Author:  Sri Dhirendra Newar

 Judicial Officer,

 Assam Judicial Service.

Mr. Abhijit just got released from jail on default bail upon expiry of statutory period. However, what upset him more is not spending ninety days behind the bar, but because of the fact that the last date for filling up the form for UPSC examination got over in the meantime, meaning thereby a dream just got shattered for him. From jail to dock to jail, from production to hearing, from one date to another, this had been his life during that period.

But why? For what fault of him? Abhijit did not know the reason why he was behind the bar for this period. As he remembers, it was a cozy Sunday, he was still sleeping late in that morning. Suddenly a group of police personnel visited his home and started enquiring about him. On being asked why, Abhijit was pushed into the police van and the next moment he was behind the bar.

Someone must have been telling lies about Josef K., he knew he had done nothing wrong but, one morning, he was arrested…"And why am I under arrest?" he then asked. "That's something we're not allowed to tell you”. Abhijit finds so similarity of this story running through The Trial. “How did Kafka manifest my situation today centuries back in his book?”, Abhijit wondered.

“May be that’s right. May be that’s something the policemen are not allowed to tell the accused. May be the arrestees are supposed to know by themselves why they are arrested for?” Abhijit has been poured into these thoughts while he would spend sleepless nights in the jail. This guilt of wrongdoing is existential. Sometimes guilt exists not because of the actual wrongdoing, but because of the human condition itself. We feel guilty simply for existing in an incomprehensible world.

"And you sit quietly here while you've got a criminal trial round your neck?" shouted K’s uncle, getting ever louder. "The more calm I am, the better it will be for the outcome," said K. in a tired voice, "don't worry." What could Abhijit answer to those questions of K’s Uncle in The Trial. He is also as calmer as Mr. Josef K. was, hoping for a better outcome, consoling himself not to worry about the future.

Isn’t it so when there is an arrest? Aren't the arrestees be kept in dark about their arrest, just like Josef K. and Mr. Abhijit? The answer is, “No, it is not”.

For any law-abiding citizen, a situation like that of Mr. Abhijit would be terrifying in a democracy like ours, where personal liberty is not just sacred, but constitutionally guaranteed. Such arbitrary actions shouldn't just feel wrong, they are wrong, and at the heart of this protection lies a fundamental right enshrined in our Constitution, the right to protection against arbitrary arrest and detention.

The Constitution of India, under Article 22(1), provides, “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.” The Constitution of India not only mandates the right of the arrestee to be informed of the grounds of his arrest but it also gives the arrested person the right to consult and be defended by a legal practitioner of their choice.

Under the backdrop of this law of the land, over the years, the Indian judiciary has also repeatedly reminded law enforcement agencies that this isn’t a procedural nicety, rather it’s a constitutional mandate. In Joginder Kumar v. State of U.P. (1994), the Court expressed serious concern about arbitrary arrests. It held that no arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. There must be valid justification and the person and the relatives must be informed of it. The court observed, “An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained…. an entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.”

More recently, the Hon’ble Supreme Court in Vihaan Kumar v. State of Haryana and Another (2025) declared that merely telling the family or giving a vague reason is not enough. The arrested person must be informed directly, in a language they understand and in clear terms. While holding the arrest of the appellant as illegal on account of failure to communicate the grounds of arrest to the appellant as mandated by Article 22(1) of the Constitution, the court observed, “The information of the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts constituting the grounds is imparted and communicated to the arrested person effectively in the language which he understands.” The Court noted that arrest without communication of grounds is unconstitutional and violates both Article 22(1) and the principle of fair procedure under Article 21.

Similarly, in Prabir Purkayastha v. State (NCT of Delhi) (2024), the Court drew a crucial distinction between “reasons for arrest” and “grounds of arrest.” While reasons could be general or contextual, grounds must relate specifically to the individual’s actions. As per the court itself, “there is a significant difference in the phrase ‘reasons for arrest’ and ‘grounds of arrest’. The ‘reasons for arrest’ as indicated in the arrest memo are purely formal parameters… whereas the ‘grounds of arrest’ would be required to contain all such details in hand of the Investigating Officer which necessitated the arrest of the accused.” The failure to communicate these grounds was held to be a serious breach of fundamental rights. The court held, “Hence, we have no hesitation in reiterating that the requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested in connection with an offence or a person placed under preventive detention as provided under Articles 22(1) and 22 (5) of the Constitution of India is sacrosanct and cannot be breached under any situation. Non-compliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal, as the case may be.”

Coming back again, consider the case of Mr. Abhijit, who was picked up by police during a routine visit to his home and instead of being informed of any ground for his apprehension, he later found himself booked under multiple serious offences. Months passed behind bars before he could even grasp the details of the case. Unfortunately, such stories aren’t rare. Despite clear laws and binding judgments, the actual experience of many arrested individuals is disheartening. In police stations across the country, arrest often happens first, explanations come much later, if at all. Many are picked up under broad terms like "suspicion" or "involvement in a crime" without any concrete details of the grounds of arrests being furnished to them.

For someone from a marginalized background or with little legal awareness, this silence can be terrifying and disempowering. They may not know their rights, may not have immediate access to legal help and may not be told when they’ll see a magistrate. This systemic silence and arbitrary actions lead to fear, helplessness and often abuse.

The right to be informed of the grounds of arrest is not a technicality, rather it is a mandate of law. It is the very premise of fair trial. It ensures that the state’s immense power to detain and investigate does not become a tool of oppression. It protects the dignity of the individual, especially in their most vulnerable moment.

Our Constitution promises liberty not only to the powerful or the well-informed, but to every person, rich or poor, educated or not, urban or rural. And at the core of that promise is the idea that no one should be left in the dark about why their freedom is being taken away.

In the end, knowing is power. Kafka’s Josef K. perished without ever knowing the crime charged against him. But in a constitutional democracy like ours, the citizen’s right to know must always outweigh the state's urge to act without explanation. Enforcing this right isn't just about compliance, it's about safeguarding dignity of individual, fairness in trial and trust in the rule of law.

(N.B.: Names, characters, places and incidents either are products of the author's imagination or are used fictitiously).

References:

1. Great Works of Franz Kafka, 2^nd Impression 2016, Lexicon Books, New Delhi.

2. M.P. Jain, Indian Constitutional Law, 8th ed. (LexisNexis, Nov.2022).

3. The Constitution of India, Art. 21, Art. 22(1).

4. Bharatiya Nagarik Suraksha Sanhita, 2023, S. 47.

5. Joginder Kumar v. State of U.P., (1994) 4 SCC 260.

6. Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254

7. Vihaan Kumar v. State of Haryana and Another, 2025 SCC OnLine SC 269.

8. https://www.livelaw.in.