Mass protest and police action
Large-scale mass protest leading to unfortunate violence entailing loss of human lives and destruction of property and subsequent police action often bordering on the excessive has been a reality of our public life. The violence at Rupgonj resulting from the Army housing scheme land acquisition transaction in the recent past brings to the fore some facets of authoritarian actions that are not apparently in public interest.
It is quite significant to note that the police is the complainant in the Rupgonj incident in respect of which several criminal cases have been registered against a few thousand known and unknown individuals. Such complaint by the police means that the State is seeking action against a large number of people amongst whom there may be many who did not have any involvement in the violent activities.
It was, therefore, quite timely and pragmatic of the Prime Minister to administer caution, with regard to taking penal action against the real wrongdoers and to exercise due diligence and circumspection in investigating the incident. Looking back one may remember that the large scale arrests made in early 2006 were a definite manifestation of mal-governance that spelt disaster for our polity.
From the horrendous accounts of the harrowing experiences of the arrestees of yesteryears, the insensitiveness of our enforcement culture and the ruling coterie was displayed. One wondered if we were still living in a country where the paramount interests of the colonial and imperial power had to be protected by the sentinels of order, come what may.
It is important to note that the Criminal Procedure Code, 1898 has conferred very wide powers on police in making arrest but the limiting factor is the necessary requirement of reasonability and credibility of information to prevent the misuse of powers. We all know that to arrest persons and that too in such huge numbers as is suspected without an apparent justification is one of the most serious encroachments upon the liberty of the citizen.
One has to remember that the reasonable suspicion must be founded on some definite fact or some tangible proof which should be sufficient to establish in the mind of a reasonable police officer the credibility of the information or suspicion. This reasonable suspicion must relate to definite averments which the arresting officer must consider before he acts. Let us remember that the authority that the law confers in this regard is personal and the responsibility is personal also.
The expression "credible and reasonable" in the Criminal Procedure Code must refer to the mind of the person by whom the information is received and mere assertion cannot form the material for the exercise of judgment by such person. The arresting police officer has to exercise his own judgment and his own opinion as to whether he should or should not act and to enable him to do so he must have the necessary facts before him. Reasonable suspicion is understood to mean a bona fide belief that an offence had been committed necessitating the arrest of the person concerned.
There is nothing in the Criminal Procedure to suggest that the arresting police officer is to be the final judge of what is reasonable or credible. The spirit of the legislation makes it clear that the police officer should have grounds for determining the reasonableness of complaint and that of the credibility of information and the foundation of suspicion upon some definite fact.
One would expect that the above legal provisions, procedural directions and precautions as envisaged in the code will be applied while effecting arrests in connection with the Rupgonj incident.
Our democratic polity has to ensure that our law-enforcement does not plunge headlong into a legally indefensible course. They must not act at the behest of motivated quarters.
One has to remember that by resorting to practicing lawless law enforcement, the police will inevitably further tarnish their image. Paradoxically, such lawless police officers may be in high demand in our society. The government is always more concerned with the so-called order than the observance of law. Therefore, the remedy largely lies in the attitudinal change in the police whereby our police culture will get a riddance from several scourges including false implication of innocent persons in criminal cases. That would be some relief as substantial remedy would follow from the change in the attitude of the political government, the real wielders of power.
In a democratic set-up, the members of the police must be made to realize that they are not above the law but subject to it like all other citizens and all their actions have to be supported on ground of legality when challenged before a court of law. The question is, how do we do that? One way of ensuring that would be to question police indiscretions and excesses, specially the major ones, in court.
As has been mentioned hereinbefore, the legal authority and responsibility to arrest is personal, so each individual officer must be made to account for rash and indiscriminate arrest, if so proved. To be more specific, a wrongful arrest of graver type should make the arresting officer liable to a charge of wrongful confinement under the penal law of the country. Therefore, if the authority arranges to commence criminal proceedings for wrongful arrest, the wrongdoers in enforcement outfit would get the message, and hopefully, rash and illegal actions will be on the decrease. All segments of the judiciary have to assert themselves.
Our apex court has already given a number of procedural and administrative guidelines in respect of arrest under Section 54 of the Criminal Procedure Code. This has to be followed up in right earnest by issuing strictures and where appropriate by arranging to institute criminal proceedings against delinquent officers. One or two criminal convictions of wayward police officers would have a salutary effect. The fear of authority needs to be instilled.
For their part, the senior police officers should be able to prove that law observance by the police is the best form of law enforcement in a democratic country under the rule of law. They should be ready to carry out the behest of law at any cost.
Claims for damages caused by wrongful arrest should be instituted by activating the law in this regard. There should be no bar in fixing the civil liability caused by wrongful arrest. That would be a damper to highhandedness.
Last but not least, there should be serious efforts to stop compromising the impartial and efficient service to the citizens. The politicians have to realize that the right to live is not merely confined to physical existence but includes within its ambit, the right to live with dignity.