India’s Arrest Protocols –Vigilance and Reform of a Colonial System
By Farrukh Hakeem,
Policing in the Indian colony was modeled after the militaristic Royal Irish Constabulary instead of the civilian London Metropolitan Police Force model. The main purpose of this model of policing was to subjugate a large and hostile indigenous population with a relatively small force. The British colonists created a police force that was answerable predominantly to the regime in power and the colonial bureaucracy rather than to the people. The main function and purpose of this force was to control the population, instead of protecting the community. It sought to consolidate and secure the interests of one dominant group and was required to remain outside and distinct from the community.
The police forces were extremely hierarchical in structure, such that loyalty to the leadership and the establishment was more important than the rule of law (Patil 2008) Though India has made tremendous strides in the field of science and technology, all of these efforts may not benefit the citizens of India unless there are changes and improvements made to its administrative apparatus. The administrative bureaucracy reflects the needs of a colonial populace and needs to be upgraded so as to cater to the needs of its citizens and also treat all its citizens in a fair, respectful, non-arbitrary and non-discriminatory manner. The problem is most serious in the criminal justice arena, with policing being the area that requires urgent attention. Focusing on Security related concerns, the Sachar Committee outlined the discriminatory attitudes of the police and the law enforcement officials in India. The Muslim community tends to be over-policed as offenders and under-policed as victims. Police adopt a very highhanded attitude while dealing with Muslims. On the slightest pretext, the police rounds up Muslim boys, and fake encounters are a routine process illegally adopted by police to please their superiors. (Jamia Teachers Solidarity Report, 2012, 2009). Police presence in Muslim areas is more common than the presence of schools, banks or commercial establishments. Security forces enter Muslim homes on the slightest pretext. Muslims living in border areas fare much worse; they are subjected to acute harassment and regarded as foreigners by police and the administrators. During violent communal riots, there is large-scale targeted sexual violence against Muslim women and girls. This has had a chilling effect on Muslims all over India. As opposed to the above scenario, a look at another former British colony could give us some valuable insights to improve and fix the rickety old Indian system. After attaining independence, America, a former British colony went through various phases before it settled on the criminal justice processes and procedures that are now followed. The case of Brown v. Mississippi (297 U.S. 278, 1936) is fairly instructive. In this case three African American males were accused of killing a white man. The police extracted one of the defendants’ involuntary confessions after he was beaten up. The court held that the defendant’s involuntary confession could not be entered as evidence since it violated the Due Process Clause of the Fourteenth Amendment. During the trial, the prosecution admitted that the defendants confessed only after being subjected to brutal whippings by the police officers. One of these defendants had been strung up by his neck from a tree in addition to being whipped. The defendants had been convicted based upon these confessions. The US Supreme Court reversed these convictions, holding that a confession extracted by police violence cannot be entered in evidence and violates the Due Process Clause of the Fourteenth Amendment. In a later landmark case, Miranda v. Arizona (384 U.S. 436, 1966) the Court made the Miranda rights part of the routine police procedure to ensure that suspects were informed of their rights.
While looking at the functioning of the Indian police, Human Rights Watch, (2009)
focused its concerns on two different but linked issues:
• Police abuse of individuals, mostly criminal suspects; and
• The conditions that encouraged and enabled the police to commit these abuses.
Its findings clarified that this misbehavior was systemic and deeply rooted in the institutional practices followed by the Indian police. These practices not only persist, but are flourishing due to government neglect and failure to hold abusers accountable and to overhaul the structure and practices that are conducive to abusive patterns of behavior.
Upon conducting its own research into this issue Human Rights Watch (HRW) delineated four clusters of issues that warrant immediate attention.
• Failure by police to investigate crimes.
• Arrest on false charges and illegal detentions.
• Torture and ill treatment of citizens.
• Extrajudicial killings.
On seeking the causes of these persistent abuses HRW surmised that part of the problem related to the working conditions of individual officers. At the level of the civil police station, the venue where junior and lower level police mainly reside and deal with victims or suspects, it found that civilian police, mainly constables live and work in deplorable and abysmal conditions. During the course of their duties, they are often exhausted and demoralized. They are always on call, serving long hours without shifts and required equipment, only to retire after work to their filthy barracks or government provided tents for a few hours of rest. Junior level officers often come up against the unrealistic demands by their superiors to solve cases expeditiously. Even though officially encouraged, the paucity of time, and the lack of training and equipment does not encourage them to use professional crime investigation techniques. Police officers also face interference and intervention by politicians protecting known criminals.
