arbitrary detention

1. ARBITRARY
DETENTION

2. WHAT IS ARBITRARY DETENTION?
 Arbitrary detention is the violation of the right to liberty. It is defined as the
arrest and deprivation of liberty of a person outside of the confines of
nationally recognized laws or international standards. International treaties
may be implored to guarantee the right to liberty if national laws protect the
individual in an incomplete or partial manner.
 Detention may be illegal without being arbitrary and vice-versa. Illegality
simply means that the law has not be complied with, whereas arbitrary refers
to the inappropriate, unjust, unforeseeable or disappropriate nature of
detention
 Arbitrary detention exposes the victim to more human rights violations since
they are deprived of means to defend themselves from extrajudicial execution,
enforced disappearances, torture and other cruel, inhuman or degrading
treatment, etc.
.

3. ARBITRARY DETENTION IN
INTERNATIONAL LAW
 The right to personal liberty is defined by Article 9 of the International
Covenant on Civil and Political Rights, which outlines the conditions that
render detention arbitrary, especially when:
 The grounds for the arrest are illegal
 The victim was not informed of the reasons for the arrest
 The procedural rights of the victim were not respected
 The victim was not brought before a judge within a reasonable amount of
time

4.  . The Working Group on Arbitrary Detention has defined five categories of cases in which
a detention or arrest could be considered arbitrary. These are:
 Category I: when it is clearly impossible to invoke any legal basis justifying the deprivation of
liberty.
 Category II: when the deprivation of liberty results from the exercise of the rights or freedoms
guaranteed by the Universal Declaration of Human Rights such as the freedom of opinion and
expression or freedom of assembly and association.
 Category III: when States violate the total or partial observance of the international norms
relating to the right to a fair trial, established in the Universal Declaration of Human Rights.
 Category IV: when asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy.
 Category V: when the deprivation of liberty constitutes a violation of international law for
reasons of discrimination based on birth; national, ethnic or social origin; language; religion;
economic condition; political or other opinion; gender; sexual orientation; or disability or
other status, and which aims towards or can result in ignoring the equality of human rights.

5. INTERNATIONAL LAWS RELATED TO
ARBITRARY ARREST
 Article 9 of the Universal Declaration of Human Rights states that ‘No one
shall be subjected to arbitrary arrest, detention or exile.’
 This right has also been recognised by the International Covenant on Civil
and Political Rights (ICCPR), in which Article 9 establishes that ‘Everyone has
the right to liberty and security of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be deprived of his liberty except on
such grounds and in accordance with such procedure as are established by
law.’
 At a regional level, the American Convention on Human Rights (Pact of San
Jose) states in Article the right to personal liberty which establishes no one
should be subject to arbitrary arrest or imprisonment, and the African Charter
on Human and Peoples´ Rights states in Article 6 the right to personal liberty
and protection from arbitrary arrest. This right is also recognized in the Arab
Charter on Human Rights and the ASEAN Human Rights Declaration.

6. INDIAN LAWS REGARDING
DETENTION
 Article 22 of Indian Constitution provides for the protection of the life
and personal liberty of individuals and lays down the procedure for
preventive detention. According to this article, no person can be detained
without being informed of the grounds for such detention, and no person
can be detained for more than three months without a judicial review
 Clause 2 of Article 22 requires the state to provide for a judicial review of
the detention within a period of five weeks from the date of detention
unless the individual is otherwise released earlier
.

7. Arrest Procedures and Treatment of
Detainees
 In cases other than those involving security risks, terrorism, or insurgency,
police may detain an individual without charge for up to 30 days, but an
arrested person must be brought before a judge within 24 hours of arrest..
 Arraignment of detainees must occur within 24 hours unless authorities
hold the suspect under a preventive detention law. The law allows police to
summon individuals for questioning, but it does not grant police prearrest
investigative detention authority.

8. INSTANCES OF ARBITRARY ARREST IN
INDIA
 On 9 March, Hidme Markam, a human rights activist from the Adivasi
Indigenous community, was arrested under the UAPA for highlighting
sexual violence against women by state security forces. On 8 April, various
UN Special Rapporteurs wrote to the Indian government questioning the
charges against her. The government refused to share the legal basis for
her arrest.
 On 21 September, Aakar Patel, a human rights activist and Chair of
Amnesty International India, was arrested and charged with “creating
communal disharmony” after tweeting about hostility towards the Ghanchi
Muslim community, including from the ruling BJP. The complaint was filed
by a sitting member of the legislative assembly who was affiliated to the
BJP.

9.  Hundreds of members of the Muslim Tablighi Jamaat movement, who were
arbitrarily arrested by 11 state governments for allegedly violating visa terms
and intentionally disregarding Covid-19 guidelines, were acquitted by the
courts. The court judgments called the prosecution “malicious” and held that
the state governments abused their power and tried to make “scapegoats” of
the accused.
 In September 2020 former Jawaharlal Nehru University student leader Umar
Khalid was arrested under the UAPA for making a speech during protests
against the Citizenship Amendment Act, 2019 (CAA). He remained in jail and
claimed prosecutors were delaying the start of his trial. In a related case, the
Delhi High Court ordered the release of student leaders Asif Iqbal Tanha,
Natasha Narwal, and Devangana Kalita in June. The three had been charged
under the UAPA for allegedly conspiring to incite the 2020 Delhi riots.