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.
