Indian example holds out hope | The Daily Star
12:00 AM, May 26, 2016 / LAST MODIFIED: 12:41 AM, May 26, 2016

News Analysis: Arbitrary Arrest, Remand

Indian example holds out hope

The Supreme Court's latest landmark verdict against police's century-old discretionary powers concerning arrest, detention and remand is a bold judicial pronouncement in favour of people's liberty and fundamental rights.

This verdict, according to legal experts, will give people protection of their fundamental rights guaranteed by the constitution.

According to article 33, an arrestee must not be detained without informing him or her the reason for the detention and the arrestee must be given the right to consult lawyers.   

Article 35 also provides an arrestee with the protection that he or she shall not be compelled to be a witness against him or herself. It also prohibits torture in police remand to extort information as it clearly states no person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.

But many people who have been arrested and placed on remand have been denied of their constitutional rights.

It is because the law enforcement agencies do not bother about the constitutional provisions. They have on many occasions abused their discretionary powers provided by section 54 and 167 of Code of Criminal Procedure of 1898. In so doing, they do not need to inform the arrestee about the reason for his or her arrest. They have taken arrestee on remand and tortured them for information.

This is why the High Court in its verdict delivered in 2003 said the two sections of the CrPC is largely inconsistent with the constitution and asked the government to amend those provisions to make them consistent with the provisions of country's supreme law. The Appellate Division on Tuesday upheld the HC verdict dismissing the appeal filed by the government.

Now, the crucial question is: can the verdict minimise the pervasive culture of abusing the law, which has taken deep root in the police administration and has spread like a disease over the decades?

The main hurdle to implement the court's verdict is the present state of the police administration. 

It is an open secret that the abuse of discretionary powers has become one of the major reasons for corruption in police administration.

None of the successive governments has taken any effective step to stop the corrupt practices. Instead, all the successive governments have benefited from the misuse of police powers by using it on leaders and activists of the opposition parties.

The Indian experience may be helpful to understand the gravity of the situation that exists in Bangladesh.

Indian police enjoyed the same discretionary powers like the police of Bangladesh. Indian Supreme Court has been making efforts for more than two decades to circumscribe the vast discretionary powers vested by law in police by imposing several safeguards and to regulate it by laying down guidelines.

Following the apex court's verdict, the government of India amended the CrPC in 2010 to minimise abuse of the powers.

Through these processes there have been some improvements in the situation in India.

The Law Commission of India in a report in 1999 described the terrible situation prevailing in the country. 

It said notwithstanding the safeguards contained in the CrPC and the constitution, the fact remains that the power of arrest is wrongly and illegally exercised in a large number of cases all over the country.

"Very often this power is utilised to extort money and other valuable property or at the instance of an enemy of the person arrested. Even in case of civil disputes, this power is being resorted to on the basis of a false allegation against a party to a civil dispute at the instance of his opponent," said the commission.

The National Police Commission in its Third Report a few years ago described the power of arrest as one of the chief reasons for corruption in the police. By and large nearly 60 percent of the arrests were either unnecessary or unjustified, the commission said.

Such unjustified police action accounted for 43.2 percent of the expenditure of the jails, it noted. 

With the situation remaining almost unchanged, the Indian Supreme Court in 2013 came up with a set of strong guidelines concerning arrest and remand.  

It asked all the state governments to instruct its police officers not to automatically arrest when a case is registered under section 498-A of Indian Penal Code. Before arrest, the police must be satisfied themselves about the necessity for arrest in exercise of the power under the CrPC.

It also asked magistrates not to authorise detention mechanically on the prayer of the police. The magistrate must be satisfied by going through the facts recorded by the police for ordering further detention.

Failure to comply with the directives shall, apart from rendering the police officers concerned liable for departmental action, also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction, the SC court warned.

Judicial magistrates have also been warned by the apex court. Authorising detention without recording reasons as aforesaid by the judicial magistrate concerned shall be liable for departmental action by the appropriate High Court.

The latest move taken by the Indian Supreme Court has worked effectively to some extent, resulting in declining in the number of arrests in different states in India. 

Situation in Bangladesh is the opposite. The HC in its verdict in 2003 had issued 15-point directives concerning arrest on suspicion and remand. But none of the directive has been followed in last 13 years, prompting the Appellate Division to express its displeasure on April 17.

Police could not be held liable for their failure to obey the directive as there was no mention of punitive measure.

In the past, the successive governments have not implemented some important judgments delivered by the apex court. Even the SC had to struggle for many years to implement its judgment on the separation of the judiciary from the executive. 

Now, proper implementation of the apex court's latest verdict against arbitrary arrest, detention and remand depends on the political will of the government.  

However, only implementation of the verdict is not adequate to cure the disease in the police administration. The government also should take measures to reform the police.

The judiciary, the custodial of the people's fundamental rights guaranteed by the constitution, should be more vigilant to ensure people's rights are not violated by the arbitrary use of police powers.

A victim of arbitrary use of power by police becomes traumatised as Justice MN Venkatachaliah, former chief National Human Rights Commission of India, said: "Arrest has a diminishing and demoralising effect on his [a victim's] personality. He is outraged, alienated and becomes hostile."

The police have already earned a bad name for various reasons, including excessive politicisation and alleged rampant corruption in its administration. The force is empowered by the state to enforce the law, protect property, and limit civil disorder. But it cannot deliver on its vision which is to provide quality service by competent, efficient and dedicated professionals enjoying trust and respect of citizens to make Bangladesh a better and safer place.

Arbitrary use of powers by the police also taints image of a country as the quality of a nation's civilisation is largely measured by the methods it uses in the enforcement of criminal law.

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