What is Right against arbitrary arrest and detention under our constitution?

 

Why is it in the news?

1.The Supreme Court of India invalidated the arrest and subsequent remand of News Click Web portal founder-editor Prabir Purkayastha under the unlawful activities (Prevention) Act and ordered his immediate release.

2.The editor was arrested on 3rd October last year by Delhi police on the allegation of attempts to show Kashmir and Arunachal Pradesh as not parts of India, discrediting the government’s fight against covid-19; funding the farmer’s agitation and putting up a spirited defence of legal cases against Chinese telecom companies. He was remanded in police custody the next day. His lawyer was informed of the grounds of arrest on October 5th. 

3.In the first information report, the police booked him u/s 13 (unlawful  activities), u/s 16 (terrorist act), u/s 17 (raising funds for terrorist acts), u/s 18 (hatching conspiracy) and u/s 22 C (offences by companies, trust) of UAPA. In addition, section 153 A (promoting enmity between different groups) and section 120 B of the Indian Penal Code were also slapped against him. 

4.The Supreme Court of India held that the right to be informed about the grounds of arrest flows from article 22 which says that an arrested person shall be informed of the grounds of arrest and shall be allowed to consult a lawyer of his/her choice. Any infringement of these fundamental rights would vitiate the process of arrest and remand. The mere fact that a charge sheet was filed in the case would not validate the illegality committed at the time of arrest. The court quashed the arrest but said that its judgement was not a comment on the merit of a case against the editor of Newsclick Prabir Purkayastha. 

5.The Supreme Court held that communication of grounds of arrest or detention in writing by the investigating agency or police was sacrosanct and cannot be breached under any situation. Non-compliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal. 

6.The Supreme Court of India held that the entire exercise was done in a clandestine manner and was nothing but a blatant attempt to circumvent the due process of law; to confine the accused to police custody without informing him the grounds on which he has been arrested; deprived accused of the opportunity to avail the services of legal practitioner of his choice so as to oppose the prayer for police custody remand, seek bail and also to mislead the court. 

7.The Supreme Court also held that the arrest memo only contains the reasons for arrest but not the grounds of arrest. There is a significant difference between the reason for arrest or grounds of arrest. The reasons for arrest as indicated as the arrest memo are purely formal parameters like to prevent the accused person from committing any further offence; for proper investigation of the offence; to prevent the accused person from causing the evidence of the offence to disappear or tampering with such offence ; to prevent the arrested person or making inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to the investigation officer. Thus, the reason for arrest would apply in all criminal cases whereas grounds of arrest would be required to contain all such details in hand of the investigating officer which necessitated the arrest of the accused. Thus, the grounds of arrest would differ from case to case, whereas reasons for arrest are general in nature.  

8. The Supreme Court of India held that there is no significant difference in the language implied in section 19 (1) of PMLA and section 43 B (1) of UAPA which can support the Delhi police’s contention that the law laid down in Pankaj Bansal case should not be applied to an accused arrested under the UAPA. It was argued that remanding of the accused Prabir Purkayastha without providing him in written the grounds of arrest, violated the Supreme Court verdict in Pankaj Bansal vs Union of India (2023) wherein it was held that it would be necessary henceforth that a copy of such written grounds of arrest is furnished to the arrested person as a matter of course and without exception. The Supreme Court of India held that the requirement to communicate the grounds of arrest is the same in both the statutes. As a matter of fact, both the provisions find their source in the constitutional safeguard provided under article 22 (1) of the constitution of India. The judges emphasised that salutary and sacrosanct requirements of informing the arrested person of the grounds of arrest in writing will henceforth apply to all UAPA cases as well. It will not suffice to convey them orally only. The court reasoned that this is the only effective means for the arrested person to consult his lawyer, oppose the police custody remand and seek bail.  

What is article 22?

1.Article 22 grants protection to the persons who are arrested or detained. It has two parts - the first part deals with the cases of ordinary law and the second part deals with the cases of preventive detention law. The first part of article 22 confers following rights on a person who is arrested or detained under an ordinary law. These are -

• Right to be informed of the grounds of arrest.

