This article is written by Shristi Suman, a second-year student of Symbiosis Law School, Hyderabad. In this article, the offenses impacting personal liberty under IPC have been discussed.

Introduction 

The Constitution of India under Article 21 guarantees the right of personal liberty to every person and must not be deprived of such right except according to the procedure established by law. The issues such as the meaning and content of personal liberty and the nature and scope of the protection of ‘the procedure established the law were destined to be expounded by the Supreme Court through the judicial process. 

The Supreme Court has been envisaged as the ultimate authority to interpret the Constitution as the Supreme Court is considered as the guardian of the Constitution and as it protects and provides the fundamental rights to people. Personal liberty of the citizens is a fundamental right under the Constitution of India and no one can take away this right except the State and according to the procedure established by law. In criminal law, it is seen that an accused faces the risk of losing his personal liberty at three different stages. 

The first stage where the accused loses his personal liberty is where the arrest is made by the police pursuant to registration of an FIR against him. The second stage is where the accused is denied bail by the court and the third stage where the personal liberty of the accused is taken away is when he is denied suspension of sentence and bail after his conviction in a pending appeal.

Article 21 of the Constitution

The right to life is fundamental to the very existence of humans and without it, we cannot live as human beings. The right includes all those aspects of life, which contributes to making a person’s life meaningful and complete. It is the only article in the Indian Constitution that has been given the widest possible interpretation through many judgments. Article 21 of the Constitution includes many other rights of the citizens. Rights like right privacy and liberty have been included under this Article. Article 21 includes all the rights that are essential and unavoidable for a person.

Right to live with human dignity

In the case of Maneka Gandhi v. Union of India, the Supreme Court gave a new dimension to Article 21 of the Constitution and observed that the right to life as a fundamental right of the citizens not merely includes the right of physical existence but also to live with human dignity. Elaborating the same view, The Supreme Court in Francis Coralie v. Union Territory of Delhi elaborated the judgment of Maneka Gandhi’s case on Article 21 and observed that the right to life also includes the right to live with human dignity which includes the basic necessities of life such as adequate nutrition, clothing, and shelter over the head and facilities for reading writing and expressing oneself in diverse forms. Article 21 also includes within its ambit the right of citizens to freely move about and mix and mingle with other people.

In the case of Bandhua Mukti Morcha v. Union of India, another important aspect of Article 21 was observed in which it was said to be the heart of all the fundamental rights of the people, the Court gave it an expanded interpretation. Bhagwati J. observed in this case that, it is the fundamental right of every person in this country to live with human dignity and free from any kind of exploitation. The right to live with human dignity which is enshrined in Article 21 of the Constitution derives its very existence from the Directive Principles of State Policy particularly from clauses (e) and (f) of Article 39 and Articles 41 and 42 of the Indian Constitution.

Thus, it was also the intention of the framers of the Constitution to establish a framework in which people are protected and provided with the basic necessities of life. Therefore, the state should aim to make laws that do not contravene the intentions of the framers of the Constitution. The State must make laws to protect the citizens against any kind of abuse, and furthermore, provide opportunities and facilities to them so that they can develop in a healthy manner and in conditions of freedom and dignity. Taking these steps would enable people to live with human dignity and freedom. The State should not make any law that takes away a person’s fundamental rights and even the Central Government nor any State Government has the right to make any law or take any action which contravenes Article 21 of the Constitution and can deprive a person of his basic requirements of life.

Personal Liberty as a fundamental right

Article 21 of the Constitution states a person’s right to life or personal liberty can’t be taken away except according to the procedure which has been established by law. The concept of the Right to life and personal liberty under the Indian Constitution has changed over time. The traditional approach to the Right was the Right to Life of individuals and no one other than the State shall have the power to take it away according to the established procedure of law.

Over time, the Right has been interpreted as a right of the citizens to live with all the basic necessities. The Right also includes personal liberty to reside, to go abroad, right to clean environment, right to die (passive euthanasia), right to adequate education, right to food and livelihood, etc. The Right to Personal Liberty of citizens has been interpreted by the various courts in various cases. The nature and scope of the Right have increased and redefined over time by the courts according to the needs of the time.

Procedure Established by Law

‘Procedure Established by law’ is a phrase taken by the British Constitution. As per this phrase, any right of an individual can be taken away by law. The law can take away an individual’s right to personal liberty only according to the procedure which has been established by the law. This principle does not assess if the laws made by the Parliament are fair, just, and not arbitrary.

