Table of contents

1. Introduction……………………………………………………………………….……..2
2. International Scenario…………………………………………………….……….…….2
3. Criteria of Arbitrariness……………………………………………………………..…..4
4. Constitutional Provisions Regarding Protection against Arrest And Preventive
Detention………………………………………………………………………….…..…5
5. Right To Be Informed -Grounds Of Arrest……………………………………..………7
6. Right To Be Produced Before The Magistrate Within 24 Hours………………….…….8
7. Right To Legal Assistance………………………………………………………….…...8
8. Preventive Detention………………………………………………………………....….9
9. Nature And Scope of preventive detention……………………………………….….….9
10. Safeguards Against The Order Of Preventive Detention………………………….…….9
11. Communication Of Grounds Of Arrest…………………………………………….….10
12. Delay In Making An Order Of Detention To Be Explained……………………….…..10
13. Effect Of Non-Application Of Mind……………………………………………..……10
14. Advisory Boards……………………………………………………………....……….10
15. Conclusion……………………………………………………………………………..11

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An overview of protection against arbitrary arrest and detention

Introduction:- The concept of freedom from arbitrary arrest and detention originated
in early European documents like the Magna Carta, Habeas Corpus Acts of England,
and the French Declaration of the Rights of Man and the Citizen. These texts laid the
foundation for the Universal Declaration and the Covenant on Civil and Political
Rights. Arrest is a legal process that takes away personal liberty, a fundamental right
protected by Article 22. In a free and civilized society, individuals must be protected
against police misconduct and abuse for effective criminal justice administration.

All human beings have the right to liberty and security, and the state is responsible for
defending these rights. Various procedural safeguards have been incorporated into the
Criminal Procedure Code to guarantee these rights. These safeguards aim to provide
adequate safeguards to the person arrested, ensuring minimum rights to avoid
miscarriage of justice and limiting the State's powers to enact preventive detention
laws. However, there is sufficient evidence of police tyranny and abuse. This
assignment examines the protection against arbitrary arrest and detention under
international law and the Indian constitution.

International Scenario:-

Violation of right to liberty and security has been considered a human rights violation.
Since the adoption of the United Nations Charter in 1945, the international community
has built an extraordinary body of international human rights law in recognition of the
critical need of ensuring respect for human rights and freedom from fear. Among the
most fundamental of all human rights is the right to personal liberty. One significant
dimension of this right is freedom from arbitrary arrest and detention. In recognition of
the right to this freedom, the Universal Declaration of Human Rights (Universal
Declaration), adopted by the General Assembly of the United Nations in 1948,
provides in:

Article 3 that: "everyone has the right to life, liberty and security of person,"

Article 9 that: "no one shall be subjected to arbitrary arrest, detention or exile."

The International Covenant on Civil and Political Rights (Covenant on Civil and
Political Rights) 1966, provides in:

2
 Article 9(1) states: "Everyone has the right to liberty and security of person. No one
shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty
except on such grounds and in accordance with such procedure as are established by
law."

There are various other international legal rules governing arrest and detention have
been embodied in Art.6 of the African Charter on Human and Peoples‟ Rights,
1981; Art.7 (1) of the American Convention on Human Rights, 1969 and Art.5(1)
of the European Convention on Human Rights, 1950.

The significance of Article 9 of the Universal Declaration and Article 9(1) of the
Covenant on Civil and Political Rights have established a standard of freedom from
arbitrary arrest and detention which includes and extends beyond protection from
"unlawful" arrest or detention; the standard is designed to protect individuals from
"arbitrary" laws as well as "unlawful" acts, and is a standard to which the very content
of national legal systems must conform.

Early European documents like the Magna Carta, Habeas Corpus Acts, and French
Declaration of Rights provided the first definitions of freedom from arbitrary arrest and
detention. Article 39 of the Magna Carta states: No Freeman shall be taken or
imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be
outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him nor
condemn him, but by lawful Judgment of his Peers, or by the Law of the Land.1 Article
39 of the Charter, which protected the small feudal class, did not apply to all citizens.
The term "Freeman" only referred to the small class, making it a partisan instrument.
However, the Charter restricted regal power, and during Edward III's reign, the
protection provided to earls and barons extended to all men. The Magna Carta, despite
not fully implementing Article 39, marked a significant step towards recognizing the
right to freedom from arbitrary arrest and detention.

