This article is written by Ms. Nikara Liesha Fernandez from School of Law, Christ University, Bangalore. This article deals with the intersection of the human rights of an individual and the powers to arrest by the police.
The most recent chilling incident through which the Indian police, particularly the Tamil Nadu State police became the subject of shattering criticism from the public at both the national as well as international level was the inhumane custodial deaths of P. Jayaraj and his son Bennicks. They were brutally tortured in prison till they breathed their last breath over being arrested for keeping their shops open past the business hours which had been prohibited during the lockdown in Tamil Nadu due to the COVID-19 pandemic. This incident absolutely shattered all faith in the police who are considered to be the most powerful organs of governance, forming a direct link between the public and the executive machinery. As a result of the same, the police force is now rather mistrusted by the public.
Policing is definitely an essential process to maintain law and order in society and to enable the peaceful coexistence of all individuals, but if this is carried out indiscriminately without an ethical element to it, then is it really serving its original purpose?
The aim of this article is to analyze the nexus between human rights with our constitutional provisions and determine whether recent incidents of police action/inaction have been in tune with the same.
Power to arrest as a last resort
The right to life and liberty not only is an essential part of the fundamental rights granted to every individual of our country in particular by our Constitution under Article 21, but it is also a universally recognized basic human right. Due to the same, misusing one’s power in such a way to deprive an individual of his/her right to life and liberty is a grave offense. The main people abusing this power are the ones who we rely on for protecting us i.e., the police.
Arbitrary arrests and illegal detention have more recently become a massive area of public outcry and criticism, especially by human rights groups.
The Supreme Court of India in the case of Joginder Kumar v. State of U.P (1994) stated that “To strike a balance between the needs of law enforcement on the one hand and the protection of citizens from oppression and injustice at the hands of the law enforcement machinery, on the other hand, is a perennial problem of statecraft.” The court also explicitly mentioned that arrest should only be considered to be the last resort available to the police on finding no other viable alternative.
No police officers are corrupt at birth, it is due to the corrupt nature of the policing system itself that they become ruthless bypassers of the law themselves. From various testimonies by the police officers themselves, it is evident that unless they succumb to the system, they are not given important work and are not taken seriously by their superiors. Integrity has little value when the system itself is distorted.
The Supreme Court in the case of Shri D.K Basu v. State of West Bengal (1996) laid down requirements that were to be followed in all cases of arrest and illegal detention with regards to both the duties of the police officers carrying out the arrest as well as the rights of the individual who is being arrested which made it mandatory for his family members or relatives to be kept notified and informed about his location and whereabouts in case of transfer after arrest.
Human Rights as a matter of concern
As stated earlier, in addition to the human right of life and liberty, a number of other human rights of individuals are under grave threat due to the misuse of powers by the police. Some of the international conventions whose provisions are applicable to the matter of human rights with relation to the police authorities are as follows-
- Article 1 of the Universal Declaration of Human Rights (UDHR) states that all individuals have the right to life, liberty and security.
- Article 6(1) of the International Convention on the Civil and Political Rights of individuals states that every human being has the inherent right to life which is protected by the law and as such no one can be arbitrarily denied the same.
- Article 5 of the UDHR mandates that no individual must be subjected to torture or any cruel, degrading, or inhuman treatment or punishment.
- Article 9 of the UDHR guarantees equality before the law and the right to an effective remedy for acts violating an individual’s fundamental rights.
The courts of law have, through their judgments in various cases over time interpreted certain rights an individual has at the time of his arrest and even after in order to protect his/her human rights. These rights include the right to remain silent and the right to fair investigation as well as guidelines and ways to handle situations with respect to arrest, handcuffing, torture and death in police custody and fake encounters. The Constitutional rights guaranteed to individuals upon their arrest under Articles 22(1) and 22(2) are the right to know the grounds of arrest, the right to consult a lawyer and the right to be produced before a magistrate.
An analysis of the case of Arshad v. State of UP
Anticipatory bail is a provision through which the High Court or the Sessions Court can direct that a certain person be released from jail on bail which is issued even before the person is arrested, thus the word ‘anticipatory’, as it is granted in the anticipation of an event that the person gets arrested.
The provision for anticipatory bail is found in Section 438 of the Criminal Procedure Code, 1973. It was not originally present in the CrPC, but was added through the 42nd Law Commission Report, 1971 which emphasized the need to ‘safeguard an accused who is apprehending or has reason to believe that he may get arrested for a non-bailable offence’.
Issue at hand
The case of Arshad v. State of U.P (2021) deals with whether the applicant could be granted anticipatory bail by the Court or not. The applicant had been involved in a matrimonial dispute which consisted of certain verbal altercations between the parties involved in the present case. Both the parties in this dispute had already filed FIRs against each other and presently the FIR lodged was by the police themselves who were a third party to the case.
