Arrests cannot be spectacles of shame

When Justice Chandramauli Kumar Prasad, in the landmark ruling of Arnesh Kumar v. State of Bihar (2014), wrote that, “The police officer before arrest must put a question to himself: why arrest? Is it really required? What purpose will it serve? What object will it achieve? And only after these questions are addressed, the power of arrest needs to be exercised,” he could never have imagined that more than a decade later, police agencies across jurisdictions would celebrate arrests and humiliate the accused persons by posting their reels and photographs on social media.

Last month, Nashik Police made reels of accused persons, forcing them to chant slogans glorifying the district’s law enforcement. Recently, the Rajasthan High Court came down heavily on the police for posting photographs of arrestees on social media.

This attitude of the police stems from their entitled position within the criminal justice system, where they function as an extended arm of the State, upon whom lies the primary responsibility of prosecution and punishment. The police machinery often fails to realise that it is merely the first-line service provider entrusted with maintaining law and order, and that arrest and investigation only set the ground for a trial. They are neither a conclusive determination of guilt nor a dispensation of justice.

Both police and prosecuting agencies are often evaluated based on the number of arrests and convictions because the State’s interest lies in demonstrating punishment to create deterrence in the societal conscience, without realising that basic constitutional and human rights are left far behind in this unmindful pursuit.

The first casualty here is the presumption of innocence, a foundational principle of criminal jurisprudence. In India, this principle is protected through Articles 21 and 22 of the Constitution, which provide strong safeguards against arbitrary arrest, thereby turning arrest into a constitutional event rather than a mere mechanical police act.

However, when an accused person, immediately after arrest, is projected as a badge of honour for the police agency, this presumption collapses altogether. This becomes even more problematic in an adversarial criminal justice system like ours, where the police work exclusively for the prosecution and are under no obligation to search for evidence favourable to the accused.

In Imran Pratapgadhi v. State of Gujarat (2025), the Supreme Court stated that police officers ought to be sensitised about their constitutional duties and observed that if they are not adequately aware, the State must ensure that they are.

Procedures on paper

The law governing arrests specifies that police discretion, while making arrests in cognisable offences punishable with imprisonment of up to seven years, is not absolute. This is because the arrest curtails the liberty of an accused person who has not been proven guilty. However, the compulsory registration of FIRs in cognisable cases is often misused by the police, who treat such provisions as a licence to arrest. Through its judgment in Arnesh Kumar, the Court drew a clear distinction between the registration of an FIR and arrest, and clarified that the two must not be equated. The objective was to curb police high-handedness.

Through Lalita Kumari v. State of Uttar Pradesh (2014), the Court added another layer of protection to FIR registration by introducing the mechanism of a limited preliminary inquiry before the registration of an FIR, to weed out mala fide cases. A broader form of preliminary inquiry has now found statutory recognition under the Bharatiya Nagarik Suraksha Sanhita, 2023.

The second casualty is the compromise of the right of the accused to a fair trial. When accused persons are displayed on social media after arrest, often without even covering their faces, the Test Identification Parade (TIP), meant to corroborate a witness’s testimony during trial, becomes virtually meaningless.

Where a complainant lodges an FIR against a person with whom they were previously unacquainted, it becomes the duty of the
police, after making an arrest, to conduct a TIP before a Magistrate so that the complainant or victim can identify whether the arrestee is the one seen
at the scene of the crime. This exercise assures the investigating agency that the probe is proceeding in the correct direction.

Time and again, the courts have emphasised liberty’s primacy over arrest and the need for caution in exercising the power to arrest. Yet, we witness the celebration of arrests. Constitutional limitations within the criminal justice process exist to regulate State power even while pursuing truth and justice. The State, being the sole prosecuting authority, cannot afford to remain oblivious to the rights of the accused.

(The writer is a journalist currently pursuing LLM at the National Law
University, Delhi)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.