Five Two-Judge Benches, No Referral: Supreme Court's Unfinished Business On Grounds Of Arrest

On 9 July 2026, a Supreme Court bench did something Indian criminal jurisprudence rarely witnesses. It acknowledged that the Court's own precedents were in conflict. A bench comprising Justice Manoj Misra and Justice Shree Chandrashekhar was hearing a petition challenging the grant of bail to Sonam Raghuvanshi. During the hearing, Justice Misra placed before the Solicitor General a series of irreconcilable authorities: Pankaj Bansal, requiring that the grounds of arrest be communicated in writing to the arrested person; Mihir Rajesh Shah, holding written communication of the grounds of arrest mandatory across statutes; and Vihaan Kumar, treating such written communication as desirable but not mandatory. Justice Misra's characterisation of the problem lies at the heart of this article. It was, in his words, “a conflict arising from the various coordinate bench judgments”. The Court would consider the matter at length and decide whether it required reference to a larger bench.

On 23 July 2026, two weeks later, a differently constituted bench disposed of the same petition on an entirely different footing. It distinguished between complete non-service of grounds of arrest, which might vitiate the arrest itself, and the furnishing of inadequate or defective grounds, where the enquiry turns to the prejudice caused to the accused. The reference was never made. The conflict the first bench had identified was never resolved.

That conflict concerns the mode of communication: whether the grounds of arrest must be furnished in writing. On that question, the count is four to one, with only Vihaan Kumar holding that Article 22(1) imposes no such mandatory requirement.

But Article 22(1) leaves something else open too, and what happened to that is more instructive than the conflict itself. It requires that the arrested person be informed “as soon as may be”. For two years the benches could not agree what those five words required, or even what kind of answer the question called for. In November 2025, one of them offered an answer: a graded rule, reasoned from what an arrested person actually needs to contest his remand. It is a persuasive answer. It has not settled anything either, and for the same reason.

Five benches of two. Not one outranks another. Not one referred the question upward.

What Article 22(1) Leaves Unsaid

Article 22(1) provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds of such arrest, and shall not be denied the right to consult and be defended by a legal practitioner of choice.

Read the two limbs together, because they were written together. An arrested person is told why he is being held so that he can instruct a lawyer to challenge the legality and necessity of that detention.

The urgency lies in what follows under Article 22(2). Every arrested person must be produced before a magistrate within twenty-four hours. At that first appearance, the magistrate decides whether the person is remanded to police custody, sent to judicial custody, or released. For most accused persons, it is the first and often the only meaningful judicial scrutiny of their arrest for weeks, sometimes months. Contesting the arrest at that stage means arguing that the accusation does not justify continued custody. That argument cannot effectively be made unless the arrested person knows the grounds on which the arrest rests. Where the grounds of arrest are not communicated as the Constitution requires, the arrest is not merely irregular but vitiated. The person is entitled to be released from custody.

So the provision carries a consequence for timing that it nowhere states. Being told the grounds is of little use unless there is time to do something with them: to find a lawyer, put the allegation to him, and let him work out what to say. Grounds furnished only when the remand hearing begins leave no time for any of that.

Everything else follows from Article 22(1). Section 19(1) of the PMLA, Section 43B(1) of the UAPA, and Section 50(1) of the CrPC [now Section 47(1), BNSS] are legislative attempts to give operational effect to the constitutional guarantee. Their validity and meaning are tested against Article 22(1), not the other way around. The divergences in the case law are therefore not competing statutory rules occupying separate fields. They are competing answers to a single constitutional question.

And the constitutional text leaves two questions unanswered. It does not say how the grounds of arrest must be communicated: in writing, orally, or otherwise. Nor does it say when communication satisfies the requirement beyond directing that it occurs “as soon as may be”. Two silences in a single sentence. On the first, the Court has divided. On the second, the Court eventually converged on an answer and could not make that answer binding.

The Debate Ambedkar Thought He'd Settled

Two things Article 22(1) left open. Only one was argued about.

When Draft Article 15A, which became Article 22, was debated in September 1949, members pressed to replace “as soon as may be” with something specific. Some wanted a fixed outer limit – seven days, or in one amendment fifteen. H.V. Kamath wanted “immediately” or failing that twenty-four hours. Another amendment would have required that the grounds be communicated “at the time of the arrest, or as soon as practicable thereafter”. All were rejected.

