Parts of Delhi witnessed heightened security on October 10 as protesters gathered to demand the resignation of Chief Election Commissioner over alleged irregularities in electoral rolls. Several protesters reportedly faced difficulties reaching , where the demonstration was planned, amid police barricades and restrictions.
Delhi Police detained several opposition leaders, including former chief ministers Arvind Kejriwal, Mamata Banerjee and Pinarayi Vijayan, along with CJP leaders , Saurav Das and Ashutosh Ranka. Dhruv Rathee and All India Students’ Association (AISA) president Neha Bora were also reportedly detained.
According to the Press Trust of India (PTI), more than 7,000 people, including lawyers and students, had been detained while attempting to reach the protest site. Actor was also detained during a demonstration in Mumbai.
The detentions have raised questions about the legal powers of the police during protests, including when they can take someone into custody without a warrant and what safeguards apply.
Criminal lawyer Swagata Biswas of Metropolitan Magistrate Court at Kolkata tells Live Mint, “A warrant is not always required to detain a person.”
An absence of a warrant does not mean that the police can detain anyone without a lawful basis. The legality of an arrest or detention depends on the provision invoked and the circumstances of the case.
Under Section 170 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the police can arrest a person without a warrant or an order from a magistrate if they believe a plan to commit a cognisable offence and that the offence cannot otherwise be prevented. The provision also limits detention under this power to 24 hours unless further detention is authorised under another applicable law.
Preventive detention refers to the confinement of a person based on a reasonable apprehension that they may engage in an activity that threatens public order or security. Under Section 170 of the BNSS, the police must have the legally required basis to believe that an offence is being planned or might happen and that arrest is necessary to prevent it.
However, it doesn’t give the police an unrestricted power to arrest people merely on suspicion. Whether a particular detention is lawful depends on the facts and the legal grounds relied upon by the authorities.
Preventive detention that allows authorities to hold a person to prevent anticipated threats is not the same as an ordinary arrest. An arrest is generally associated with an alleged offence and the subsequent legal process.
Laws providing for preventive detention include the National Security Act (NSA), 1980; the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974; the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980; and the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.
Article 22 of the Constitution of India provides safeguards relating to arrest and detention.
