How to File a Writ Petition under Article 226 in the High Court for Challenging Unauthorized Arrest by State Police

Introduction

The Indian Constitution, a special document that outlines social and political rights, considers individual liberty as a sacred right and a key component of our democratic system.The Constitution safeguards the fundamental right against arrest and detention, which is outlined in Articles 21 and 22.Article 21 states that no person can be deprived of their life or personal liberty unless it is done according to a procedure established by law. Additionally, Article 22 provides protection for individuals who are arrested or detained by setting out the procedural rights they are entitled to.It also mandates that a person arrested must be informed of the reason for their arrest.Illegal arrests made by state police continue to occur frequently across India.

This article focuses on unauthorized arrests by the state police, explaining what these arrests mean and how an individual can seek release through a writ petition under Article 226 of the Indian Constitution.It is crucial for citizens to be aware of and understand their rights in such situations.

WHAT IS AN UNAUTHORIZED ARREST?

An unauthorized or illegal arrest is one that takes place without following the legal procedures required by law or is made without valid justification, which infringes upon the constitutional rights of the individual involved.

Such an arrest breaches the principle of the rule of law and not only puts an innocent citizen at risk of mistreatment or harassment but also causes mental distress, humiliation, and a violation of their human dignity.The Constitution offers a strong remedy to any individual whose fundamental rights or legal rights are violated by any authority, including the state police, by using the writ jurisdiction of the High Courts under Article 226 of the Constitution.High Courts in India have the authority to issue directions, orders, or writs to any authority, person, or body, including the state, to enforce rights under Part III of the Constitution or for other purposes.

The jurisdiction of the High Courts under Article 226 is broad and extensive, making it an effective tool for protecting citizens from the misuse of state power.This means that if an individual is unlawfully arrested, they can approach the relevant High Court for relief and to be released from illegal detention.Writs are the traditional remedy used to address cases of unauthorized detentions.Because there can be severe and irreversible harm to someone who is illegally detained, High Courts often prioritize cases involving violations of the right to liberty and may be inclined to grant temporary relief. This article provides an overview of how to file a writ petition under Article 226 in India if you are subjected to an unauthorized arrest by the state police.The guide covers important aspects such as the relevant laws governing arrests, the procedural requirements for filing a writ petition, necessary supporting documents, the powers of the High Court, landmark case laws, and precautions to take when you face an unauthorized arrest.

UNDERSTANDING ARTICLE 226

It is a bulwark against arbitrary action by the executive. The constitution of India lays down certain fundamental rights for the citizens of this country. Many of these fundamental rights are protected through article 32 of the Indian Constitution which makes provision for approaching the Supreme Court to protect such rights. But the framers of the Constitution knew the fact that people were not in a position to travel up to the Supreme Court to vindicate their rights in many circumstances and, as such, an additional avenue must be provided for safeguarding legal and constitutional rights within the jurisdiction of their respective states.

Accordingly article 226 was introduced. The article says: “Notwithstanding anything in this Constitution, every High Court shall have power, throughout the territories in relation to which it exercises its jurisdiction, to issue to any person or any authority, including in appropriate cases, any government, within those territories, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.” The article clearly gives extensive powers to the High Courts. A person who feels that some executive authority or government has acted contrary to law, may approach the High Court for remedy. Whereas Article 32 deals with fundamental rights only, Article 226 not only covers fundamental rights but also all other legal rights. Hence the scope of Article 226 is wider than that of Article 32 of the Constitution. The constitution-makers wanted the High Courts to be the protectors of legal rights of the individuals in their respective states. Therefore, when there is any abuse of power by an executive authority, when there is violation of a rule of law, when a body oversteps its jurisdiction, when it fails to do its statutory duty, when a public servant acts arbitrarily or in defiance of law, High Courts have been empowered to issue appropriate directions or orders.

