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Monday, August 03, 2020

Rescue liberty from law

It is depressing that the law concerning personal liberty remains one in theory and another in practice. Mercifully, things are changing.

Written by P Chidambaram | Updated: July 5, 2020 9:09:12 am
Tamil Nadu custodial death, Jeyaraj Bennix, tamil nadu police In the Jeyaraj and Bennix case, for the alleged petty offence, they should not have been remanded to any custody, police or judicial, and should have been granted bail on production.

If a person is arrested, he/she must have done wrong. If the person is denied bail, he/she must be guilty. If a person is sent to judicial custody (which is different from police custody), he/she deserved to be punished with imprisonment.

Few pause to reflect that each of the above conclusions is patently wrong. It is our callousness towards that inviolable right called ‘liberty’ and our ignorance about how liberty is eroded that lead to a George Floyd moment in Minnesota, US, or a Jeyaraj and Bennix moment in Tamil Nadu, India.

Jeyaraj and Bennix’s is not the first case of alleged custodial torture in India. In 1996, two judges of the Supreme Court took up, suo motu, letters from one D K Basu of West Bengal and one A K Johri of Uttar Pradesh that alleged frequent instances of custodial torture, and delivered a historic judgment on December 18, 1996 (D K Basu vs State of West Bengal, (1997) 1 SCC 436). That judgment has been affirmed many times; yet, sadly, nothing has changed after 24 years.

Too Many Police

An average person has a touching faith in the State in so far as the State deals with other persons, and is willing to believe that a police officer, a prosecutor, a magistrate, a judge or a doctor will always act lawfully. He/She is wrong. Listen to Lord Denning:

“No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do: and will not do things that they ought to do.”

The seed of custodial torture is sown not after the custody, it can be traced to the stages of arrest, denial of bail, allowing police custody, and remanding to judicial custody. At every stage, the law is clear, but its application is often wrong and perverse.

Let’s begin with arrest. In D K Basu, the Court pointed out that we have given the power of arrest to many authorities other than the regular police: the CBI, ED, CID, CRPF, BSF, Traffic Police, Income-Tax, etc. Some of them claim they are not ‘police’ and are not bound by the Code of Criminal Procedure! The ED, for example, has asserted it is not obliged to maintain a ‘case diary’. Worse, we have not specified the circumstances when an arrest may be made. The National Police Commission (Third Report) had observed that 60 per cent of all arrests were “unnecessary”. The judges quoted the guidelines recommended in the Report and lamented,

“The recommendations of the Police Commission reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. These recommendations, however, have not acquired any statutory status so far.”

Arrest & Remand

The first reform is to take away the power of arrest from many authorities. The second is to declare that any authority with the power of arrest is a ‘police’ officer. The third is to severely limit the power of arrest to cases arising in specified circumstances. Remember, Jeyaraj and Bennix were arrested for allegedly keeping their shop open for 15 minutes more than the time allowed in a lockdown!

The second stage is production and remand. A magistrate/district judge will grant police custody without scarcely a thought to the need for such custody. At the end of police custody (maximum of 15 days), the magistrate/district judge will invariably send the arrested person to judicial custody. The law is very different. In Manubhai Ratilal Patel, (2013) 1 SCC 314, the Supreme Court said “…the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police custody or justification for judicial remand or there is no need for any remand at all”. Rare is the magistrate/district judge who bears in mind the underlined words.

The third stage is the doctor’s examination of a person arrested or remanded to custody. If Jeyaraj and Bennix had been examined by a doctor, properly, how could they have been given a clean bill of health?

Exception Becomes Rule!

The fourth stage is bail. Few magistrates/district judges will reject the prosecutor’s opposition to bail, at least at the first or second hearing. Every jail is filled with under-investigation or under-trial prisoners when, under the law, they should be on bail. The law was laid down by Krishna Iyer J in Balchand (1977) 4 SCC 308. Since then, ‘Bail is the rule, jail is the exception’ has become a hallowed principle. However, few magistrates/district judges apply the rule, they are happy to apply the exception!

In the Jeyaraj and Bennix case, for the alleged petty offence, they should not have been remanded to any custody, police or judicial, and should have been granted bail on production.

It is depressing that the law concerning personal liberty remains one in theory and another in practice. Mercifully, things are changing. Recently, a Constitution Bench in Sushila Aggarwal (January 29, 2020) reaffirmed another Constitution Bench judgment in Gurbaksh Singh Sibbia, (1980) 2 SCC 565 and courageously overruled eight judgments of the Supreme Court and also declared as “not good law” the view expressed in certain other judgments. To err is human, to correct the error is justice.

There is yet hope for those who find themselves in a situation like Jeyaraj and Bennix did before they died.

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