The procedure established by law can be valid for the purpose of taking away the right to personal liberty of the individuals even if it is different from the principles of justice and equity. Thus, the laws made by the legislature need to be fair and just in order to protect the individual against any arbitrary action of the executive.

The expression “procedure established by law” has been interpreted in several cases. The judgments given in the cases in which the said expression was interpreted reveals that courts while interpreting the phrase has enlarged the scope of the expression as per the need of the case in hand. The Supreme Court interpreted the expression “procedure established by law”  under Article 21 as a procedure that has been prescribed by law and is enacted by the state. The Court rejected equating the phrase “procedure established by law” with the American “due process of law.”

In the case of Maneka Gandhi v Union of India, the Supreme Court observed that the procedure prescribed by law for the purpose of taking away a person’s life and personal liberty must be ‘right, just and fair’ and not ‘‘arbitrary and oppressive,’’. If a law is unfair and unjust then, such law would not be considered as a procedure by law at all as per the requirement of Article 21. Thus, the phrase “procedure established by law” again acquired the same significance in India under Article 21 as the “due process of law” clause of the Constitution of America.

In Sunil Batra v Delhi Administration case, Justice V. R. Krishna Iyer said that though “our Constitution has no due process clause” like America’s Constitution after taking into consideration the Maneka Gandhi’s case, Article 21 of the Indian Constitution may be treated similarly as a counterpart of the due process clause that is mentioned in the American Constitution.”

The Supreme Court once had to deal with an increasing number of death sentences to people for the offense of “bride-burning”. In 1985, the High Court of Rajasthan in the case of State Of Rajasthan vs Smt. Lichma Devi, sentenced two people, Jagdish Kumar and Lichma Devi, to death for the offense of murder of two separate women by setting them on fire. The court then did a very unpredictable thing by ordering both the culprits to be hanged in public.

The Attorney General of India against this judgment wrote a letter to Supreme Court, the Supreme Court then, ordered a stay on the punishment of public hangings and it was further observed by the Court that a punishment like this is considered as barbaric punishment and it won’t be wise to give a barbaric punishment in response to a barbaric crime. The Court further observed that the execution of the death sentence by public hanging was a barbaric punishment and inhuman thus, violating Article 21 of the Constitution, which makes it mandatory the observance of a just, fair and reasonable procedure.

Thus, in response to the order by Supreme Court, the Rajasthan High Court stated that the judgment must be set aside by the Supreme Court itself on the ground of inter alia stating that the judgment was violative of Article 21 under the Indian Constitution.

The procedure of law needs to be fair and just

The Indian Constitution treats Article 21 as an important Fundamental Right of the citizens. The Right to life and liberty is given utmost importance and no one except the procedure of law can deprive an individual of his liberty. The procedure of law for that purpose needs to be fair and just. The meaning of the word ‘law’ mentioned in Art. 21 does not merely mean law which has been enacted but incorporates the principle of natural justice so that law which can deprive a person of his life or personal liberty cannot be valid unless it incorporates the principle of fairness and reasonableness. The reasonableness of the law of preventive detention can be tested under Article 19 of the Indian Constitution.

In 1973, through the 41st Law Commission, Parliament made a provision for anticipatory bail. The purpose behind it was to avoid unnecessary arrests and harassment of individuals who were under arrest. It was seen before the 41st Law Commission that the personal liberty of individuals was infringed as per the procedure of law. The accused in India is said to be innocent until he is proven to be guilty. In order to protect the interests of the accused and safeguard his personal liberty, the Parliament made a provision for the anticipatory bail.

In 1997, in the case, State Rep. by the C.B.I vs. Anil Sharma, the Supreme Court canceled the anticipatory bail which was granted by a High Court and held that “custodial interrogation is qualitatively more elicitation-oriented” than when an accused has anticipatory bail. The reality of the use of third-degree methods was completely ignored in this case, and was held that “such an argument can be advanced by all accused” as the court had immense faith in “responsible police officers”.

In contradistinction to the aforementioned case, in the same year, the court in the case of DK Basu vs State of West Bengal observed that the worst forms of violation of human rights take place during the process of investigations of the accused by the police officers. Yet, the court even while giving directions to safeguard individuals from the abuse of authority, held that the freedom and personal liberty of an individual must yield to the needs of the State’s security. The argument of the needs of “security of the State” which was given by the court has long been used for restricting the personal liberty of citizens. The presumption of innocence is ignored, and for many offenses, the accused has to prove innocence even for getting bail. Preventive detention laws are also used excessively and at the convenience of the police officers despite inbuilt safeguards by law.