The jurisdiction conferred by Article 226 is however discretionary and is to be exercised for enforcing legal or constitutional rights. Courts typically interfere when a personal liberty is threatened or curtailed in a way which is illegal or unconstitutional. In the case of illegal arrest by police authorities, Article 226 plays a very important role. Personal liberty is central to the constitutional frame and is guaranteed under Article 21 and 22. Illegal arrests usually are in contravention of these articles and the High Courts intervene immediately to restore personal liberty and freedom by calling upon the police to justify the legality of the arrest, to check whether procedures have been followed and to pass such directions as may be necessary for the enforcement of fundamental rights. The powers granted to High Courts under article 226 are indeed broad so that executive excess can be checked and controlled. As the Supreme Court and High Courts have emphasized, these powers are intended to be used for the enforcement of not just fundamental rights, but also any other legal or constitutional rights and it must be invoked whenever there is abuse of governmental or executive powers, be it to the prejudice of a fundamental right or a other right which the executive has a legal obligation to enforce or protect.

GUIDE TO FILING A WRIT PETITION UNDER ARTICLE 226- HOW TO GET RELIEF FOR UNLAWFUL ARREST – ALL YOU NEED TO KNOW

A writ petition requires preparation before you approach the Court. The procedures followed for filing the same in the High Courts might differ in their details, but the fundamental procedure is almost the same across different High Courts.

Here are the steps on how to file a writ petition under Article 226 of the Constitution:

Step 1: Seek Legal Assistance

First, consult an advocate who has a good knowledge of constitutional law or criminal law. Whenever there is an instance of illegal detention/arrest, an immediate intervention by the court is required. So, as soon as a person is arrested illegally, one should seek the legal guidance of an experienced lawyer.

Step 2: Gather Evidence and Documents

The aggrieved person, or anyone on their behalf (including the advocate), needs to gather all the necessary evidence and documents related to the illegal arrest, such as, any documents provided during arrest, details of the arresting officer and place of arrest.

Step 3: Draft the Writ Petition

A writ petition should be prepared under the supervision of the advocate. It should contain:

The name and particulars of the petitioner (person whose fundamental rights are being infringed upon, i.e. The arrested person).

The name of the respondents (such as the State Government, Police Commissioner, Superintendent of Police, or Investigating Officer who caused the illegal arrest).

The relevant facts explaining why the arrest is illegal.A description of the constitutional or legal provisions that are violated.The specific relief that is sought from the High Court (e.g., to release the person, to declare the arrest illegal, etc.)Facts need to be in chronological order. There should be no wild or unsupported allegations.

Step 4: Prepare the Affidavit

Generally, an affidavit, stating that the facts mentioned in the writ petition are true to the best of the knowledge and belief of the petitioner, must be attached with the petition.

Step 5: File the Writ Petition Before the High Court

The petition is filed before the registry of the concerned High Court. You would also need to pay the required court fee and follow the filing procedures set by that particular High Court.

Step 6: Urgent Listing

Since illegal detention directly impacts the fundamental right of liberty, a request to have the writ petition heard urgently can be made. In many cases, High Courts grant priority to such cases to provide immediate relief to the detained person.

Step 7: Hearing Before the Court

Once the case is listed for hearing, the High Court will consider the facts and arguments presented in the petition. It may also hear from the police authorities, seeking an explanation for the arrest. If the Court finds a case of prima facie illegal arrest and violation of constitutional rights, it may issue interim orders to release the detained person, produce them before the Court, or any other appropriate interim relief.

Step 8: Final Orders

After hearing the matter, if satisfied, the High Court can pass orders for the release of the person, declare the arrest illegal, award compensation for the illegal detention, and can even pass directions for departmental action against the erring officials.

 

Documents Required for Filing the Petition

The following documents are usually required during the time of filing of the writ petition:

• Identity Proof of the Petitioner.
• A Copy of the F.I.R (if any).
• Arrest Memo.
• Medical reports regarding any injuries (if any).
• An Affidavit supporting the Petition.
• Copies of Complaints/Representations made to the authorities.
• Any photograph, video, CCTV footage or electronic evidence (if any).
• An authorization Letter in case of filing of the petition on behalf of a family member or friend. Proper documentary proof assists the Court in adjudicating upon the validity of an arrest in a better manner.

