The power to arrest carries a corresponding responsibility to protect personal liberty.
by Adv. Dr. Chinmay Bhosale · 4 MINS READ
The substantial gap between the number of people arrested and the proportion ultimately convicted raises serious questions about how that power is exercised. The article examines the persistence of a colonial approach to arrest and calls for greater adherence to constitutional safeguards.
Personal Liberty and the Limits of State Power
Article 21 of the Indian Constitution guarantees that no person shall be deprived of life or personal liberty except according to procedure established by law.
This protection means that even the government and its agencies cannot arrest anyone outside the framework of the law.
For someone facing a criminal case or even an allegation the immediate fear is often arrest. Beyond the loss of freedom lies another serious concern: the reputational damage associated with being arrested.
The article notes that the criminal justice framework inherited from British rule permits arrest for more than 150 offences under the Indian Penal Code, alongside numerous offences under other laws. However, the existence of a power to arrest does not, by itself, establish that arrest is necessary.
Moving Beyond a Colonial Approach
India’s police system developed largely under British rule. Its original purpose, the author argues, was not to protect Indian citizens or function as a friend of the public. Arrest was used as an instrument of oppression and harassment, and that colonial image has not entirely disappeared.
The article acknowledges the essential contribution of policing to public safety. Citizens depend on the police to move freely and sleep securely, and effective law enforcement requires a measure of deterrence.
Nevertheless, the author argues that a colonial mindset continues to influence arrest practices—an issue that has repeatedly come before the courts since Independence.
What the Arrest and Conviction Figures Reveal
The article cites National Crime Records Bureau figures to illustrate the disparity between arrests and convictions:
2012: For one particular offence punishable with imprisonment of less than seven years, 117,762 people were arrested. According to the article, only 15% were found guilty, leaving the remaining 85% to face the consequences of an unnecessary arrest.
2018: A total of 5,508,190 people were arrested across India, while the conviction rate cited for that year was 41%.
These figures form the basis of the author’s concern that arrest powers require closer scrutiny.
Arrest Must Be Necessary, Not Automatic
The article identifies two principal circumstances in which arrest may be necessary:
Where a thorough investigation requires the suspect to be held in police custody.
Where leaving the suspect at liberty creates a risk of further offences.
It cites the Law Commission’s 177th Report as observing that these considerations are frequently overlooked.
The article then discusses the 2009 amendments concerning Sections 41 and 41A of the Code of Criminal Procedure, which sought to curb automatic arrests. As explained in the article, Section 41 requires arrest to be justified by legal necessity, while Section 41A provides for a notice directing the suspect to appear before the police for investigation.
The Supreme Court, however, found that these safeguards were not being followed strictly.
The Safeguards in Arnesh Kumar v. State of Bihar
The article highlights the Supreme Court’s 2014 judgment in Arnesh Kumar v. State of Bihar as a significant intervention against routine arrest.
It explains that, for offences punishable with imprisonment of up to seven years, the Court directed that arrest should not be automatic. The article also records the requirement to serve a notice under Section 41A within two weeks of registration of the case.
Failure to follow the prescribed procedure before making an arrest could expose the police officers concerned to departmental action.
The author describes the judgment as an important effort to give practical effect to constitutional protections, while expressing concern that its implementation across the country remained inadequate.
An Allegation Must Not Become a Finding of Guilt
The article urges a change in how individuals facing allegations are regarded. The author advocates treating them as suspects rather than branding them as offenders before guilt has been established.
This concern is particularly significant in the context of low conviction rates and the lasting consequences of arrest. The article also questions the lack of action against those who make false allegations and asks what meaningful justice is available to a person falsely implicated.
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