This article has been written by Ritika Gupta a Student of 3rd Year Law at the Institute of Law, Nirma University, Ahmedabad.

INTRODUCTION

In India, an arrested person has certain rights. According to Article 21 of the Indian Constitution, no one may be deprived of their life or personal freedom unless doing so follows legal procedure. To ensure that no one is unjustly detained, certain fundamental rights as well as additional rights protected by the criminal justice system have been given to those who have been arrested or accused.

According to the maxim, a person is innocent until proven guilty, the arrested person has certain rights which protect them until they are proven to be at fault or guilty of a crime. These rights are covered under Article 22 of the Indian constitution. In India, the idea behind the rights given to the accused person on arrest is ‘Let hundreds go unpunished, but never punish an innocent person’. Therefore an arrested person has the right to make sure that their right to freedom and liberty is not sacrificed.

However, article 22 of the Indian constitution also grants police the power to arrest the accused without acknowledging them so as to why they are detained. These are the Preventive Detention Laws. These laws in India are governed under Articles 22 (3) & (4) of the Indian constitution. It is basically when a person is arrested without any trial. The concept of preventive detention is to prevent the perceived threat to the public order in society. A person is only kept in police custody if there is reason to believe they would commit a crime or harm society. Anyone suspected by the police of having committed a crime may be detained.

In certain circumstances, the police have the authority to conduct arrests without a warrant or a magistrate's approval. Preventive detention was a significant aspect of India's colonial legal system. Interestingly, the framers of the Indian Constitution, despite having experienced severe oppression under preventive detention laws, did not overlook granting it legal standing in independent India.

A Historical and Contemporary Perspective

Any community that wants to advance needs tranquilly and favourable conditions. Anarchic and disturbed nations invest all of their potential in futile endeavours. On the other side, kids can grow and succeed if they feel comfortable, secure, and in control. At this point, the police play a crucial role in society. This structure has always existed in some capacity, with various roles and responsibilities. The word ‘police’ has derived from the Latin word "politia," which denotes a state's situation. The phrase refers to a framework of rules designed to maintain law and order. Generally, it involves the deliberate upkeep of public order and the protection of individuals and property from unlawful acts. It also pertains to the civil servants responsible for ensuring public safety, upholding the rule of law, and combating crime through both prevention and detection. In a vast, ethnically diverse, and cosmopolitan nation like India with a large population, this task becomes particularly challenging.

The origins of policing in India can be found in the past, when numerous systems of law enforcement were in place. The British East India Company arrived in India in the 17th century, laying the groundwork for India's current police structure. The 1861 Indian Police Act served as a template for police management across British India. It provided the basis for the police's organisation and specified the roles and responsibilities of the police.

Post-independence each state in India has its own police force once policing was made a state responsibility in 1947. Most states' basic legal basis for managing police administration is still the Indian Police Act of 1861.  Over the years, requests for police reforms have been made in order to address problems including corruption, inefficiency, and power abuse.

In India, the CRPC provides the police with guidelines and arrest powers. There are many offences for which the police don’t need an arrest warrant to arrest a person. Cognizable offences and preventive detention are such criteria where the police may detain the accused without an arrest warrant. Yet while making an arrest, the police are required to tell the subject of the arrest of the circumstances surrounding the arrest. It is crucial that the police treat the person who has been arrested with dignity and respect.

In India, many times the police authorities have been seen abusing and misusing their powers to arrest. The misuse of powers to arrest has been a serious concern as it destroys the arrested person’s human rights and results in abuse of authorities and miscarriage of justice. The police officials without sufficient justification or proof, police may make arrests that lead to the incarceration of innocent people. Personal prejudices, peer pressure, or a lack of thorough investigation can all contribute to this. 

Controversial Practice of Preventive Detention

Preventive detention is one such concept. Preventive arrest, also referred to as pretrial detention or pre-arrest detention, is the practise of holding suspects in custody before they are found guilty of a crime in order to stop potential future harm or flight. While supporters claim that preventative detention is a vital tool for ensuring public safety and upholding the rule of law, critics assert that it can be abused, suppressing fundamental freedoms and undermining the presumption of innocence. There have been case studies and examples where the abuse of the powers of police to arrest on the basis of preventive detention has been observed. Cases of wrongful arrests and prolonged detention, cases where marginalised minorities have been the focus of prejudice and profiling, and Narratives of those who suffered as a result of preventive detention being abused. People are detained without sufficient cause or proof, preventive detention may be abused. This might be the outcome of unfair or discriminatory practices, a focus on particular groups of people, or a preference for unproven suspicions over hard data.

The overuse of preventive detention is exacerbated by the absence of sufficient judicial monitoring and review processes. Law enforcement agencies may have unchecked authority to detain people without sufficient explanation or accountability when there is a lack of independent oversight. When preventive detention is used improperly, key due process rights are frequently violated, including the right to a fair trial, the right to legal counsel, and the right to the assumption of innocence. Detainees may be kept in custody for a long time without being officially charged or given the chance to defend themselves. Detainees who are subjected to preventative detention abuse may suffer grave psychological and emotional effects. Long-term psychological anguish, trauma, and negative consequences on an individual's well-being can result from extended periods of uncertainty, isolation, and denial of personal liberties. Misuse of preventive detention frequently disproportionally affects marginalised communities, including low-income people, members of racial and ethnic minorities, and other vulnerable populations.

Determining whether the accused is intending to commit a crime is entirely up to the police's discretion.  Order for preventative detention is a severe matter that affects the citizen's life and liberty under Articles 14, 19, 21, and 22 of the Constitution, even though it is based on the subjective satisfaction of the detaining authority. If the power is utilised improperly or abusively for side purposes, is founded on reasons outside the scope of the act, or considers extraneous or irrelevant materials, it will be deemed to have been exercised in bad faith.

CONCLUSION

In conclusion, it can be difficult to strike a balance between the interests of society and the rights of the accused. The Code of Criminal Procedure's requirements for arrest regulations give the police a disproportionate amount of power, which they have long abused for their own benefit. Strong protections must be established and upheld in order to combat the misuse of preventive detention by the authorities for their own benefit or agendas. These consist of methods to hold those accountable for the improper use of preventive detention, independent judicial oversight, open review procedures, and training courses for law enforcement employees on human rights and proper protocol. To stop and rectify the overuse of preventative detention, it is important to raise public understanding of civil liberties and individual rights.

REFERENCES

• https://blog.finology.in/criminal-law/rights-of-arrested-person
• https://www.lawyersclubindia.com/articles/article-22-of-the-indian-constitution--15156.asp
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• https://www.ijlmh.com/paper/preventive-detention-laws-in-india-an-analysis/

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