Arrest, Detention and Personal Liberty - Strengthening Constitutional Safeguards under Article 22
Context:
- The Supreme Court [in Sujit Das and Others v. Union of India (2026)] has reaffirmed that personal liberty is the foundation of a liberal democracy and that arrest must remain a measure of last resort.
- In a significant judgment delivered by a two-judge Bench, the Court restricted the police practice of keeping individuals in informal custody before formally recording their arrest.
- The judgment strengthens the safeguards under Article 22(2) of the Constitution, and also addresses the misuse of criminal law, prolonged pre-trial detention and the erosion of civil liberties.
Article 22 - Protection Against Arbitrary Arrest and Detention:
- Article 22(1): An arrested person must be informed of the grounds of arrest and cannot be denied the right to consult and be defended by a legal practitioner of their choice.
- Article 22(2): Every arrested person must be produced before a magistrate within 24 hours, and detention beyond this period requires judicial authorisation.
- Article 21: Protection of life and personal liberty requires that any deprivation of liberty must follow a fair, just and reasonable procedure.
Arrest and Detention - No Scope for Informal Custody:
- No artificial distinction: The Court disapproved contrary HC interpretations and held that arrest and detention cannot be artificially separated to circumvent constitutional safeguards.
- When does the 24-hour period begin? The period begins from the moment the police exercise control over an individual's liberty, rather than from the time they formally record the arrest.
- No investigative buffer zone: Police cannot detain individuals for interrogation, investigation or medical examination before formally arresting them and thereby postpone the constitutional deadline.
- Unconstitutional practice: Informal or undocumented custody cannot be used as a device to evade judicial scrutiny.
- Reference from previous judgment: The SC in Niranjan Singh v. Prabhakar Rajaram Kharote (1980) rejected attempts to justify informal police custody as something distinct from arrest.
- Key directions of the SC: If detention continues beyond 24 hours without production before a magistrate, the person must be released Hence, magistrates may refuse remand if detention is unnecessarily prolonged.
Judicial Safeguards:
- Important judicial precedents:
- Sakal Papers v. Union of India (1961): Fundamental rights must be interpreted broadly rather than through a narrow approach.
- Niranjan Singh (1980): Rejected artificial distinctions between informal custody and formal arrest.
- Prabir Purkayastha v. State (2024): The SC emphasised that failure to communicate the grounds of arrest violates Article 22(1).
- Nagaraj v. Union of India (2006): Fundamental rights are not gifts from the State; the Constitution recognises rights that individuals inherently possess.
- Broader interpretation: The constitutional safeguards must be interpreted to expand, rather than dilute, individual liberty.
Concerns over the Criminal Justice System:
- Excessive criminalisation:
- Governments have increasingly relied on creating new offences (~7,305 criminal offences as per central laws alone) and enhancing punishments rather than addressing the structural causes of crime.
- Economic inequality, weak macroeconomic regulation and market dynamics also contribute to criminalisation and incarceration.
- Rising burden of undertrial prisoners:
- According to the NCRB, ~72.6% of prisoners are undertrials, meaning they are yet to be convicted.
- Prolonged pre-trial detention undermines the presumption of innocence and disproportionately affects economically weaker sections.
- Shrinking civil liberties: Stringent bail provisions under special laws, coupled with prolonged investigations and custodial detention, have weakened the practical enjoyment of personal liberty.
Institutional Concerns - Separation of Powers:
- Section 15 of BNSS, 2023 empowers State governments to appoint Special Executive Magistrates (SEMs), including police officers not below the rank of Superintendent of Police.
- The practice is questioned for producing arrested persons before SEMs who are themselves serving police officers.
- Such arrangements raise concerns regarding judicial independence, impartial scrutiny of detention and the separation of executive and judicial functions.
Unfulfilled Constitutional Commitment:
- The 44th Constitutional Amendment Act, 1978, sought to strengthen safeguards against preventive detention by reducing the permissible period of detention without obtaining the opinion of an Advisory Board.
- However, the relevant provision has not been brought into force, reflecting the inadequate commitment of successive governments towards strengthening due process and protecting civil liberties.
Way Forward:
- Strengthen due process: Ensure strict compliance with Articles 21 and 22 at every stage of arrest, detention and investigation.
- Independent judicial oversight: Produce detained individuals before judicial magistrates and prevent police authorities from exercising quasi-judicial powers over their own investigations.
- Reduce excessive criminalisation: Review redundant criminal offences and adopt proportionate, evidence-based criminal justice policies.
- Reform bail and undertrial detention: Promote bail as the norm, ensure timely trials and reduce unnecessary incarceration.
- Accountability in policing: Maintain transparent records of the actual time of detention and impose accountability for illegal custody.
- Uphold constitutional morality: Courts must interpret fundamental rights expansively to prevent executive overreach.
Conclusion: By treating detention and arrest as synonymous for the purposes of Article 22(2), the Supreme Court has closed an important procedural loophole exploited by investigating agencies.