of Extra legal, Arbitrary and Summary Executions',
1989. For text cf. ibid. P. 409 (Hereinafter referred to as Principles on Executions).
6. In 1962 Human Rights Commission sent the 'Draft pusncipies conceming Freedom from
Abitrar-y Arrest and Detention' to member states and to U.N. Specialized Agencies for
comment but those have not been adopted so far. However the 'Body of principles for the
Protection of All Persons Under Any Form of Detention and Imprisonment' 1988 is based
on the Draft Principles on Arrest and it has become an important document in the
intemational instruments on human rights. Another important development in this area was
the creation of a 'Working Group on Arbitrary Detention' by Human Rights Commission
1991. This Working Group through information received from governments, inter-
governmental agencies, non-governmental organisations, individuals concerned and their
families or representatives investigates the cases of detentions imposed in contravention of
relevant intemational standards. Due to the efforts of the Working Group a considerable
number of detainees detained arbitranly have been released. For firther details of 'Human
Rignts and Pre-tial Detention'. United Nations, New York, 1994, P. 2.
7. Article 3.
8. Article 9.
58
 procedure as are established by law.9 The body of Principles
of A For the Protection
F Persons Under Any Form of Detention or imorisonnt 1988'
proclaims, 'Arrest detention or imprisonment shall only be carried out strictly
in accordance with the provisions of law and by competent officials
or persons
autnorised for that purpose.'o Similarly, the convention
on the Rights of the
Child 1989 declares, 'No child shah be deprived of his or her liberty
unlawfully
or arbitrarily. The arrest or detention of a child shall
be in conformity with the
law .....
Every deprivation of liberty is not arrest. Under the Principles
on Detention
arrest means 'an act of apprehending a person for
the alleged commission of an
offence or by an action of an authority' 2 Thus
arrest refers to an act of taking
a person in custody under governmental authority
for charging him with an
offence. The mere fact that deprivation of liberty
is authorised by law is not
sufficient. Tihe international standards require
that apprehension of an
individual should be preceded by some investigation
as to the genuineness of
the allegations against him, complicity of the
accused and justification to affect
arrest. Arbitrary arrest means any arrest
involving the element of
mappropriateness, injustice or lack of predictability.
The worst form of arrest is
depriving a person of his personal liberty without
any authority of law or at
least apparent authority of law, and it amounts to enforced disappearance
The
Declaration on Disappearance explains enforced
disappearance, 'as arrest or
detention or abduction or deprivation of liberty
of a person against his will by
officials of different branches or levels of Government
or by organised groups
or private individuals acting on behalf of or
with the support, consent or
acquiescence of the government followed by a
refusal to disclose the fate or
whereabouts of the person concerned or refusal
to acknowledce the deprivation
of his liberty which piaces such person outside
the protection of law'. As far
as arbitrary arrest is concerned it is a less serious
offence punishable according
to the national law of the guilty along with the
liability to pay compensation in
accordance with the international law. But
on the other hand enforced
disappearance is a very serious offence, as it
keeps the person beyond the pale
of legal protection. The Declaration on Disappearance
of tne persistent and systematic practice of has taken a serious note
enforced disappearances in many
countnes. It declares that as enforced disappearance
undermines the deepest
values of any society committed to respect of law,
human rights an fundamental
freedoms, thus it is not an ordinary crime, but
a crime against humanity.' Thus
the perpetrators of such crime and the
state or state authorities which organise,
acquiesce on or tolerate such disappearance should
be liable not onl' under the
civil and criminal law of the state concerned, but should
have nternationai
responsib.iit also i accordance with the principles of

