When detention becomes illegal: Key rulings and constitutional safeguards

The verdicts of courts often outline procedural lapses and administrative negligence as the reasons for instances of illegal detention which erode the principles of justice and fairness.

What is Illegal detention?

Illegal detention is the unlawful imprisonment or the unlawful deprivation of the right to liberty of a person. Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law.

What constitutes an illegal detention?

There are quite a few situations when a person can be said to be under illegal or unlawful detention.

Failure to inform grounds of arrest: If the authorities do not disclose the reasons for arrest or detention to the individual, it is considered unlawful.​

The Supreme Court, in Mihir Rajesh Shah v. state of Maharashtra and another, held that the grounds of arrest must be communicated in writing to the arrestee in the language he/she understands within a reasonable time and in any case at least two hours prior to production of the arrestee for remand proceedings before the magistrate. It further added that failure to comply would render the arrest and subsequent remand illegal and the person will be at liberty to be set free.

Detention beyond the prescribed period without judicial safeguard: Under Article 22(2), a person must be presented before a magistrate within 24 hours of arrest. When a person is not produced before a magistrate after being taken into police custody within the stipulated time of 24 hours, the act on behalf of the authority becomes violative of the constitutional provision.

The Supreme Court, in the case of ED v. Subhash Sharma, observed that the continuation of the person in custody without producing him before the nearest Magistrate within the stipulated time of 24 hours is completely illegal and it infringes fundamental rights under clause 2 of Article 22 of the Constitution.

Lack of hearing or opportunity to make representations: The detained individual must be given a chance to make representations against the detention, and the grounds must be disclosed.​

In Jaseela Shaji v. Union of India, the Supreme Court highlighted the rights of a detained person to make an effective representation against preventive detention. The court noted that the detenu has the right to be furnished with the grounds of detention along with the documents relied on for such detention. The court said that if there is failure or even delay in furnishing those documents, it would amount to denial of the right to make an effective representation under Article 22(5) of the Constitution.

Languishing in jail despite grant of bail: When a person has been legally granted bail but remains detained due to administrative delays, non-compliance by authorities, or other unjustified reasons, such detention is unlawful. Courts have recognised this as a violation of personal liberty and grounds for compensation or release.​

The Patna High Court in Neeraj Kumar v. State of Bihar termed the detention of the accused as illegal who was confined to jail despite getting bail.

While speaking to the Indian Express on the issue of illegal detention, criminal law expert advocate Soutik Banerjee said that illegal detention is a very broad term and encompasses all forms of detention by police or investigative authorities where the detention is without the authority of law.

He said, “This includes situations where a person is detained at a police station without any paperwork for arrest, or arrested and detained beyond 24 hours without production before a Magistrate, or even situations where a person has been granted bail but is not being released from custody on some pretext or the other.”

Advocate Banerjee also highlighted the untenable exercise of preventive detention powers while calling for a strict compliance of the statutory framework in place.

“Yet another aspect of illegal detention is untenable exercise of preventive detention powers. Such powers must be exercised in strict compliance of the statutory framework invoked against the detenue and must not violate the constitutional safeguards enshrined in Article 22,” Banerjee said.

Legal Remedy against Illegal Detention

In such instances of illegal detention, legal remedies should be exercised that enables the detenue to preserve the right to personal liberty guaranteed under Article 21 of the Constitution.

Advocate Banerjee highlighted that the constitutional remedy of habeas corpus can be availed against any form of illegal detention.

“Against any form of illegal detention, the constitutional remedy of habeas corpus shall lie, which can be filed before the jurisdictional High Court or even the Supreme Court,” he said.

Banerjee also suggested that instances of illegal detention can be avoided through proper legal representation of the persons whose remand is sought.

“Illegal detention at the ground level can be avoided by ensuring that there is proper legal representation provided to persons whose remand is sought by the investigative authority,” he said.

He further added that legal aid counsels should not treat remand hearings as routine procedural production of the accused before the court, but question the legitimacy of arrest, and challenge the bona fides of the remand request.