The amended provision seems eminently sensible. Arrest is not a mode of punishment, but a tool for effective investigation and prosecution. If arrest is not ‘necessary’ for achieving these objectives, it shouldn’t take place. Then why are the lawyers protesting? There is a normative reason, given in press statements, and another cynical reason, admitted to in private conversations. The normative reason is that the fettered power to arrest will fail to deter criminals and result in increased lawlessness. It is surprising to see lawyers forgetting the foundational rule of their own trade — presumption of innocence. That the police, in practice, use their power of arrest and subsequent heavy-handed interrogation is used to ‘solve’ cases or to coerce ‘settlements’ does not detract from the fact that we are dealing with suspects, not convicts. Many countries manage a far more efficient policing system without using the process itself as punishment. In any case, the power to arrest has not been done away with — only due process requirements of necessity and recorded reasons have been imposed in certain cases.

Now to the cynical reason — the reduced number of arrests will mean fewer bail cases. The question suddenly becomes that of lawyers who make a living out of bail applications. But the worry is misplaced. The rationalised section 41, read with the new section 41A, imposes several constraints on the power to arrest. We suddenly have a new, sizeable category of arrests which will be ‘illegal’ under the new provisions, including arrests of non-suspects, arrests made without reasonable belief that the person has committed the offence, arrests which are not necessary, those without recorded reasons and those made without giving due notice. These new grounds of illegality may be invoked before courts for arrests already made as well for impending arrests. This whole new stream of litigation may more than make up for the drop in bail cases.

... contd.