A second important development in the recognition of the right to personal liberty was
the promulgation of the Habeas Corpus Acts of England in 1640 and 1679. The Acts

1
MAGNA CARTA, I STATUTES OF THE REALM 6-7 (1810).

3
 codified to some extent and perfected an ancient remedy.2 A citizen could employ a
habeas corpus proceeding to challenge detention by the King and Council, and Great
Britain eventually accepted habeas corpus as the standard procedure by which the
legality of any imprisonment could be tested.3 Thus, habeas corpus became one of the
foundations of the right to personal liberty in the Great Britain.

A third significant human rights document is the French Declaration of the Rights of
Man and the Citizen of 1789.4 The Declaration proclaimed a number of the "natural and
imprescriptible rights of man," including freedom from arrest and detention except in
conformity with the law. Article 7 stated, in part: "No man may be indicted, arrested or
detained except in cases determined by law and according to the forms which it has
prescribed."5

Each of these documents was designed to protect citizens from "unlawful" arrest or
detention. They did not, however, provide protection from "arbitrary laws." Both the
Universal Declaration of Human Rights and the Covenant on Civil and Political Rights
have made significant contributions to the advancement of the concept of freedom from
arbitrary arrest and detention by ensuring that individuals are protected from both
"arbitrary laws" and "unlawful acts." As a result, the terms of these international
treaties effectively forbid nations from using their legal systems to achieve repressive
goals.

Criteria of Arbitrariness

The Universal Declaration and the Covenant on Civil and Political Rights, themselves,
offer guidelines as to the scope of protection from arbitrary arrest and detention. Those
documents establish several principles in the area of arrest and detention, including:

2
A. H. ROBERTSON, HUMAN RIGHTS IN THE WORLD (1972) [hereinafter cited as ROBERTSON]. An account of
the early history of the writ of habeas corpus can be found in Cohen, Some Considerations on the Origins of
Habeas Corpw, 16 CAN. B. REV. 92 (1938); Jenks, The Story of Habeas Corpw, 18 L.Q. REV. 64 (1902).
3
The Habeas Corpus Act, 1816,56 Geo. 3, ch. 100, extended the protection of the Act of 1679 to persons
deprived of their liberty other than by a criminal charge, unless they were imprisoned for debt. In 1869, the
Debtors Act, 1869, 32 & 33 Vict., ch. 62, further extended protection to debtors.
4
The Declaration later became the preamble of the French Constitution of 1791. An English translation of the
Declaration can be found in G. LEFEBVRE, THE COMING OF THE FRENCH REVOLUTION 221 (1947) [hereinafter
cited as LEFEBVRE]. For the French text, see L. DUGUIT & H. MONNIERS, LES CONSTITUTIONS ET LEs
i'RINCIPALES LOIS POLITIQUES DE LA FRANCE DEPUIS 1789 (1952)
5
LEFEBVRE, supra note 17, at 221

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1. Everyone who is arrested shall be informed, at the time of arrest, of the reasons for his
arrest.
2. Everyone who is arrested shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a
judge or judicial officer.
4. Anyone who is deprived of his liberty shall be entitled to take proceedings before a
court to have the lawfulness of his detention determined.
5. It shall not be the general rule that persons awaiting trial shall be detained in custody.
6. Anyone arrested or detained on a criminal charge shall be entitled to a trial within a
reasonable time or to release.
7. Anyone who has been the victim of unlawful arrest or detention shall have an
enforceable right to compensation.
8. No one shall be held guilty of any criminal offense on the basis of an act or omission
which did not constitute a criminal offense at the time that it was committed.
9. No one shall be subjected to a heavier penalty than the one that was applicable at the
time when the criminal offense was committed.
10. No one shall be imprisoned merely on the ground of inability to fulfill a contractual
obligation.

Constitutional Provisions Regarding Protection Against Arrest And Preventive

Detention:-
Under the Criminal Law there is presumption of innocence till the guilt of the accused
is proved beyond reasonable doubt. Article 22 guarantees constitutional safeguards to
an arrestee and a detenue under preventive detention. These protections in a way ensure
prevention from miscarriage of justice and check on police atrocities. Arrest and
preventive detention have the effect of curtailing right to personal liberty, hence these
safeguards are very crucial. These rights cannot be curtailed otherwise than by
following legal process. Personal liberty of every individual holds significance in a free
society like ours. No person can be detained without legal sanction. The right to
personal liberty is a basic human right. There are three rights that stand independent of
each other-
1. the right to be made aware of the reason of arrest as soon as an arrest is made;
2. the right to be produced before a Magistrate within twenty-four hours; and
3. the right to be defended by a lawyer of own choice.

