Some recommendations from the Law Commission of India on arrest and detention

Dr. P. J. Alexander, former Director General of Police, Kerala, India 

The Higher Judiciary and the Law Commission of India have been suggesting welcome changes to the arrest laws in India, thanks mostly to increasing sensitivity about human rights violations and campaigning by activists and NGOs for greater respect of human rights by the state and its agencies.

Among the most significant developments in recent years have been the directions issued by the Supreme Court of India (in the now well-known Basu case) on post-arrest procedure by the police. The significance of these measurers can be appreciated only when we know that the yearly figures of recorded arrests as given by the National Crime Records Bureau are close to two hundred thousand, while many more are routinely detained by the police without formal arrest. The extensive human rights violations due to police arrests are just ignored and treated as a part of the essential preliminary police response to maintain law and order and prevent crime.

The 177th Report of the Law Commission on the law relating to arrests submitted to the government is not yet available. However press reports indicate that it recommends very substantial changes that would qualitatively affect police functioning. According to these, the Report states that “complaints of abuse of power of arrest continue unabated in the country and very often it is the poor and persons without official or political clout who become the victims of police excesses? It observes that the percentage of under trial prisoners is unusually large and many granted bail are unable to avail of the facility owing to their inability to furnish sureties or to comply with the conditions of release. Therefore it proposes that the best way to reduce the number of under trial prisoners is to regulate arrests. In its Report the Commission also notes that it has attempted to strike a balance between the liberty of citizens (the most precious of all fundamental rights) and the social interest in the maintenance of peace and law and order.

The sweeping changes the Commission has suggested are with a view to delineating and regulating the power of arrest without warrant vested in the police under Section 41 of the Criminal Procedure Code. The Commission says that no arrest should be made merely for questioning a person, as it amounts to an unlawful interference with the personal liberty guaranteed by Article 21 of the Constitution of India. Additionally, to arrest a person on suspicion is an awesome power vested with the police and it must be regulated to prevent abuse. The Commission found that arrests under preventive provisions have been more in number than arrests for substantive offences, and further that a large number of arrests have been in respect of bailable offences, which tend to be non-cognisable offences (i.e. where the police cannot arrest without a warrant or order from a Magistrate). The Commission has suggested three major changes to be brought about in the Criminal Procedure Court viz.,

1. No person shall be arrested for offences that are at present categorised as bailable and non-cognisable. For such offences as are under the category of non-cognisable offences no arrest shall be made by the police and no court shall issue an arrest warrant either.

2. In respect of offences treated as bailable and cognisable also no arrests shall be made but an “appearance notice?shall be served on the accused directing him to appear at the police station or before the Magistrate as and when required.

3. Offences punishable with seven years of imprisonment and treated at present as non-bailable and cognisable would be treated as bailable-cognisable offences. The Commission has left offences for which the punishment provided is above seven years untouched

These recommendations have come during a time when India has become acutely aware of the limitations of its law enforcement agencies due to the Gujarat tragedy, which was mostly caused by the neglect of the police force to keep the peace. The recommendations need speedy implementation together with other measures to recreate a popular confidence in the law enforcement system capable of creating harmony in society.