Dr. Ambedkar's defence had two limbs. First, the words already meant what Kamath was asking for: “our intention is that the words 'as soon as possible' really mean immediately after arrest if not before arrest”. Second, they could not be stretched indefinitely because clause (2) required production before a magistrate within twenty-four hours, and “he shall have at least to inform the magistrate of the charge under which that man has been arrested”. Pressed on the meaning of the phrase, Ambedkar was unequivocal: “It means in any case within twenty-four hours”. To write a number into the text would worsen the position, he warned. Tell the police they have twenty-four hours, and they will take twenty-four hours.

Pressed on other places in the draft using the same five words, Ambedkar allowed that their meaning “must differ with the context”. And so Kamath made the point that has outlived him: he did not know whether Dr. Ambedkar would “be always in India to interpret and argue with doubting lawyers and doubting judges as to the meaning of the words and phrases used in this Constitution”.

And that was the difficulty. Ambedkar supplied a standard in debate and left it there. What entered the Constitution was five words, “as soon as may be”, which, on his own reasoning, established only that disclosure could not come later than twenty-four hours. He refused to write a number into the text because he feared it would be treated as an allowance. What happened instead is that the benches supplied several. The one reading none of them reached was Ambedkar's own: immediately after arrest, if not before.

Form was never raised at all. No amendment proposed that grounds be given in writing, and no member appears to have suggested it. So the two questions the Court has since faced reach us with different histories. On timing, there is a recorded debate and a rationale that any bench can return to. On mode, the Constituent Assembly debates offer no comparable guidance.

Five Judgments in Three Years

Pankaj Bansal v. Union of India (2 Judges, 3 October 2023) — Section 19(1) of the PMLA carries Article 22(1)'s phrase verbatim. The Court held that written grounds must be furnished as a matter of course and without exception, to give true meaning to these provisions. It gave two reasons: oral communication reduces compliance to the arrestee's word against the officer's, and only a written record equips the arrested person to instruct counsel and seek bail. On timing it said nothing. The requirement was expressed to operate prospectively.

Ram Kishor Arora v. Enforcement Directorate (2 Judges, 15 December 2023) — Ten weeks later, the Court returned to the same statutory provision. Observing that Pankaj Bansal had not construed “as soon as may be”, it gave the phrase content, holding that it required communication as early as possible without avoidable delay, or within a reasonably convenient or reasonably requisite time. Oral communication at arrest, followed by written grounds within twenty-four hours, was held sufficient compliance with Section 19(1), PMLA and Article 22(1). It also held Pankaj Bansal's “henceforth” to mean what it said, no written-grounds requirement before 3 October 2023.

Prabir Purkayastha v. State (NCT of Delhi) (2 Judges, 15 May 2024) — A UAPA case. Section 43B(1), UAPA is verbatim the same as Section 19(1), PMLA and both draw on Article 22(1), so Pankaj Bansal applied equally. The Court then went wider: any person arrested for “any” offence has a fundamental and statutory right to written grounds, furnished as a matter of course and without exception, at the earliest. Confronted with the objection that Article 22(1) nowhere requires communication “in writing”, it held that a Constitution Bench interpretation of Article 22(5), a preventive detention provision whose language is materially identical on this point, carries across to arrest. The requirement was “sacrosanct” and incapable of breach. Ram Kishor Arora was cited before the bench but addressed only on prospectivity. Its twenty-four-hour rule went unmentioned, leaving two approaches running side by side on timing: a fixed period from arrest and a standard of promptness.

Vihaan Kumar v. State of Haryana (2 Judges, 7 February 2025) — An interpretation of Article 22(1) in the setting of general criminal law, under Section 50, CrPC (now Section 47, BNSS), rather than a special statute. Much of it strengthens the safeguard: informing the arrestee is a mandatory constitutional requirement, not a formality; failure vitiates the arrest, and the person “cannot remain in custody even for a second”. The Court set out Pankaj Bansal and Prabir Purkayastha at length, including the holding that the written requirement is sacrosanct and incapable of breach and restated Prabir's reasoning that the Constitution Bench interpretation of Article 22(5) carries across to arrest. It then quoted the authority requiring grounds to be imparted “in writing in a language which he understands”. Yet it ultimately held that “under Article 22(1), there is no requirement of communicating the grounds of arrest in writing”, characterising Pankaj Bansal's directions on written grounds as “suggestions that merit consideration” because “in every case, it may not be practicable to implement what is suggested”. On timing it held that grounds must be given “as soon as may be”, failing which the arrest is vitiated, but gave the phrase no content. Prabir Purkayastha's holding was neither distinguished nor disagreed with in terms, and the conflict was not referred up.