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 Besides these rights there is a general declaration that no person shall be deprived of his
personal liberty except by procedure established by law, that insists on legality of
action. The rights given by Article 22(1) and (2) are absolute in themselves and do not
depend on other laws. Even though Articles 21 and 22 go together but they cannot be
treated as inter-related or inter-dependent. In a way Article 22 advances the purpose of
Article 21, as it not only specifies some guaranteed rights available to persons arrested
or detained but also lays down, the manner to deal with persons detained preventively.6
Art. 22 (3) & (4) enact two exceptions to the fundamental rights otherwise guaranteed
to the arrested persons under Clause (1) & (2), i.e., these protections are not available in
case of an enemy alien and a person arrested or detained under any law providing
for preventive detention.
Related case law :- Rights of An Arrested Person
The Supreme Court in D.K. Basu v State of West Bengal7 laid down some basic
guidelines as a preventive measures to be observed in all cases of arrest and detention
with a view to prevent custodial violence:
1. The police personnel carrying out the arrest and handling the interrogation of the
arrestee should bear accurate, visible and clear identification and name tags with their
designation and their particulars must be recorded in a register.
2. A memo of arrest shall be prepared by the police officer at the time of arrest, which
shall be attested by at least one witness, who may either be a family member of the
arrestee or a respectable person of the locality from where the arrest is made. The
memo shall be counter-signed by the arrestee and it shall also contain the time and date
of arrest.
3. The arrestee or the detenue who is in custody in a police station or interrogation centre
or other lock-up, shall be entitled to have a friend, relative or other person known to
him or having interest in his welfare to be informed, as soon as practicable, about his
arrest or detention at a particular place.
4. If the next friend or relative of the arrestee lives outside the district/town, the police
must notify the time, place of arrest and venue of custody of an arrestee to the police
station of the area concerned. This should be done telegraphically within a period of 8
to 12 hours after the arrest.

6
State of Madhya Pradesh v Shobharam AIR 1966 SC 1910
7
(1997) 1 SCC 416 [35] 435-36

6
 5. The arrestee must be made aware that the moment he is arrested or detained he has the
right to give this information to someone.
6. The arrest of the person disclosing the name of his/her next friend who has been
informed about the arrest, the names and the details of the police officials in whose
custody the arrestee is, must be entered in the diary at the place of detention.
7. The arrestee, as per his request, shall be examined at the time of his arrest. Any major
or minor injuries if present on his/her body must be recorded at that time. The
“inspection memo” must be signed both by the arrestee and the police officer affecting
the arrest. A copy of the same is to be provided to the arrestee.
8. A trained doctor on the panel of approved doctors appointed by the Director, Health
Services, should be conducting medical examination of the arrestee every 48 hours
while he is detention in custody.
9. Copies of all above stated documents should be sent to Illaqa Magistrate for his record.
10. Permission may be given to the arrestee to meet his lawyer during interrogation, but not
throughout the interrogation.
11. The police officer causing the arrest should be communicating the information
regarding the arrest to a police control room at all district and state headquarters, within
12 hours of making the arrest. This information should be displayed on a conspicuous
notice board at the police control room.
Article 22 of the Indian Constitution mandates that arrested individuals must be
informed of the grounds for their arrest. This is crucial as personal liberty is the
cornerstone of our social structure. Sections 50, 50-A, 55, and 75 of the CRPC8 provide
procedural protections for arrests, requiring police officers to communicate the arrest
grounds to the arrested person.
Right To Be Informed -Grounds Of Arrest
A person's personal liberty cannot be curtailed without informing them of the reason for
their arrest. If arrested by warrant or order, the arresting officer must provide the
reason. This rule enables the arrested person to prepare their defense and request bail. A
citizen's liberty can only be curtailed in accordance with law. If a person is arrested
without a warrant and alleges they were not given full details of the offence, the police
diary cannot verify the officer's claim. The arrest and detention are illegal.

