The Law And Practice Of Arrest In India: A Critical Study Of Misuse And Accountability
- IJLLR Journal
- Mar 31
- 2 min read
Ananya Saha, LLM (Criminal Law), Amity Institute of Advanced Legal Studies, Noida, Uttar Pradesh
ABSTRACT:
The power of arrest, as one of the most coercive functions of the State, has a direct bearing on the fundamental right to personal liberty guaranteed under Articles 21 and 22 of the Constitution of India. This study critically examines the misuse of arrest powers in India by analysing its historical evolution, legal framework, judicial interpretation, and contemporary challenges. It traces the development of arrest powers from pre-colonial practices to their transformation into instruments of colonial control under the Police Act of 1861 and subsequent Criminal Procedure Codes and highlights their continued influence in post-independence India. The research evaluates the statutory framework under the Code of Criminal Procedure, 1973 and the Bharatiya Nagarik Suraksha Sanhita, 2023, focusing on procedural safeguards alongside the persistence of broad police discretion. It further examines the role of the judiciary in curbing arbitrary arrests through landmark judgments and guidelines. The study identifies patterns of misuse, including arrest as a tool of intimidation, coercion, and pre-trial punishment, and attributes these issues to structural deficiencies such as vague legal standards, lack of accountability, and institutional inertia. It argues that arrest is often treated as a routine measure rather than an exception, undermining the presumption of innocence and eroding public trust in the criminal justice system. It also underscores the impact of unnecessary arrests on marginalized and vulnerable groups, who are disproportionately affected by systemic biases. The study further evaluates the effectiveness of recent legal reforms and questions whether they meaningfully address ground-level realities. It emphasizes the need for a shift from a power-centric policing model to a rights-based approach rooted in accountability and transparency. The paper concludes by emphasizing the need for comprehensive reforms to strengthen accountability, restrict discretionary powers, and ensure effective enforcement of safeguards, thereby aligning arrest practices with constitutional values and democratic principles.
Keywords: Misuse of arrest powers, personal liberty, Article 21, Article 22, CrPC, BNSS, police discretion, arbitrary arrest, judicial safeguards, criminal justice system.
