Opinion | Rampant arrests in time of lockdown

As the first month of lockdown draws to a close, large-scale arrests during this time in relation to the February violence in Delhi have eviscerated the fundamental rights of many. In a scenario where courts are effectively shut down, lawyers unable to leave their homes, and the Supreme Court has directed that urgent steps be taken to decongest prisons, it was expected that the police would restrict their powers to arrest persons in cases where it was absolutely unavoidable.

In Delhi, however, according to news reports, senior Home Ministry officials insisted that the police must continue making arrests in riot cases under any circumstance. As lawyers working for many of those affected by the violence in north-east Delhi, we have received dozens of reports of these arrests being made, often in brazen violation of constitutional safeguards.

Without notice

In many cases, the police are detaining people without any notice or information on the grounds of detention and without informing family members. There are cases where family members of suspects were detained for hours as proxies, to threaten and coerce the families to produce the person that the police actually wanted to arrest.

Before the lockdown, on receiving such reports, lawyers could meet those locked up in police stations or file urgent applications in court for protecting fundamental rights. With courts being shut, such urgent legal remedies have been foreclosed, leaving arrestees at the mercy of the police.

Moreover, these illegal practices — starkly unconstitutional in the best of times — vastly amplify public health concerns today. Family members have had to run from one police station to the next in search of their relatives, expanding their level of exposure and that of those around them. Once in jail, family members have no way to monitor the arrestee’s continued health and safety, as the guidelines passed by the Supreme Court to prevent the spread of COVID-19 prohibit the meeting of prisoners with their family members or lawyers.

Due to the lockdown, it is near impossible for lawyers to be present when arrestees are first produced before a magistrate after 24 hours. According to Delhi district court notifications, persons arrested now are no longer produced before courts and are taken directly to temporary courts on jail premises, further hindering access to lawyers.

The importance of legal representation at this stage cannot be overstated — to ensure that the grounds for arrest and FIR are supplied to the arrestee and his/her family, that there is material justifying the arrest and that appropriate applications are filed in case of allegations of custodial violence or illegal actions of the police during interrogation.

While the apex court had directed that courts use videoconferencing facilities to extend the custody of undertrial prisoners, which must happen every 14 days as per law,district courts in Delhi have notified that this will be done by magistrates visiting the jail. Thus, the arrestees are deprived of legal representation to effectively oppose even the extension of their incarceration.

Till April 20, the Karkardooma District Court having jurisdiction over north-east Delhi had not notified a procedure for videoconferencing of urgent applications, making it impossible to file for bail, or any other application to protect the rights of those arrested.

The right to liberty enshrined in Article 21 of the Constitution guarantees that the state can deprive a person of their liberty only as per the due process of law. Article 22 declares that no person shall be detained in custody without being informed of the grounds of arrest and shall have the right to consult and defend herself with a legal practitioner of choice.

Denying arrestees these rights, and any chance to even argue for their liberty before a court, is a violation that goes to the very core of our fundamental right to life and liberty, rendering it a nullity.

As expressly recognised by the nine-judge Supreme Court bench in the 2017 Puttaswamy case, these rights are inalienable and inherent in us by virtue of our humanity alone — they can never be suspended, even during an emergency. There is nothing in the Home Ministry’s lockdown orders nor notifications under the Epidemic Act, 1897 and the Disaster Management Act, 2005 that could justify this evisceration of these rights.

It is settled law that arrests during investigation are not meant to punish suspects, and must be made with the sole objective of securing the suspect’s presence during trial and ensuring he/she does not tamper with evidence. Since there is little chance of a suspect absconding or tampering with evidence during a lockdown, the threshold for arrest must be raised. Arrests without a strong basis are particularly unconscionable now, when each new arrest adds to already overcrowded jails and puts jail staff and new arrestees at a grave health risk.

(The authors are advocates practising in Delhi)

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Printable version | Jul 30, 2021 3:09:29 AM |

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