• Right to consult and be defended by a legal practitioner. 

• Right to be produced before a magistrate within 24 hours of the arrest excluding the time taken in journey.

• Right to be released after 24 hours unless the magistrate authorises further detention. 

• The above rights are not available to an enemy alien or a person detained under a preventive detention law. 

• The Supreme Court also held that arrest in the first part of the article 22 does not cover arrest under the orders of a court, civil arrest, arrest on failure to pay the income tax and deportation of an alien. They apply only to an act of a criminal or quasi criminal nature or those activities prejudicial to public interest.

2.The second part of the article 22 grants protection to persons who are arrested under a preventive detention law. This protection is available to both citizens as well as aliens. It includes -

• The detention of a person cannot exceed three months unless an advisory board consisting of two High Court judges recommend sufficient cause for extended detention.

• Grounds of detention should be communicated to the arrested person. However, the state is not required to disclose those facts which are considered against the public interest.

• The detenu should be afforded an opportunity to make a representation against the detention order. 

• The Parliament can make law with regard to the detention of the person for more than three months without obtaining the opinion of an advisory board, the maximum period for which a person can be detained under preventive detention law and the procedure to be followed by an advisory board in an inquiry. 

• Both Parliament and state legislature can make laws on preventive detention in respect of the security of the state, the maintenance of public order and maintenance of supplies and services essential to the community. 

3.The Parliament has made several preventive detention laws since the adoption of our constitution. 

• Preventive detention act 1950. It expired in 1969.

• Essential services maintenance act, 1968.

• Maintenance of internal security act (MISA), 1971. It was cancelled in 1978.

• Conservation of foreign exchange and prevention of smuggling activities act (COFEPOSA), 1974. 

• National security act (NSA), 1980.

• Prevention of black marketing and maintenance of supplies of essential commodities act, 1980.

• Terrorist and disruptive activities (prevention act) (TADA), 1985. It was repealed in 1995. 

• Prevention of illicit traffic in narcotics drugs and psychotropic substances act, 1988.

• Prevention of terrorism act (POTA), 2002. It was repealed in 2004.

• Unlawful activities (prevention act) (UAPA), 1967. It was amended in 2012 and 2019.

To Conclude - The extraordinary provision of preventive detention was inserted into part III of our constitution because of the extraordinary situation prevailing when the constitution was being drafted. The partition of India led to the exodus of 15 million people, ten lakh people were killed and around one lakh women were raped. The communal feelings were at its peak. So, to fight out the communal riots and mass murder, preventive detention was resorted to by our constitution. It should be noted that during the British period, the Bengal regulation of 1818, Rowlett Act of 1919 and Defence of India Act, 1939 provided for preventive detention. In European countries and in the USA, there is no such provision like preventive detention. So in spite of the stiff opposition from the members of the constituent assembly, the provision for preventive detention was kept in our constitution. 

What is a heatwave ? Why is it caused ? What are its impacts?

 Why is it in the news ?

1.Intense heat is sweeping large parts of India in April with maximum temperature going to 4-6 degree C above normal in many areas. Parts of Odisha, Rayalaseema (Andhra Pradesh), Gangetic West Bengal, Jharkhand, Vidharbha, Chhattisgarh, Madhya Pradesh, Telangana, Tamil Nadu and Gujarat are experiencing heat waves. The number of days of heatwaves are also increasing with the passage of every year. 

2.This phenomenon is not restricted to India but it has impacted south and south east Asia. Authorities in Bangladesh were forced to close schools twice over the last two weeks amid the heat waves when the temperature soared to 110 degree F. Similarly, several parts of Myanmar have recorded high temperatures of more than 115 degree F. In the Philippines authorities had to close schools due to soaring temperatures. In Thailand, Vietnam the heat waves are causing disruption in the normal life of the people. 

What is a heatwave ?

