Beyond Handcuffs - Formulating A Progressive Arrest Policy

Author: LawSphereX

Category: General Law

Published: 2026-08-23T18:29:04.106+00:00

Updated: 2026-08-30T07:11:51.659Z

BEYOND HANDCUFFS: FORMULATING A PROGRESSIVE

ARREST POLICY

Shreya Sharma, Symbiosis Law School, Hyderabad

INTRODUCTION

The word "Arrest" connotes being deprived of one's freedom by actual or presumed legal authority. As a result, upon an arrest, the arresting officer has control over the subject's freedom. The primary goal of knowing the arrest process is to prevent the public from being inconvenienced by law enforcement and other parties. None of the major statutes, including the CrPC, define the term "arrest". When used in its common and authentic sense, the word "arrest" refers to the suspicion or limitation of someone's freedom. In India, the process of making an arrest is governed by the CrPC. It covers the whole procedure of finding out about someone who has broken the law. Sections 41 through 60 of the Fifth Chapter of the CrPC, 1973 address an individual's arrest. Regardless matter whether a person is a criminal or not, they must always be regarded as fellow human beings.

Nevertheless, unless the accused is found guilty in a court of law, they are presumed innocent. Since our legislation respects everyone's "personal liberty," it forbids the imprisonment of any individual without the required legal authority. Article 211 of our constitution states that no one may be deprived of their life or personal freedom other than in accordance with the law. Although Article 21 guarantees people's life and personal freedoms, it also makes it abundantly evident that a legally permitted procedure may infringe upon this fundamentally important right. Thus, Article 21 has both a positive and a bad component, as stated in the 177th Law Commission Report2 on the Laws Relating to Arrest. In order to protect everyone's right to privacy and to maintain social order, a clear mechanism for making arrests must exist.

1 INDIA CONST. art. 21.

2 LAW COMMISSION OF INDIA, Law Relating to Arrest, Report No. 177 (Dec. 2001).

The Code of Criminal Procedure (CrPC) in India classifies offences as either cognisable or non-cognizable, and bailable or non-bailable. 3 Police have the right to file a formal complaint and make an arrest without a warrant for a cognisable offence. If the arrestee's offence qualifies for bail, the police must release them after providing a reasonable security; if not, only a judge has the authority to grant bail. Since the adoption of the Universal Declaration of Human Rights, numerous UN instruments have recognized—both explicitly and implicitly—the vital role that law enforcement officers play in upholding the rule of law, preserving fundamental freedoms, preserving public order, and advancing the general welfare of democratic societies through the application of just and humane policies and practices.

Still, there are others in certain law enforcement circles who hold the antiquated belief that occasionally breaking the law is required to uphold the law for the sake of society. Nonetheless, these prejudices make law enforcement's difficult task much more difficult. History has shown time and time again that when law enforcement personnel turn into criminals, it is an attack on the rule of law, human dignity, and the creation of new barriers to effective policing. The Supreme Court held in "Joginder Kumar v. State of U. P4. " that "No arrest can be made because the police officer is legally authorised to make the arrest. " The basis for using the arrest authority is a different matter entirely from the mere fact that it exists.

This position was further supported in the National Police Commission's third report, which noted that one of the main causes of police corruption was the authority to make arrests. This clearly shows that there are significant gaps in the arrest process that might result in arbitrary detention and arrest, as well as later abuse of this arbitrariness by the police and other state apparatus. 5 Constitutional Provisions against Arbitrary Arrest There are several protections against arbitrary and illegal arrests found in the Indian Constitution. The objective of Article 3 of the Universal Declaration of Human Rights is furthered by Article 21 of the Constitution. The right to life and personal liberty is one of the most prized and important rights guaranteed by the constitution, as the judiciary's interpretation of Article 21 in the wake of the Maneka Gandhi case reveals.

"Life" or "personal liberty" refers

3 DR. K.N. CHANDRASHEKARAN PILLAI, R.V. KELKAR’S LECTURES ON CRIMINAL PROCEDURE

21 (Eastern Book Company 4th ed. 2003).

