Author: Shristhi Verma
Arbitrary detention is violation of human rights and laws and no one shall be subjected to it as given under Universal Declaration of Human Rights. But in the recent times, many countries have adopted the method to detain people on the reasons which are arbitrary in nature. Even in India, we have seen cases like Bhima-Koregoan incident where people were arrested for the reasons which are arbitrary in nature. People who have been detained are subject to physical and mental torture, degrade and inhuman treatment. The need for the recognition and understanding of the international and national laws regarding this issue is very important. Many important agencies like Human Right committee are working for the prevention of human violation and extend their help to people who subject to ill-treatment in detention. Also, it is also important to know that how Indian Laws like article 22 tries to provide rights to a detained person. But it is also necessary to understand what certain problems these laws have and what solutions are required to resolve the same.
Arbitrary detention is the violation of right to liberty. It is defined as arrest and deprivation of right to liberty. Arbitrary detention is unlawful, unjust, inappropriate as detention is not only illegal, that it is does not only violates the national and international laws but it also violates the human rights as the people under arrest are deprived of the means to defend themselves from extrajudicial execution, enforced disappearances, torture and other cruel, inhuman or degrading treatment etc.
According to the United Nations of Human Rights, Office of High Commissioner(OHCHR), deprivation of liberty is arbitrary if falls into these five categories:-
Category I :- when there is no legal basis to justify the deprivation of liberty, that is when a person is kept under detention after the completion of their sentence or despite the law applicable to them.
Category II :- When the deprivation of liberty results from the violations of rights or freedom provided by the articles of the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights.
Category III:- the total and partial non-observance of the international norms relating to the rights to fair trial, which is given in the Universal Declaration of Human Rights and the international laws and treaties which are accepted by the States concerned, is of such a gravity as to give the depravation of liberty an arbitrary nature.
Category IV:- when asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial custody.
Category V :- A person is deprived of his liberty and is subject to violation of international laws due to reasons such as discrimination on the basis of birth, national, ethnic or social origin; language; religion; economic condition; political or other opinion; gender; sexual orientation; or disability or other status, and which aims towards or can result in ignoring the equality of human rights.
Why is Arbitrary Detention considered to be violation of Human Rights?
Arbitrary detention is said to be violation of human rights. When a person is arrested on the grounds which are unknown to him, he can be subjected to physical beatings, attacks, enforced disappearances, mental torture and harassment, unfair trials etc. This situation is seen from time to time in various countries for example, in India, when special status from Jammu and Kashmir was lifted, many politicians were arbitrarily detained and whoever questioned were given harsh treatment. At least 18 Journalists were physically attacked by police or summoned to police station. In the Bhima Koregaon incident, seven human rights activists were arrested by National Investigation Agency for their alleged involvement in violence in Bhima Koregaon incident. Those arrested were connected with marginalized groups and criticized the government. Most of the detainees were in poor health and were prisoned in the overcrowded prisons. Also, 9 students were arrested for protesting against Citizenship Amendment Act and after the intervention of UN Human Rights Organization, then the activists were released. One of them were three months pregnant at that time and those who were supporting Citizenship Amendment Act were given hate speeches yet ignored by the authorities. In Uttar Pradesh around 10 Muslims were killed under the law that UP government introduced which targets the intermarriage and alleged torture them.
Every person has a right to fair trial, yet even before COVID-19 Pandemic was declared and the whole nation lockdown was to be imposed, courts declared that due to public health issues the capacity of the cases for trial were reduced and only cases of utmost urgency were t be taken by the judges for trial. The concept of “utmost urgency cases” were not defined and no criteria was formed for it. Thus, many people who were detained did no get a chance to have fair trial.
In China, prominent HRDs and activists were arbitrarily detained after attending a private gathering in Xiamen, Fujian province and were subjected to enforce disappearances. 2 legal scholars were arrested for inciting subversion of state power and were not allowed to talk to family members and lawyers.
This is just a tip of ice of the grave situation we are facing. The Working of Arbitrary Detention reported that at least 171 detentions in 42 countries. 71 women were suspected of being sex workers and were physically and sexually assaulted while in custody.
International laws on Arbitrary Detention
In the definition of arbitrary detention, it was stated that one of the reasons why an arrest is said to be arbitrary when it violates the international laws and treaties which is ratified by many countries. Given below are the certain treaties and committees which work for the prevention of arbitrary detention and violation of human rights.
- International Covenant Civil and Political Rights :- The treaty came in 1966 and enforced in 1976. This treaty works for the protection of human rights. The article 9 of the treaty states the condition for when an arrest is arbitrary in nature.
- The grounds for the arrest are illegal.
