The Supreme Court has now put paid to all such “creative” interpretations of the Constitutional provision and the law as stated in Bharatiya Nagarik Suraksha Sanhita, 2023. Now it is unequivocal: An interpretation allowing the police to exclude the period of pre-arrest detention will be contrary to the constitutional mandate and will dilute or negate the fundamental right. — AA Image

The Constitution is the protective shield of the lonely citizen against the might of the state in a democracy. Chances are that the power the very same citizen has bestowed on the state machinery turns against him; it’s the Constitution that comes to his aid at such points. And it is for the constitutional courts to rise to the occasion when the state interprets the law to its convenience, and remind the state of the intent of the law-makers and restore the primacy of the Constitution.

For this reason, the order of the Supreme Court last week categorically stating that the 24-hour constitutional deadline for producing an arrested person before a magistrate begins from the moment he is detained by the police and not from the time of formal arrest becomes a landmark moment in our history as a constitutional democracy.

A plain reading of Article 22 (2) gives no room for a different interpretation as it states that “every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.”

The executive branch of the state, namely the police, however, interpreted it differently in such a way that the 24-hour period begins when the person is formally arrested. Several high courts went by that unconstitutional route and upheld the position, giving the police a big leg room to keep people in their custody unlawfully. The practice even entered journalistic parlance with reports specifically mentioning the “formal recording of arrest” after “detaining” a person for an unrecorded period.

The Supreme Court has now put paid to all such “creative” interpretations of the Constitutional provision and the law as stated in Bharatiya Nagarik Suraksha Sanhita, 2023. Now it is unequivocal: An interpretation allowing the police to exclude the period of pre-arrest detention will be contrary to the constitutional mandate and will dilute or negate the fundamental right.

“The prescription of 24 hours time period would commence the moment a person is detained by the arresting authority, suspecting him to have committed an offence, when his liberty is effectively curtailed,” the court has ruled. Article 22(2) uses the expression “every person who is arrested and detained in custody”, the court pointed out and held that the expressions “arrested” and “detained” are to be seen as joint and conjunctive. “This is because the Constitution does not recognise any detention divorced from arrest,” the court said. True, law enforcement agencies work in difficult circumstances and often against people who have no respect for the law. They pay very dearly, even with their lives, when they act to protect the law and those who are protected by the law. It is up to the state to create an atmosphere for them to discharge their duties fearlessly; it cannot come at the cost of the rights of those who must get the protection of the law, including the law-breakers.

It is for the government and its arms to ensure that the assertion by the Supreme Court on the inviolability of the constitutional provision on the magisterial supervision of the police with regard to personal liberty is respected in letter and spirit.

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