PREVENTIVE DETENTION LAWS AND ARREST REFORMS IN INDIA: BALANCING STATE SECURITY WITH CONSTITUTIONAL LIBERTIES

Why In News?

Recent police action during large public demonstrations in New Delhi, including the temporary custody of political leaders and protesters, has renewed debate over the distinction between detention and arrest. 

How Are Detention and Arrest Different?

Detention: It generally refers to a temporary restriction on a person's movement to prevent an anticipated offence or maintain public order. 

• Under Section 172 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), police can detain or remove a person who refuses to follow a lawful police direction. 

Arrest: Arrest places a person in formal legal custody in connection with an alleged offence and activates specific constitutional and statutory safeguards.

FIR and Arrest: Registration of an FIR and arrest are legally distinct processes. An FIR does not automatically require immediate arrest, and arrest requires compliance with the applicable statutory conditions.

When Detention May Become Arrest: If police establish that a person has committed an offence, they may take further action under the arrest provisions of the BNSS. Section 35 lays down the conditions for arrest without a warrant.

Police Powers Under BNSS 

• Preventing Cognizable Offences: The BNSS allows police to take preventive steps when they have information about a planned cognizable offence and intervention is necessary to prevent it.

• Compliance With Police Directions: Section 172(1) requires people to follow lawful directions issued by police while performing their statutory duties.

• Power to Detain or Remove: Under Section 172(2), police may detain or remove a person who resists, refuses or disregards such lawful directions. In petty cases, the person may be released as soon as possible, within 24 hours. 

• Arrest Without Warrant: Section 35 provides the general framework for arrest without a warrant in specified cognizable offences. 

When Can Police Make an Arrest Without a Warrant?

Cognizable Offence: Police may arrest without a warrant when a person commits a cognizable offence in the officer's presence or when the statutory conditions under Section 35 are satisfied.

Arrest Is Not Automatic: For offences punishable with imprisonment of up to 7 years, police must satisfy the conditions prescribed by Section 35 and assess whether arrest is actually necessary.

Need for Written Reasons: The officer must record reasons where the law requires arrest to be justified by necessity rather than merely relying on the existence of arrest power.

Preventing Further Offences: Arrest may be justified when custody is necessary to prevent the person from committing another offence.

Protecting Evidence and Witnesses: Custody may also become necessary where there is a legally supported risk of evidence tampering, destruction or influencing witnesses.

Notice as the General Safeguard: Section 35 provides for a notice of appearance in applicable cases, while arrest requires compliance with the statutory conditions.

Protection for Elderly and Infirm Persons: Under Section 35(7), a person who is infirm or above 60 years of age cannot be arrested for an offence punishable with less than three years' imprisonment without prior permission from an officer not below the rank of Deputy Superintendent of Police (DSP). 

Rights of an Arrested Person

• Production Before Magistrate: Article 22(2) requires an arrested person to be produced before the nearest Magistrate within 24 hours, excluding travel time.

• Information About Arrest: Article 22(1) protects the right to know the grounds of arrest and to consult and be defended by a legal practitioner of choice.

• BNSS Safeguards: The BNSS also contains provisions dealing with communication of arrest information, legal assistance, arrest documentation and medical examination. 

Supreme Court Judgements About Arrest 

Joginder Kumar vs State of U.P. (1994): The Supreme Court distinguished between the power to arrest and the need to arrest. The mere existence of legal power does not justify routine arrest. 

Arnesh Kumar vs State of Bihar (2014): The Court stressed that police must examine whether arrest is genuinely necessary, particularly in offences punishable with imprisonment of up to seven years.

Personal Liberty: The Supreme Court has repeatedly held that arrest must involve application of mind and cannot become a routine response to an allegation.

Maneka Gandhi Principle: Restrictions on liberty must satisfy the broader constitutional framework of Articles 14, 19 and 21, often described as the constitutional "Golden Triangle."

Ravi Chaurasiya vs State of U.P. (2026): The Allahabad High Court held that a later formal arrest and remand cannot cure an earlier period of illegal detention. 

• It also held that Section 38 BNSS requires police to inform a suspect of the right to counsel during interrogation even before formal arrest in the circumstances considered by the Court.  

Major Problems in the Detention Framework

Wide Executive Discretion: Broad expressions such as "prejudicial to public order" can create scope for excessive use of preventive detention.

Risk of Using Preventive Detention for Ordinary Crimes: The Rekha judgment makes clear that authorities should not use preventive detention when ordinary criminal law is sufficient.  

Problems During BNSS Transition: Police notices under Section 35 must provide sufficient information for the person to understand the allegation and comply with the legal process.

Unrecorded Custody: Keeping a suspect informally at a police station without proper documentation can undermine the 24-hour production rule and access to legal safeguards.

Fragmented Police Custody: The new Section 187 framework permits the 15-day police custody period to be used in parts, raising concerns about repeated custodial interrogation. 

Handcuffing Concerns: Section 43(3) creates a statutory basis for handcuffing in specified cases, but its application must remain consistent with constitutional dignity and judicial safeguards.

What Reforms Can Strengthen Personal Liberty?

Digital Arrest Records: Police stations should maintain real-time digital records of arrests and detention that authorised legal-aid institutions and relatives can access.

Audio-Video Documentation: Wider use of secure audio-video recording during arrest, search and interrogation can create a verifiable record and reduce the risk of custodial abuse.

Judicial Scrutiny of Repeated Remand: Courts should closely examine applications seeking fragmented police custody and demand specific reasons for each subsequent remand.

Individualised Handcuffing Assessment: Police should record the specific security or escape risk before using handcuffs rather than relying only on the category of offence.

Conclusion

Preventive detention and arrest powers give the State significant control over personal liberty. Articles 21 and 22 therefore require these powers to operate within clear legal procedures, judicial oversight and safeguards against arbitrary executive action. 

Source: INDIANEXPRESS