Thursday, August 01, 2013

You May not Approach the Indian Police

In India, the right of a citizen to approach the police for help is not yet established by the constitution.

If you, or anybody else, is the victim of a crime in India, the first step to get help is to register an FIR (First Information Report) with the police.  After almost one and a half century of the introduction of the Indian Penal Code, this "registration" of one's complaint is still not an unequivocal right of a citizen of India.

Never mind that a mere registration of a complaint is no guarantee of investigation, prosecution or conviction.  In the vast majority of complaints, no investigation worth its name happens.  Some prepared statements are taken from a few people, and presented in court for lawyers to argue for or against.

Despite numerous judgments by the various high courts, there is this "extremely important" question, which was the subject of a judgment in the case of Lalita Kumari vs Govt.Of U.P.& Ors. on 27 February, 2012 (Supreme Court of India):
"7. The short, but extremely important issue which arises in this petition is whether under Section 154 of the Code of Criminal Procedure Code, a police officer is bound to register an FIR when a cognizable offence is made out or he has some latitude of conducting some kind of preliminary enquiry before registering the FIR."
And after recording the varied opinions culled from a century of denying Indians the right to effective law enforcement, this was the substance of the judgment:
"112. In view of the divergent opinions in a large number of cases decided by this Court, it has become extremely important to have a clear enunciation of law and adjudication by a larger Bench of this Court for the benefit of all concerned - the courts, the investigating agencies and the citizens. 
113. Consequently, we request Hon'ble the Chief Justice to refer these matters to a Constitution Bench of at least five Judges of this Court for an authoritative judgment."
After glancing through the great wall of text that is this judgment, the following caught my eye:
"51. The fact that Sections 154 (3), 156(3), 190, 202 etc. clearly provide for remedies to a person aggrieved by refusal on the part of the SHO to register an FIR, clearly show that the statute contemplates that in certain circumstances the SHO can decline to register an FIR."
The blame for the suffering of Indians, as it relates to a feeling of helplessness to approach the police, is squarely to be placed upon the architects of our constitution.  On one hand, they prescribe a statutory duty for the police to register the complaint of a citizen:
"(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf." (Section 154, CrPC)
On the other hand, they provide remedies in case this "writing" doesn't happen without penalty to the policeman who refused his duty.  I am simply amazed that this simple act of writing down a citizen's complaint is still the subject of a debate in the highest court of the land.

Moreover, this is an elementary and flagrant misunderstanding of how incentives work in humankind.  If there is a duty or a guarantee, it must be enforced by a mechanism.  If there is no mechanism to enforce it, then the duty or the guarantee is not worth the piece of paper it is written on.

It is similar to someone claiming: "Satisfaction guaranteed."  That is an unfinished sentence.  The complete sentence must say: "Satisfaction guaranteed OR xxx."  And the "xxx" must be of a similar intensity of the initial consideration or promise.

On one instance the Indian constitution and the various laws and acts say something pretty much unequivocal.  Then soon after, sometimes on the same page, they wink at you.  Pliss to unnerstand.

Want another example from recent times?  After the infamous Delhi gangrape case, the following has been recommended as an amendment to the Criminal Procedure Code in India:
“166A. Whoever, being a public servant,––
(c) fails to record any information given to him under sub-section (1) of section 154 of the Code of Criminal Procedure, 1973 and in particular in relation to cognizable offence punishable under section 354, section 354A, section 354B, section 354C, sub-section (2) of section 354D, section 376, section 376A, section 376B, section 376C, section 376D or section 376E,"
shall be punished with imprisonment for a term which may extend to one year or with fine or with both.”.
Attentive readers will note that this excellent provision is logically of the form of:
  • Every x in S has property P (Every reported cognizable crime must be registered)
  • In particular: x1, x2, x3 (Especially the crimes against women)
What is the wink here?  Not a terribly opaque one, I think.

What the lawmakers are saying is: The police must help everybody.  But we know that's not happening, and will not happen.  So they must at least help the women.

So, in the very process of lawmaking, we admit to ourselves that our system is broken and we triage even before we have a calamity.

My question to the lawmakers would be this: If the first part of a sentence of law is assumed to be breakable without consequence, what is the guarantee that anything which comes later is held to any higher standard?  Just because of the words "and in particular"?  Doesn't inspire much confidence.

According to this gentleman, mandatory registration of citizen's complaints can be an infringement of the accused's rights because the police will just go arrest anybody who is accused.  I disagree.  That knee-jerk reaction of the police is to be contained, and must be subject to judicial review.  No court in India asks the police their reasons for arresting any person merely named in a complaint.  Therefore the police currently, to its great advantage, doesn't need to have any.  It's a sorry state of affairs, but it needn't be this way.

The Supreme Court of India has long established in Joginder Kumar vs State of UP (1994) that the power to arrest is not the same, not by a long shot, as the justification for an arrest.  The former is a power, the second is an exercise of that power based on some reasons.  But that judgment, like many more, is gathering dust while the citizens suffer.

It is not true that the police must arrest, and therefore deprive someone of his liberty, as soon as someone complains against someone else.  To avoid this misapplication of police powers, is it justified to snatch the power of the citizens to even approach the police and to register their complaint?  Of course not.

And what is the current status of this issue?  After all a constitution bench was supposed to look at it.

Last I heard, it was still to get a hearing.

Meanwhile alternate means of justice continue to flourish in India.  Connections, Approach, Bribes, "Settlements", Lynch mobs, Community Boycotts, "Rasta Roko", self-immolation in front of police stations, ...

1 comment:

Anonymous said...

wow great analysis. it will be nice to see a comparison between other countries (say UK or US or scandanavian) on these points - i am sure they will not have an implicit assumption that the law is broken :)