In order to circumvent these systemic problems many police officers resort to convenient and self-serving short cuts. HRW learned from officers that they usually cut their caseloads by refusing to register crime complaints. In other instances, they resort to the use of illegal detention accompanied by cruel treatment and torture against those they do not have sufficient time or inclination to conduct a proper investigation. Instead of conducting a professional investigation, they resort to extraction of false confessions.
In May 2009 the elected government had promised to actively address these problems by instituting police reforms. The government should fulfill its promise by acknowledging the need to transform this institution from one that enables and encourages officers to commit abuse to one that promotes human rights and the rule of law, without any exceptions.
In the long run a significant drop in police abuse requires a thorough overhaul of the archaic colonial era police laws and structures. Government investment in training, personnel and equipment is critical for building a professional, rights-respecting police force that an emergent and modern India deserves.
Legal Protocols for Arrest of Suspects: There are legal provisions that control police officers on making arrests and the rights of the accused during this process. The police, by law, have the power to arrest. Since the police have much discretion in how this power is exercised it is often liable to misuse and abuse. In its Third Report in 1980, the National Police Commission looked at this power and concluded: Many of the discretionary/unnecessary arrests that are made by the police are on minor grounds; as such, this leads to high-handedness, corruption and a myriad of malpractices that tarnishes the image of the police. Consequently, this results in an overcrowding of prisons and unnecessary expenses in maintaining the arrestees. Since the power of arrest can severely restrict the rights of an individual, various guidelines have been issued. They enable police to act judiciously so as to safeguard human rights, maintain order and curb crime.
An arrest can be affected under section 41 of the Code of Criminal Procedure, 1973 (Cr. P.C) on the following grounds:
• Commission of a cognizable offense (felony).
• For unlawfully keeping implements for housebreaking, or stolen property.
• For being a proclaimed offender.
• Obstructing the police in the performance of their duties.
• Being a deserter from the Armed Forces.
• For committing an offense outside India, which is punishable in India (extradition).
• Being a released convict, who breaches any condition of parole under section 356 Cr.P.C.
• Upon the request of a police officer from another jurisdiction upon furnishing sufficient cause.
• Belonging to categories of persons specified in sections 109, 110 Cr.P.C.
Further, under section 42 Cr.P.C., a person can be arrested for a non-cognizable offense, if the offense was committed in the presence of a police officer and the accused fails to provide identifying information or submits false information. Police can also arrest a person without a warrant if they have information that the person is likely to commit a cognizable offense (sec. 51, Cr.P.C). Although the above constitute the predicate for a valid arrest, there have been some additional guidelines also.
In Joginder Kumar v. State of UP and others (1994) the court stipulated that an arrest can be made only after a reasonable satisfaction regarding the complaint. This can be accomplished upon conducting a preliminary investigation. Also, the arresting officer must be convinced regarding the role of the offender and the necessity of the arrest. This case also sought to avoid unnecessary arrests by exhorting the suspect to be present at the police station and not leave its precincts without prior permission.
The National Police Commission has also laid down that arrests for cognizable cases should be carried out under the following situations:
• When it involves grave offenses such as murder, dacoity, robbery, robbery, rape, etc., and that it is necessary to curb the movements of the accused so as to instill confidence in the terrorized victims.
• There is a likelihood of evasion or absconding from the legal process.
• The accused needs to be restrained from committing violent offenses.
• The accused is a habitual offender who is likely to commit further offenses.
• In order to prevent wrongful arrests, police should either seek help from someone who can identify the person or take a picture of the person (Bombay Police Manual).
• When the Station House Officer (SHO) deputes a junior officer to arrest a person without a warrant, the SHO is bound to give a written order detailing the arrestee and the grounds for the arrest. The arrestee is entitled to be notified about the substance of the order (sec. 55 Cr.P.C).
• Upon being denied free access the police can break down a door/window to gain access. However, where this involves a pardanashin lady, proper notification of this intention should be conveyed. Unless, the pardanashin lady herself is to be arrested, in that case the police should afford her all reasonable facilities to withdraw (sec. 47 Cr.P.C).
