The Constitution of India under Article 21 guarantees the right of personal liberty to every person and must criminal advocates in bangalore not be deprived of such right except according to the procedure established by law. The issues such as the meaning and content of personal liberty and the nature and scope of the protection of ‘the procedure established the law were destined to be expounded by the Supreme Court through the judicial process.
The Supreme Court has been envisaged as the ultimate authority to interpret the Constitution as the Supreme Court is considered as the guardian of the Constitution and as it protects and provides the fundamental rights to people. Personal liberty of the citizens is a fundamental right under the Constitution of India and no one can take away this right except the State and according to the procedure established by law. In criminal law, it is seen that an accused faces the risk of losing his personal liberty at three different stages.
Right to live with human dignity
In the case of Maneka Gandhi v. Union of India, the Supreme Court gave a new dimension to Article 21 of the Constitution and observed that the right to life as a fundamental right of the citizens not merely includes the right of physical existence but also to live with human dignity.
Elaborating the same view, The Supreme Court in Francis Coralie v. Union Territory of Delhi elaborated the judgment of Maneka Gandhi’s case on Article 21 and observed that the right to life also includes the right to live with human dignity which includes the basic necessities of life such as adequate nutrition, clothing, and shelter over the head and facilities for reading writing and expressing oneself in diverse forms. Article 21 also includes within its ambit the right of citizens to freely move about and mix and mingle with other people.
The procedure of law needs to be fair and just
The Indian Constitution treats Article 21 as an important Fundamental Right of the citizens. The Right to life and liberty is given utmost importance and no one except the procedure of law can deprive an individual of his liberty. The procedure of law for that purpose needs to be fair and just.
The meaning of the word ‘law’ mentioned in Art. 21 does not merely mean law which has been enacted but incorporates the principle of natural justice so that law which can deprive a person of his life or personal liberty cannot be valid unless it incorporates the principle of fairness and reasonableness. The reasonableness of the law of preventive detention can be tested under Article 19 of the Indian Constitution.
In 1973, through the 41st Law Commission, Parliament made a provision for anticipatory bail. The purpose behind it was to avoid unnecessary arrests and harassment of individuals who were under arrest. It was seen before the 41st Law Commission that the personal liberty of individuals was infringed as per the procedure of law. The accused in India is said to be innocent until he is proven to be guilty. In order to protect the interests of the accused and safeguard his personal liberty, the Parliament made a provision for the anticipatory bail.
Right against Handcuffing
Handcuffing is prima facie inhuman in nature and over-harsh. It is violative of Article 21 of the Indian Constitution.
In the case of Prem Shankar v. Delhi Administration, the Supreme Court struck down the rules which stated that every person who is under-trial for a non-bailable offense punishable with more than three years imprisonment i.e. accused of a cognizable offense has to be routinely handcuffed. The Court observed that handcuffing should not only be resorted to when there is ‘clear and present danger of escape’ of the accused but also at times where there isn’t much danger of the accused to break out of the control of the police.
Arrest without a warrant
Section 41 of CrPC gives the right to a police officer to arrest any person without a warrant against whom some credible information has been received about the commission of a cognizable offense. The said provision has such a wide interpretation that it gives unbridled power to any police officer to make an arrest. Section 41 A of the CrPC states that a police officer at his own discretion may give notice of arrest to an accused where he feels.
In the case of Joginder Kumar vs State of Uttar Pradesh, the Supreme Court observed that the power of police officers to arrest without a warrant should be exercised only after a reasonable investigation has been conducted with regard to the person’s complicity in the crime. It is also important to understand whether there is a need to arrest or not.
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