Charges against the appellant
- Section 147– Punishment for rioting.
- Section 148– Rioting, armed with a deadly weapon or anything used as a weapon of offence which is likely to cause death.
- Section 149– If an unlawful assembly commits an offence with a common object, then all of the members of the assembly are deemed to be guilty in the commission of that offence.
- Section 336– Act endangering life or personal safety of others by the commission of any act by an individual in a rash or negligent manner endangering human life or the personal safety of others.
- Section 323- Punishment for voluntarily causing hurt.
- Section 504– Intentional insult with intent to provoke breach of peace.
- Section 307– Attempt to murder, which is an act done by any individual who, with the intent or knowledge that the act was done by him to another person, would lead to the murder and cause the death of the latter. A person can be charged under this section even if hurt is caused to a person by any such act.
- Section 498-A– Husband or relative of the husband of a woman subjecting her to cruelty. Cruelty includes any wilful conduct of such a nature likely to drive a woman to commit suicide or cause grave injury to life, limb or mental and physical health or harassment of a woman by coercing her or any relative of hers to meet any unlawful demand for property or any other valuable security.
Contention of parties to the case
Submissions of the counsel for the applicant
The counsel for the applicant stated that this was a case of no injury and as such none of the above charges could be held valid. It was only due to a mere verbal altercation between the applicant and his wife that the police were trying to falsely implicate him in this case. The applicant further had absolutely no criminal history to his name. The charges against him were clear enough to validate his apprehension that the police may arrest him at any time and thus to protect his human rights against such illegal arrest, the application for anticipatory bail should be granted.
Submissions of the respondent by the Additional Government Advocate (AGA)
Outrightly opposing the prayer for anticipatory bail made by the applicant the learned AGA argued that due to the gravity and seriousness of the charges against the applicant, the Court should not grant him anticipatory bail. He further went on to say that the apprehension of the applicant was not founded on the basis of any material evidence on record and as such, anticipatory bail could not be granted to an individual simply and solely on the basis of an imaginary fear.
Findings of the court
The court found that there was indeed a case that had been registered against the applicant, however, it could not be said conclusively when exactly the police would choose to arrest him. By protocol, after the police lodged an F.I.R they have the authority to arrest an individual at any point in time. In order to protect the basic human rights of an individual, the courts have repeatedly stated over time that the arrest of a person should always be the last resort by the police as it deprives an individual of his/her right to life and liberty. Arrest should only be carried out in exceptional circumstances where it is absolutely imperative or in the event of the necessity of a custodial interrogation. Irrational, arbitrary and indiscriminate arrests of individuals which more often than not prove to be illegal in nature are a gross violation of their human rights.
Precedents relied upon by the Court
The court also cited the case of Joginder Kumar v. State of U.P (1994) which was the landmark judgment that laid down guidelines in cases of arrest by bringing the aspect of the rights of an individual at the time of his/her arrest and analysed the ‘power to arrest’ by police officers. The court in its judgment held that “A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer affecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to a person to attend the station house and not to leave the station without permission would do.
Emphasizing on the third report made by the National Police Commission in this case based on the collection of appropriate data, the court even went to the extent of stating in the present judgment that “arrests by the police in India is one of the chief sources of corruption in the police”.
Referring to the judgment of Sushila Aggarwal v. State (NCT of Delhi) (2020), the Court held that in light of the coronavirus pandemic and the possibility of its surge in the future, the facts and merits of the case as well as the nature of the accusation against the applicant along with his antecedents, the latter could be granted anticipatory bail for a limited period. The significant ruling of the court in Sushila Aggarwal’s case made two important observations with regard to the grant of anticipatory bail to an individual:
- The protection granted under Section 438 of the Cr.P.C on an accused individual need not be limited to a fixed period of time. The court can attach certain conditions to the anticipatory bail including a relief of a fixed nature along with its order of the same.
- The life of an anticipatory bail order can continue even until the end of the trial concerning the individual and need not end at the time he/she is merely summoned before the court or when the charges are framed. Even while granting an interim anticipatory bail order, the court is entitled to issue notice to the public prosecutor to obtain additional facts. There is no compulsion for the court to impose restrictive conditions while granting anticipatory bail as it varies based on the material produced by the state or investigating agency.
In order to correct this imbalance between the powers of the police and an individual’s liberty, there exists a two-fold duty on both the police as well as the individuals of our country. The police need to understand the limitations of their authority and adhere strictly to those limits and individuals need to be informed of their rights and be given immediate remedies in case of violation of the same. The police also need to be held accountable for their actions to the people, the law as well as the police organizations themselves. There needs to be stricter regulation of the police force by both the government as well as legal institutions to ensure that their powers are kept in check and used wisely in accordance with the law.
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