9 lA-ile9 ,(1) '0&ee-C e.-

10. Pinciple 2 For'text ofthese principles of. Supra Note 3,
P. 265. tHereinaf er refened to as
Pu-nles on Deteni on).
N. Article 37. For text of the Convention of
Supra Note 3. P. 74.
12. 'Use of Tenns', Supra Note 10.
13. Preamble, Para 3.
14 Preamble, Para 4
i 5. Antice
ii. ARREST SHOULD BE JUSTIFIED
To make the protection against arbitrary arrest meaningful, the
international instruments besides demanding that arrest should be strictly
according to lw provide some additional safeguards also. First of these
safeguards is that the arrest must not be the sole act of the police but it should
be subject to strict judicial supervision to ensure its legality and justification.
Thus international standards recognise the need to maintain the accurate record
of arrest as well as the reasons for arrest. Such record should specify the time of
arrest, of taking the person to the place of custody and of his first appearance
before a judicial officer The identity of the officer making the arrest and the
place of detention should also be disclosed in such record. A copy of the record
13
should be provided to the arrestee of his counsel, if any. The authorities which
arrest a person or investigate the case against him should be allowed to exercise
only those powers against him as have been granted by law and the use of such
powers should always be subject to judicial review.19
To enable the arrestee to take immediate steps to secure his release and to
begin to prepare his defence: the second safeguard provided to the arrestee is
his right to be informed of the grounds of the arrest. The Covenant on Civil and
Political Rights contemplates a two stage notification process for the benefit of
the arrested person. At the momnent of the arrest, he must be informed promptly
of the grounds of his arrest and within a short period he should be made aware
of the allegations against him. The Principles on Detention make this
safeguard more strict by requiring that the arrestee should also be informed of
the rights available to him under the national and international law and the
2
procedure to avail those rights. This safeguard intends to check the tendency
of the police to use arrest as a means of compelling the people to give
information and to enable the detached judicial authorities to consider the
question of bail or jail of the arrestee. Thus the Covenant on Civil and Political
Rights explicitly requires that the arrested person should be promptly produced
22 the
before a judge or authorised officer, The Standard Minimum Rules for 24
23 Declaration on Disappearance also
Treatment of Prisoners 1956, and the
envisage the right of appearance before the judicial authorities promptly.
Another safeguard provided by the Covenant on Civil and Political Rights is
the right to bail. This right discourages the pre-trial detention unless it is
lawful, reasonable and necessary. Above all this Covenant ensures the right to
trial without unreasonable delay. Various other international instruments
incorporate another safeguard in order to check the indiscriminate arrests viz.

15. Princinle 2.
17 Prnciple 4.
18. Principle 12.
19. Principle 9.
20. Article 9 (2).
21. Principle 10 and 13.
22. Article. 9 (3).
23 Rule 7, For the text of these rules of Supra Note 3, P. 243.
24. Article 10(1).
25. Article 9 (3).
 tight to irdform the relaties or persons ireested about the whereabouts of the
arrestee. TIs guarantee has been provided by the Principleson Detention 6 , the
Principles on Effective Rrevenion and investigaton of Extra Legal, Abitrary
and Summary Executions 19892 the Standard Minimum Rules for the
Administration of Juvenile Justice, 198523

iMl. CONSEQUENCES OF UNLAWFUL ARREST

Lastly to compel the state parties to translate these international promises
into reality, many of these instruments provide for paysment of compensation for
unlawful use of the Dower to make arrest. The Covenant on Civil and Political
Rights calls for an enforceable right to compensation for the victims of
unlawful arrest 2 9 This guarantee has been reaffirmed under the Principles of
Detention H-owever, the Principies on Prevention of Executions" and Basic
Principles of Justice for Victims of Crnie and Abuse of Power 1 9 8 5 32 rOide
for adequate compensaton as well as rehabilitator of the victims. Since the
drafting of Universal Declaration of Human Rights, United Nations has
emphasized the need and importance of ensuring the protection of human
rignts under the rule of law.

