Updated: September 18, 2020 12:28:28 pm
Amid controversy over the provisions of the Uttar Pradesh Special Security Force (UPSSF) that allow arrests “without warrant” or the “order of the magistrate”, the state government has claimed that the force, which was notified on August 31, is no different from special forces like the CISF at the Centre, or those in states like Odisha or Maharashtra.
What are the provisions of the Uttar Pradesh Special Security Force Act, 2020; how do they compare with the Central Industrial Security Force Act, 1968, and the Maharashtra State Security Corporation Act, 2010?
What is the UPSSF?
The force was announced on June 26, 2020, after Chief Minister Yogi Adityanath asked for the setting up of a CISF-like force to guard important institutions and persons. The proposed force was envisaged as having “high-level professional skills”, which would reduce the burden on the Provincial Armed Constabulary (PAC), which could then focus on law and order.
The new “state vital installation force” would protect courts, airports, banks, the Metro, industrial units, places of worship, as well as individuals, the government said. It claimed that Maharashtra and Odisha had similar forces.
On July 30, the state Cabinet okayed the creation of an eight-battalion force, with five battalions comprising about 9,900 personnel, to be raised in the first phase. A Bill to create the force was passed in the Monsoon Session of the state Assembly.
The force was notified on August 31 and, last week, the state Director General of Police was given a deadline of three months to ensure the force was on the ground.
The UPSSF will be led by an Additional Director General-level officer, followed by an Inspector General, Deputy Inspector General, Commandant, and Deputy Commandant.
Why was such a force needed?
According to the UPSSF Act, the force has been constituted to provide “better protection and security of a body or a person, or the residential premises” notified by the state government, and vital installations including courts, “administrative offices, shrines, Metro rail, airports, banks, other financial institutions, industrial undertaking,” etc.
The Act lays down its purpose as “to maintain the smooth and strong security arrangements of the vital establishments and of notified persons, as at the Centre and in other states, there is no special security force established in the state of Uttar Pradesh.
“The work of protecting these sites and persons is being done by the police and Pradesh Provincial Armed Constabulary Force, which are not specially trained and skilled for this task.”
It has also cited a direction of the High Court while taking suo motu cognizance of the security situation at all court premises across Uttar Pradesh.
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So what is the controversy about?
Subsection (1) of Section 10 (“Power to arrest without warrant”) of the UPSSF Act says: “Any member of the force may, without any order from a Magistrate and without a warrant, arrest any person, who voluntarily causes hurt…”, or a person against whom there is a “reasonable suspicion”, or any person, who attempts to “commit a cognizable offence”.
The force will also have the right to remove trespassers on the premises under its protection.
However, the Act also says that the manner in which the powers under this section would be exercised would be “governed by the rules prescribed in this behalf”. The UP Director General of Police was asked to prepare the roadmap within three days, and to propose the corresponding rules within 15 days.
Do other Acts have a similar provision?
Section 10 of the UPSSF Act is similar to Section 11 of the CISF Act, 1968, which lays down the “Power to arrest without warrant”. It says: “Any member of the Force may, without any order from a magistrate and without a warrant, arrest (i) any person who voluntarily causes hurt to, or attempts voluntarily to cause hurt to, or wrongfully restrains or attempts to wrongfully to restrain or assaults, or uses, or threatens or attempts to use criminal force to any employee”, or any person against whom there is “reasonable suspicion”, or any persons who attempt to “commit a cognizable offence”.
Section 16 of the Maharashtra State Security Corporation Act, 2010, under the “Power to arrest without warrant”, says: “The procedure and power to arrest shall be exercised by the members of the security force as provided under Chapter V of the Code of Criminal Procedure, 1973.”
Like UPSSF Act and CISF Act, the Maharashtra Act also requires that an arrested person be handed over to a police officer or to the nearest police station.
Section 11 of the Odisha Industrial Security Force Act, 2012, also defines “Power to arrest without warrant”. It is similar to the CISF and UPSSF Acts: “Any member of the Force may, without any order from a Magistrate and without a warrant… arrest a person who voluntarily causes hurt, or against whom there is reasonable suspicion or who commits a cognizable offence.”
These Acts also have similar provisions for not just making arrests, but also “search without warrant”.
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OK, and are their ways in which the UPSSF Act differs from the other Acts?
The UP Act is similar to the others in the provisions regarding arrests and searches without warrant, but is different in the kinds of institutions that the force has to protect, and the protection that is granted to members of the force.
The CISF and Odisha Industrial Security Force are meant to protect “Industrial Undertakings”; the Maharashtra State Security Corporation secures “State and Central Government offices, undertakings, establishments, institutions, employees of all such establishments, Public Sector Undertakings, Vital Installations, Financial Institutions, Religious Institutions, Cultural Institutions, Medical Institutions or commercial establishment like Malls, Multiplexes, Clubs and Hotels etc.”
The UPSSF has a wider remit – it will provide security to not just to a body but also to “a person”, and to “the residential premises”.
The Maharashtra Act defines “Vital Installations” as “establishments, which if damaged or sabotaged, affect the economy, safety and security of the country or state” – for example, the Bhabha Atomic Research Centre, atomic power stations, power grids, etc.
The UPSSF’s definition of “Installation”, by contrast, also includes “statue” and “monument”. The UP Act defines “Establishment” as both public and private buildings.
What about the protection available to the force itself?
Sections 15 and 16 of the UPSSF Act, 2020, offer “protection of action taken in good faith” and “cognizance of offence”. This is a sweeping protection – no court will be able to take cognizance of the offence against any member of the force without prior sanction from the state government.
Also, Section 15 of the Act says: “No suit or prosecution shall lie against any officer or member of the force or against any person on acting under the order or the direction of any officer or member of the force for anything, which is done or intended to be done in good faith”.
Section 16 says: “No court shall take cognizance of an offence against any member of the force” for action taken in the discharge of his duties.
In the case of the CISF, if any “suit or proceeding” is pending against any member of the force, he gets the opportunity to plead that his action was under orders from a competent authority. Such plea would have to be “proved by the production of the order directing” him.Such legal proceedings must commence within three months of the commission of the act or the filing of the complaint.
The Odisha Industrial Security Force Act, 2012 provides protection that is similar to that being provided to the members of the UPSSF. Under the Maharashtra State Security Corporation Act, no member or officer “shall be liable for any criminal or civil action in any suit or proceedings for the act done in good faith in discharge of duties”.
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