What is the issue?
The recent incidents of arrests and the contentious procedure followed therein have led to various concerns.
What are the recent incidents?
- The heavy-handed treatment of those opposing the Chennai-Salem eight-lane highway project in Tamil Nadu
- The arrests of Swaraj India Party’s chief, Yogendra Yadav for being in a fact-finding mission to meet farmers affected by or opposed to the project.
- The arrest and remand of a student in Tamil Nadu to 15 days judicial custody (before eventually let off on bail) for political sloganeering on an aircraft.
- Very recently, the arrests of activists across the country over their alleged links to Maoists.
- All these have come as a blow on the liberty of citizens.
What is the legal mandate?
- The power of arrest is conferred on the police to be employed with discretion and deliberation.
- However, it is certainly not a tool of oppression and harassment for prosecuting authorities or the government of the day.
- Section 41 of the CrPC, the law that empowers the police to arrest people without warrants, is reasonably stringent.
- It demands that some conditions be met, including that such arrests be carried out to prevent -
- commission of further offences
- tampering of evidence
- influencing of witnesses
- Also, Art 22 of the Constitution guarantees certain protection against arrest and detention in certain cases.
- The Supreme Court has also emphasised that arrests should never be a hasty response to an allegation or a commission of an offence.
What are the concerns?
- The use of the power of arrest and the following course of events in the recent days seems to be overriding the due process.
- The accused are being sent to custody after the police oppose bail.
- The restrictions on bail are more severe when booked under the Unlawful Activities (Prevention) Act.
- The prosecution has 180 days to file a charge sheet, a period during which bail is routinely denied.
- And after the charge sheet is filed, bail is extremely difficult to secure as it is dependent on the accused establishing his or her innocence.
- In this prosecutorial ecosystem, jail succeeds in defeating bail request almost every time.
- In contrast, magistrates, who are empowered to refuse remand and grant bail, continue to issue orders mechanically.
- It is time to ensure that the chain of events of arrest, custody, and remand follow each other only by due process.
Source: The Hindu