Mihir Rajesh Shah v. State of Maharashtra (2 Judges, 6 November 2025) — The Court again interpreted Article 22(1) in the context of general criminal law. Its holding, however, was extended across the board, to offences under the BNS and special statutes alike. On mode it held that grounds must be furnished in writing, in a language the arrestee understands, in each case without exception. It took the route Pankaj Bansal and Prabir Purkayastha had taken, adopting the reasoning that the interpretation of Article 22(5) applies to Article 22(1). Vihaan Kumar was cited and its principles set out, including that written grounds may be optional, and then not followed. On timing, it gave the phrase content through a graded rule. Where the police already possess documentary material furnishing a cogent basis, written grounds must be furnished at the time of arrest. Only where that is impractical, as in offences against the body or property committed in flagrante delicto, may the grounds be conveyed orally at the time of arrest, with the written copy to follow within a reasonable time and in no event later than two hours before production for remand. The interval was fixed by reference to its purpose, so that counsel has time to scrutinise the basis of arrest and gather material to oppose the remand, any shorter period rendering such preparation “illusory”. Ram Kishor Arora was nowhere cited. Its twenty-four-hour rule and this one now sit on the books together, with nothing to decide which governs a PMLA arrest. The rule was made prospective.

The Referral That was Never Made

A decision of the Supreme Court is the law of the land under Article 141. Between benches of equal strength, the position is settled by a Constitution Bench of the Supreme Court in Central Board of Dawoodi Bohra Community v. State of Maharashtra. The law declared by the Court binds any subsequent bench of coequal strength. A later coequal bench that doubts an earlier decision may say so, but its only course is to have the matter placed before a bench of larger quorum. What it cannot do is decide the question differently itself. A subsequent coequal bench may disagree, but it cannot overrule.

Every judgment discussed above was delivered by two judges. None outranks any other. What was required of each, on encountering a coordinate holding it could not accept, was a referral. None was made.

On mode, the departures were open. Vihaan Kumar set out Pankaj Bansal and Prabir Purkayastha, both holding written grounds mandatory, restated the reasoning supporting them, and then held the opposite, recharacterising Pankaj Bansal's directions as suggestions that merit consideration. Mihir Rajesh Shah recited Vihaan's contrary principle and did not follow it. In neither case was the earlier holding distinguished, and in neither was the question referred.

On timing, the failures were silent. Ram Kishor Arora fixed a period under Section 19(1) of the PMLA that Pankaj Bansal had not, without treating the difference as one requiring resolution. Prabir Purkayastha, with Ram Kishor Arora cited and argued before it, required communication at the earliest and said nothing of that period. Mihir Rajesh Shah, extending its rule to special statutes, then displaced it without citing it at all.

None of this is to say that the answers were wrong. Mihir Rajesh Shah's rule, in particular, is a persuasive one: graded, reasoned from what an arrested person needs in order to be defended, and more protective than anything that came before it. The objection is not to the answer but to the authority behind it. A bench of two cannot settle what benches of two have unsettled. Ram Kishor Arora still stands, not because it is better, but because nothing with the authority to overrule it has done so.

The Choice Left to the High Courts

Where the Supreme Court has spoken with two voices, the High Courts must choose between them. Not because one judgment is defective and the other is not. No bench overruled anything, and every one of these decisions stands as good law. On mode there is a holding that written grounds must be furnished as a matter of course and without exception, and a holding that Article 22(1) imposes no such mandatory requirement. On timing there is a fixed period running from arrest and a graded rule running backwards from production, both on the books, with nothing to say which governs an arrest under the PMLA. A court faced with either question has authority for whichever answer it prefers, and no principled basis for preferring one.

What is at stake is liberty. A breach of Article 22(1) vitiates the arrest, and the person must be released. Whether a given arrestee walks free therefore depends on which line of authority the judge before whom he appears finds persuasive.

On 9 July a bench said aloud what the judgments themselves do not: that this is a conflict between coordinate benches. It came within an inch of doing something about it. Until a bench does, the answer will keep depending on which two judges the case reaches.