KEY SUPREME COURT JUDGEMENT

D.K. Basu v. State of West Bengal (1997)

This landmark case came down with elaborate guidelines in relation to the circumstances of arrest and detention and also provided for preventive measures to prevent custodial violence and arbitrary exercise of power of the police. The Court found that safeguarding personal liberty is the most sacrosanct fundamental duty and the police are bound to take all necessary steps to prevent occurrence of torture, assault or death in custody and take steps for complying with mandatory provisions relating to arrest and detention.

Joginder Kumar v. State of Uttar Pradesh (1994)

The Supreme Court observed that every arrest is to be preceded by a justification. The law may have provided that police can arrest a person. However, that cannot be interpreted that the police may arrest a person at will.Arrest has to be based on necessity and it has to be a judicious discretion of the officer.

 

Action Steps you Should Take Prior to Filing a Writ Petition:

• Preserve all written documents and evidence
• Keep notes regarding the timeline and events of the incident.
• Go through a medical checkup if custodial violence was done on you.
• Share the details of the arrest with your family members.
• Refrain from giving false or inflated information to the police or legal authorities.
• Do not delay the process of filling the Writ petition, since delays often impact the request.

CONCLUSION

One of the potent constitutional remedies to prevent unlawful arrests and detention of an individual by the State Police force under Constitution of India lies with Article 226 of the Constitution of India. Article 226 reinforces the constitutional spirit towards rule of law, accountability of public authorities and fundamental rights of an individual by confering wide writ jurisdiction on the High Courts which act as the ‘watchful sentinels of liberty’. An unlawful arrest can also be considered as the contravention of Article 21 and 22 of the Constitution which represents fairness, justice and due process in our constitutional setup.

Henceforth, through Article 226 of the Constitution of India a writ petition to quash an unauthorized arrest and order release of the detenu on bail with compensation (where there is loss of liberty and suffering) is a potent constitutional remedy. Every citizen must be mindful of constitutional protection against the arbitrary arrests and detentions, hence, every citizen should have proper awareness about constitutional protection against such violations. Therefore, if an arbitrary, illegal and wrongful arrest and detention has been done the recourse of writ petition under Article 226 can certainly be resorted. The writ under Article 226 offers more power to the High Court in granting appropriate relief in the case. The Constitution is supremacy, Article 226 thus empowers the High Courts to protect the liberty of an individual.

Common Questions(FAQ)

Who can file this Petition?

The family member of the arrested, close relative, spouse, parent, even a friend can directly approach the High Court in this regard when the arrested individual themselves cannot do so.

 

Can the applicant claim for compensation?

Yes, in several cases of unlawful arrest, illegal detention or mistreatment during custody, compensation has been ordered by Constitutional Courts.

 

Does a Writ Petition cost money?

The Court fees charged is minimum but legal costs vary in accordance with the lawyer chosen and the merits of case.

 

Whether a writ Petition can be filed even if there an FIR?

Yes. Even if there is registration of an FIR, the constitutional rights cannot be infringed upon. Hence a writ petition can be filed if the arrest or detention itself is unlawful/arbitrary.

 

When would the High Court hear a Petition like this?

Usually as it pertains to personal liberty, the High Court tends to hear petitions related to unlawful detention and arrest urgently.

REFERENCES

• Constitution of India, 1950 – Article 21, 22 and 226. Bharatiya Nagarik Suraksha Sanhita, 2023 (Act No. 46 of 2023). India Code
• D.K Basu vs. State of West Bengal, (1997) 1 SCC 416.
•  Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260. Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.
• M.P.Jain, Indian Constitutional Law (9^th ed., LexisNexis, 2024).
• D.D.Basu, Introduction to the Constitution of India (Latest Edition).
• V.N.Shukla, Constitution of India (Eastern Book Company, Latest Edition).
• India Code – Bharatiya Nagarik Suraksha Sanhita, 2023 India Code National Judicial Academy – Constitutional Remedies under Criminal Justice System nja.gov.in