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The incident of 1st and 2nd November, 2016 had marked the unprecedented chain of events which led to the arrest of MPs and even the Chief Minister and Deputy Chief Minister of Delhi. It has not been seen in the history of Indian Politics thata leader be arrested or detained without the due process of law. The condition became even worse as the family members of the deceased (Ram Kishan Grewal) were also detained and beaten but the question needed to be asked is: why did all this happen? Was there a threat to National Security, or was there a threat to the Public order and tranquility?

Before we proceed to the legal aspect of the arrest or detention, it is pertinent to know the factual aspect as to what led to this situation? On the afternoon of 1st November, 2016, an ex-serviceman Ram Kishan Grewal was protesting against the non-implementation of One Rank One Pension Scheme and demanded to meet the Defense Minister Mr. Manohar Parrikar in order to present his case regarding the uniform implementation of the scheme. In order to protest against the non-availability of minister, he consumed salfas tablet and allegedly committed suicide.The condition deteriorated after all the leaders like Rahul Gandhi, Arvind Kejriwal, Manish Sisodia etc. were detained while they were trying to meet the family members of the deceased outside Ram Manohar Lohia Hospital. All the leaders were subsequently released but why were they detained in the very first place?

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In our Constitutional Democracy, no one can be detained or arrest without the due process and procedure established by law which is incorporated under Article 21 and 22 of the constitution and as well under the provisions of the Code of Criminal Procedure after the landmark judgment of D K Basu v. State of West Bengal.It is pertinent to note that our country is not a police state and there is always a system of checks and balances on the three organs of the state.

In this scenario, it is quite important to define as to what the term ‘arrest’ means because Supreme Court in the case of Union of India v. Padam Narain Aggarwal [(2008) 13 SCC 305] remarked that the term “arrest” has neither been defined in the Code of Criminal Procedure, 1973 nor in the Penal Code, 1860 nor in any other enactment dealing with offences, so does that vacuum give the power to arrest and detain anyone without the procedural safeguards?

The word “arrest” is derived from the French word “arrater” meaning “to stop or stay”. It signifies a restraint of a person. “Arrest” is thus a restraint of a man’s person, obliging him to be obedient to law. “Arrest” then may be defined as “the execution of the command of a court of law or of a duly authorized officer”.So if we look into the present scenario regarding the detention/arrest of the Rahul Gandhi and others, it can very well be said that it was the execution of the command of the senior police official who authorized to restrain them from entering and meeting the family members of the deceased.

Under the Law of the Land, The Arrest of a person can be done according to the Code of Criminal Procedure, 1973 whereby Section 41 empowers a police officer to arrest any person without warrant. Section 42 deals with the power of a police officer to arrest any person who in the presence of such police officer has committed or has been accused of committing a non-cognizable offence and refuses to give his name and residence or gives a name or residence which such officer has reason to believe to be false. Section 43 enables a private person to arrest any person who in his presence commits a non-cognizable offence, or is a proclaimed offender. Section 44 deals with cases of arrest by a Magistrate. Section 46 lays down the manner of arrest.

In the case of Joginder Kumar v. State of U.P., [(1994) 4 SCC 260] the Court stated that no arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person his liberty is a serious matter.

In the present situation, all the detainees were holding the constitutional office and their duty towards the citizens is much higher than any ordinary citizen.The law provides for the procedural safeguards regarding the arrest/detention of the MPs, whereby arrest of the constitutional elective has to be done according to a set procedure and arresting them without the due process of law is the violation of the constitutional rights of the detainees.According to rule 229 of the Rules of Procedure and Conduct of Business in Lok Sabha; immediate intimation regarding arrest, detention, conviction or release on bail of a member of the Lok Sabha is required. When a member is arrested or after conviction, released on bail pending an appeal or otherwise released, such fact shall be intimated to the Speaker by the authority concerned in the appropriate form. As per the standing order no. 153 of 2013, the following guidelines were given with regard to the arrest and detention of the Member of Parliament.

  1. Such intimation should contain detailed grounds for arrest/detention.
  2. Intimation should also be given when the arrested/detained person is transferred from one place of detention to another.
  3. Such intimation should also be sent when additional charges than those already existing are leveled against the arrested/detained Member.
  4. Such intimation should also be given when nature of the custody changes i.e. detention which may be lead to subsequent arrest or custody change between police remand and judicial remand.
  5. Similarly intimation about conviction and release has to be given by the concerned authority in a prescribed format.

The arrest or detention by the authorities has to be intimated to the speaker of the house by way of post which should contain the charge against the accused, time of arrest, place of detention and other factors which led to the arrest of the M.P. The report should also be given to the Secretary, Ministry of Home Affairs and to a range deputy commissioner of police with a copy to the assistant inspector general of police.

All in all, the events of the November 1st and 2nd were the dark days in the constitutional democracy, not because that the Rahul Gandhi or the Chief Minister of Delhi were arrested but because of the arbitrary and malafide arrest and detention of the accused against the principles of the Constitution. India, being the largest democracy, cannot act in contravention of the settled principles of law and violate the fundamental rights of anyone without following the due process. It is also that, these events showed us the grim face of reality as India being an elected Democracy still can, very well,inhibit the autocratic side of the Governance without changing the robe of democracy.

 

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