8
The criminal procedure code, 1973

7
 Right To Be Produced Before The Magistrate Within 24 Hours
Article 22 (2) - Every person who is arrested and detained in custody shall be produced
before the nearest magistrate within a period of twenty-four hours of such arrest
excluding the time necessary for the journey from the place of arrest to the court of the
magistrate and no such person shall be detained in custody beyond the said period
without the authority of a magistrate.
Article 22 (2) of the constitution mandates that anyone arrested and detained in custody
must be produced before the nearest magistrate within 24 hours, excluding the time for
the journey. This mandatory provision is based on the policy that the magistrate must
bring an independent judgement. It aims to enable the arrested person to be released on
bail or other proper custody while the investigation is pending. The requirement may
end if the person is released on bail.
Right To Legal Assistance
Article 22 (1). – No person who is arrested shall be detained in custody without being
informed, as soon as may be, of the grounds of such arrest nor shall he be denied the
right to consult, and to be defended by, a legal practitioner of his choice.
When arrested for a cognizable offense, a person is entitled to access legal aid,
consultation, and defence by a legal practitioner. The magistrate must make the arrestee
aware of this right and provide it at the expense of the State if they cannot afford a
lawyer. A lawyer must be provided at the trial commencement and throughout the trial.
Failure to fulfil this obligation could result in vitiating the trial and conviction. This
fundamental right is not fettered by reasonable restrictions and any law that takes away
it is against the Constitution.
In Nandini Sathpathy v. P.L.Dhani9, the Supreme Court ruled that lawyers should be
available for consultation in cases of near-custodial interrogation, but they cannot
harangue the police. In Poolpandi case, the court did not accept that a person
summoned for interrogation is entitled to the presence of their lawyer during
questioning. In D.K. Basu v State of West Bengal10, the Supreme Court issued
directions to allow arrestees to meet their lawyer during interrogation, though not
throughout the interrogation. In Directorate of Revenue Intelligence v Jugal Kishore
Samra,11 the court did not accept the claim that the respondent is entitled to the

9
1978 SCC (2) 424
10
1997 (1) SCC 416
11
(2011) 12 SCC. 362

8
presence of his lawyer during interrogation. The right to consult and be defended by a
legal practitioner is not interpreted as sanctioning or permitting the presence of a lawyer
during police interrogation. The Criminal Procedure Code provides for the right to be
defended by counsel, but it is not a guaranteed right.
Preventive Detention
The history of preventive detention in India dates back to the Bengal State Prisoners
Regulation, 1818. Since 1950, the center has had preventive detention laws, except for
two brief gaps between 1970 and 1971 and 1977 to 1980. In 1980, the National
Security Ordinance, 1980, became the National Security Act, 1980. Other Central and
State laws also provide for preventive detention. The Parliament has wide legislative
jurisdiction for reasons related to defence, foreign affairs, or India's security. Parliament
and State Legislatures can concurrently enact laws for security, public order, or
community supplies and services. Parliament can also enact preventive detention laws
on other grounds.
Nature And Scope
Preventive detention is the detention of a person without trial and conviction by a court,
based on suspicion or reasonable probability that the detainee has the potential to
commit a prejudicial act. This power is considered sinister in a democratic Constitution,
designed to prevent the abuse of freedom by anti-social and subversive elements that
might imperil national welfare. In many countries, it is only allowed during times of
war or aggression. The Indian Constitution recognizes preventive detention in peace
time, but it is not punitive in theory. The purpose of preventive detention is not to
punish an individual for any wrong done but to curtail their liberty to prevent them
from indulging in conduct injurious to society. The law of preventive detention must
pass the test of Article 22 and Article 21, and courts must be vigilant to ensure it is not
abused or misused. The Constitution (Forty-Fourth Amendment) Act, 1978, amended
Article 22 to introduce additional safeguards for preventive detention, such as reducing
the maximum period for detention without obtaining the opinion of an advisory board
from three to two months.
Safeguards Against The Order Of Preventive Detention
Art. 22 Clauses (4) to (7) establish safeguards for preventive detention, ensuring
minimum procedures and rendering any law or administrative action infringing on these
safeguards invalid as infringing on detainee's fundamental rights. These safeguards aim

