THE CONSTITUTIONAL JURISPRUDENCE OF ARREST IN INDIA: FROM THE POWER AND NECESSITY OF ARREST TO THE RIGHT TO KNOW THE GROUNDS OF ARREST
Adv. Rajendra Kedge, Practising in Bombay High Court / other High Courts and Supreme Court, (India)
Adv. Sunil Yadav, Practising in Bombay High Court / other High Courts and Supreme Court, (India)
Adv. Archana Kedge, Practising in Bombay High Court, (India)
Arrest is among the most intrusive powers exercised by the State against the individual. Though legally distinct from guilt, arrest often produces consequences that extend beyond the criminal process, including reputational injury, social stigma, loss of employment, and impairment of personal and family relationships. These consequences become especially grave where proceedings ultimately end in discharge, acquittal, or exoneration. Indian constitutional jurisprudence has therefore increasingly treated arrest not merely as an investigative tool, but as a serious deprivation of personal liberty requiring constitutional justification. This paper examines the evolution of Indian arrest jurisprudence from the distinction between the power to arrest and the necessity to arrest, developed in Joginder Kumar and Arnesh Kumar, to the contemporary right of an arrested person to be informed of the grounds of arrest under Article 22(1). It analyses the relationship between Articles 14, 21 and 22(1), the statutory safeguards under the CrPC and the BNSS, and the developing distinction between ‘reasons for arrest’ and accused-specific ‘grounds of arrest’. Particular attention is given to Pankaj Bansal, Ram Kishor Arora, Prabir Purkayastha, Vihaan Kumar, Kasireddy Upender Reddy, Mihir Rajesh Shah, Karan Singh and Dr Rajinder Rajan. The central thesis is that Indian arrest law is moving from a power-centric model towards a constitutional accountability model consisting of four sequential safeguards: lawful power, demonstrable necessity, meaningful communication of grounds and effective judicial scrutiny. The paper’s distinctive contribution lies in its analysis of the temporal operation of the written-communication requirement, especially the expression ‘henceforth’ in Mihir Rajesh Shah. It argues that while Article 22(1) protected arrested persons before that decision, Mihir Rajesh Shah standardised the future procedural regime for written communication of grounds. This distinction is essential to evaluating non-compliance in both pre-Mihir and post-Mihir arrests.
| 📄 Type | 🔍 Information |
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| Research Paper | LawFoyer International Journal of Doctrinal Legal Research (LIJDLR), Volume 4, Issue 3, Page 639–674. |
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