iv. PROTECTION OF THE JUVENIE OFFENDERS AGA IST ARflRY

ARREST
The comprehensive social policy in respect of juvenile detinquents aims to
promote their sense of dignit and facilitate their rehablitauion into the society.
Thus under the international standard special rights and safeguards in respect
of these rights ave beenf ensured for the juveniles. Under the 'Principles on
Detention' it is the duty of the competent authority to notify the parents or
guardian of the juvenie arrestee about his whereaboutsv The Convention on
the Rights of Chid 1989 provides trotection agairst arbitrary and unlawful
arrest and ensures that the arrest should be executed strIctly according to law.
Moreover the Convention stresses that arrest should be used only on the non
availability of a sufficient substirute and it should be for the shortest possible
period34 The United NatIons Standard Minimum Rules for 0he Administration
of Juvenile Justice contain the most comprehensive policy for the welfare of the
juveniles. 3 The Rules make it mandatory to send notification of arrest of a
uvenile to his or her parents or guardian imnediately 36 Secondly, the rules
emphasize that the question of release ofljuvenile shouid be considered without
delay by a judge or any other person or authority having power to release the

26. Priaciple 16.

27. Riciple 6. For tex of these Pncptes CC Supra Note 3, P. 409 (Hereinafter referred to as
Principles On Prevention of Execu tis).
28 Ru-e 10 `1), for text ofIhese rules f Supr Nte 3-P 350.
29 Aic"Cle 9 (5).
30Paciple 35,
31 Phinciple 20
32. Pinuciple 18, Fr taext ofthese principles Cf Supra Note 3, P. 382.
33 Pnrinciple 6 Sunra Note IC
34. Ar&cle 37 (b) For the texct of this Convention Cf Supra Note 3. P. 7A.
35. Rule 1 (1)
36 Rule 103
61
arrested person." Moreover to promote the well-being of the juvenile, the Rules
require that the initial contacts with the juvenile by the police and other
officials should be based on compassion and kind firmness towards the
arrestee.3 8 Thus the law of arrest which provides the crucial intersection
between the protection of fundamental rights and maintenance of law and order
has always drawn the significant attention of international community.

3. ARREST UNDER INDIAN LEGAL SYSTEM

The international standards on arrest are not alien to Indian legal system.

i. CONSTITUTIONAL SAFEGUARDS
Most of the fundamental principles enunciated in these standards have
been aptly woven into the Indian legal texture. The object of Article 3 of the
Universal Declaration of Human Rights has been advanced by Article 21 of the
constitution. It provides 'No person shall be deprived of his life or personal
liberty except according to the procedure established by law.' Thus right to life
and personal liberty is a sacred and cherished right of widest amplitude under
the constitution, as the interpretation given to Article 21 by the judiciary in Post
Maneka era3 9 indicates. The expression life or personal liberty is not merely
confined to physical existence, but it includes within its ambit the right to live
40
with human dignity and all that goes along with it. Thus it would also include
a guarantee against assault by the state or its functionaries. However the
explicit protection against arbitrary arrest and detention is contained in Article
22. It provides that 'No person who is arrested shall be detained in custody
without being informed as soon as may be of the grounds of such arrest ...... 41
Article 22 embodies a rule which has always been regarded as vital and
fundamental for safeguarding personal liberty in legal systems where the rule of
law provides .... The requirements of cl. (i) of Article 22 are meant to afford the
earliest opportunity to the arrested person to remove any mistake,
misapprehension or misunderstanding in the minds of the arresting authority
42
and also to know exactly what the accusation against him is. Article 22 (2)
directs that the person arrested and detained in custody should be produced
before the nearest Magistrate within 24 hours of such arrest, excluding the time
necessary for the journey from the place of arrest to the court of Magistrate.

ii. PROTECTION AGAINST ARBITRARY ARREST UNDER OTHER LAWS

In tune with these constitutional safeguards many provisions of Criminal
Procedure Code 1973 as well as of Juvenile Justice Act 1986, explicitly
guarantee protection against the abuse of power of arrest by police. The Code
contemplates two types of arrest viz. arrest with warrant and without warrant.

