<p>Despite repeated judicial pronouncements, the criminal jurisprudence governing arrest procedures in India continues to reflect elements of arbitrariness and inconsistency. Courts have consistently emphasised that deprivation of liberty, freedom, and dignity must be undertaken with utmost care, caution, and conscious application of mind. The Fundamental Rights guaranteed under Articles 14, 19, and 21 of the Constitution cannot be sacrificed even in grave or exceptional circumstances.</p>.<p>The recent Supreme Court decision denying bail to Umar Khalid and Sharjeel Imam in the 2020 Delhi riots conspiracy case has reignited debate on the application of the Unlawful Activities (Prevention) Act, 1967 (UAPA). Without entering into the merits of the case, it must be noted that while rejecting bail, the Court observed that delay in trial cannot be treated as a “trump card” for automatic release. Charges are yet to be framed, and the accused have undergone more than five years of pre-trial incarceration, raising serious concerns regarding the constitutional mandate of a speedy trial.</p>.Bengaluru: Legal opinion sought to resolve dispute over 120 acres of Kadugodi forest.<p>In Vernon Gonsalves v. State of Maharashtra, the Supreme Court underscored that even within the constraints of the UAPA, courts must undertake a meaningful judicial exercise to determine whether the alleged acts fall within the scope of the statute. Similarly, in Javed Gulam Nabi Sheikh v. State of Maharashtra, the Court held that if the State or prosecuting agency lacks the wherewithal to ensure a speedy trial under Article 21, it cannot oppose bail solely on the ground of the gravity of the offence. In Jalaluddin Khan v. Union of India, the Court reaffirmed that “bail is the rule and jail is the exception”.</p>.<p>The judiciary has also examined the issue of arrest, which confers wide discretionary powers upon the police. In the landmark judgment of Arnesh Kumar v. State of Bihar, the Supreme Court held that arrest should be an exception and not the rule, particularly for offences punishable with imprisonment of less than seven years. The Bombay High Court, in Chandrashekhar Bhimsen Naik v. State of Maharashtra, ruled that where an accused complies with a notice under Section 35(5) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), arrest is ordinarily unnecessary. Further, in Satender Kumar Antil v. CBI, the Supreme Court reiterated that the discretion to arrest must be exercised sparingly, guided by strict objectivity and necessity.</p>.<p>Procedural safeguards have also been reinforced in Purkayastha v. State, where the Court clarified that under the UAPA and Section 47 of the BNSS, it is mandatory to inform the accused of the specific “grounds” of the arrest, along with the right to seek bail.</p>.<p>More recently, on February 2, 2026, the Supreme Court upheld guidelines issued by the Telangana High Court, restraining the police from mechanically registering FIRs over harsh, offensive, or critical political speech on social media without conducting a preliminary inquiry. The Court clarified that criminal law may be invoked only when speech amounts to incitement to violence or poses a genuine threat to public order. This endorsement represents a vital safeguard against the misuse of arrest powers in cases involving political expression.</p>.<p>Overcrowded prisons</p>.<p>The broader context is reflected in India’s prison statistics. As of the end of 2023, India housed over 5.3 lakh prisoners across approximately 1,400 prisons, with an average occupancy rate of around 120%, down from 131.4% in 2022. This marginal improvement is largely attributable to efforts by the National Legal Services Authority (NALSA) and State Legal Services Authorities to identify undertrial prisoners eligible for release. The Supreme Court has urged subordinate courts to adopt a liberal approach in bail matters and directed district-level undertrial review committees to conduct quarterly prison visits to address cases of prolonged incarceration.</p>.<p>Disturbingly, nearly half of all undertrial prisoners are aged 18-30, and approximately 60% are either illiterate or educated below Class 10. The Supreme Court receives nearly 70,000 bail applications annually, many of which ought to be resolved by the subordinate courts. The present prison scenario starkly undermines the fundamental principle of “innocent until proven guilty”. As early as Joginder Kumar v. State of Uttar Pradesh, the Court observed that a significant percentage of arrests were unnecessary and unjustified.</p>.<p>There is, therefore, an urgent need to faithfully implement the safeguards laid down in judicial precedents and statutory provisions. A uniform, liberal, and conscientious approach to arrest and bail would not only alleviate prison overcrowding but also reaffirm the constitutional commitment to liberty and dignity. Mere accusation or suspicion must not become a justification for eroding the spirit of the Constitution, which places Fundamental Rights at its core.</p>.<p><em>(The writer is a former Director General of Police and former Chief Information Commissioner, Karnataka)</em></p>