4 Joginder Kumar v. State of U.P., A.I.R. 1994 S.C. 1349.

5 Sangita Bhallia, Implementation of International Standards on Arrest in India, 18 J. L. & Soc’y 57 (1998). to more than simply the state of being alive; it also includes the right to a dignified life and all that it involves. A provision that has long been regarded as vital and important in legal systems to guarantee the protection of individual liberty is included in Article 22. 6 A person placed in prison shall be informed of the reasons for his detention as soon as is reasonably possible, according to Article 22(1). It further states that the accused's ability to speak with any attorney of his choosing shall not be curtailed. A person of this kind must appear before the closest magistrate within twenty-four hours of being taken into custody, as per Article 22(2).

It additionally stipulates that no one may be detained for more than twenty-four hours without the magistrate's approval. This is a tactic used to limit the arbitrary authority of the police. The real world of the arrest process While the Constitution and the CrPC 1973 both include protections against arbitrary arrest, the executive branch, or the police, frequently misuses the authority to make arrests. Section 41(1)(a)7 of the CrPC 1973 permits a police officer to arrest a person without a warrant if they have committed any cognizable offence. This is in line with the CrPC 1973's Section 2(c)8 definition of a cognizable offence. The definition of a cognizable offence is one for which a police officer is authorised to make an arrest without a warrant. When talking about the arrest process, it is crucial to comprehend the meaning of the term "may.

" The term "may" gives police officers latitude in their decisions. In "Nandini Satpathy v. PL Dani,9" the Supreme Court said that safeguarding individual rights and upholding the rights of society as a whole must be done in the optimum balance. It has been acknowledged that the rights of the accused have been better protected over time. Throughout the trial, the court determined that over 60% of the nation's arrests were unnecessary and totally unjustified. Moreover, it was found that these arrests incurred significant financial costs for the government, making up 43. 2% of the jail budget. These rulings draw attention to the egregious unfairness experienced by those who are detained without pursuing the proper legal procedures.

6 INDIA CONST. art. 22.

7 The Code of Criminal Procedure, 1973, §41(1)(a), No. 2 Acts of Parliament, 1973 (India

8 The Code of Criminal Procedure, 1973, § 2(c), No. 2 Acts of Parliament, 1973 (India)

9 Nandini Satpathy v. PL Dani, A.I.R. 1978 S.C. 1025.

The process for making an arrest, documenting it accurately, informing families or other concerned parties about the arrested person's welfare, and covering the costs of an unlawful arrest seem out of date, drastically underreported, and improperly handled in comparison to international standards on arrests. Moreover, the way the existing standards are being implemented is as dismal. Through the use of a very simple approach, police enforcement organisations regularly violate these standards. They delay the arrestee's appearance before the magistrate and neglect to register the arrest until they have extracted the required information. The legitimacy of the rule of law is under peril because these police inclinations have reached such hazardous heights. Thus, it is obvious that there has been a blatant misuse of authority, and the disturbing lack of responsibility.

The judiciary has been creatively shaping and creating new enforcement tools as well as offering several proposals to address the problem in law enforcement. Judiciary Declarations and Their Recommendations A series of auxiliary suggestions were developed in "D. K. Basu v. State of West Bengal10 " since there was no explicit legislation to restrict the authority of the police. In order for the Supreme Court to administer full justice under Articles 141 and 142 of the Indian Constitution, it is imperative that certain regulations be followed. Police officers should have precise, visible, and unambiguous identification that certifies their membership in the police force, according to the court in the D. K. Basu case. It is necessary to maintain and update an arrest memorandum on a regular basis. A case diary and other inspection memoranda should also need mandatory input.

In addition, the right to legal representation and a medical assessment for the detained individual have been made mandatory in order to prevent future abuse or misuse of the authority granted to law enforcement. Moreover, each district headquarters must to include a police control room. The police control room should then prominently display information about each arrested person's arrest and site in detention. 2008 saw the introduction of many changes to the CrPC 1973, mostly pertaining to arrest. The several recommendations stated in D. K. Basu v. State of West Bengal were incorporated into the Act as a result of these amendments. Every modification closely follows the guidelines presented in D. K. Basu v. State

10 D.K. Basu v. State of West Bengal, A.I.R. 1977 S.C. 416.

of West Bengal, demonstrating that legislators do, in fact, take the court's suggestions into account. The Law Commission of India strongly recommended in its 154th report11 that the investigative agency and the law-and-order police be kept apart. The Law Commission provided many justifications for their suggestion to separate police functions. It was suggested, among other things, that political forces would be restrained from interfering too much and that the investigative agency would be shielded by the courts. This will guarantee efficient investigation of offences and lessen the possibility of irrational and unjustified prosecutions. Second, the division will promote specialisation, which will speed up investigations and, ultimately, case resolution. It will also lessen the likelihood of power abuse during the arrest process.