37. Rule 10 (2).

38. Rule 10 (3).
39. In Maneka Gandhi V. Union of India, AIR 1978 SC 597 SC expanded the scope and ambit
of Article 21 which marked the beginning of a new human rights jurisprudence in India.
40. Francis Coralie V. Union Territory of Delhi AIR 1981 SC 746.
41. Article 22 (1).
42. Re. Madhu Limya 1969 Gri IJ 1440.
62
 As the decision to issue an arrest warrant43 involves a balancing of social
interests with those of the accused, the law presumes that such conflicting
claims could be best settled by a detached judicial officer within the parameters
of legal authority. Thus in majority of cases arrest decision is made by one or
the other judicial officer. But in exceptional cases where the exigencies of the
situation demand immediate arrest, the power to make arrest could be exercised
by a police officer or even a private person. 4 However such arrest is subject to
prompt and strict judicial review. 45 No specific formality or method has been
specified for executing arrest. 4 6 The police officer making the arrest can use all
necessary means to combat resistance to or evasion of arrest short of the power
to cause death of the person involved unless he is accused of an offence
punishable with death or imprisonment for life.4 S consistent with the
fundamental rights of the arrestee only that much of restraint can be imposed as
is necessary to prevent his escape. 4 9 The right to be informed forthwith of the
grounds of the arrest is secured to every arrested person whether arrested
without warrant" or in execution of a warrant" or written order issued by a
senior police officer to his subordinate.5 2 The police officer arresting a person
for bailable offence is under a duty to inform the arrestee of his rigb a be
released on bail.5 3 A person arrested without warrant should be producec fore
a magistrate promptly.5 4 Police could not keep him in custody a minute longer
than is reasonably necessary under the circumstances of the case. If the
detention for more than 24 hours is needed then within 24 hours he should be
produced before the concerned or nearest magistrate to decide over the issue of
further detention.55 Similar rights have been vested even in the per son arrested
in execution of arrest warrant.5 6 When he is produced before a Magistrate or
any time during the period of his detention in custody, arrestee may request the
medical examination of body either to establish the commission of any offence
against his body or to disprove the examination of any offence by him.57
Confession made to police whilst in police custody has been made inadmissible
in evidence in order to prevent the use of arrest as an instrument for extracting

43. A Warrant of arrest' is a written order issued and signed by a magistrate commanding to a
police officer or some other person mentioned in it to arrest the accused named therein.
44. S. 41 (1), 42 and 151 deal with the contingencies when a police officer may arrest without
warrant. S. 41 (2) covers the circumstances when an officer-in-charge of police station may
arrest without warrant. S. 43 provides that in specified conditions even a private person
may arrest a person without warrant.
45. Ss. 56 and 57. If a public servant knowingly makes an illegal arrest he can be prosecuted
under S. 220 of Indian Penal Code (IPC) whereas any person who illegally arrests another
is punishable under S. 342 of IPC for wrongful confinement.
46. S. 46.
48. S. 46(3).
49. S. 49.
50. S. 50 (1).
51. S.75.
52. S. 55.
53. S. 50(2).
54. S. 56.
55. S. 57.
56. S. 167.
57. S. 54.
63
confession. 8 Evidence Act 1872 provides another implicit guarantee for respect
of human rights by embodying one of the basic principles of criminal justice
that everyone is to be presumed innocent till his guilt is proved. Under the
Police Rules and Regulations officer-in-charge of the police station is
personally liable for the safe custody of all persons brought to the police station.
Before committing a person to custody, the officer-in-charge of police station
must examine carefully the body of the person in the presence of the witnesses
and must make true entries of the injuries found on his body in the Station
Diary. Any willful breach of this duty is punishable with fine or imprisonment
or both.6 0

