Rahul Gandhi was detained during protests, renewing questions over police powers, detention, arrest and safeguards.
BNSS provisions allow police to detain or remove people disregarding lawful directions under specified circumstances.
Arrest carries safeguards, including grounds, legal representation and production before a magistrate within 24 hours.
The detention of Leader of Opposition Rahul Gandhi during the INDIA bloc’s protest against Chief Election Commissioner Gyanesh Kumar has brought renewed focus on what “detention” means in law.
Gandhi was detained by Delhi Police on October 7, a day after he and several Opposition leaders were taken into custody following a protest inside Akashvani Bhavan. Since October 2, hundreds of protesters have been detained in Delhi amid demonstrations against the Election Commission and its Special Intensive Revision (SIR) exercise.
But what exactly does detention mean in law? Is it the same as arrest? What powers do police have during protests, and what safeguards apply when a person’s liberty is restricted?
What Is Detention?
The Bharatiya Nagarik Suraksha Sanhita (BNSS), which replaced the Code of Criminal Procedure (CrPC), does not separately define “detention”.
Instead, it gives police certain powers to stop, remove or temporarily hold people in specified circumstances.
One such provision is Section 172 of the BNSS. It allows a police officer to detain or remove a person who resists, refuses, ignores or disregards a lawful direction.
The provision requires the officer to take the person before a magistrate or, in petty cases, release them as soon as possible and within 24 hours. Section 172(2) is a new provision and had no direct equivalent in the earlier CrPC.
In the context of protests, a person may therefore be taken away by police, kept in custody for several hours and later released without being formally arrested or an FIR being registered. While this may appear similar to an arrest, the legal basis can be different.
How Is Detention Different From Arrest?
Arrest is a formal legal act through which police take a person into custody under statutory authority. An arrest may be made in connection with an offence that has already occurred, but the law also permits preventive arrests in certain circumstances.
Once a person is arrested, constitutional and statutory safeguards come into play.
Detention, in the context of short-term police action during protests, generally refers to a temporary restriction on a person’s movement under a specific police power.
The distinction becomes important when protesters are taken away from a demonstration and subsequently released without being formally arrested.
However, the mere use of the word “detention” does not by itself determine whether police action was lawful. The circumstances, purpose and statutory provision under which a person’s liberty was restricted are important.
What Does Section 170 Of The BNSS Say?
Section 170 of the BNSS deals with preventive action by police. It allows a police officer who knows of a design to commit a cognisable offence to arrest a person without orders from a magistrate and without a warrant if the officer believes that the commission of the offence cannot otherwise be prevented.
A cognisable offence is one for which police can arrest without a warrant. Section 170 therefore permits a preventive arrest before the anticipated offence takes place, subject to the conditions specified in the provision.
What Does Section 172 Allow?
Section 172 deals with obedience to lawful directions given by police. It allows police to detain or remove a person who resists, refuses, ignores or disregards a lawful direction.
This provision can become relevant during demonstrations when police issue directions to disperse or leave an area.
The direction must, however, be lawful. Police powers to restrict a person’s movement are subject to the statutory authority under which they are exercised.
Section 172(2) expressly introduced the power to detain or remove a person for disregarding a lawful police direction, something that did not have a direct equivalent in the earlier CrPC.
How Does Section 163 Come Into The Picture During Protests?
Section 163 of the BNSS replaced Section 144 of the CrPC. It allows an Executive Magistrate to issue written orders where immediate prevention or a speedy remedy is considered necessary to prevent obstruction, danger to human life, health or safety, disturbance of public tranquillity, riot or affray.
Such an order can restrict certain activities or require people to take or refrain from taking particular actions.
In the present context, Delhi Police imposed restrictions under Section 163 in New Delhi amid protests against CEC Gyanesh Kumar.
If a person disobeys a lawful order issued under Section 163, Section 223 of the Bharatiya Nyaya Sanhita (BNS) may become relevant. Depending on the circumstances, police action can then move from preventing a potential breach of public order to registering an offence and making an arrest.
Section 163, however, does not by itself mean that every gathering without prior permission is illegal. The specific order, its terms and the circumstances in which it was issued matter.
Is Detention The Same As Preventive Detention?
Short-term police detention during a protest should not be confused with preventive detention under special laws.
Preventive detention allows the state to hold a person without trial under specific legislation, such as the National Security Act. It operates under a separate legal framework and is subject to specific constitutional and statutory safeguards.
A person briefly taken away from a protest and later released is not, merely for that reason, being held under preventive detention laws.
What Rights Does An Arrested Person Have?
The Constitution provides important safeguards against arbitrary arrest and detention.
Article 22 requires an arrested person to be informed of the grounds of arrest and provides the right to consult and be defended by a lawyer of their choice. It also requires an arrested person to be produced before a magistrate within 24 hours, excluding the time necessary for the journey from the place of arrest to the court.
The Supreme Court has held that the grounds of arrest must be communicated to the arrested person and that failure to comply with constitutional safeguards can render an arrest unconstitutional.
Section 38 of the BNSS provides an arrested person the right to meet an advocate of their choice during interrogation, though not throughout the interrogation. A person unable to afford legal representation can also seek free legal aid at the state’s cost.
The safeguards applicable to an arrested person should, however, be distinguished from the separate legal framework governing preventive detention.
What About Women?
Section 43(5) of the BNSS places a specific restriction on the arrest of women.
A woman cannot ordinarily be arrested between sunset and sunrise. In exceptional circumstances, such an arrest can be made after a first-class Judicial Magistrate grants prior permission.
The provision concerns arrest and does not automatically mean that every form of police intervention involving a woman amounts to an arrest. The legal basis for restricting her movement remains important.
What Safeguards Apply During Police Custody?
The Supreme Court laid down detailed safeguards concerning arrest and detention in DK Basu v State of West Bengal in 1997.
These include requirements concerning the identification of police officers, preparation and attestation of an arrest memo, recording of injuries and informing relatives or friends about the arrest.
The court made clear that these safeguards are not merely advisory. Failure to comply can have legal and disciplinary consequences.
What Have Courts Said About Arrests?
The Supreme Court has repeatedly held that the existence of a power to arrest does not, by itself, justify its exercise.
In Joginder Kumar v State of Uttar Pradesh (1994), the court distinguished between the existence of the power to arrest and the justification for exercising it.
In Arnesh Kumar v State of Bihar (2014), the court directed police not to make automatic arrests in offences punishable with imprisonment of up to seven years.
The Supreme Court has also considered restrictions on protests. In Mazdoor Kisan Shakti Sangathan v Union of India (2018), it held that restrictions on demonstrations should regulate the right to protest rather than eliminate it altogether.
Can Police Detain Protesters?
Police have powers to prevent offences, maintain public order and enforce lawful directions. The BNSS expressly permits detention or removal in certain circumstances.
But those powers have a legal basis and cannot be treated as an unrestricted authority to hold people.
The distinction between detention and arrest therefore depends on the circumstances in which a person is taken into custody, the legal provision being invoked, whether an offence has been committed or is being prevented, and what happens after the person is taken away.
For protesters, the key issue is not simply whether they were “detained” or “arrested”, but under which law, for what reason and with what safeguards their liberty was restricted.
