Media365
3 min readSep 23, 2026 10:32 AM IST
First published on: Sep 23, 2026 at 06:05 AM IST
On Monday, the Supreme Court invoked Article 22 (1) to affirm that an arrested person kept in the dark about the grounds of arrest was entitled to immediate release. It reiterated that communicating the reasons for arrest in writing and in a language the arrestee understands is “non-negotiable”, and that it applies “across the spectrum, including offences under the BNS or under special enactments”. Ruling that probing agencies cannot shrug off the breach of Article 22 (1), the Court observed that such an omission would amount to the violation of the accused’s fundamental rights. Its two-judge bench also laid down strict procedure for re-arresting such a person.
Although the gravamen of the decision by a bench headed by Justice Ujjal Bhuyan seems trite, it is worth repeating until it becomes second nature in every police station and trial court in the country: procedural due process is sacrosanct, and it is the duty of the state to ensure fairness. “Article 22(1) applies across the spectrum, including offences under the BNS or under special enactments. It is not statute-specific. It is not a mere formality or a matter of procedure. It is a mandatory binding constitutional safeguard. When there is violation of the Constitution, question of prejudice or demonstrable prejudice does not arise. The safeguards adumbrated in Article 22(1) are not mere procedural safeguards; these are fundamental principles which are required to be followed in the event liberty of a person is sought to be curtailed,” the court said.
In a series of significant judgments in the last three years, the apex court has consistently rejected the argument that the gravity of an offence could justify a departure from constitutional safeguards under Article 22(1). On Monday, too, the Court rejected the state’s argument that grave allegations must buy the police room to manoeuvre. Liberty, the Court held, does not become negotiable because the charge is serious. “Any attempt to encroach upon the fundamental rights guaranteed under Article 22(1) of the Constitution… would vitiate the process of arrest and remand. Such a fundamental right being sacrosanct, cannot be breached under any circumstances.” The latest ruling raises the bar for the state: An officer who violates the procedure must face a departmental inquiry; the case must be handed to a different officer, and any attempt to re-arrest the individual needs an endorsement by a superior officer and a magistrate’s independent satisfaction within a week. The bench also said the release after an unconstitutional arrest should not be treated as bail — the detention was illegal to begin with. This distinction is significant because bail can be revoked by the state, but an unconstitutional act, once established, cannot be undone by the same authority simply by issuing fresh paperwork.
The ruling sends a message to the executive that procedure is not mere paperwork. Its direction to high courts to award “suitable mandatory compensation” in case of violation of Article 22 is important because a finding of illegality cannot be an end in itself. The verdict recognises the harm caused and suffered and makes the state accountable for the unlawful action.
