While there is a lower class, I am in it … and while there is a criminal element, I am of it, and while there is a soul in prison, I am not free.
-Eugene V. Debs
Introduction
In this post, I aim to, at a doctrinal level, review (and respond to) the article titled “Law of Arrest: Some Problems and Incongruities”[1] by R.V. Kelkar, which provides a comprehensive examination of arrest procedures in India. The author examines various aspects of the legal framework governing arrests, including procedural norms, statutory provisions, and judicial interpretations. The article scrutinises the effectiveness of these procedures in upholding justice and safeguarding individual rights.
Despite its detailed analysis, I argue, the article fails to uncover several critical shortcomings within the existing framework. These include inconsistencies in the application of arrest laws, gaps in procedural safeguards, and challenges in balancing law enforcement interests with the protection of personal liberties. R.V. Kelkar highlights that these issues contribute to a broader problem of legal inefficiency and potential abuse, emphasising the need for reforms to address these inadequacies and enhance the integrity of the arrest process.
Lack of a Precise Legal Definition of ‘Arrest’
The article begins by defining ‘arrest’ as “deprivation of personal liberty under some real or assumed legal authority.” This definition, while broad, lacks the precision necessary for scholarly discourse. A more refined definition is essential to distinguish between lawful and unlawful arrests. For instance, the Supreme Court in “State of Haryana and Others v. Dinesh Kumar” elucidated that
“Arrest consists in the seizure or touching of a person's body with a view to his restraint; words may, however, amount to an arrest if, in the circumstances of the case, they are calculated to bring, and do bring, to a person's notice that he is under compulsion and he thereafter submits to the compulsion.”
This clarity is missing in the article's discussion, which undermines the foundational understanding required for a comprehensive legal analysis. Additionally, while the article deals with arrest but it fails to scrutinise the provisions related to arrest in depth for a more nuanced understanding. For instance, the review of Sections 41 and 42,[2] which primarily deal with the power of police to arrest, reveals the extensive power of arrest granted to police officers. For instance, consider clause (b) of Section 41, which authorises a police officer to arrest someone found with “any implement of house breaking”. The responsibility then falls on the individual to prove that their possession of such an implement is for a “lawful excuse”. What qualifies as an “implement of housebreaking”? It could be any iron or steel rod, or even tools used by roadside repair workers for fixing punctured tyres, which could potentially be used for housebreaking.
Similarly, clause (d) states that a person found with stolen property and who is “reasonably suspected” of having committed an offence related to that property may be arrested. Such broad discretion is evident. Further, take clause (a) as another example. It covers scenarios where: (i) an individual is “concerned in any cognizable offence”, (ii) there is a reasonable complaint that the person is “concerned in a cognizable offence”, (iii) “credible information” suggests the person is “concerned in any cognizable offence”, and (iv) the person is reasonably suspected of being “concerned in any cognizable offence.” The wide-ranging language and the resulting extensive discretion afforded to police officers are substantial, and this has led to significant abuse and misuse. The terms “reasonable”, “credible”, and “reasonably” in the Section are largely ineffectual in practice and have become effectively redundant.[3]
Balancing Individual Liberty and Societal Safety
The article’s discussion on balancing individual liberty with societal safety is well-intentioned but lacks depth in proposing concrete legal standards or frameworks. It acknowledges the difficulty in balancing these conflicting demands but does not advance the discussion towards practical solutions, which may be implemented, such as:
A. COMPREHENSIVE TRAINING FOR LAW ENFORCEMENT
Training law enforcement officers on legal standards and ethical considerations related to arrest is crucial for balancing individual liberty with societal safety. According to the Due Process Model, proposed by legal scholar Herbert L. Packer,[4] the focus should be on safeguarding individual rights against arbitrary state action, while carrying out legal operations such as that of arrest in consonance with the “procedure established by law”[5].