The procedure of law under CrPC in relation to bail

Liberty of a person is very important and is considered to be one of the most important Fundamental rights which has been guaranteed in the Indian Constitution. The Code of Criminal Procedure, 1973 lays grounds for the grant of bail because providing bail to the accused until he is proven guilty is the aim which the law strives to achieve. Section 436 of Code of Criminal Procedure (CrPC) states that where a person fails to comply with the conditions that are required under the bail-bond regarding the time and place of attendance, then the Court has the authority to refuse bail to a person when he appears before the court. Any such refusal of bail by the Court is a violation of a person’s right to liberty and further, the Court can call upon any person bound by such a bond to pay the penalty of it under Section 446. The provision is a violation of the liberty of the accused as it keeps the proceedings pending without granting a bail.
Section 437 of CrPC talks about the non-bailable offenses. There are many cases in which the court has refused to grant bail to the accused. The accused is presumed to be innocent until he is proven guilty of the offense but the non-bailable offenses refuse to grant rights of personal liberty to the accused until the accused is proved to be innocent and thus, violates the right of personal liberty of the accused.

Right against Delayed Execution

In the case of T.V. Vatheeswaram v. State of Tamil Nadu, the Supreme Court stated that delay in the process of execution of death sentence which exceeds 2 years would be considered as sufficient ground to invoke protection under Article 21 of the Constitution and the punishment of death sentence would be converted into life imprisonment. The cause of the delay for such punishment is immaterial even if it is found that the accused himself was the reason for such delay then also the delay in process would attract Article 21 of the Constitution.

In the case of Sher Singh v. State of Punjab, the Supreme Court held that prolonged delay for the execution of a death sentence is unjust, unfair and unreasonable procedure and the only way to undo such procedure is through Article 21. The Court observed that this rule cannot be taken as the rule of law to be applied in the same way to each case. Each case needs to be decided according to its own facts and needs. 

Right against Handcuffing

Handcuffing is prima facie inhuman in nature and over-harsh. It is violative of Article 21 of the Indian Constitution.

In the case of Prem Shankar v. Delhi Administration, the Supreme Court struck down the rules which stated that every person who is under-trial for a non-bailable offense punishable with more than three years imprisonment i.e. accused of a cognizable offense has to be routinely handcuffed. The Court observed that handcuffing should not only be resorted to when there is ‘clear and present danger of escape’ of the accused but also at times where there isn’t much danger of the accused to break out of the control of the police.

Arrest without a warrant

Section 41 of CrPC gives the right to a police officer to arrest any person without a warrant against whom some credible information has been received about the commission of a cognizable offense. The said provision has such a wide interpretation that it gives unbridled power to any police officer to make an arrest. Section 41 A of the CrPC states that a police officer at his own discretion may give notice of arrest to an accused where he feels.

In the case of Joginder Kumar vs State of Uttar Pradesh, the Supreme Court observed that the power of police officers to arrest without a warrant should be exercised only after a reasonable investigation has been conducted with regard to the person’s complicity in the crime. It is also important to understand whether there is a need to arrest or not.

In DK Basu vs State of West Bengal, the Supreme Court laid down guidelines in relation to the manner in which an arrest can be made along with the rights of the person arrested. This judgment further, resulted in an extensive amendment in the Code of Criminal Procedure. The amendments were made in relation to the manner of examination of the arrested person by a medical practitioner under Section 54 of the CrPC, identification of the person who has been arrested under Section 54 of the CrPC, health, and safety of the arrested person under Section 55 A of the CrPC, etc.

In Arnesh Kumar vs the State of Bihar, the Supreme Court expressed concern regarding the manner in which the arrests were taking place under Section 498-A of Indian Penal Code in regards to the matrimonial disputes. The apex court gave an instruction to all the States that police shall not mechanically resort to Section 41 of the CrPC in order to arrest individuals but shall employ the provision of notice under Section 41 A of the CrPC.

Sec 41 (1)(b) of CrPC states that if a person against whom a reasonable complaint has been registered or any kind of credible information has been received, or there is a reasonable suspicion that the person has committed a cognizable offense that is punishable with imprisonment for a term which is not less than seven years then a police officer has a right to arrest such person if the following conditions are satisfied:

• The police officer has a particular reason to believe that the person has committed a cognizable offense on the basis of a complaint, information, or suspicion.
• A police officer can make an arrest of a person if in his possession something is found which is suspected to be stolen property and who is suspected of having committed an offense with reference to such a thing.
• If a person obstructs a police officer in the execution of his duty, or escaped or has attempted to escape from lawful custody, then the police officer can arrest such person.
• A person who is reasonably suspected of being a deserter from any of the Armed Forces of the Union.