1.A heat wave is a period of abnormally high temperatures, more than the normal maximum temperature that occurs during the summer season in the north western part of India. Heat waves typically occur between March and June, and in some cases it may extend to July. The threshold of a heat wave is met when the maximum temperature of a station reaches at least 40 degree C in plains, 37 Degree C in the coastal areas and 30 degrees C in the hilly region and the departure from the normal is at least 4.5 degree C. A severe heat wave is declared if the departure from the normal temperature exceeds 6.4 degree C. 

2. Heat wave is a condition of air temperature which becomes fatal to the human body when exposed. 

3.When the actual temperature of a station goes 45 degree C, it is called a heat wave  and when there is an increase of 2 degree C or more it is called a severe heat wave.

4.If there is an increase of 4 to 5 Degree C in the normal temperature for two consecutive days it is called a heat wave.  

What is the difference between loo wind and heat wave?

1.A loo is a strong dusty, gusty hot and dry summer local wind from the west which originates from the Thar desert and blows over the Indo Gangetic region of northern India and Pakistan in the month of May and June. It lacks humidity.  It is a local dry wind of India and Pakistan like the dry winds of foehn of Europe and Chinook of North America. In loo, the temperature may go to 45 degree C to 50 degree C and even more. 

2.A heat wave is a period of excessively hot weather which may be accompanied by high humidity especially in oceanic climate countries and coastal areas. There is a lack of wind blowing and it remains stagnant. In heat waves the temperature is measured in comparison to the previous year and the sudden rise of 4.5 degree C from the normal temperature of a station. 

What are the causes of heat waves ? 

1.High pressure systems - Heat waves are formed when high pressure at the altitude of 3000 to 7600 metres remains over a region for several days to several weeks. High pressure systems force air downward. This force prevents air near the ground from rising. The sinking air acts like a cap. It traps warm ground air in place. This high concentration of pressure makes it difficult for other weather systems to move into the area. The high pressure inhibits winds. It also prevents clouds from entering the region. The end result is a continuous buildup of heat at the surface that people experience as a heat wave. 

When high pressure systems settle over an area, they suppress cloud formation and trap heat at the surface leading to rising temperatures. 

2.Large scale weather patterns - global weather patterns can influence regional climates. For example- a persistent shift in wind patterns can bring hot air masses to a particular area.

3.Rising global temperature - due to climate change contributes to more intense and frequent heat waves. 

4.Scholars are of the view that the rise in the temperature of the central Pacific ocean is causing heat waves in south and southeast Asia. 

Impact of heat waves -

1.It causes 

• Heat cramps 

• Edema (swelling)

• Syncope (fainting)

• High Fever 

• Fatigue

• Weakness

• Dizziness 

• Headache

• Nausea 

• Vomiting

• Muscle cramps

• Sweating

• Heat stroke when the body temperature increases to 40 degree C or 104 Degree F or more along with delirium, seizures or coma.

• Dehydration

Heat waves in India cause thousands of deaths every year. 

• Heat waves would impact the poor the most. It is likely to cause crop damage, leading to the miserable life of the farmers.

Remedy -

1.Stay hydrated : drink plenty of water and cooling beverages throughout the day. 

2.Avoid exercising or working outdoors during the hottest part of the day.

3.Wear loose lightweight clothing, cotton fabric to allow sweat to evaporate, take cool showers or baths regularly. 

4.Avoid alcohol tea,coffee and carbonated soft drinks which dehydrates the body. 

5.Distribution of oral rehydration solution.

6.Provision of cool drinking water at public places.

7.Closure of schools and colleges during peak hours.

8.Providing access to parks and other shaded places to people.

9.Regulation of construction activities.

10.Avoidance of non essential activities during the peak hours of heat waves. The timings of school, colleges and office should be tweaked. 

11.All organised outdoor activities like sports should be regulated. 

12. To cut the greenhouse gas (carbon dioxide, methane, ozone, nitrous oxide, chlorofluorocarbons and water vapour) emission and encourage renewable sources of energy. 