Regular training sessions can educate officers on respecting individual rights and the legal criteria for arrest[6], ensuring they understand the importance of probable cause and the protections guaranteed under the Constitution as also reiterated by the Supreme Court in Smt. Nandini Satpathy v. P.L. Dani[7] quoting Lewis Mayers, stated:
“To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law- enforcement machinery on the other is a perennial problem of statecraft.”
B. ESTABLISHING ACCOUNTABILITY MECHANISMS
Accountability mechanisms, such as an independent oversight body to investigate complaints of unlawful arrests, can prevent misuse of power. The Doctrine of the Rule of Law, articulated by A.V. Dicey, emphasises that laws should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials.[8] The establishment of independent oversight can ensure that law enforcement actions are subject to review and that any abuse of power is addressed promptly.
Another aspect that is to be noted in the above context is that we are not simply addressing the broad discretionary powers of a conventional civil service. Instead, we are dealing with the extensive discretionary powers of a service equipped with firearms, which are becoming increasingly advanced each day. The actions of police affect the liberty and freedom of the country's citizens, not just their rights and property. This civil service is progressively becoming more militarised in order to address new challenges.
C. DATA COLLECTION AND ANALYSIS
Collecting and analysing data on arrests to identify patterns of abuse or disproportionate impacts on certain communities can inform policy changes and ensure fair practices. The positivist school of criminology advocates for the use of empirical data to understand crime and devise effective legal policies.[9] By enhancing methodologies for collecting and verifying data, such as those employed by the National Crime Records Bureau (NCRB), policymakers can make informed decisions that reflect the realities of law enforcement practices.[10]
Insufficient Analysis of Judicial Interpretations
The critique of the Supreme Court's interpretation of Article 21 in A.K. Gopalan and Maneka Gandhi is insightful but lacks a deeper analysis of subsequent case law and its impact. The article notes that “the right to personal liberty guaranteed by article 21 can only be abridged by a law which satisfies the test of reasonableness”, but does not explore how this interpretation has been applied in later decisions. A more comprehensive analysis would enhance understanding of the evolving judicial landscape and its implications for arrest laws.
For instance, the apex court in Joginder Kumar v. State of U.P,[11] while dealing with the power of arrest and its exercise in length, held that:
“The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?
¼The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; ¼ The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law.”
Questioning the Necessity of Arrest[12]
The article rightly questions the necessity of arrest in all cases but does not sufficiently explore or suggest alternative measures. The query, “Is arrest absolutely necessary for these purposes? Are there no other alternatives?” raises important points but lacks a comprehensive analysis of potential alternatives like summons, notices, or electronic monitoring. A detailed exploration of these alternatives could provide viable options that minimise the need for physical arrests while maintaining legal efficacy and carrying out prosecutions.
Because it aligns with Herbert Packer’s two models of the criminal process: the Crime Control Model and the Due Process Model. The Crime Control Model prioritises efficiency and the swift processing of offenders, viewing arrests as necessary for maintaining public order. However, if alternatives can be shown to be effective, they could be integrated to enhance efficiency. The Due Process Model, emphasising individual rights and limiting state power, supports exploring alternatives like summons and electronic monitoring to minimise state intrusion while ensuring justice. This balanced approach could enhance both legal efficacy and maintain public trust in the law enforcement institutions.
Empirical Evidence and Case Studies
The article’s assertions about the misuse of police powers and the benefits of judicial discretion lack substantial empirical backing. They could have used data for governmental reports, and more specifically, NCRB statistics, to make the case on point clearer and appealing. Without concrete data and real-world examples, his arguments remain theoretical and speculative. Empirical evidence and case studies are crucial for substantiating claims in legal reforms. They demonstrate the frequency and nature of police misuse of power and show how judicial discretion could effectively address these issues.
