Police Detention And Arrest Under BNSS Article 22 And Supreme Court Judgments
Source: Indian Express
GS II: Separation of powers between various organs; dispute redressal mechanisms and institutions
Overview
- The BNSS, 2023 provides preventive powers to police to address potential law-and-order situations, while distinguishing temporary detention from formal arrest.
- Article 22 protects personal liberty by providing safeguards such as communication of arrest grounds, legal representation and production before a Magistrate within 24 hours.
- The Supreme Court has held that arrest must be justified, necessary and proportionate, and preventive powers cannot be exercised arbitrarily.
- The issue highlights the need to balance public order, personal liberty and the constitutional right to peaceful protest.
Why in the News?
The detention of Opposition leaders and protesters in New Delhi during protests over alleged irregularities in the Election Commission’s Special Intensive Revision (SIR) exercise has raised questions about the differences between detention and arrest and the limits on police powers.
News in Brief
- The BNSS, 2023 provides preventive powers to police under Sections 163, 170 and 172 to address potential law-and-order situations.
- Article 22 ensures safeguards for arrested persons, including communication of grounds and production before a Magistrate within 24 hours.
- The issue highlights the need to balance public order, personal liberty and the right to peaceful protest.
Detention vs Arrest
| Arrest | Detention |
|---|---|
| Formal act of taking a person into custody in connection with an alleged offence. | May involve temporarily stopping/removing a person to prevent a law-and-order problem. |
| Marks the beginning of criminal proceedings. | May be short-term and may not necessarily involve registration of a criminal case. |
| Constitutional and statutory safeguards immediately apply. | Police powers must still have a lawful basis and cannot be arbitrary. |
| In an arrest, grounds of arrest and other safeguards have to be followed. | A detention cannot be used as a substitute for an arrest merely to avoid legal safeguards. |
- In practice, the terms are sometimes used interchangeably, but a temporary detention cannot become an informal way of exercising the power of arrest.
What is a Cognizable Offence?
- A cognizable offence is one in which police can arrest without a warrant.
- Under Section 170 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), preventive action can be taken even before an offence is committed when;
- a police officer knows of a person’s design to commit a cognizable offence; and
- The offence cannot otherwise be prevented.
- The provision permits arrest without a Magistrate’s order and without a warrant for preventing such an offence.
Preventive Powers During Protests
- Most protest-related detentions are justified on the ground of preventing a possible law-and-order problem.
Section 163, BNSS
- Allows authorities to issue prohibitory directions/orders in situations requiring prevention of danger, obstruction or disturbance of public tranquillity.
- During the Delhi protests mentioned in the article, Section 163 was imposed across New Delhi.
- If protesters refuse to disperse or continue activities prohibited by a lawful order, police may use preventive powers to remove them temporarily.
Section 172, BNSS
- This is particularly important in the context of protest-related detention.
- It permits a police officer to detain or remove a person who resists, refuses, ignores or disregards a lawful direction given by the police.
- The person must then be taken before a Magistrate, or in petty cases, released within 24 hours.
- Section 172 is a new provision in the BNSS and has no direct equivalent in the earlier CrPC.
Detention and Preventive Detention are two distinct legal concepts
- A crucial distinction is between brief police detention and preventive detention under special laws.
Brief police detention
-
- Generally connected with immediate maintenance of law and order.
- May involve taking protesters away from the spot temporarily.
- Does not automatically mean that a criminal case has been registered.
Preventive detention
- A separate legal mechanism.
- Allows a person to be held without a normal criminal trial under special laws such as the National Security Act (NSA).
- It is subject to specific constitutional and statutory safeguards.
Thus, ordinary detention during a protest should not be casually equated with preventive detention.
Constitutional Safeguards
- Article 22 of the Constitution provides important protection against arbitrary arrest and detention.
- For an arrested person;
- Grounds of arrest must be communicated.
- The person must be produced before a Magistrate within 24 hours of arrest, excluding travel time.
- The person has the right to consult and be defended by a legal practitioner.
- Continued custody requires judicial authority.
- The Supreme Court has repeatedly emphasised that written grounds of arrest must be furnished to the arrested person.
Why the Distinction Matters
- A person may be taken away by police, kept in custody for several hours and later released without a case being registered.
- Although this may technically be described as detention, from the person’s perspective it can feel very similar to an arrest.
- The legal issue is therefore;
- Can police exercise powers without using them as a substitute for the formal power of arrest?
- Courts have stressed that police powers cannot be exercised casually or arbitrarily.
Supreme Court on Arrest and Police Discretion
Joginder Kumar v. State of U.P (1994)
- The Court held that the existence of the power to arrest is different from the justification for exercising it.
- Simply because police have the legal power to arrest does not mean that arrest is automatically justified.
Arnesh Kumar v. State of Bihar (2014)
- The Court cautioned against automatic arrests, particularly in offences punishable with imprisonment up to seven years.
- Police must apply their mind and satisfy the statutory requirements before making an arrest.
Mazdoor Kisan Shakti Sangathan v. Union of India (2018)
- The Court recognised that reasonable restrictions may be imposed on protests for public order, but such restrictions should be regulatory rather than effectively eliminating the right to protest.
Checks on Police Power
- Courts have made it clear that preventive action;
- cannot be arbitrary
- must have a lawful basis
- must be proportionate to the situation
- must be supported by reasons
- cannot be used merely to suppress legitimate dissent.
- A prohibitory order itself does not give unlimited power to arrest everyone present.
Key Issues
- Preventive policing raises a delicate balance between individual liberty and public order, particularly when action is taken before an actual offence occurs.
- Detention should not be used as a means to bypass the safeguards attached to formal arrest.
- At the same time, while the right to peaceful protest is constitutionally protected, reasonable restrictions may be imposed to maintain public order.
- The broad use of preventive powers may also discourage legitimate dissent.
- Therefore, police action should be lawful, necessary and proportionate to the threat involved.
Way Forward and Conclusion
Preventive powers should be used only when necessary, with clear legal grounds and proper safeguards. Detention should not become a substitute for arrest, and police action must remain lawful, proportionate and subject to oversight.
The BNSS seeks to maintain public order while protecting personal liberty. Its preventive powers must therefore be balanced with the right to peaceful protest, liberty and due process.
UPSC Prelims and Mains Practice Question
Which one of the following best distinguishes detention from arrest?
A. Detention can never involve physical custody, whereas arrest always does.
B. Arrest is a formal legal act connected with an alleged offence, whereas detention may be a temporary preventive measure.
C. Detention does not require any legal authority.
D. Arrest can only be made with a warrant.
Answer: B
Mains Practice Question
Q) The distinction between detention and arrest is crucial for balancing the State’s power to maintain public order with an individual’s right to personal liberty. Examine the constitutional safeguards against arbitrary arrest and detention in India. ( 150 words)
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