Constitutional Safeguards against Arbitrary Arrest and Detention under the IPC Framework

 

Topic Name: Constitutional Safeguards against Arbitrary Arrest and Detention under the IPC Framework

Author- Diya Singh, B.A.LLB(Hons), S.S. Khanna Girls Degree College, University of Allahabad, Prayagraj

Abstract

In a constitutional democracy, the protection against arbitrary arrest and detention is not merely a procedural formality but a substantive guarantee of individual liberty. The Indian legal framework, rooted in Articles 21 and 22 of the Constitution^[1], aims to strike a delicate balance between safeguarding civil liberties and empowering the State to maintain public order. However, despite these constitutional promises, misuse of arrest powers has persisted as a systemic concern^[2]. This article undertakes a critical inquiry into the effectiveness of these safeguards under the Indian Penal Code, 1860, and evaluates whether legislative and judicial interventions have been successful in preventing abuse^[3]. It further explores the implications of the Bharatiya Nyaya Sanhita, 2023, which has recast many procedural elements pertaining to arrest, attempting to modernize colonial-era structures^[4]. By engaging with statutory reforms, case law, and constitutional principles, the study offers a nuanced understanding of how liberty is negotiated within the legal process and what reforms remain essential for a fair criminal justice system.

Keywords: Arbitrary arrest, Article 21, Article 22, preventive detention, CrPC, Bharatiya Nyaya Sanhita, custodial safeguards, criminal procedure, fundamental rights

 

Introduction

Arrest is a coercive act that directly curtails an individual’s liberty, and yet it is frequently exercised in India without sufficient legal justification. Although the Constitution guarantees protection under Articles 21 and 22, arbitrary and unlawful arrests remain prevalent^[5]. This persistent misuse reflects a deep-rooted problem in the statutory and procedural framework of Indian criminal law.

The Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973, while procedurally sound in parts, have been ineffective in preventing custodial excesses and unlawful detentions. The courts have intervened on several occasions to read procedural fairness into arrest powers, but those judicial safeguards have often failed to translate into consistent practice^[6].

In response to these systemic failures, the Bharatiya Nyaya Sanhita, 2023 was enacted to replace colonial-era laws with a more accountability-focused regime. It introduces clearer arrest guidelines, promotes proportionality, and attempts to align statutory authority with constitutional rights^[7]. This article examines the extent to which constitutional safeguards against arbitrary arrest are preserved, enhanced, or undermined under the BNS. Through comparative legal analysis, relevant case law, and a critique of reform proposals, it evaluates whether India is moving towards a rights-based model of criminal justice or simply rebranding colonial power structures.

 

Statutory Framework: Arrest and Detention under Indian Criminal Law

The statutory landscape governing arrest and detention in India is rooted in a constitutional framework that protects personal liberty, reinforced by procedural law. Article 21 of the Constitution guarantees that no person shall be deprived of life or personal liberty except according to procedure established by law^[8]. Article 22 further strengthens these rights by providing safeguards at the time of arrest, including the right to be informed of the grounds of arrest and to be presented before a magistrate within twenty-four hours^[9].

Complementing these constitutional protections, the Code of Criminal Procedure, 1973 (CrPC), lays down detailed provisions on the arrest process. Section 41 of the CrPC authorizes police officers to arrest without a warrant under certain conditions, such as when a person is suspected of committing a cognizable offence and arrest is deemed necessary for the investigation or to prevent further harm^[10]. The provision reflects an attempt to balance the interests of public safety and individual liberty.

The Bharatiya Nyaya Sanhita, 2023 (BNS), maintains this balance while integrating additional safeguards. Section 35 of the BNS rearticulates the grounds for lawful arrest, incorporating judicially evolved guidelines such as those laid down in Arnesh Kumar v. State of Bihar, where the Supreme Court urged caution in arrest for offences punishable with imprisonment up to seven years^[11]. The BNS mandates that in such cases, reasons for arrest must be recorded in writing, ensuring greater transparency and accountability^[12].

