By HABEAS CORPUS
India’s democracy is witnessing recurring demonstrations by Opposition parties, students, lawyers and civil society organisations against alleged examination paper leaks, the SIR of electoral rolls and questions concerning the conduct of the CEC.
Reports of protesters being detained, taken to undisclosed locations and allegedly denied access to lawyers or family members have raised serious concerns about constitutional freedoms. The fundamental question is whether the police can deprive citizens of liberty merely because they participate in demonstrations against the government or question the functioning of constitutional institutions.
In a democracy governed by the rule of law, peaceful dissent cannot be treated as a crime, and police authority cannot override constitutional guarantees. The Constitution guarantees the right to express disagreement and organise peaceful protests. Article 19(1)(a) protects freedom of speech and expression, while Article 19(1)(b) guarantees the right to assemble peacefully and without arms.
These rights are subject to reasonable restrictions under Articles 19(2) and 19(3), including restrictions justified by public order. However, such restrictions must satisfy constitutional requirements and cannot be imposed arbitrarily. Article 21 guarantees that no person shall be deprived of life or personal liberty except according to procedure established by law.
Article 22(1) requires that an arrested person be informed, as soon as possible, of the grounds of arrest and not be denied the right to consult and be defended by a lawyer of their choice. Article 22(2) requires production before the nearest magistrate within 24 hours of arrest, excluding necessary journey time, and prohibits detention beyond that period without the magistrate’s authority. These are substantive constitutional safeguards, not administrative formalities.
Taking protesters into custody without explaining the grounds, concealing their whereabouts or obstructing access to legal counsel raises grave questions about compliance with these provisions. Section 170 of the BNSS, 2023 permits preventive arrest in specified circumstances where an officer knows of a design to commit a cognizable offence and the offence cannot otherwise be prevented. Detention under this provision cannot exceed 24 hours unless further detention is authorised under another applicable legal provision.
Section 126 BNSS provides for proceedings requiring a person to show cause why a bond for keeping the peace should not be ordered. Section 163 BNSS empowers authorities to issue urgent preventive orders where the statutory conditions are satisfied. Section 43(5) BNSS provides that, save in exceptional circumstances, a woman should not be arrested after sunset and before sunrise.
In exceptional circumstances, a woman police officer must submit a written report and obtain the prior permission of the Judicial Magistrate First Class within whose jurisdiction the offence is committed or the arrest is to be made.
These provisions do not justify indiscriminate arrests based merely on apprehension, political criticism or peaceful mobilisation. Preventive custody must prevent a legally identifiable threat, not punish citizens for exercising democratic rights.
In DK Basu v. State of West Bengal (1997), the Supreme Court laid down safeguards against custodial abuse, including identification of arresting officers, preparation of an arrest memo, notification of a friend or relative, recording of relevant details and medical examination. These safeguards seek to prevent custodial violence and ensure accountability.
Their importance becomes particularly evident when a detainee is allegedly taken to an undisclosed location. A distinction must be maintained between detention and enforced disappearance. Detention is a deprivation of liberty that must be legally justified and remain subject to judicial scrutiny.
Enforced disappearance, in its established international-law sense, involves deprivation of liberty attributable to the State, followed by refusal to acknowledge the detention or concealment of the person’s fate or whereabouts, placing that person outside the protection of law. When liberty is unlawfully taken away, Habeas Corpus is one of the most powerful constitutional remedies available.
The Latin expression means “produce the body.” The writ enables a court to require the authority concerned to produce a detained person and justify the legality of the detention. Under Article 32, the Supreme Court may issue writs for the enforcement of Fundamental Rights; under Article 226, High Courts possess broader writ jurisdiction for enforcement of Fundamental Rights and other legal purposes.
Where a person’s whereabouts are concealed, a Habeas Corpus petition can seek disclosure of the place of custody, production before the court and appropriate relief if the detention is unlawful. The remedy is especially important when ordinary channels fail to establish whether a person has been arrested, where the person is being held or under what authority.
The Supreme Court has also af firmed that unlawful deprivation of liberty may attract remedies beyond release. In Rudul Sah v. State of Bihar (1983), the Court awarded compensation for imprisonment that continued for years after the petitioner’s acquittal.
In Nilabati Behera v. State of Orissa (1993), it recognised public-law compensation for a violation of Article 21 arising from custodial death. These judgments demonstrate that constitutional courts can provide meaningful relief for serious violations of personal liberty.
Ultimately, a constitutional democracy must protect both public order and individual liberty. The police are empowered to prevent violence and enforce law, but they must act within its boundaries. Protesters, in turn, must exercise their rights peacefully and respect the rights of others.
Where custody is lawful, the authorities should be able to establish its basis trans parently; where it is unlawful, courts must provide effective remedies and accountability must follow. The right to protest is not a government concession; it is a constitutional guarantee. Habeas Corpus stands as a vital safeguard against secret detention and arbitrary State power.
In a democracy, dissent must be answered with reason and accountability, never with unlawful detention. The writer is a service union representative and a columnist.
