Report No. 268
C. Right to Liberty, Security and freedom from arbitrary detention
2.16 The UDHR45 along with ICCPR in Article 9(1) echoes the fundamental rights to liberty, security and protection against arbitrary detention. By virtue of this fundamental right the state is placed under an obligation to protect and preserve the liberty and the security of the citizens against arbitrary arrest and detention. In order for the detention to be lawful and not arbitrary, it must be consistent with the substantive rules of national and international laws as well as the principles and guidelines preserving fundamental rights.
2.17 The Human Rights Committee (hereinafter HRC) in Albert Womah Mukong v. Cameroon46, held that custody pursuant to lawful arrest must always be lawful, reasonable and non-arbitrary. Further it must be necessary in all the circumstances e.g. to prevent flight, interference with the evidence or the recurrence of crime. Pre-trial detention has been found to be arbitrary, inter alia, where no charges have been laid, when the duration of detention is indefinite or becomes excessive, detention is applied automatically or there is no possibility of bail and if the pre-trial detention is set according to the length of the potential sentence.47 Similarly, the ECHR uses a balancing test to review the detention or remand of individuals. Continued detention can be justified only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty.48
2.18 The Courts have also found that detention will be found to be justified only if it was necessary in pursuit of a legitimate grounds such as, failure to attend trial; interference with evidence or witnesses, obstruction of justice; risk of committing an offence while on bail; be at harm or risk to oneself or others; preventing the disruption of public order; reasonable suspicion of the committal of the crime alleged against the accused; and gravity of the offence. The U.S Supreme Court in Salerno (supra) has upheld that pre-trial detention places a high threshold for the provision to come into effect and is asserted on the presumption that the government has already met the burden of confirming the "dangerousness" with conclusive and unambiguous evidence.
2.19 The right to liberty and right against arbitrary detention is found in UN Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, particularly in principle nos. 9, 12, 13 and 36 (2) and in rule 3 of United Nations Standard Minimum Rule for Non-custodial measures (The Tokyo Rules).
2.20 In Maneka Gandhi v. Union of India,49 it was held that the procedure under Article 21 must be just, fair and equitable. Before a person is deprived of his life and personal liberty, the procedure established by law must be strictly followed, and must not be departed from to the disadvantage of the person affected.50 In the case of Joginder Kumar v. State of Uttar Pradesh,51 the Supreme Court has given directions on the rights of the arrested persons in the light of Articles 21 and 22. Similarly, in Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh,52 Justice V.R. Krishna Iyer observed that refusing bail deprives a person of 'personal liberty' guaranteed under Article 21. Granting bail is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community.
In Rajesh Ranjan Yadav v. C.B.I.53 court remarked that while Article 21 is of great importance, a balance must be struck between the right of liberty of the person accused of an offence and the interest of the society.54 No right can be absolute and reasonable restrictions can be placed on the exercise of the rights. The grant of bail due to prolonged incarceration cannot be said to be an absolute rule because the grounds of bail must depend upon the contextual facts and circumstances.
2.21 The Supreme Court has clarified in Kartar Singh v. State of Punjab55, that when the designated court under TADA refuses bail, it would not take away the power of the High Courts to consider an application for bail under Article 226 of the constitution. It further held that:
Section 20 (7) of the TADA Act excluding the application of Section 438 of the Code of Criminal Procedure in relation to any case under the Act and the rules made thereunder cannot be said to have deprived the personal liberty of a person as enshrined in article 21 of the constitution.
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