Author's Conclusions and Recommendations It is important to bear in mind that the incorporation of sections 41-A, B, C, and D of the recommendations made by the Hon'ble Supreme Court is imperative since it guarantees the accountability of India's arrest system. According to a 2000 Law Commission of India consultation document, 40% of all arrests in the country are deemed unnecessary or unjustified, making up approximately 60% of all arrests. The Indian criminal justice system is inviolable, and its tenets must be applied within the constraints and in compliance with the safeguards included in the Constitution.

The inability of the current criminal justice system to stem the tide of increasing crime highlights the urgent need for the State to abandon the antiquated law of arrest and detention in favour of a crimefighting strategy that is both constitutionally sound and proven to work in science. Thus, the researcher advocates for the passage of legislation aimed at improving police officers' responsibility for their arrests. To stop arbitrary arrests and protect the rights of those who have been detained, the Supreme Court has ordered the government to change the legislation and include guidance from the National Human Rights Commission, legislation Commissions, National Police Commission, and Court into the statute. One important point that was emphasised in the Judicial Pronouncements on Law of Arrest and the CrPC. 1973 revisions in the years 2005, 2008, and

11 LAW COMMISSION OF INDIA, THE CODE OF CRIMINAL PROCEDURE, Report No. 154 (1996).

2010 was that arrests should only be performed for constitutionally permissible grounds. The

mere fact that you are able to make an arrest does not mean you may use it anytime you choose. In light of this, the author offers the following suggestions.

1. To effectively use this authority, particularly while holding socially vulnerable

individuals, officers must be well-versed in both the statutes and rulings of the Supreme Court regarding arrests. Non-governmental groups should be enlisted by the government to help implement these regulations. Rebuilding public confidence in law enforcement is a task for the government. This would help reduce the crime rate because most human rights breaches go unreported and unrecorded because the victims of these abuses perceive the police as a danger or source of dread. The police force has to be rebranded in order to be seen as friends rather than rivals to society and its citizens.

2. The acts of its workers ought to impose vicariously on the government. If law

enforcement acts in an arbitrary or illegal manner, the government ought to answer for its actions. In addition to steps to increase efficiency and update training, the police must be free from political interference. Accountability and openness must be upheld in the law enforcement agency.

3. In addition to implementing these ideas, the government ought to improve people's

knowledge of the law and their rights as individuals. In order to prevent violations, it is possible that individuals would not violate their rights if they are aware of them, hence the government should collaborate with non-governmental groups to spread awareness. Just as the NHRC recommended that instructions be aired on the Doordarshan channel, it would be beneficial to allow non-governmental organisations (NGOs) to visit police stations in order to monitor incidents of violation of the arrested person's rights and check on police compliance with the law.

4. The advisory body, which will be separate from the jail administration, shall perform

inspections on a regular basis. The Right to Information Act of 2005 should be extended to the jail administration, and the function of the National Human Rights Commission should be increased.

5. The possibility that police would employ third-degree procedures throughout the

investigation would be reduced if the accused's attorney was present during interrogation. Despite the fact that the 1973 Code of Criminal Procedure grants individuals some rights, the police nevertheless abuse their authority to make arrests. Most individuals believe that the police use their power to intimidate and pressure criminals into handing up cash. In a democracy, the public holds law enforcement officials responsible for their conduct. Respect for the law and the defence of people's fundamental rights are the two cornerstones of effective police. The significant issue of police abuse and misuse of force is raised by the police's duty to use force in order to stop an escalation in violence and disorder. For the state to acknowledge that its primary responsibility is to change offenders rather than to punish them, improvements must be made to the criminal justice system.

Protecting the rights of all members of the public, including those who are detained, is the main responsibility of law enforcement. Therefore, it is the responsibility of the police to ensure that the accused are treated fairly, that the law is obeyed, and that they are not subjected to harassment. Law enforcement's primary responsibilities are to uphold the law and safeguard the rights of the accused.