Right against illegal detention

In the case of Joginder Kumar v. State of Uttar Pradesh, the person who was the petitioner in the case was detained by the police officers and his detention and whereabouts were not informed to his family members for five days. The Supreme Court after this case where the police officers illegally detained a free citizen laid down the guidelines in order to govern the procedure of arrest of a person during the investigation.

An arrested person who is held in custody must be entitled to have a friend, relative or other person informed as far as is practicable that he has been arrested and also his whereabouts where he is being detained must be informed to them if he requests.

It is the duty of a police officer to inform the arrested person about this particular right when he is brought to the police station as soon as possible. It is also necessary to make an entry of the person who was informed of the arrest in the diary which is maintained by the police for this purpose.

In D.K. Basu v. State of West Bengal’s case, the Supreme Court laid down a detailed guideline that has to be followed by the central and state investigating agencies for the purpose of arrest and detention till legal provisions are made. It was also observed by the Court that any form of torture or cruel and degrading treatment, whether it occurs during interrogation, investigation or otherwise will fall under the ambit of Article 21 of the Constitution.

The procedure of law under CrPC in relation to FIR and search warrants

The provisions of CrPC takes away the right to personal liberty of the accused in various ways. The powers imposed upon the police are vast and unbridled. According to Section 154 of CrPC, the police have an absolute power to register First Information Report (FIR) suo moto or on information that is provided by a person against the accused. Based on such an FIR, the police have a right to enter into the property of the accused and conduct raids according to Section 94 of CrPC.

The police can search the property or even take possession of any property or article therein found which the police suspect to be stolen property or objectionable article to which this section applies. The personal liberty of an individual includes residing freely without any disturbances. The right of personal liberty of the accused gets violated by the procedure established by the Code of Criminal Procedure. 

The police have the right to enter into the property of the accused, conduct raids under Section 94 of the CrPC, seize documents found by the police under Section 102 of CrPC, and even freeze accounts of the accused in case of a cognizable offense. The police also have a right to seek a police remand from the court for the procedure of custodial interrogation of an accused under Section 167 of the CrPC. The procedure of custodial interrogation rests in the hands of the police as what happens at the police station is hardly in the realm of speculation.

Article 21 & Prisoner’s Rights

The protection of Article 21 is also available to the convicts who are in jail. The convicts should not be deprived of all the fundamental rights merely for the reason of conviction. A convict in jail is deprived of the fundamental freedom to move freely throughout the territory of India. A convict is entitled to all the other fundamental rights including the right that is guaranteed under Article 21 of the Constitution and he shall not be deprived such right except by a procedure established by law.

In Maneka Gandhi v. Union of India, the Supreme Court gave a new dimension to Article 21. The Court has interpreted Article 21 of the Constitution to have the widest possible amplitude. This case laid down a new constitutional and prison jurisprudence.

Conclusion

The concept of personal liberty is a constitutional commitment for which the principle of Criminal Law revolves around Natural Justice. According to it, even the accused person has  to be treated with human treatment. The accused person also has certain rights under the Indian Constitution. An accused person has certain rights and such rights should not be violated even during the course of any investigation; inquiry or trial of offense with which he is charged, and he should be protected against arbitrary or illegal arrest.

When India became a republic, the citizens of India gave themselves the Indian Constitution. The Preamble recognizes and mentions the personal liberty of citizens as liberty of ‘thought, expression, belief, faith, and worship’. The most important aspects of ‘personal liberty’ are found to be conspicuously absent in the Preamble. The makers of the Constitution have put ‘personal liberty’ in Article 21 i.e. in Part III of the Fundamental of our Constitution. In a free country like India, the Constitution guarantees the citizen certain fundamental rights. 

The right to personal liberty is one of the most important fundamental rights. It is high time that the legislature should take steps in order to amend the criminal code so that arrest made by police cannot be made without obtaining a warrant from the jurisdictional magistrate. It is a matter of grave concern that we are moving towards the era which goes according to police.

A grant of bail of the accused largely depends on the nature of accusation that is made by the police in the FIR and according to the quantum of punishment under the Section of offense. It is also often seen that the accusations are exaggerated in the FIRs by the police and bail is rejected based on such FIRs. It is a fact that almost two-thirds of the total number of prisoners who lodged in jail are under-trials. The legislature needs to take the matter of personal liberty of the citizens more seriously and make appropriate amendments in order to improve the present scenario.