After 72 years of Independence, it’s time Indian citizens are given their due under the Constitution.
By MS Ananth
“Where the mind is without fear and the head held high…
Into that heaven of freedom, my Father, let my country awake.”
Personal liberty and freedom of expression were particularly very dear to the framers of the Constitution—rights virtually abridged during the British rule. Recognising the scope of these rights, the Supreme Court of India emphasised that fundamental rights enshrined in Article 14, Article 19 and Article 21 of the Constitution would help India awake in a heaven of freedom. But brazen arrests, mechanical issuance of non-bailable warrants and extended periods of undertrial detention have rendered these fundamental rights an emaciated and paper right. If the power to make punitive and peremptory arrests doesn’t carry any deterrence, the right to life and due process will remain a theoretical right.
This is not a case where Parliament needs to enact a law on arrests and bail, or courts have not explained considerations for grant of bail or process for arrest. India lacks checks and balances and a system of holding police and members of lower judiciary accountable. As Supreme Court observations would corroborate, this is a clear case of police ignoring the law laid down by the Supreme Court and being enablers in defeating fundamental rights. In Joginder Kumar vs State of UP, the Supreme Court noted that as per the Third Report of the National Police Commission, 60% arrests were unjustified and held that “no arrest can be made because it is lawful for the police to do so. The existence of the power is one thing. The justification for the exercise of it is another.” Of the 1,584 deaths in prison, 115 were due to unnatural causes representing 8% of the deaths—a cold statistical comfort to the families of the bereaved. In most states, majority detentions are between 3 and 6 months, indicating minimal detention. The Supreme Court has lamented the large number of undertrials languishing in jails for petty offences—only because lower courts have failed to grant bail (Siddharam Satlingappa Mhetre vs State of Maharashtra). In 2017, the Supreme Court again deprecated the practice of lower courts to keep applications for ‘default bail’ (right to bail on expiry of statutory period of custody) pending “to defeat the indefeasible rights of the accused to ‘default bail’” (Rakesh Kumar Paul vs State of Assam).
Punitive arrests have troubled the Supreme Court since at least 1980, when it ruled on the provisions of bail and arrest under the 1973 Code of Criminal Procedure. In Niranjan Singh and Anr vs Prabhakar Rajaram Kharote, Justice VR Krishna Iyer cautioned that constitutional protection would lose credibility if “…protectors of law and Minions of State become engines of terror and panic people into fear.” Little changed and in a public interest litigation petition filed in 1996 (Prakash Singh & Ors vs Union of India), the Supreme Court commented on the inertia of states to have checks and balances against abuse of police power. Interestingly, the ruling notes a letter of August 3, 1997, by the home minister to state governments that raised concerns regarding the ‘distressing situation’ and expressed the view that if the ‘…Rule of Law has to prevail’, the situation would need to be ‘cured’. As of 2018, there is only partial compliance to the directions, materially in relation to inclusion of non-government officers in the state commissions.
Relevant considerations for grant of bail include background of the accused, his ability to influence witnesses and tamper with evidence, whether he would cooperate with the investigating agency, among others. It is important to note that all these directions also apply in relation to heinous crimes. Despite various directions issued by the Supreme Court, people are routinely arrested for non-life threatening acts, including social media posts, and worryingly, at times, carrying on certain commercial activities. Peremptory arrests muzzle citizens’ fundamental rights of expression and trade or profession, reducing these rights under Article 19 to theoretical rights. Apart from the egregious violation of an individual’s fundamentals, there is little scope for proceeding against the police and no recourse against an errant judge—unless the state High Court views such action as warranting remedial measures. The recourse of tortious claims and complaints to the Human Rights Commission provide little relief to aggrieved citizens, and is no deterrent against offenders of the Constitution. For a change, a CBI court in Kerala sentenced two police officers to death for their role in custodial death of Udayakumar. Recently, in the ISRO spy case, Supreme Court awarded `50 lakh as damages to scientist Nambi Narayanan, holding that the he was arrested “…unnecessarily, harassed and subjected to mental cruelty.” The ruling reiterates reputational rights and the irreparable damage caused by mechanical arrests.
After 72 years of Independence, it’s time Indian citizens are given their due under the Constitution. Reforming police, their infrastructure and training, including implementing a new statute, has not materialised in more than 40 decades of commissions and committees. The least that can be done is guaranteeing fundamental rights to citizens. If the Police Complaints Authority, as directed in the Prakash Singh case, to address complaints against police officers, is not constituted, we need more cases of prison sentence to errant officers and exemplary damages to provide relief to individuals whose fundamental rights have been violated.
The author is a Delhi-based lawyer