Rather than a radical overhaul, the BNS appears to reaffirm and refine existing legal principles by codifying them in a more accessible and structured format. It aligns with India’s constitutional vision of procedural fairness and demonstrates legislative intent to enhance clarity in the exercise of arrest powers. Together with the continuing application of CrPC provisions, the BNS aims to strengthen the safeguards available to individuals while preserving the efficacy of criminal investigation procedures.

 

Judicial Interpretation: Expanding the Constitutional Safeguards

The judiciary has played an indispensable role in reinforcing constitutional protections against arbitrary arrest and detention in India. The Supreme Court, through its expansive interpretation of Articles 21 and 22 of the Constitution, has underscored that the “procedure established by law” must comply with principles of fairness, reasonableness, and justice. In Maneka Gandhi v. Union of India, the Court interpreted “personal liberty” broadly, extending its protection beyond mere physical freedom to encompass a variety of rights essential to human dignity^[13]. This landmark decision established that any procedure depriving liberty must meet substantive and procedural fairness, thereby elevating constitutional safeguards over mere statutory compliance.

Further strengthening protections, the Court in D.K. Basu v. State of West Bengal articulated comprehensive safeguards aimed at preventing custodial abuse and ensuring transparency during the process of arrest and detention^[14]. These include the requirement to inform a close relative or friend, timely medical examination of the detainee, and the preparation of a formal arrest memo. Over time, these judicial guidelines have influenced legislative reforms and have been integrated into procedural laws, making them binding on law enforcement agencies.

In Joginder Kumar v. State of Uttar Pradesh, the Supreme Court emphasized that arrests should not be automatic or routine but must be supported by valid reasons related to the necessity of custody for investigation or prevention of offense^[15]. This principle was reiterated in Arnesh Kumar v. State of Bihar, where the Court mandated that arrests in cases punishable with imprisonment of up to seven years must be undertaken only when strictly necessary, with the reasons recorded in writing^[16]. This ruling was particularly significant in curbing the misuse of laws such as Section 498A of the IPC but has broader implications for arrest protocols under the newer Bharatiya Nyaya Sanhita.

The judiciary has also shaped the contours of preventive detention laws. Initially, decisions like A.K. Gopalan v. State of Madras reflected judicial deference to the legislature in this area. However, later rulings, such as R.C. Cooper v. Union of India and A.D.M. Jabalpur v. Shivkant Shukla, showcased a more nuanced engagement with fundamental rights during states of emergency and detention without trial^[17]. These cases illustrate the evolving balance between state security interests and individual liberty.

Despite the robust judicial pronouncements, enforcement remains a challenge, as arbitrary arrests and prolonged detentions persist, especially impacting vulnerable groups. Nonetheless, judicial interpretations continue to serve as critical benchmarks safeguarding liberty and guiding legislative reforms.

 

Comparative Analysis: IPC vs. BNS on Arrest and Detention

While the Indian Penal Code, 1860 (IPC), primarily defines offences, the procedural safeguards relating to arrest have historically been governed by the Code of Criminal Procedure, 1973 (CrPC). The IPC remained silent on arrest guidelines, leaving much discretion to enforcement authorities.

In contrast, the Bharatiya Nyaya Sanhita, 2023 (BNS), introduces a structured statutory framework that codifies essential arrest safeguards directly within its text. Section 35 of the BNS limits arrest in offences punishable with less than three years unless necessary, echoing the spirit of Arnesh Kumar^[18]. It mandates written reasons for arrest and obligates police officers to record justification, enhancing transparency and accountability.

Notably, the BNS avoids a blanket overhaul and instead integrates judicial precedents into statutory form. It reflects an incremental but meaningful shift from colonial-era legal vagueness under the IPC to a rights-sensitive, rule-bound model under the BNS.

Thus, the BNS represents a legislative acknowledgment of evolving constitutional jurisprudence, aiming to operationalize safeguards that were previously dependent on judicial interpretation or CrPC directives.

