Making accountability key to the arrest process

The Supreme Court ruling requiring judicial approval for re-arrest concretises the rule of law and protects personal liberty

The Supreme Court has put a much-needed constitutional check on the power of re-arrest. Its latest ruling, requiring prior judicial approval before an accused can be re-arrested after being released for violation of Article 22(1), sends an unambiguous message that a breach of a fundamental right cannot be followed by an unchecked repetition of the same executive power.

The apex court has thus steadily moved from recognising the right to know the grounds of arrest to prescribing consequences for its breach (Hindustan Times)

The judgment prescribed safeguards that make accountability integral to the arrest process. Once an arrest is held illegal for failure to furnish written grounds, the police must provide these, then approach the magistrate, explaining both the earlier lapse and the necessity for custody. The application must be endorsed by the immediate superior officer. The magistrate must independently satisfy himself of bona fide reasons for the initial failure and need for re-arrest. The investigation also has to be transferred and a departmental inquiry initiated against the erring officer. This concretises the rule of law and protects personal liberty. The power to arrest is among the most coercive powers available to the State; its exercise cannot be left entirely to executive discretion, particularly after the executive itself has violated a constitutional safeguard.

The ruling also marks the next stage in a significant line of Supreme Court jurisprudence on grounds of arrest. In Pankaj Bansal, dealing with the PMLA, the Court held that written grounds of arrest must be furnished to an accused without exception. Prabir Purkayastha extended this to the UAPA context. Subsequent rulings have reaffirmed that Article 22(1) is a general constitutional guarantee applicable to every arrest.

The apex court has thus steadily moved from recognising the right to know the grounds of arrest to prescribing consequences for its breach. The latest ruling takes that jurisprudence further. The larger message is clear: Investigative necessity does not eclipse constitutional liberty. Arrest must have legal justification; its reasons must be disclosed; and where the State breaches this, the officers responsible must answer for it. That is not an impediment to the rule of law. It is the rule of law.