9
to protect detainees from bureaucratic lethargy, insensitivity, red tape, and casual
approaches.
Communication Of Grounds Of Arrest
Article 22 (5).- When any person is detained in pursuance of an order made under any
law providing for preventive detention, the authority making the order shall, as soon as
may be communicate to such person the grounds on which the order has been made and
shall afford him the earliest opportunity of making a representation against the order.
Art. 22(5) requires detaining authorities to communicate the grounds of detention to the
detainee and provide them with the opportunity to make a representation against the
detention order. Effective representation requires providing copies of material
documents considered by the detaining authority. Vulnerable or unclear grounds can
vitiate the order of detention. Non-consideration of a detainer's representation by a
counsel is also vitiated. The detaine has the right to consult a legal adviser for defense,
release, writ petitions, and personal liberty. This right cannot be deprived without
reasonable, fair, and just procedures established by a valid law.
Delay In Making An Order Of Detention To Be Explained
Art. 22(5) of the Constitution guarantees the right of representation, which requires
detaining authorities to provide the detainue with the earliest opportunity to make
representation. This right must be considered and addressed promptly by authorities to
ensure its effectiveness. Courts must be cautious and pragmatic when dealing with
delays in making detention orders, identifying a live link between prejudicial activity
and the order. Unexplained delays between the order of detention and the detaine's
arrest can lead to doubts about the detaining authority's satisfaction and the necessity of
detaining the detaine.
Effect Of Non-Application Of Mind
When a person is released on bail by a criminal court, the validity of an order of
preventive detention should be scrutinized with caution. If a detaine is released on bail
and enjoying freedom under the court's order, the bail order must be placed before the
detaining authority to ensure proper satisfaction and avoid vitiating the detaining
authority's subjective decision.
Advisory Boards
The detention of a citizen for more than three months is prohibited under state law,
which does not include provisions for an advisory board to determine if the detention is
with sufficient cause. This means that if the state law does not include a provision for

10
 such a board, it will be unconstitutional, as it does not provide a basis for determining
the sufficient cause for detention.
Article 22(4)- No law providing for preventive detention shall authorise the detention
of a person for a longer period than three months unless-
a) an Advisory Board consisting of persons who are, or have been, or are
qualified to be appointed as judges of a High Court has reported before
the expiration of the said period of three months that there is in its
opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorise the detention of
any person beyond the maximum period prescribed by any law made
by Parliament under sub-clause (b) of clause (7); or
b) such person is detained in accordance with the provisions of any law
made by Parliament under sub-clauses (a) and (b) of clause (7).
The Supreme Court has ruled that the advisory board must report its opinion on the
sufficiency of cause for detention within three months of the detention order. The
government must also confirm and extend the detention period beyond three months
within the three-month time limit. Clause (7) of Article 22 grants Parliament the power
to make a law prescribing the maximum period for which a person can be detained
under any law providing for preventive detention. This was interpreted in Sambhu Nath
Sarkar v. state of West Bengal12, where section 17-A of Internal Security Act was
declared unconstitutional. The Court clarified that Article 22 (7)(a) should only be used
in extraordinary and exceptional circumstances. The Parliament was required to
prescribe the circumstances under which and the class of cases in which the reference
to the Advisory Board could be dispensed with. Article 22 (7)(a) empowers only the
Parliament, not a State Legislature, to make such a law that eliminates the need for
obtaining the Advisory Board's opinion in appropriate cases.
Conclusion
International covenants and conventions, such as the Universal Declaration of Human
Rights, International Covenant on Civil and Political Rights, Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, European
Convention on Human Rights, African Charter on Human and Peoples' Rights, and

12
1974 SCC (3) 401

11
Inter-American Convention on Human Rights, address arbitrary arrest and detention,
ensuring the protection of human rights and preventing arbitrary actions.
In India the police are given powers to maintain law and order, including preventive
detention legislation. This allows a person to be detained without trial based on
reasonable suspicion of having the potential to commit a prejudicial act. To avoid
misuse of this power, procedural safeguards have been provided to the accused or
detenue, such as the right to know the grounds of arrest, consultation with a lawyer of
one's choice, being brought before a magistrate within 24 hours, and the right of
representation for detainees in preventive detention.
However, arrest and detention can still occur in certain cases, subject to further
provisions. Arrest and detention take away a person's basic human right, but it is
essential to curtail this right for the judicial process to take effect. To prevent
miscarriage of justice, safeguards are necessary to prevent miscarriage of justice.
Article 22(1) and (2) guarantee three basic rights to ensure a fair trial: the right to be
made aware of the grounds of arrest, the right to be produced before a magistrate within
24 hours, and the right to be defended by a lawyer of one's choice.
Preventive detention means detention without trial and conviction by a court, merely on
the basis of suspicion or reasonable probability in the mind of an executive authority
that the detainee has the potential of committing a prejudicial act. Various safeguards
have been provided for detainees under preventive detention legislations, such as the
right of effective representation, a limit of three months of detention, and the opinion of
an advisory board

12