 

Reforms and Recommendations

Despite constitutional and statutory safeguards, the reality of arbitrary arrests persists. Reform must focus on institutional implementation, not just legal text.

First, there is a need for mandatory judicial training on arrest jurisprudence, ensuring magistrates scrutinize arrest justifications more rigorously^[19]. Second, police accountability mechanisms—such as departmental oversight, performance audits, and real-time digital tracking of arrests—should be made operational and transparent^[20].

Third, public defenders or legal aid lawyers must be present at the first instance of police custody, especially for vulnerable groups, to ensure compliance with Article 22(1)^[21]. Fourth, recording of all arrests on a national digital portal, accessible to the arrestee’s family and counsel, will curb incommunicado detention.

Lastly, periodic review of arrest statistics by independent bodies or Lokpal-like institutions can create a deterrent effect against misuse.

The shift from IPC to BNS offers an opportunity not just to rewrite the law but to reshape its culture—a culture where arrest is a necessity of justice, not an instrument of coercion.

 

Conclusion

The evolution from the Indian Penal Code, 1860 to the Bharatiya Nyaya Sanhita, 2023 signifies more than a legislative revision—it reflects an urgent call to harmonize criminal procedure with constitutional ideals. Arrest and detention, while essential tools for law enforcement, cannot be allowed to encroach upon personal liberty without stringent justification. As discussed, the protections under Articles 21 and 22 of the Constitution remain critical in safeguarding civil rights.^[22] However, their real impact depends on faithful implementation, judicial oversight, and structural reform.

The Bharatiya Nyaya Sanhita introduces greater procedural clarity, particularly through provisions such as Section 35, which seeks to codify judicially evolved safeguards like those in Arnesh Kumar v. State of Bihar.^[23] But legislative reform alone is insufficient. The rule of law demands a cultural transformation—from unchecked discretion to principled accountability. Arbitrary arrest is not just a legal wrong; it is a denial of dignity and freedom that constitutional democracy cannot afford to tolerate.^[24]

 

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^[1] India Const. art. 21; art. 22.

^[2] Joginder Kumar v. State of U.P., (1994) 4 SCC 260.

^[3] The Code of Criminal Procedure, No. 2 of 1974, § 41 (India).

^[4] Bharatiya Nyaya Sanhita, No. 45 of 2023, § 35 (India).

^[5] D.K. Basu v. State of W.B., (1997) 1 SCC 416.

^[6] India Const. art. 21; art. 22.

^[7] Bharatiya Nyaya Sanhita, No. 45 of 2023, Statement of Objects and Reasons, cl. 5 (India).

^[8] India Const. art. 21.

^[9] Id. art. 22(1)–(2).

^[10] Code of Criminal Procedure, § 41, No. 2 of 1974, India Code (1974).

^[11] Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

^[12] Bharatiya Nyaya Sanhita, No. 45 of 2023, § 35 (India).

^[13] Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

^[14] D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.

^[15] Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260.

^[16] Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

^[17] A.D.M. Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521; R.C. Cooper v. Union of India, (1970) 1 SCC 248.

^[18] Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

^[19] DK Basu v. State of West Bengal, (1997) 1 SCC 416.

^[20] Commonwealth Human Rights Initiative, Status of Policing in India Report 2019, available at.  https://humanrightsinitiative.org/publications/

^[21] India Const. art. 22(1).

^[22] India Const. art. 21 & art. 22.

^[23] Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

^[24] Justice V.R. Krishna Iyer, “Liberty is not a gift from the State, but a right secured by the Constitution,” quoted in Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526.

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  Constitutional Safeguards Against Arbitrary Arrest and Detention under the IPC Framework

• A detailed analysis of constitutional protections against arbitrary arrest and detention in India, with reference to the Indian Penal Code (IPC), fundamental rights, and landmark judgments.

• • Arbitrary Arrest in India
  • Constitutional Safeguards
  • Detention under IPC
  • Article 22 Constitution of India
  • Legal Rights of Arrested Persons
  • Fundamental Rights and IPC
  • Preventive Detention
  • Indian Constitution and Criminal Justice