- The victim was not informed of the reasons for the arrest.
- The procedural rights of the victim were not respected
- The victim was not brought before a judge within a reasonable amount of time.
- Universal Declaration of Human Rights :- This came in 1948 and adopted by UN General assembly and provides equal rights for all. The articles below mentioned explain briefly rights which a detained person has:-
- Article 3 of the UDHR provides that everyone has the right to liberty and security pf person.
- Article 5 provides No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
- Article 8 Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
- Article 9 provides No one shall be subjected to arbitrary arrest, detention or exile.
- Article 10 Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
- Article 11: – (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.
- Human rights committee:- this body is of independent experts which monitors the implementation of the International Covenant Civil and Political Rights. It says that any substantive grounds for arrest or detention must be prescribed by law and should be defined with sufficient precision to avoid overly broad or arbitrary interpretation or application. Also, a person should not be deprived of his/her liberty without such legal authorization is unlawful. The prolonged detention despite a judicial order of release or a valid amnesty is also unlawful.
- European court of human rights which is established in 1959 in France and given at least 10,000 judgements regarding violation of human rights and the judgements given by them are binding in nature.
The Indian Laws for the arrest of a person is formed in consonance with International Covenant of Civil and Political Rights and Universal declaration of Human Rights. Article 20, 21, 22 talks about the rights a detained person possess: –
Article 20 – 1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself.
Article 21 while provides the right of personal liberty i.e., no person shall be deprived of his life or personal liberty.
Article 22 which plays a vital role in providing rights which an arrested person has while being detained. It says that: – Protection against arrest and detention in certain cases
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate
In Indian law, preventive detention was given in Article 22 (3), (4), (5), (6), (7) and explain what rights a person when he/she is under the detention and on what grounds they are to be arrested i.e., Security of the State, Public Order, Foreign Affairs, Services essential to Community. In Article 22 it talks about that a person who is an enemy alien and arrested under any law providing for preventive detention. A person should not be detained longer than 3 months and after three months, if a person is still in custody, then he/she is need to present in front of Advisory Board and he should be informed about the grounds on which he/she is arrested and given a chance to present his case at earliest opportunity. He/she should be maximum be detained for six months and no longer that.
Other Indian Laws that focus on the unlawful and arbitrary detention is Section 50 of Code of Criminal Procedure which says that it is a duty of every police officer or any other person authorised to know the grounds of arrest. Also, Subclause (2) of article 22 is supported by Section 56 of CrPC which says that a person should be taken before the Magistrate after being arrested without any unnecessary delay.
Arbitrary detention is the unlawful detention and is also violates human rights that every individual possess. There are many international and national agencies which plays a vital role to prevent arbitrary detention and raise voice against such detentions. For example, when CAA protests were going on and the government arrested many activists, students arbitrary detain for criticising the law, the UN High Commissioner immediately call the Indian Government asking to release the detainees. This kind of international agencies involvement and the laws provide a pressure on the Government to improve the laws and hold the government accountable for mischief done by them. Yet, many a times we see that the Government tried to use the vague interpretations of certain laws and arrested people on the basis of those laws and detain for longer time. For example, a person is arrested by the police for criticising the government policies under the objection that they tried to “wage a war against country”. Therefore, even though there are laws which very expressly mentioned that no one shall be subjected to arbitrary detention yet what we need is an effective and strong implementation of the same and the strict punishment given to those who do not follow these laws. We need awareness about the same among the citizens, so that they participate more in the cause of prevention of arbitrary detention and create a pressure on Government to prevent them from detaining someone unlawfully and arbitrary.
- Trial International Organisation, ‘Arbitrary Detention’, https://trialinternational.org/topics-post/arbitrary-detention/
- Environment rights organisation, ‘right to freedom from arbitrary detention’, https://environment-rights.org/rights/right-to-freedom-from-arbitrary-detention/
- United Nations Human Rights Office of the High Commissioner (OHCHR), https://www.ohchr.org/EN/Issues/Detention/Pages/AboutArbitraryDetention.aspx
- United Nations Human Rights Office of the High Commissioner (OHCHR), 2020 Report of Working Group on Arbitrary Detention, https://www.ohchr.org/EN/Issues/Detention/Pages/2020ReportWGAD.aspx
- Amnesty International, India 2020, https://www.amnesty.org/en/countries/asia-and-the-pacific/india/report-india/
- Amnesty International, China 2020, https://www.amnesty.org/en/countries/asia-and-the-pacific/china/report-china/
- Preventive Detention, https://www.legalserviceindia.com/legal/article-751-preventive-detention.html
- Universal Declaration of Huma Rights,