Conducting empirical research and presenting case studies to support claims about police power misuse would strengthen the article’s arguments and provide a robust foundation for proposed reforms.[13]
Impact on Marginalised Communities[14]
The article does not sufficiently explore how arrest laws and judicial discretion impact marginalised communities. Arrest laws often disproportionately affect these communities due to systemic biases within the legal system. Without addressing these disparities, the article's proposals might fail to achieve justice for all. For instance The Leaflet[15] reported that
“As highlighted in the news reports, over 53% of these under-trial prisoners belong to politically and socially vulnerable communities such as Muslims, Dalits, and Adivasis. Among other reasons, the intersection of marginalities such as religion, class, caste, sexuality and gender, and one’s interaction with the existing criminal justice mechanism directly affects their access to quality legal aid, leading to hyper incarceration”
Implementing specific reforms to address and mitigate disparities in the legal system is necessary to ensure equitable treatment for all individuals, particularly marginalized communities.
Conclusion
Hence, R.V. Kelkar’s article provides thought-provoking insights into the problems and incongruities of arrest laws in India. However, it falls short in several key areas, including providing precise legal definitions, proposing concrete solutions for balancing individual liberty and societal safety, and offering empirical evidence to support its claims. The article also lacks guidance on maintaining judicial discretion with integrity and fails to address the impact of arrest laws on marginalised communities.
Addressing these shortcomings is essential for advancing a more just and effective legal framework for arrests in India. Comprehensive legal definitions, evidence-based proposals, and considerations for judicial integrity and social equity are critical components for reform. By integrating these elements, policymakers and legal practitioners can work towards a system that better balances the needs of individual rights and societal safety, ultimately fostering a more equitable and effective criminal justice system.
[1] R.V. Kelkar, Law of Arrest: Some Problems and Incongruities, 22 J. Indian L. Inst. 314 (1980), available at https://www.jstor.org/stable/43950695.
[2] The Code of Criminal Procedure, §§ 41, 42, No. 2, Acts of Parliament, 1974 (India).
[3] Law Commission of India, Consultation Paper on Law Relating to Arrest Part I - Law of Arrest, Part II Annexure III (Law Commission Report, 2024).
[4]Herbert L. Packer Two Models of the Criminal Process, 113 U. Pa. L. Rev. 1 (1964).
Available at: https://scholarship.law.upenn.edu/penn_law_review/vol113/iss1/1.
[5] Maneka Gandhi vs Union Of India, (1978) 1 SCC 248.
[6] People's Union For Civil Liberties v. State Of Maharashtra & Ors, 2014 (10) SCC 635.
[7] Smt. Nandini Satpathy v. P.L. Dani AIR 1978 SC 1025.
[8] A. V. Dicey, Introduction to the Study of the Law of the Constitution (10th edn, Macmillan 1959), chapter 4.
[9] What is Positivism in Criminology? (The Chicago School of Professional Psychology, 2024)https://www.thechicagoschool.edu/insight/psychology/what-is-positivism-in-criminology/ accessed August 2nd 2024.
[10] Ministry of Statistics and Programme Implementation. (n.d.). Crime in India. Available at: https://mospi.gov.in/sites/default/files/Statistical_year_book_india_chapters/Crime.pdf (Accessed: 1 August 2024).
[11] Joginder Kumar v. State of U.P. (AIR 1994 SC 1349).
[12] SC Observer. (2024). The Need And Necessity Of Arrest. [online] Available at: https://www.scobserver.in/journal/the-need-and-necessity-of-arrest/ [Accessed 1 August 2024].
[13] Yao, W., Police Discretion: A Power that Can Be Abused and Should Be Regulated, The University of New South Wales, Kensington, Australia, 2020. Available at: https://www.atlantis-press.com/article/125984901.pdf [Accessed 1 August 2024].
[14] Prison Policy Initiative, Repeated Arrests and the Revolving Door of Incarceration, (April 2024), https://www.prisonpolicy.org/reports/repeatarrests.html (accessed August 1, 2024).
[15] The Leaflet, When the State Criminalises the Poor: Inaccess to Justice and India’s Exploding Under-Trial Problem (2024), available at: https://theleaflet.in/when-the-state-criminalises-the-poor-inaccess-to-justice-and-indias-exploding-under-trial-problem/ (accessed August 2nd2024).