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.