13. Planting of trees 

When does the Interpol issue blue corner notice against the accused?

Why is it in the news ?

1.The sitting MP of Hasan (Karnataka), Prajawal Ramanna, the grandson of former Prime Minister H.D. Devegowda, fled away to Germany last month following the leak of thousands of explicit video clips showing him sexually abusing multiple women. 

2.The complainant lady registered an FIR against the sitting MP alleging that he forced her to have sex with him multiple times between January 2021 and April 2024. She also complained that the accused threatened to kill her and her husband if she disclosed the incident. She was also blackmailed by making a video clip of her sexual exploitation by the accused. A case under section 376 (2) (N) for committing rape repeatedly on the same woman, section 354 (B) for assault or use of criminal force to woman with intend to disrobe, section 354 (C) for capturing the image of a woman in a private act against her will and various sections of information technology act 2000. 

3.The Karnataka Government constituted a special investigation team to investigate the alleged sexual exploitation of around 2900 women by the sitting MP. 

4.The SIT sought the help of the CBI for further inquiry. 

What is CBI ?

1.CBI is not a statutory body. It derives its powers from the Delhi special police establishment act 1946. It is the main investigating agency of the central government. It plays an important role in the investigation of corrupt practices. It provides assistance to the central vigilance commission and Lokpal. 

2.It investigates cases involving economic offences, corruption, heinous offences and organised crimes. 

3.It cannot investigate in the area of any state without the consent of the concerned state. However, the Supreme Court and High Courts can direct the CBI to investigate a particular case in the public interest. When such an order is passed by the apex Court and High Courts, there is no need to seek consent of the concerned state. 

4.It is headed by a director who is appointed by a three member committee consisting of the Prime Minister of India as the chairman, the leader of the opposition in the Lok Sabha and the chief justice of Lok Sabha or the judge of the Supreme Court nominated by him. 

5.The CBI is officially designated as the nodal agency of interpol in India.

What is interpol ?    

1.Interpol is not a super national law enforcement agency and has no arresting powers. It is an international organisation that functions as a network of law enforcement agencies from different countries. Thus the Interpol functions as an administrative liaison among member countries, providing database and communication to member countries.   It facilitates cooperation between national law enforcement agencies in 196 member countries to combat transnational crimes. 

2.The organisation shares information regarding crimes and wanted criminals globally, provides technical, operational and investigating support to locate fugitives. It manages a database of critical data about wanted criminals. These databases are disseminated among member countries to trace the criminals. 

3.Interpol has a central bureau in all member countries which acts as a connecting point between interpol and the enforcement agency of that country. The CBI is the nodal agency of Interpol in India. 

4.The headquarter of Interpol is in Lyon (France). It was formed in 1923. It provides investigative support, expertise and training to law enforcement worldwide. Its main focus is on transnational crime, terrorism, cybercrime and organised crime. 

5.Interpol seeks to remain politically neutral and is thus barred from interventions that are political, military, religious or racial in nature. 

6.The national enforcement agencies are not bound by the dictates of interpol. At best, the interpol helps national enforcement agencies in providing a database in the crimes which have international ramification.

Different types of notices issued by the Interpol on the request of the CBI. These are ;-

1.Blue corner notice - To collect information with regard to the identity of an accused, location and criminal activities in relation to criminal investigation. This notice is issued for those missing accused who are wanted in a criminal investigation. 

2.Red corner notice - It is issued for those criminals who are wanted for extradition because the municipal court has already awarded a sentence to him. 

3.Black corner notice - It is issued to seek information with regard to unidentified bodies. 

4.Green corner notice - It is issued as a warning about a person's criminal activities and he is considered to be a threat to public safety.

5.Orange corner notice - It is a notice to warn of an event, a person,an object or a process representing a serious and an imminent threat to public safety. 

6.Purple corner notice - It is issued to provide information on modus operandi, objects, devices and concealment methods used by criminals.

7.Yellow corner notice - It is issued to locate missing minors or to help identify persons who are unable to identify themselves. 

