"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Sunday, September 9, 2018

"The power to arrest is one thing whereas the justification for the exercise of it is quite another" : A critical look in the wake of arrest and detention of persons with critical opinion of Government

The power of the police to arrest and the involvement of the executive in the functioning of the police force came under scrutiny one more time in the present environment of action against certain targeted persons allegedly to overwhelm political dissent. The 177threport of the Law Commission of India, the third report of the National Police Commission, and the Indian judiciary ad nauseum has lamented the excesses by Indian police in the exercise of its power to arrest and detention.

In India, arrest is an action taken by the police, almost routinely with impunity, and often in utter disregard to the violation of the principles of the criminal procedure law thereby negating the rights of the person arrested. Arrest curtails multiple freedoms of the individual, particularly personal liberty and dignity assured also by the Indian Constitution.

The law on arrest and detention specify as to when the investigating officer can use the power to arrest a person. The text of the law but is replete with fluid lingoes. Sections 41 and 42 of the Criminal Procedure Code, 1973 contains expressions like reasonably suspected, reasonable complaint, and on receipt of credible information. These words give enough play for police officers and those who direct them to bend the norms of justice. When done in the context of silencing political dissent, it gains another dimension of adverse affect on democracy, which thrives on polyphony of opinions.

In ordinary circumstances that prevail in our country arrest of the suspect, detention and interview in search of evidence of a crime is the modus of police, unless the accused has economic or political sway. It is in this context that the apex court of India has on more than one occasion directed that arrest shall not be a matter of routine, (see Arnesh Kumar v. State of Bihar (2014) 8 SCC 273). Arrest by an investigation officer shall   be made only after due investigation and after reasonable satisfaction as to the genuineness of the allegation. Which means post arrest if a question is raised about the legitimacy of arrest, the investigating officer should have valid justification to support her action. The apex court has also underscored the proactive role of a magistrate when the accused is produced before her than making detentions 'business as usual' (see Joginder Kumar v. State of U.P (1994) 4 SCC 260). 

The callous manner of arrests in India is not a mere anecdotal argument. Data from the 2016 National Crime Records Bureau reveal non-essentiality of most of the arrests. From a total of 37,37,870 arrests recorded or offences under the Indian Penal Code, 32,71,262 charge sheets were filed. Of which only 7,94,616 reached conviction. This indicates the arrest and perhaps detention of nearly 79% was unwarranted to say the least. Read together with the fact that there is no independent and effective complaints redress mechanism against erring police officers escalates the gravity of the situation. Establishing the tortious liability of the state and of its officers is an insurmountable task for the ordinary citizen, given the judicial delays and multiple access constraints. 

In short, there is no disincentive for the police not to arrest and for the state to develop a policing system based on a policy that ensures scientific investigation of a case before arrest than resorting to arrest, detention, questioning and then finding evidence. Whereas the law is reverse, investigate, find evidence, arrest and then prove the same before judiciary. The potential to use police force according to the caprices of the political class is a good incentive to preserve the system as it is.   

Another dimension of arrest and detention is how even the judiciary frame the issue.  In Nandini Satpathy v. P.L Dani AIR 1978 SC 1025, the court projects the existence of a dichotomy between interests of society in having effective crime detection and the constitutional rights of the accused. This thought process helps to find justification for arrest and detention as a larger social need of crime detection. The securing of minimum right to the accused whereas is seen as a great balancing act at the benevolence of the judiciary. It is redundant and inadvisable to pitch these interests as rivals.  Contrarily both are the interests of the society at the same time. An efficient police force that does not require arrest and third degree modes as a default setting for crime investigation and is accountable to the people is the hallmark of a civilized nation. 

In the present scenario of arrest and attempted detention of activists, lawyers and academicians under the arguably intentionally ambiguous and questionable provisions of Unlawful Activities (Prevention) Act 1967, one pertinent question to be asked is whether the arrest was necessary at the first place. It is also important to examine whether the investigating officers have followed the procedure under the Act as well as the general directions on arrest given by the judiciary at various instances. If not, the arresting officers shall be made accountable for their action. There is nothing to celebrate in the Supreme Court order of reducing the rigour to house arrest, as it is also curtailment of liberty and dignity. What a citizen need is not the magnanimity of the Supreme Court but the justice due. An enquiry as to whether the arrests are legitimate, if not quash the same and make the officers pay the price is what justice demand. Few such actions against erring officers will go a long way in making the police independent of their assumed political masters. Such precedence will also help the police to dislodge itself from the overwhelming political pressure that today it has to shoulder.

The direct impact of arrest is dispossession of both liberty and dignity, which is a serious matter to be bartered away. Consequently the police officer's mantraon arrest as affirmed by the Indian judiciary is ‘the existence of the power to arrest is one thing whereas the justification for the exercise of it is quite another.’ 

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