The State Cannot Take Away Liberty and Explain It Later: What SC’s Ruling Says

Supreme Court has reaffirmed arrested persons must be told grounds of arrest, protecting liberty under Article 22.

The language of Article 22(1) leaves little room for ambiguity.

(Photo: Aroop Mishra/The Quint)

At the heart of the Supreme Court's judgment in Jaskaran Jeet Singh Deol v State of Punjab is a simple constitutional proposition: when the State takes away a person's liberty, it must tell him why.

In its judgment, the Court has reiterated a long-standing principle of criminal law and constitutional governance that an arrest cannot be divorced from the right of the arrested person to know the basis on which his liberty has been curtailed. Where the State fails to provide that basic information, it cannot then ask the law to treat the resulting detention as though nothing constitutionally significant has occurred.

The language of Article 22(1) leaves little room for ambiguity.

It requires that a person who is arrested be informed, as soon as may be, of the grounds of arrest and guarantees them the right to consult and be defended by a lawyer of their choice. A person who does not know why he has been arrested cannot properly instruct a lawyer, challenge the basis of his custody, oppose a request for police remand or seek appropriate relief from a court.

The Supreme Court has, therefore, correctly treated the communication of the grounds of arrest as part of the constitutional architecture protecting personal liberty under Article 21.

Why The Grounds Of Arrest Matter

In Mihir Rajesh Shah, which the Court reaffirmed in the present judgment, the Court made the position clear: the grounds of arrest must ordinarily be furnished in writing, in a language understood by the arrested person, and the obligation is not dependent upon the particular statute under which the arrest is made. The protection travels with the person whose liberty is being curtailed.

This matters because an arrest is not simply the beginning of a criminal case. It is the point at which the coercive power of the State is brought physically and immediately to bear upon an individual. Once arrested, a person may be taken into police custody, interrogated, deprived of his ordinary freedom of movement and placed in a position of profound dependence upon the legal system for his release. It is precisely at this point that the Constitution insists that he must know the case against him.

The justification for the deprivation of liberty cannot be treated as an internal document available only to the investigating agency. It must be communicated to the person whose liberty has been taken away so that he can contest the State's exercise of power. The right is therefore not about paperwork. It is about whether the person has any meaningful opportunity to resist the deprivation of his liberty.

An Arrest Cannot Be Cured Later

In Jaskaran Jeet Singh Deol, the appellant was arrested in Punjab and produced before a Magistrate, but the investigating agency had failed to furnish him written grounds of arrest. The Magistrate consequently directed his release, holding that the arrest had been rendered illegal. The matter then reached the Supreme Court against the backdrop of the State's attempt to retain the ability to take the accused back into custody.

The Court was therefore confronted with the more fundamental question of what value Article 22 has if the State can disregard it at the moment of arrest and then rely upon subsequent proceedings to keep the consequences of that violation from affecting custody. The Court's answer was clear: a subsequent remand order does not cure an unconstitutional arrest, and the later filing of a chargesheet or taking of cognizance cannot retrospectively validate a deprivation of liberty that was unconstitutional when it occurred.

The Supreme Court expressly held that where Article 22(1) has been violated, the question of demonstrable prejudice does not arise. The constitutional guarantee itself has been breached. That approach is sound because requiring an arrested person to demonstrate additional harm would risk making the protection circular. The person was denied the very information necessary to challenge his arrest, and the law would then ask him to demonstrate how that denial affected his ability to challenge the arrest.

Article 22 cannot be interpreted in a manner that makes its protection dependent upon the very opportunity that its violation has taken away. The Court therefore treated the safeguard as fundamental rather than merely procedural and made immediate release the consequence of its breach.

This is also why release following an Article 22 violation rests on a prior and more fundamental conclusion: the custody itself cannot continue because the arrest did not satisfy the Constitution. That distinction prevents the State from converting a constitutional wrong into an ordinary bail dispute. If the police fail to comply with Article 22 and the person is nevertheless kept in custody because the allegations against him are serious, the constitutional guarantee becomes little more than an advisory instruction. The seriousness of the offence may justify a lawful arrest. As the Supreme Court put it, a person released for violation of Article 22(1) is not merely enlarged on bail; he is released from illegal and unconstitutional detention.

When Liberty Is The Issue

The judgment ultimately reinforces that constitutional law sometimes forgets in the language of procedure: liberty is not protected merely by declaring rights. Rights become meaningful when courts attach consequences to their violation. Article 22 does not tell the police that it would be preferable to inform an arrested person of the grounds of arrest. It imposes a constitutional condition upon detention.

The State may investigate, arrest and prosecute, but when it takes away a person's liberty, it must remain answerable for the manner in which it does so. If it cannot tell the person why he has been arrested, it cannot demand that he remain in custody while the State gets its constitutional obligations in order.

The real significance of Jaskaran Jeet Singh Deol lies in restoring some meaning to the words personal liberty. An arrest is the moment when the coercive power of the State is brought most directly against an individual, and it is precisely at that moment that constitutional safeguards must matter most. The State may have the power to arrest, but it does not have the power to keep a person in custody first and explain the basis of that custody later.

Article 22(1) places a simple obligation on the State: tell the arrested person why he has been deprived of his liberty and give him the means to challenge it. When the State fails to do so, release is not an indulgence extended to an accused. It is the Constitution asserting that even in the pursuit of crime, there are limits beyond which the State cannot go.

 (Kumar Kartikeya is an advocate, Supreme Court of India. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)