ii. PROTECTION TO SPECIAL CATEGORIES OF ARRESTEES

Besides this general protection under the rule of law, special protection has
been provided to special categories of the persons against the misuse of the
power to make arrest by the police and other enforcement agencies. The arrest
of a public servant should be intimated to his superior officers before the arrest
and in any case, immediately after the arrest. In case of arrest of the members
of the armed forces, intimation should be sent to the officer commanding the
Unit to which the arrestee belongs, immediately after the execution of the
arrest. In case of arrest or detention of a member of Legislative Assembly,
Legislative Council, Lok Sabha or Rajya Sabha, the intimation of his or her
arrest should be sent immediately to the government concerned as well as to the
Speaker or Chairman of the body to which arrestee belongs both by telegram
and post.
To safeguard the dignity and self respect of the juveniles and to smoothen
the way for their rehabilitation special provisions have been made in the
Juvenile Justice Act 1986. The Act contains an absolute prohibition against the
detention of the juveniles in police station or jail. As soon as a juvenile is
arrested, he should be released on bail notwithstanding any thing contained in
any law, proclaims the Act, except in three cases viz. where the release is likely
to bring him in association with the reputed criminals or expose him to moral
danger, and defeat the end of justice. If not released on bail, then such arrestee
should be kept in observation home established by the administration. If
observation home has not been established then he should be kept in a place of
safety till his production before the children court. If the children court orders
his detention again, he shall be kept either in an observation home or a place of
safe custody.6 1 After the arrest of a juvenile as soon as possible the officer-in-
charge of the police station should inform the parent or guardian of the fact and
place of his arrest as well as should direct him to be present at the children
court before whom the child shall appear. 62

58. Ss. 161 and 162 and Ss. 25 and 26 of Evidence Act.
59. S. 101 of Evidence Act.
60. S. 29 of Police Act 1861.
61. S. 18.
62. S. 19.
64
 iv. RESPONSE OF THE JUDICIARY
The Indian legal system contains enough provisions to safeguard the
personal liberty of every person. However, in the backdrop of international
standards on arrest, it seems that the procedure for making arrest, keeping its
proper record and informing the relatives or persons interested in the welfare of
the arrested person and compensating the harm caused by unlawful arrest is not
so up to date. Moreover the implementation of the existing standards also
presents a dismal picture. The enforcement agencies are constantly defying
these standards by using a very simple technique. They do not record the arrest
and delay the production of the arrestee before the magistrate until the required
information is extorted. No information is given to the relatives of the arrestee
about his fate or whereabouts. Thus if the person dies or receives injuries in
police custody the police owns no responsibility. These tendencies of the police
have assumed such alarming proportions that these are affecting the credibility
of the rule of law. It has resulted in the judicial tendency to tighten the
restrictions on such officials and to safeguard even more jealously the rights of
the accused and the suspects. The judiciary has been ingeniously moulding and
inventing the new methods of enforcement to resolve the dilemma in law
enforcement. While interpreting the domestic law, it has tried to fill the gaps
and voids, by referring to international conventions and norms as it has become
a well accepted rule of judicial construction.
The zeal of the apex court to protect the arrested persons against the high-
handed behaviour of the police is based upon a simple logic, expressed aptly in
the prophetic words of Krishna lyre J., "Iftoday freedom of forlorn person falls
to the police somewhere, tomorrow the freedom of many may fall elsewhere
with none to whimper unless the court process invigilates in time and polices
the police before it is too late."64 The judicial abhorrence of police aberrations
is manifest in such statements as the police must exercise its wide powers to
make arrest without warrant with maximum care. It must bear in mind that
fundamental and constitutional rights of the arrested person should not be
violated.6 5 The arrestees are not deprived of their fundamental rights under
Article 2166 except according to the procedure established by law.67 In fact, the
inhuman treatment of the arrestees has compelled the Supreme Court to
demarcate clearly the boundaries of prison and custody jurisprudence.6 1
Proceeding in this direction judiciary has recognised and guarded a number of
rights of the arrested persons like prevention of use of bar-fetters 69 and hand-