8.Special corner notice - It is issued by the interpol on the request of the United Nation Security Council.  

These above notices are issued by  the interpol on the request of the member countries. The interpol itself cannot compel the national law enforcement authorities to act on a particular notice. It has been seen that actual action on the notices by the member countries depends upon the relation with other countries where the criminals wanted in the case have got shelter. Since India has good relations with Germany, it is hoped that accused Prajawal Rammana would be extradited to India. 

Conclusion 

1.Critics allege that Interpol indulges in politically motivated case in spite of its explicit adherence to political neutrality. 

2.In 2021,China, United Arab Emirates, Russia, Venezuela, Turkey were accused of abusing interpol because they used it to target its political opponents. 

3. It has been found that non democratic states use Interpol to harass opposition leaders, human right activists, journalists and businessmen.  The procedure for filing an appeal with the interpol is a long and complex one. 

4.It is therefore necessary that Interpol is not misused by the state to harass the opposition leaders. The interpol should take maximum caution while issuing red corner notices against those political opponents/journalists  who have been framed with false charges.

What are the kinds of bails ? when the bail can be cancelled ?

Why is it in the news ?

1.The Delhi Chief Minister shri Arvind Kejrilwal was granted interim bail on 10th May 2024 by the Supreme Court until June 1st. He was arrested in the Delhi excise policy case on March 21st by the enforcement directorate and subsequently placed in judicial custody. 

2.The Supreme Court put certain conditions. These conditions were 

• He shall furnish bail bonds in the sum of fifty thousand with one surety of the like amount to the satisfaction of the jail superintendent.

• He shall not visit the office of the chief minister and the Delhi secretariat.

• He shall not sign official files unless it is required and necessary for obtaining clearance/approval of the lieutenant Governor of Delhi.

• He will not make any comment with regard to his role in the present case.

• He will not interact with any of the witnesses and have access to any official files connected with the case.

• The grant of interim bail will not be treated as expression of opinion on the merit of the case or the criminal appeal which is pending consideration before the Supreme Court. 

• The Supreme Court held that election is a barometer and lifeline of a parliamentary system. That the chief minister of Delhi and a leader of one of the national parties does not have any criminal antecedents and he is not a threat to society. The Supreme Court also rejected the arguments of the prosecution that granting of interim bail would give a premium of placing the politician in a benefic position compared to ordinary citizens of the country. 

What is bail?

1.The provision of bail is provided in the 33rd chapter of the Crpc between section 436 to 450. 

2.Bail means short term release of an accused person pending the final judgement of the court. It is in consonance with article 21 of our constitution, which guarantees fundamental right to life and personal liberty. It is based upon the principle that every accused is innocent until proven guilty. It is to establish a balance between the right to freedom of the people and the public interest. 

3. Thus, bail is the judicial release of an accused in bailable and non -bailable  offence. In bailable offence, the bail is the right of the accused and therefore, if the accused furnishes bail or surety to the satisfaction of the station house officer or the court, he must be released forthwith. But in non-bailable offences, the accused has no right to get bail. It is the discretionary power of the court. The court put certain restrictions upon the accused before releasing him from the judicial custody. 

4.The provisions of bailable offence and non-bailable offence are mentioned under the first schedule of Crpc. In bailable offence under section 436 Crpc, accused cannot be denied bail by the police officer or the Court,  if the accused is ready to furnish bond or surety. 

5.According to section 436 Crpc, if the police officer or the court think that the accused person is indigent and is unable to furnish surety, he shall discharge him on his executing a bond without sureties for his appearance. If the accused person is unable to give bail within a week from the date of his arrest, it shall be sufficient ground for the officer or the court to presume that he is an indigent person for the purpose of this proviso. 

6.Under section 436 A, when a person has undergone detention for a period extending upto one half of the maximum period of the imprisonment specified for that offence under that law, he shall be released by the court on his personal bond with or without sureties. But this rule could not be applicable in the offence where there is a provision of death penalty. 

