Protective custody through the lens of jurisprudence

The term "protective custody" has entered Pakistan's legal lexicon, having been frequently deployed by the government. Today's discussion centres on a critical question: to what extent is this jargon aligned with the principles of jurisprudence?

"Protective custody" is frequently invoked by the police and other state authorities to justify detaining individuals apparently for their safety. However, it also gives rise to a fundamental constitutional question: under what authority of law can a person be deprived of liberty under the cover of protection? Is this act backed by any statutory authority?

This question is fundamentally associated with constitutionalism and the rule of law. The Constitution not only demarcates power but also restraints its exercise. However benevolent an official's intention, detention requires lawful authority, not a reassuring label.

Article 4 of the Constitution sets the due process. It ensures that every citizen, wherever situated, and every other person within Pakistan, has the inalienable right to the protection of law and has to be treated in accordance with law. Article 4(2)(a) declares that no action detrimental to a person's life, liberty, body, reputation or property shall be taken except in accordance with law.

Article 4(2)(b) commands that no person shall be prevented from doing what the law does not prohibit. Clause (c) of the same article prohibits forcing anyone to do what the law does not require. Thus, it is clear that whatever reason may be, custody cannot be justified without legal authority.

Article 9 lays down the principle in unequivocal terms that no person shall be deprived of life or liberty save in accordance with law. The state certainly has an obligation to protect threatened individuals. Yet protecting a person's life and detaining that person are legally distinct exercises. Detention ordinarily requires threat assessment and satisfactory grounds against those posing danger, not confinement of the potential victim not in accordance with law.

Article 10 provides procedural safeguards. It imposes a legal obligation to inform the person of the grounds of their arrest, guaranteeing the right to consult and be defended by legal counsel of his or her own choice. He or she has to be produced before a magistrate within 24 hours. Only a magistrate can grant physical custody.

Any person confined in any place, even with access to counsel, retains constitutional protection despite official claims of benevolent intent. Manifestly, such a confinement cannot be justified in accordance with the dictates of justice and established law.

Similarly, The Code of Criminal Procedure, 1898, does not provide an unbridled power called protective custody. Section 54 permits arrest without warrant in specified circumstances. Section 151 allows a police officer to arrest a person without a warrant or a magistrate's order if he or she knows of a design to commit a cognisable offence, where that offence cannot otherwise be prevented. The police or any other organ of the state cannot take someone into custody under the garb of providing him or her protection. Sections 61 and 167 of the Code of Criminal Procedure regulate continued police custody and judicial authorisation.

It is imperative to distinguish protective custody from legally authorised preventive detention. Preventive detention can be made under Maintenance of Public Order but that too under restriction imposed by Article 10(4) of the Constitution. Such detention is not thereby placed beyond constitutional scrutiny: Article 10 prescribes separate restrictions, including grounds of detention, opportunities for representation and the right to a review. A general reference to security or public order is not, by itself, a detention order.

Even in the cases involving women's shelter, such as in Mst Shagufta Shaheen v Muhammad Arif Khan Niazi (2001 PCr LJ 599), the Lahore High Court held that a legally competent adult woman could not be confined in Darul Aman against her will without lawful authority. A shelter intended to offer refuge could not automatically become a place of detention. Benevolent intentions do not validate unlawful confinement.

The remedy assumes importance in light of Article 199(1)(b)(i) which empowers a High Court, on an appropriate application, to require the production of a person in custody to examine whether the confinement is lawful. Section 491 of the Criminal Procedure Code provides another remedy against illegal or improper detention. Judges require a legal basis, not merely the phrase protective custody.

Access to justice is a fundamental right but cannot be enjoyed without the rule of law. The rule of law requires accountability and transparency. Therefore, the detaining authority must disclose that the person so arrested is being dealt with in accordance with the law. The authority should identify the competent authority, the relevant statutory provision, and the applicable safeguards. The Constitution, Criminal Procedure Code and other laws forbid arbitrary arrests. A written order, where required, permits meaningful scrutiny. Without disclosure of the place of confinement and the responsible official, even an available constitutional remedy may become difficult to exercise.

The constitutional mechanism is simple and unambiguous. Article 4 provides the right to lawful treatment; Article 9 protects personal liberty; Article 10 prescribes safeguards against arrest and detention; and Article 199 provides judicial remedies against unlawful custody. Protective custody cannot substitute for legal authority. Where an person has neither been confronted with charges nor lawfully detained under an identifiable provision, confinement against his will is against fundamental rights and all norms of justice.

Protection of life and liberty constitutes an inalienable right, of which no person can be deprived save in accordance with law. The measure of constitutional governance is not how often the authorities claim to protect citizens, but whether they protect them without extinguishing the very freedoms the Constitution guarantees.