63. Vishaka V. State of Rajasthan AIR 1997 SC 3011.

64. Prem Shankar Shukla V. Delhi Administration AIR 1980, SC 1535.
65. Sunil Batra V. Delhi Administration (1978) 4 SCC 494.
66. Neelabati Bahera V. State of Orissa (1993) 2 SCC 746.
67. Joginder Kumar V. State of U.P. AIR 1994.
68. Supra Note 65 and D.K. Basu V. State of West Bengal AIR 1997 SC 610.
69. Supra Note 65, Sunil Batra V. Delhi Administration 1980, SC 1579. Kishore Kumar
Davinder Dev V. State of Rajasthan, AIR 1991 SC 625; Kadra Pehadiya V. State of Bihar
AIR 1981 SC 939, Harbans Singh V. State of U.P. AIR 1991 SC 531. In all these cases
summit court repeatedly affirmed that bar-fetters should be imposed only in rarest of rare
cases in accordance with the principles of natural justice.
65
 cuffs,o right to bail etc." However these corrective efforts of the courts have
failed to have desired effect and the berserk behaviour of the police reached to
its culmination in Nadiad case,72 when the Chief Judicial Magistrate posted at
Nadiad in Gujarat was assaulted, arrested handcuffed and tied with a rope
around his arms for disapproving the working of the police. The apex court
took a serious note of this inhuman incident and held it to be an onslaught on
the institution of the judiciary. Such incidents are likely to undermine the basic
structure of the orderly society and substitute the police Raj for the rule of law,
the court observed. To prevent the reoccurrence of such instances Supreme
Court laid down the guidelines to be followed in the case of arrest and detention
of a judicial officer.
The rights of the people need more protection against oppression and
injustice at the hands of law enforcement machinery again became clear when a
young lawyer was detained for five days without any intimation to the members
of his family about his whereabouts.73 Supreme court being aware of the fact
that sometimes obsession to protect the human rights corners the effective
prosecution of the crime, called for the adoption of a realistic approach which
would strike a balance between expanding horizons of human rights and the
violation of human rights because of indiscriminate arrests. The court even
referred to the efforts made by some other states like England and USA to
streamline the police powers of arrest and detention. Then it endorsed the
recommendations made by the National Police Commission in its Third Report
about the justification of the arrest. Above all, the Supreme Court held that the
arrested person has a fundamental right to have someone informed of the fact
of his arrest. This right is in fact inherent in Articles 21 and 22 (1) and apex
court also laid down the guidelines for making this right effective.
The persistent abuse of power to make arrest came to the notice of summit
court, when the Executive Chairman of Legal Aid Service, West Bengal,
through a letter drawn the attention of the court to certain news items regarding
deaths in police lock up and custody.7 4 This time instead of relying on issuing
of guidelines only, the apex court insisted that to make the police agencies work
according to the ethos of human rights instruments, greater transparency of
action and accountability must be ensured. For this the court called upon to
develop work culture, training and orientation of the police force in tune with
human values. The summit court felt that scientific methods of investigation

70. Supra Note 64, Aeltemesh Rein V. Union of India AIR 1988 SC 1768; Sunil Gupta V. State
of M.P. (1991) 3 SCC 119, State of Maharashtra V. Ravi Kant S. Patil (1991) 2 SCC 373;
Delhi Judicial Service Association, Tis Hazari Court, Delhi V. State of Gujarat (1991) 4
SCC 406; Khedat Mazdoor Chelna Sangath V. State of M.P. (1994) 6 SCC 260 and
Citizens for Democracy V. State of Assam (1995) 3 SCC 743. Supreme Court was shocked
on the reports of the use of hand-cuffs, as it is a barbaric and inhumane practice.
71. The basic rule is bail not jail; whereas bail is a right in bailable offences, it becomes
discretion of the court in non-bailable offences. On the issue how this discretion is to be
exercised, SC has made observations in a number of cases like State V. Jagjit Singh AIR
1962 SC 253, Hussainara Khatoon AIR 1979 SC 1360, Aslam Babu Lal Desai V. State of
Maharashtra AIR 1993, SC 1.
72. Delhi Judicial Service Association V. State of Gujarat 1991 (4), SCC 406.
73. Joginder Kumar V. State UP. AIR 1994, SC 1349.
74. D.K. Basu V. State of West Bengal AIR 1997 SC 610.
66
 should be developed which will help the police to bring the guilty to book
without ruthless violation of human rights. For ensuring transparency and
accountability the Supreme Court recognised the need for the establishment of
an appropriate authority to record and notify all cases of arrest and detention.
Since legislative measures may take a long time for adoption, thus instead of
waiting for the appropriate legislative measures, Supreme Court has laid down
the provisional requirements to be followed in all cases of arrest or detention,
which are more in tune with the international standards."

