Political Diary
New Delhi, 10 May 2022
Cops PlayTom & Jerry
WHITHER POLICE REFORMS?
By Poonam I Kaushish
Remember lovable Tom
and Jerry cartoon antics which we enjoyed in our childhood were today sullied
by absurd theatrics, pull-and-push hyper-zealous police forces of three States
---- Delhi, Haryana, Punjab on a collision course --- acting at the behest of
two dueling ruling Parties BJP and AAP in a deeply unedifying spectacle.
The ugly unprecedented
saga over 48-hours last week started with abduction-arrest of a Delhi BJP
leader from his residence by AAP-ruled Punjab police, followed by Delhi police registering
a case of kidnapping on the plea they were not informed by their counterparts. Showing
dizzying rapidity BJP’s Haryana police blocked the convoy carrying the leader
at Kurukshetra on information he was being forcibly taken, then detained their
Punjab counterparts culminating in the Delhi police taking the leader’s custody
back.
The breathless drama
then moved to the judicial domain with a local Punjab court issuing an arrest warrant and ended with Punjab and
Haryana High Court granting relief at midnight. The case hearing resumes today
but irrespective of its outcome the sordid tale exposes how all Parties cut a
sorry figure.
Worse, the face-off showcases
how in a hurry to score political points politics trumped process whereby the
Administration flagrantly hijacked the due process of law and cemented the
unsavoury trend by pushing the law enforcement machinery to cut procedural
corners and act as proxies for their political mai-baaps in targeting opponents.
Alongside without
going into the case merits against the BJP Yuva leader issuing threats to AAP
Delhi Chief Minister Kejriwal, it highlights the unabashed use of police by
Parties in States it rules, in barefaced disregard for established norms and
rule of law that govern inter-State police action now popular across the
political ideological spectrum. The vardiwallahs defy logic and
accountability. Compromises are routine as threats of transfers to
‘insignificant’ posts, demotions and suspensions forces most policemen to toe
their political mai-baap’s line.
Surely violations of
rules of the game are not new. Nor is the misuse of police by a Party in power,
weaponisation of the penal code to target a political opponent, crossing of
State boundaries and federal norms in the course of vendetta politics. Wherein,
neta-police are two sides of a coin:
The former use the latter as instruments of partisan agendas by Parties in
power for their grotty ends.
Consequently
weakening State institutions and underscoring how urgently reforms are required
to de-link law enforcement from political compulsions. Resulting in an
exasperated Supreme Court accentuating: When a Party is in power, police takes
side of ruling Party, when new Party comes to power it initiates action against
those officials.
Besides, till yesterday the CPC guided
routine inter-State arrests mandating cooperation between local police where
the arrest is made and police where the offence has taken place via prior
intimation and involvement in arrest.
However, this
incident underlines the grim reality of how well entrenched political loyalties
and bitter politics transforms routine procedure into a full-blown inter-State
row and sets a disturbing precedent for States to prevent arrest by another
Opposition-ruled State or Centre.
Legally, the power to arrest arises from a FIR
which means it rests with the police in whose jurisdiction the offence is
committed. If it is a cognizable non-bailable offence, the person can be
arrested without a warrant, provided he is produced before a magistrate within
24 hours. Arrest without intimidating local police is at best irregular but not
illegal if the person is produced before a magistrate.
Questionably, a grey area which police use to
its advantage is whether local police can compel police of another State to
produce the arrested person before a local magistrate before transfer. Article
22 (2) states: “Every person who is arrested and detained in custody shall be
produced before the nearest magistrate within 24 hours of arrest excluding the
time necessary for journey from place of arrest to the magistrate court, and no
such person shall be detained in custody beyond the said period without a
magistrate’s authority.”
Ordinarily, the nearest magistrate is assumed
to be the magistrate in whose jurisdiction the FIR is registered if the
individual can be produced within 24 hours. The crucial 24 hour rule allows
police to skip obtaining a transit remand from a local magistrate where the
arrest is being made as hearing for transit remand before a magistrate allows
the arrested opportunity to seek bail and contest transfer before it happens.
Obversely, producing before a magistrate in a
new State, even within 24 hours could make it difficult for an arrested
individual to engage a lawyer and seek bail. Ultimately, the determination of
whether an arrest is valid or not is made by a magistrate and not police.
In 2008, Delhi High Court upheld CBI’s
decision to not obtain transit remand for the arrest of an individual in Raipur
since the CBI did not anticipate more than 24 hours after his arrest would be
needed to produce the petitioner before the jurisdictional court in Delhi. Pertinently,
both Disha Ravi in 2021, Jignesh Mevani last month were arrested in Bengaluru and
Gujarat without a transit remand.
Two, is the unusual manner in which Haryana
police intercepted the police convoy of another State and took custody of the
arrested individual, all without intervention of a magistrate. Clearly, blocking
of Punjab police convoy also violates the law which states that a public
servant cannot be prevented or detained for discharge of official duties when
believed to have been done in good faith. The Delhi Police’s registration of an
abduction case, after being intimated of an arrest by the Punjab Police, also
raises questions of overstepping the law.
Legal experts are apprehensive the BJP
leader’s case could set a new pattern for States to prevent arrests by
Opposition ruled States, raising questions on a State’s powers in a federal
structure in a fraught political environment. Already nine States West Bengal,
Chhattisgarh, Rajasthan, Maharashtra, Kerala, Jharkhand, Punjab, Mizoram and
Meghalaya have withdrawn general consent to CBI to investigate cases and over 173 requests are pending with them. Any wonder
CBI and Enforcement Directorate routinely file cases involving those in Opposition
ruled States in Delhi, and not in the respective States to ensure arrest is not
risked.
Further, the drama
again lobs freedom of speech issue. For a change the BJP is playing the victim
card. Perhaps its leader is no paragon of political civility. He has multiple
cases of assault and vandalizing to his name. But the irony is that
increasingly, the BJP’s Opposition is playing by the Hindutva book. If it
doesn’t have Delhi police it can play political master with Punjab police.
Ditto in Mamata’s Bengal and Thackeray’s Maharashtra. As this Tom and Jerry
pantomime continues it is cause for serious concern.
Certainly, it doesn’t
bode well for our democracy as its strength and quality of life enjoyed by
citizens is largely determined by the ability of the police to discharge its
duties honourably and independently. It is imperative Parties and Governments
despite their differences, find common ground to push through long pending police
reforms that can lay down clear guidelines for inter-State police action and
penalties for violating these norms. The vicious cycle of one-upmanship must
end. As ultimately democracy only loses. ------ INFA
(Copyright, India
News & Feature Alliance)
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