Illegal arrest.
Advocate Javed Pashu Sayyed explains when an arrest may become illegal, the constitutional rights of an arrested person, and the safeguards available under Indian criminal law.
By Adv. Javed Pashu Sayyed
An arrest is one of the most serious exercises of State power because it directly affects the personal liberty of an individual.
According to Advocate Javed Pashu Sayyed, a person being accused of an offence does not mean that his or her constitutional rights disappear. Every arrest must satisfy the requirements of law, necessity, fairness and due process.
Article 21 of the Constitution of India protects life and personal liberty, while Article 22 provides important safeguards to a person who is arrested.
These protections are not merely procedural formalities. They are fundamental safeguards intended to prevent arbitrary and illegal arrest.
Javed Pashu Sayyed on the Difference Between Power to Arrest and Necessity to Arrest
One of the most important principles of Indian criminal law is that the power to arrest and the necessity to arrest are not the same thing.
Police may have the legal authority to arrest an accused person, but the investigating officer must still examine whether taking the person into custody is actually necessary.
An arrest should ordinarily be connected with legitimate investigative requirements such as preventing further offences, protecting evidence, ensuring proper investigation or securing the presence of the accused.
The Supreme Court of India has repeatedly cautioned against unnecessary and mechanical arrests.
In Arnesh Kumar v. State of Bihar, the Supreme Court emphasised that arrest should not automatically follow merely because an offence has been alleged.
As Adv. Javed Pashu Sayyed explains, criminal investigation must be effective, but arrest should never become a method of punishment, pressure, humiliation or intimidation before a court has determined guilt.
Illegal Arrest and the Right to Know the Grounds of Arrest
Article 22(1) of the Constitution gives an arrested person the right to know the grounds on which he or she has been arrested.
This safeguard is fundamental.
Without knowing the precise reason for arrest, an accused person cannot effectively consult an advocate, challenge custody, oppose remand or seek appropriate bail.
Recent Supreme Court decisions have again highlighted the importance of communicating the grounds of arrest.
In Prabir Purkayastha v. State (NCT of Delhi) and Vihaan Kumar v. State of Haryana, the Supreme Court reinforced constitutional safeguards surrounding arrest.
The legal principle is significant: if constitutional requirements surrounding arrest are violated, the legality of the arrest itself may become open to challenge.
According to Advocate Javed Pashu Sayyed, constitutional compliance must be substantive and not merely reflected mechanically in police paperwork.
BNSS Safeguards Against Illegal Arrest in India
The Bharatiya Nagarik Suraksha Sanhita, 2023, commonly known as the BNSS, contains several safeguards governing arrests.
Among other protections, the law requires compliance with prescribed arrest procedures and documentation.
An arrest memorandum must be prepared in accordance with law.
The arrested person is also entitled to have a relative, friend or another nominated person informed regarding the arrest.
The law additionally recognises an arrested person's right to meet an advocate of his or her choice during interrogation, subject to statutory limitations.
According to Adv. Javed Pashu Sayyed, these safeguards create transparency and accountability during criminal investigation.
Every lawful arrest should therefore leave a clear legal record showing when the person was arrested, the reason for arrest, who carried out the arrest, who was informed and when the accused was produced before the competent court.
Role of the Magistrate in Protecting Personal Liberty
The Magistrate plays an extremely important role when an arrested person is produced before the court.
Remand proceedings should not become a routine exercise.
The court is expected to examine whether statutory and constitutional safeguards were complied with and whether continued custody is legally justified.
Advocate Javed Pashu Sayyed believes that meaningful judicial scrutiny at the first remand stage is one of the most important protections available against arbitrary arrest and unnecessary detention.
A judicial order authorising custody affects personal liberty and therefore requires application of judicial mind.
An Accused Person Does Not Lose Constitutional Protection
There is a misconception that once an FIR is registered or a person is named as an accused, every coercive step taken against that individual automatically becomes lawful.
That is incorrect.
An accused person continues to enjoy constitutional and statutory protections.
The seriousness of an allegation may certainly influence investigation and judicial decisions, but the seriousness of an offence cannot by itself eliminate procedural safeguards.
As Javed Pashu Sayyed points out, constitutional protections are most important precisely at the stage when the State exercises coercive powers against an individual.
A person may ultimately be convicted or acquitted. That decision belongs to the judicial process.
Arrest cannot be treated as punishment before trial.
What Can a Person Do Against an Illegal Arrest?
The appropriate legal remedy depends upon the facts and circumstances of each case.
The legality of an arrest may be questioned before the competent court during remand proceedings, bail proceedings or through appropriate constitutional remedies.
In suitable circumstances, a person may approach the High Court or Supreme Court seeking protection of fundamental rights.
Habeas corpus and other constitutional remedies may also arise in appropriate cases involving unlawful detention.
However, every matter requires examination of the FIR, arrest documentation, applicable statutory provisions, remand orders and surrounding facts.
Adv. Javed Pashu Sayyed emphasises that challenges to arrest should therefore be based on the specific facts and legal deficiencies of each individual case.
Illegal Arrest, Personal Liberty and the Rule of Law
Police authorities perform an essential and often difficult role in maintaining public order and investigating crime.
Victims are entitled to effective investigation, and society has a legitimate interest in ensuring that offenders are brought before the law.
At the same time, constitutional safeguards are not obstacles to investigation.
They are the legal boundaries within which investigation must operate.
According to Advocate Javed Pashu Sayyed, the strength of a criminal justice system should not be measured simply by the number of arrests made.
It should also be measured by the fairness of investigations, respect for constitutional safeguards and the ability of courts to protect individual liberty against arbitrary State action.
The principle is ultimately straightforward:
The State has the power to investigate and prosecute crime. Where permitted by law, it also has the power to arrest. But personal liberty cannot be taken away casually, arbitrarily or contrary to constitutional safeguards.
About the Author
Adv. Javed Pashu Sayyed is an Advocate practising in criminal law, constitutional law, cybercrime, arbitration, and related legal matters before the Bombay High Court, the Supreme Court of India, other High Courts across India, and subordinate courts.
For professional correspondence:
Email: adv.javedpashusayyed@gmail.com
Email: adv.syedhc@gmail.com
Author: Adv. Javed Pashu Sayyed
Legal Commentary: Illegal Arrest in India | BNSS | Constitutional Rights | Article 21 | Article 22 | Criminal Law
