Grounds Of Arrest: The Supreme Court's Rule Must Be Followed By The Police On The Ground
Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Author of Cyber Scams in India, Digital Arrest, The Money Trap and The Human Hack
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By Sunil Garodia
First publised on 2026-10-02 08:14:10
About the Author
Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Author of Cyber Scams in India, Digital Arrest, The Money Trap and The Human Hack
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The Supreme Court's ruling in Jaskaran Jeet Singh Deol v. State of Punjab will not by itself end arrests without written grounds. It can shrink them. But that depends on enforcement moving from the Supreme Court to the Magistrate's table and the police station. The reason for caution is found in the judgment's own facts. The appellant was arrested on May 17, 2026. That was more than six months after Mihir Rajesh Shah (Mihir) laid down the mandatory written-ground requirement across statutes, and more than two and a half years after Pankaj Bansal. The rule was settled. The practice was not.
The direction for departmental proceedings gives the judgment a potentially important deterrent mechanism. Police conduct changes when the cost falls on the individual officer. Here the investigating officer was suspended and the SHO was removed from his post and transferred to the Police Lines. Departmental proceedings against both were instituted. But deterrence depends on certainty, not severity. If action follows only in the rare case that reaches the Supreme Court, an officer in a district thana may conclude that the risk is remote. The judgment answers this with a procedure. Where an accused is released for violation of Article 22(1), the superior authority must hand the investigation to another officer and direct a departmental inquiry. An adverse finding leads to departmental action, including an entry in the officer's service book. A violation now sets off a chain of consequences. It works only if it becomes routine, with written grounds as a fixed part of the arrest process and supervisory verification before the accused is produced before the Magistrate.
Lower courts are the second test. The Magistrate in this case did what the Constitution requires. He found that no written grounds were furnished and ordered release. That is the model. But the picture below the Supreme Court is already uneven. Some High Court decisions have read the word "henceforth" in Mihir as making the written-ground procedure prospective from November 6, 2025. The Orissa High Court has spoken in both directions. In Bikram Panda, it held that the constitutional duty to communicate grounds did not begin with Mihir, which only crystallised a uniform written procedure. Other Orissa decisions have treated that procedure as prospective.
The Allahabad High Court's Neeraj judgment shows another fault line. The State argued that four recent Supreme Court decisions, Pankaj Bansal, Prabir Purkayastha, Vihaan Kumar and Mihir, were per incuriam. The Court did not accept that route to validating the detention. It held the habeas corpus petition not maintainable, because the petitioner was in judicial custody under later orders he had not challenged and had approached the court after long delay. The episode shows how readily settled constitutional safeguards can still be contested below the Supreme Court. Article 141, however, leaves no room for a High Court to disregard binding Supreme Court law. Jaskaran now reinforces the constitutional character of the safeguard and makes the consequences of breach harder to dismiss as a technicality.
The Supreme Court has also had to confront the difference between total non-service and defective service. In the Sonam Raghuvanshi case, the Court distinguished between failure to furnish grounds at all and complaints about the adequacy of the grounds supplied. Where grounds have been served, inadequacy does not automatically produce the same consequence, and prejudice becomes relevant. The danger is that police stations may learn the wrong lesson: serve something, anything, and the constitutional box is ticked. A document that recites a section number is not a ground. Courts must test substance, which means asking whether the accused was actually told what he is alleged to have done. Otherwise the requirement shrinks into a signature on a printed form.
Three things will decide the outcome. Magistrates must ask at first production whether written grounds were furnished, and must record the answer. Prosecutors must stop defending the indefensible. And the Supreme Court must settle the remaining doctrinal tensions, particularly over the adequacy of written grounds and the temporal operation of Mihir, before they become routine points of resistance in the High Courts. The judgment's combination of release, judicial scrutiny before re-arrest and departmental action is significant. Each part works only if the courts below apply it.
Practice changes when it becomes cheaper to comply than to ignore. Until then, written grounds will remain a right enjoyed most reliably by those who arrive at the thana with a lawyer. The person arrested at night, without counsel and without the means to demand a paper, is the one the Constitution was written to protect. He is also the one most likely to be denied it.