4. CONCLUSION
Despite these international and national efforts to develop and implement
the 'custody jurisprudence' the Indian police has failed to follow these
standards as the Press reports and reports of National and State Human Rights
commissions indicate. The moot question is why all the threats, exhortations,
appeals, advices and training have failed to bring the desired change in the
concept, attitude and motivation of the police force. In fact the roots of this
malady lie deep in police sub-culture which is fostered by alienation, cynicism,
dehumanisation of police, conflicting demands made of them and inconsistent
judgments of their work and above all the governmental apathy to the much
needed police reforms during the past five decades.1 6 These factors along with
ever increasing population, crime rate as well as human rights consciousness
have in fact placed unbearable burden on the police force. The dilemma which
is being faced by a policeman today has been succinctly stated by August
Vallmore: "The policeman is denounced by the public, criticised by the
preacher, ridiculed by the movies, berated by the newspaper and unsupported
by the prosecuting officers and judges. He is shunned by respectables. He is
exposed to countless temptations and dangers, condemned while he enforces
the law and dismissed when he does not. He is supposed to possess the
qualifications of a soldier, lawyer, diplomat and educator with the remuneration
less than that of a daily labourer."" Thus there is an urgent need to refurbish
the raiment and inner content of Indian police through multidimensional
measures. 8 But the most important and immediate step to my mind is to opt for
proper training of the police-personnel from top to bottom. It shall make them
not the inevitable violators of human rights, but the first line of defence in the
struggle for protection of human rights. This objective could not be attained
through traditional training methods, rather the need is to adopt the strategies
devised by United Nations Centre For Human Rights. These strategies are the
result of United Nations' 30 years experience in the field of training the
enforcement officials and its interaction with other governmental and non-
governmental agencies in this regard, Since 1992 United Nations Centre for
Human Rights has embarked upon an innovative approach in such training

75, Ibid. at 623,

76 Shailandra Misra, 'POLICE BRUTALITY: An Analysis of Polico Behaviour', Vikes
Publishing Houe Private Limited. New Delhi, P. 51.
77 Quoted by RC, Sharma in: 'Concealing of Crime by Polie Goes on Unabated', The
Tribune, March 13, 1998, P. 1,
78 Trilok Nath: THE INDIAN POLICE, a case for a now image, Sterling publishing Private
Limited, New Delhi, 1978, P. 190.
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whic aims a; providing necessary skill and attitude for the conversion of
international human rights stanrds into effectie operational behavir. tie
training familiarises the poice with the standards on human rights as well as
the methods to perform their duties effectively within the confines of those
standards These training programmes are organised around the dail duties of
then police, tharough collegial approach of police discussin~g with police than by
professor-student model of training. The lectures on standards are
complemented by, interactive teaching techniques like role-playing, practica
case-studies etc Besides sessions are oiganised to sensitize the nolice to the
importance of human rights of the accused as well as the victim and their own
potential for violative behaviour Mreo'ver the traimng programmes are
designed according to the cultural, educational, historical and political realities
of the area where the trainees are servin-g. Since the espect for human rights
by police in a pracical requirement of humane lawqekocement poicies and
practices, So, the need of the day is tat Indian police officials too shousld be
trained in' accordance with innovative training approach adiopted by United
Naions Centre for Hutman Rts. Moreover such training must be fo-owed by
appropriate rev and revision of these progranunes. Such a training to police,
it is hoped snal help the police to protect human rights under the rul of law,
th-rough humane, dissiplied and lawfal zolicies and pracices.

79. Humanligs andLaw Enforcement, Supra Note 1.

68