<p>Despite repeated judicial pronouncements, the criminal jurisprudence governing arrest procedures in India continues to reflect elements of arbitrariness and inconsistency. Courts have consistently emphasised that deprivation of liberty, freedom, and dignity must be undertaken with utmost care, caution, and conscious application of mind. The Fundamental Rights guaranteed under Articles 14, 19, and 21 of the Constitution cannot be sacrificed even in grave or exceptional circumstances.</p>.<p>The recent Supreme Court decision denying bail to Umar Khalid and Sharjeel Imam in the 2020 Delhi riots conspiracy case has reignited debate on the application of the Unlawful Activities (Prevention) Act, 1967 (UAPA). Without entering into the merits of the case, it must be noted that while rejecting bail, the Court observed that delay in trial cannot be treated as a “trump card” for automatic release. Charges are yet to be framed, and the accused have undergone more than five years of pre-trial incarceration, raising serious concerns regarding the constitutional mandate of a speedy trial.</p>.Bengaluru: Legal opinion sought to resolve dispute over 120 acres of Kadugodi forest.<p>In Vernon Gonsalves v. State of Maharashtra, the Supreme Court underscored that even within the constraints of the UAPA, courts must undertake a meaningful judicial exercise to determine whether the alleged acts fall within the scope of the statute. Similarly, in Javed Gulam Nabi Sheikh v. State of Maharashtra, the Court held that if the State or prosecuting agency lacks the wherewithal to ensure a speedy trial under Article 21, it cannot oppose bail solely on the ground of the gravity of the offence. In Jalaluddin Khan v. Union of India, the Court reaffirmed that “bail is the rule and jail is the exception”.</p>.<p>The judiciary has also examined the issue of arrest, which confers wide discretionary powers upon the police. In the landmark judgment of Arnesh Kumar v. State of Bihar, the Supreme Court held that arrest should be an exception and not the rule, particularly for offences punishable with imprisonment of less than seven years. The Bombay High Court, in Chandrashekhar Bhimsen Naik v. State of Maharashtra, ruled that where an accused complies with a notice under Section 35(5) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), arrest is ordinarily unnecessary. Further, in Satender Kumar Antil v. CBI, the Supreme Court reiterated that the discretion to arrest must be exercised sparingly, guided by strict objectivity and necessity.</p>.<p>Procedural safeguards have also been reinforced in Purkayastha v. State, where the Court clarified that under the UAPA and Section 47 of the BNSS, it is mandatory to inform the accused of the specific “grounds” of the arrest, along with the right to seek bail.</p>.<p>More recently, on February 2, 2026, the Supreme Court upheld guidelines issued by the Telangana High Court, restraining the police from mechanically registering FIRs over harsh, offensive, or critical political speech on social media without conducting a preliminary inquiry. The Court clarified that criminal law may be invoked only when speech amounts to incitement to violence or poses a genuine threat to public order. This endorsement represents a vital safeguard against the misuse of arrest powers in cases involving political expression.</p>.<p>Overcrowded prisons</p>.<p>The broader context is reflected in India’s prison statistics. As of the end of 2023, India housed over 5.3 lakh prisoners across approximately 1,400 prisons, with an average occupancy rate of around 120%, down from 131.4% in 2022. This marginal improvement is largely attributable to efforts by the National Legal Services Authority (NALSA) and State Legal Services Authorities to identify undertrial prisoners eligible for release. The Supreme Court has urged subordinate courts to adopt a liberal approach in bail matters and directed district-level undertrial review committees to conduct quarterly prison visits to address cases of prolonged incarceration.</p>.<p>Disturbingly, nearly half of all undertrial prisoners are aged 18-30, and approximately 60% are either illiterate or educated below Class 10. The Supreme Court receives nearly 70,000 bail applications annually, many of which ought to be resolved by the subordinate courts. The present prison scenario starkly undermines the fundamental principle of “innocent until proven guilty”. As early as Joginder Kumar v. State of Uttar Pradesh, the Court observed that a significant percentage of arrests were unnecessary and unjustified.</p>.<p>There is, therefore, an urgent need to faithfully implement the safeguards laid down in judicial precedents and statutory provisions. A uniform, liberal, and conscientious approach to arrest and bail would not only alleviate prison overcrowding but also reaffirm the constitutional commitment to liberty and dignity. Mere accusation or suspicion must not become a justification for eroding the spirit of the Constitution, which places Fundamental Rights at its core.</p>.<p><em>(The writer is a former Director General of Police and former Chief Information Commissioner, Karnataka)</em></p>
