Leader of Opposition Rahul Gandhi on Tuesday protested for nearly eight hours inside Akashvani Bhavan in New Delhi, seeking the resignation of Chief Election Commissioner Gyanesh Kumar over alleged irregularities in the Election Commission’s Special Intensive Revision (SIR) exercise. By evening, the Delhi Police detained him along with several Congress leaders and Opposition leaders including Priyanka Gandhi Vadra. The following day (October 7), police registered a case of trespass into the Akashvani Bhavan premises.Since October 2, Delhi police have detained hundreds of protestors, including Advocate Prashant Bhushan, and AISA national president Neha Bora.Legally speaking, what exactly is detention? How does it work? And what rights does law provide to police and detainees?How does detention differ from arrest?Police, under the law, are empowered to maintain law and order, particularly during protests and demonstrations. In practice, this may sometimes look like an arrest and at other times a detention, often because these terms are used interchangeably. “Arrest” is a formal act of police taking a person into custody in connection with an offence, marking the beginning of criminal proceedings. Once a person is arrested, a range of constitutional and statutory safeguards immediately come into play. Also Read | Protests against Gyanesh Kumar: What was the 2006 Keralam corruption probe that led to his removal from post?The Bharatiya Nagarik Suraksha Sanhita (or BNSS, which replaced the Code of Criminal Procedure or CrPC) does not define “detention” per se. Instead, it gives police a set of powers that allow them to stop, remove or temporarily hold people in certain situations, including when a crime has actually taken place. Story continues below this adThis is why disputes arise after protests. Someone may be taken away by police, kept in custody for several hours, and released without any case being registered. To the person involved, it can feel very much like an arrest. Legally, however, police may say that they were exercising preventive powers rather than arresting the individual for an offence. Congress leader Priyanka Gandhi Vadra is detained from Akashvani Bhawan on Tuesday. (Gajendra Yadav)Advocate Soutik Banerjee told The Indian Express that the distinction is often used to avoid the scrutiny that accompanies a formal arrest. “The police know that the power to arrest cannot be exercised casually when there is no cognizable offence punishable with more than seven years being committed by the protestors. If they are arrested, courts will come down heavily on them. That is why they choose to abduct people and release them within hours,” he said. A cognizable offence is one for which police can arrest without a warrant.Section 170 of the BNSS allows preventive action before any offence is committed. A police officer, “knowing of a design to commit any cognizable offence may arrest, without orders from a magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented”. Story continues below this adSection 172 of the BNSS says that a police officer “may detain or remove any person resisting, refusing, ignoring or disregarding” a lawful direction. The officer must then take the person before a magistrate or, in petty cases, release them within 24 hours. Also Read | CJI says Supreme Court did not approve Form 6 changes: What the form is, why it mattersThis position is different from “preventive detention” which allows a person to be held without trial under special laws such as the National Security Act.Banerjee said that the practice of briefly taking protesters into custody should not be confused with preventive detention powers under the law. He said: “This so-called detention has no place in law and is wholly illegal. Of course there are preventive detention powers available, but they are subject to strict rigours of the law and cannot be casually applied spontaneously. None of the abductions and excursions to Narela or Kingsway Camp in buses is carried out under legal provisions for preventive detention.” When can police detain people?Most protest-related detentions begin with a claim that police are trying to prevent a law and order problem.Story continues below this adOften, there is already a prohibitory order in place. On October 2, the Delhi Police imposed Section 163 of the BNSS across New Delhi. If protestors refuse to disperse or continue activities prohibited by such an order, police may invoke preventive powers to remove them from the spot or hold them temporarily. Disobeying such an order is itself an offence under Section 223 of the Bharatiya Nyaya Sanhita (or BNS, which replaced the Indian Penal Code or IPC). That is the point at which a detention can turn into an arrest with an FIR (first information report).Also read | Is staging a protest legal in India: What rights, restrictions the law givesCourts have, however, said that such actions cannot be arbitrary. Police must be able to explain why restricting a person’s liberty was necessary. The Supreme Court, in Joginder Kumar v State of UP (1994) held that “the existence of the power to arrest is one thing” and “the justification for the exercise of it is quite another”. In Arnesh Kumar v. State of Bihar (2014), the court told police not to arrest automatically in offences punishable up to seven years. Story continues below this adIn Mazdoor Kisan Shakti Sangathan v Union of India (2018) the court held that restrictions on protests should be regulatory rather than eliminating the right to protest altogether.What rights does a detained or an arrested person have?Once the state restricts a person’s liberty, a number of protections become relevant. Article 22 is a fundamental right under the Constitution that deals with protection of an accused against arrest and detention. It requires production of an accused person before a magistrate within 24 hours; information about the grounds of arrest; and the right to have legal representation. The Supreme Court, in multiple cases, has held that written grounds of arrest must be furnished. Just last month, the court held that if an arrest violates the safeguards prescribed under Article 22, it would be unconstitutional. Story continues below this adAlso Read | How the Supreme Court has strengthened safeguards around arrest — and re-arrestArticle 22(1) also provides for the right to consult and be defended by a lawyer of one’s choice. Section 38 BNSS allows an arrested person “to meet an advocate of his choice during interrogation, though not throughout interrogation”. If a person cannot afford a lawyer, free legal aid is provided to them at the State’s cost. Section 43(5) of the BNSS bars the arrest of a woman between sunrise and sunset, except in exceptional circumstances and with the prior permission of a judicial magistrate.The Supreme Court in DK Basu v. State of West Bengal (1997) laid down safeguards for “all cases of arrest or detention”. Officers must wear visible name tags. An arrest memo must be attested by at least one witness. Injuries must be recorded, and family members should be informed. The court also made clear that these safeguards are not merely advisory and officers who fail to comply can face departmental action or even contempt proceedings.