7.It is further provided that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law. It is also provided that the court may order the continued detention of such accused person for a period longer than one half of the said period or release him on bail instead of the personal bond with or without sureties. 

8. Under section 437 Crpc, when an accused charged with the commission of non-bailable offence is produced before the court other than the session court and the High Court, he may be released on bail but accused will not be released on bail if he is charged with an offence punishable with death or imprisonment for life; 

• if he has been charged in an cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more; 

• or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years. 

• However, a person accused of a non bailable offence may be released on bail if such person is under the age of 16 years or is a woman or is sick or infirm.

• It is also provided that an accused person may be released on bail if the court is satisfied that it is just and proper to do so for any other specific region. 

• No accused shall be denied bail in non bailable offence for the identification during the investigation if the accused gives an undertaking that he shall comply with directions of the court. 

• It is further provided that if an accused is charged with an offence punishable with death or imprisonment for life or imprisonment of seven years or more, the public prosecutor must be given the opportunity of hearing before releasing him on the bail. 

• Section 439 gives certain special powers to both High Court and Session Court with respect to bail. The court may release any accused person from judicial custody if it considers it necessary. The High Court or Session Court may set aside any condition imposed by a magistrate while releasing the accused on bail. 

Kinds of Bail -

1.Regular Bail - An accused person who is under judicial custody can seek regular bail under section 437 and 439 of Crpc. This regular bail is effective till the judgement of the case under certain conditions imposed by the court. If the accused is convicted by the court, his regular bail is cancelled and he is sent to jail to serve the sentence imposed by the court. 

2.Interim Bail - This is the bail order of the court to provide accused temporary and short term bail until his regular or anticipatory bail application pending before the court is decided. 

3.Anticipatory Bail - When a person is apprehending arrest in a non- bailable offence, he may apply to the High Court or the court of session under section 438 of Crpc. 

4.Default Bail - According to the Supreme Court, the default bail under section 167 (2) of the Crpc, is a fundamental right. An accused gets bail when the police fail to complete the investigation within a specified period. Where the offence is punishable with death, life imprisonment or imprisonment with at least ten years, the investigation must be completed and a charge sheet must be produced in the court within 90 days if the accused is in judicial custody.  If the charge sheet is not produced within 90 days and the accused is in jail, the magistrate will release him on bail if he is ready to furnish bail bond with or without sureties. 

It is mandatory to complete the investigation and to produce a charge sheet in the court within 60 days in other offences, failing which the magistrate shall release him on bail. 

In some other cases, the time period may vary. For example, in the Narcotic Drugs and Psychotropic Substances act, the investigation must be completed and a charge sheet must be produced in the court within 180 days. If the investigation officer fails to produce a charge sheet in the court in the specified period, the accused would be released on bail. 

Conditions imposed by the court/police officer for granting bail 

1.The accused shall attend the court in accordance with the conditions laid down in the court. 

2.The accused would not leave the country without the permission of the court.

3.The accused shall not commit any offence while on the bail.

4.The accused shall not directly or indirectly make any inducements, threat or promise to any person acquainted with the facts of any case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.

5.The court may impose any other conditions on the accused in the interest of justice.  

6. If it is found by the court that the accused on bail flouted any of the conditions laid down by it, may cancel the bail of the accused. 

Conclusion

Bail is the rule and jail is the exception. But, this principle is not adhered to by the subordinate courts. In most of the cases sessions courts reject the bail petition pertaining to non bailable offence. This resulted in piling up of cases with respect to the bail application in the High Court and the Supreme Court. The chief justice of India and other judges of the Supreme Court  expressed anguish time and again on the indifferent attitudes of the sessions courts. This lackadaisical tendency of the subordinate courts must be discouraged so that the maxim that all accused are innocent until proven guilty must be enforced in our society. Putting an accused in jail for a long period is not good to safeguard the right to life and liberty. Lakhs of accused are languishing in jail for want of bail. This is not a healthy sign of our democratic and fundamental rights.