The recent arrest of senior IAS officer, Sudhir Kumar, chairman of the Bihar Staff Selection Commission by the Special Investigation Team of the Bihar Police constituted to probe alleged irregularities in the recruitment and leaking of question papers for various posts, has created a storm in the corridors of power in Bihar. In a series of actions, the Bihar IAS Association has come out in support of the accused officer and termed his arrest arbitrary, humiliating and unjust. They have questioned both the timing and manner of the arrest, demanded some sort of immunity from arrest in future cases, hinted at a cover-up and threatened to refuse to follow verbal orders of the political executive.
Predictably, the chief minister of Bihar has not taken kindly to this defiance and has warned of severe action against such indiscipline and vowed to continue actions against corrupt bureaucrats. Stepping back from the specifics of the case, there is once again a spotlight on the power of arrest given to the police in our criminal laws. One retired IAS officer, writing anonymously in a daily newspaper, termed it as proof that India was now a police state. According to him, even as the common man is deprived of a sense of security and justice, the police are basically hand in glove with organised crime and those in power, and all such arrests are made at the behest of political masters to cover up more serious misdeeds.
Without a trace of irony, he suggests the solution is to place the police totally under the magistracy (read IAS), so that once again, the law-abiding citizens of India can breathe a sigh of relief and carry on leading lives free from the fear of unjust coercion by the police and presumably free of corruption too, as in the days of the British Raj, when the ICS was judge, jury, executioner. While one can safely ignore the thinly disguised trade unionism and self-serving motives behind this criticism and the offered remedy, what cannot be denied is that the power of arrest of the police in India is too important and sensitive an issue to be left to the police alone. From time to time, the Supreme Court, through several landmark judgements, has framed detailed guidelines regulating arrests. Since these have the force of law, they are adopted and incorporated into police regulations by state police forces and eventually become part of the standard operating procedure of the police.
There are two aspects of the public interest involved in assessing the proper demarcation of the power of arrest. First and foremost, to protect the liberty of law-abiding citizens from arbitrary and coercive police action. Second, to ensure that in heinous cases, involving either violence or high-level corruption, the accused are not able to intimidate witnesses or tamper with evidence. It is clear that sometimes, these two aspects are bound to be in conflict. The aspect which prevails in our public discourse depends on whether one is approaching the issue from the perspective of the victims of crime or the accused.
From the victim’s viewpoint, arrest is a powerful palliative. The sight of an accused behind bars sends a powerful message that in some way, the wheels of justice have begun to turn. So, in cases of murder, rape, grievous bodily harm and violent loss of property, it is expected that the police will identify the culprits and ensure their arrest quickly. Where the crime may not have a clearly identifiable victim, such as cases of high-level corruption involving collusion by public officials, the public at large and the media expect that arrest will be an integral part of the investigation. A reluctance to arrest or a delay in arrest is often projected as proof that the police have been bought over or influenced by the accused.
The view from the perspective of the accused, as in the recent case from Bihar, is diametrically opposite, and understandably so. In most cases of an arrest of a high-profile person, the police are at the receiving end of charges of vindictiveness, corruption and cover-up. Never mind that in every arrest in a criminal case, the police are required to produce the accused before a judicial magistrate within 24 hours, along with an arrest memo that records both the manner of and the immediate reasons for the arrest. If the arrest is blatantly unjustified, the magistrate has the authority to grant bail and record observations against the police. To suggest that the power of the police to arrest is unchecked is simply not true. I don’t expect any high-profile accused to agree that their arrest was justified, but the proper forum to term its use as justified or otherwise can only be a court of law.
The demand from the Bihar IAS Association and various other quarters — giving some sort of blanket immunity from investigation and arrest to senior bureaucrats — is completely out of touch with the prevailing public mood as well as societal needs. On the one hand, we already have a system of different grades of immunity from criminal investigation and arrests for the higher judiciary, elected politicians and senior bureaucrats. On the other, there is widespread public disaffection with corruption in our public institutions. To further extend the scope of immunity would be counter to public expectations and clearly not in the public interest. India faces an epidemic of corruption, not an epidemic of victimisation of honest officers. I suspect that at the heart of the problem lies the low credibility of police organisations, and their clearly poor capacity to tackle high-profile cases with professionalism and integrity. Unless these structural issues are addressed in earnest, and sustained investment is made in improving police capacities and insulating them from extraneous influences, high-profile arrests will continue to inspire criticism and cynicism from all quarters.