No Valid Reason For The Delhi Police To Arrest Ashwini Kumar Upadhyay
No Valid Reason for the Delhi Police to Arrest Ashwini Kumar Upadhyay
🔹 Background Context:
In incidents where police arrest a person without following due process, especially in cases involving lawyers, activists, or political figures like Ashwini Kumar Upadhyay, the legality of the arrest must be measured against constitutional protections, statutory safeguards, and judicial precedents.
If the arrest lacks reasonable justification, does not follow proper procedure, or is done with malicious intent, it is considered illegal, arbitrary, and a violation of fundamental rights.
🔹 Legal Framework Governing Arrests in India:
1. Article 21 of the Constitution of India
Guarantees the Right to Life and Personal Liberty – No person shall be deprived of his life or personal liberty except according to procedure established by law.
This means:
Arrest must follow legal procedure,
No arbitrary detention is allowed.
2. Section 41, CrPC (Amended by the 2009 Amendment Act)
Lays down the conditions under which a person can be arrested without a warrant.
Police cannot arrest a person automatically for offences punishable up to 7 years unless:
There is a credible reason to believe that the person committed the offence, and
Arrest is necessary for one or more of the reasons under Section 41(1)(b)(ii), such as:
Preventing further offence,
Proper investigation,
Preventing tampering of evidence,
Preventing inducement/threat to witnesses, etc.
🔹 Why Arrest of Ashwini Kumar Upadhyay Could Be Invalid (General Legal Analysis):
Assuming his arrest was connected to organizing a protest, speech, or peaceful assembly, here’s why the arrest may be illegal or unwarranted:
✅ 1. Violation of Section 41A CrPC – Notice Before Arrest
Section 41A CrPC requires that:
For offences where arrest is not required, police must issue a notice of appearance, not arrest immediately.
➡️ If no notice was given, and no grounds of necessity for arrest were recorded in writing, the arrest is illegal.
✅ 2. Arrest Without Proper Justification
Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273:
"Police officers must not arrest accused unnecessarily and magistrates must not authorize detention casually."
➡️ Held: Arrest is not to be made mechanically, especially in non-heinous offences.
Application: If the case did not involve violence or threat to public order, arresting Ashwini Upadhyay would violate this ruling.
✅ 3. Violation of D.K. Basu Guidelines, (1997) 1 SCC 416
Supreme Court laid down safeguards against arbitrary arrests:
Police must record the grounds of arrest,
Inform a friend/relative,
Medical checkup, and
Right to legal counsel.
➡️ If these were not followed, the arrest is unconstitutional.
✅ 4. No Evidence of Mens Rea or Criminal Intent
In peaceful protests or public speeches, unless:
There is clear instigation to violence, or
Speech amounts to hate speech as per SC judgments,
➡️ Mere presence or participation is not enough for arrest.
See:
Balwant Singh v. State of Punjab, (1995) 3 SCC 214
Slogans raised post-Indira Gandhi’s assassination didn’t amount to sedition or breach of peace.
✅ 5. Violation of Fundamental Rights – Article 19(1)(a) & (b)
Ashwini Kumar Upadhyay, as a citizen, has the right to:
Freedom of speech and expression, and
Right to assemble peacefully without arms.
➡️ Supreme Court in Mazdoor Kisan Shakti Sangathan v. Union of India, (2018) 17 SCC 324
Peaceful protest is a constitutional right. Arresting someone only for protesting violates Article 19.
✅ 6. Malicious or Political Arrests are Abuse of Power
Court’s Stand:
If arrest appears to be:
Politically motivated, or
Intended to suppress dissent,
➡️ It amounts to abuse of process, and is liable to be struck down under Section 482 CrPC.
Case Law:
State of Bihar v. P.P. Sharma, 1992 Supp (1) SCC 222
“Courts must ensure that criminal law is not used as a tool for vendetta.”
🔹 Conclusion:
Based on constitutional protections and landmark judgments, an arrest like that of Ashwini Kumar Upadhyay—without due process, without necessity, or for exercising fundamental rights—would be:
Illegal under CrPC,
Unconstitutional under Articles 21 and 19, and
An abuse of state power.
📌 Summary of Legal Grounds Against Such Arrest:
| Legal Provision / Case | Principle | Application |
|---|---|---|
| Art. 21 – Right to Life | Arrest must follow fair procedure | Arbitrary arrest violates liberty |
| Section 41A CrPC | Notice before arrest in minor offences | Mandatory before arrest |
| Arnesh Kumar (2014) | No automatic arrest | Arrest must be justified |
| D.K. Basu (1997) | Arrest guidelines | Must be strictly followed |
| Balwant Singh (1995) | No punishment for non-violent speech | Peaceful speech ≠ crime |
| Mazdoor Kisan Shakti Sangathan (2018) | Right to protest | Arresting for protest is unconstitutional |
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