Guidelines During Arrest:
• Without any delay, the arrestee must be informed about the grounds of the arrest and the right to be represented by a lawyer (Art. 22(1) Constitution).
• While making an arrest, the officer should avoid using force. Minimum force should be employed if the arrestee offers resistance. Due care should be taken to avoid any injuries (National Human Rights Commission Guidelines on arrests).
• Police officers conducting the arrest or interrogation, must display accurate, visible, and clear identification and name tags with their designations (DK Basu v. State of West Bengal, AIR 1997 SC 610).
• The details of the officers handling arrest and interrogation must be recorded in a register.
• While arresting a person, the police must make a memo of arrest, which should be attested by at least one witness, who is either family or a respectable member of the locality. The arrested person should also sign the memo and receive a copy of such memo.
Post Arrest Guidelines:
• The accused must be produced before the court within 24 hours of arrest, excluding time for travel (sec. 56, 57, Cr.P.C). However, the time spent in making inquiries while transporting the arrested person to the court is not excluded from the 24 hour deadline (Bombay Police Manual, 1959, rule 198 (4); ICCPR, 1966, Art. 9); Cr.P.C. sec. 56).
• The case diary should record the reasons for the arrest and a complete description of the arrested person (National Police Commission, 3rd Report, 1980, p.32, Para. 22.28).
• If the person is arrested for a bailable offense, s/he should be informed about the right to get bail (Cr.P.C. sec. 50.2).
• The accused person is entitled to inform a friend or relative about the arrest and place of detention as soon as practicable. The accused must be made aware of this right upon arrest or detention.
• An entry should be made in the diary kept at the place of detention, noting the person to whom the information regarding arrest was given along with the names of the persons in whose custody they are being kept.
• A friend/relative of the arrested person must be notified by the police regarding the time, date, and place of arrest/custody. If the relative/friend resides outside the town/district, such information should be communicated telegraphically within 8-12 hours of the arrest through the District Legal Aid Organization and the concerned police station.
• Handcuffs or fetters should not be employed as a matter of routine or for the convenience of the arresting/escorting officer (Sunil Batra v. Delhi Administration, 1978, 4 SCC 494). The police should not handcuff the arrested person merely as a tactic of humiliation/harassment (Prem Shankar Shukla v. Delhi Administration (1980) Cri. LJ 930). The arrested person should only be handcuffed if there is a clear and present danger of escape coupled with the following factors: (a) that the person is involved in a serious, non-bailable offense and is a recidivist.(b) the person is of a desperate character; (c) the person is likely to commit suicide; (d) the person is likely to attempt escape. If for any reason handcuffs have to be used, the reasons, should be recorded in the Daily Diary Report. An accused person cannot be handcuffed to and from custody to the court without the permission of the magistrate (Prem Shankar Shukla). Handcuffing should not be the sole method to restrain the prisoner from escaping. Alternative means should be used to prevent escape from custody such as transporting them in well-protected vans or increasing the strength of the armed escort.
• The officer conducting the search should make an inventory of the articles seized and a copy should be furnished to the arrested person (sec. 51.1, Cr.P.C.)
• Arrested persons should be held and kept only in officially recognized places (UN Humanitarian Affairs Division, UN Blue Book for Law Enforcement Officials: Rule 5.2 UN Blue Book for Law Enforcement Agencies (UNBBLEA).
• Proper care should be taken to ensure the well-being and safety of the detainee. Proper arrangements should be established for the shelter, subsistence and toilet facilities of those in custody. Detainees should be provided with adequate food, clothing and shelter, along with convenient access to physical exercise, medical services, and items of personal hygiene (UNBBLEA, rule 5.10).
• While collecting evidence regarding commission of an offense, the police officer can get the person medically examined by a registered medical practitioner. In the case of examination of girls or women, the officer must ensure that such examination is conducted by a female medical practitioner (sec. 53, Cr.P.C.).
• No person should be subjected to torture, inhumane or degrading treatment (Art. 17, ICCPR, 1966; Universal Declaration of Human Rights, 1948).
• The accused cannot be forced to confess, or testify against themselves (Art. 20(3) Constitution of India. Further, an accused/arrested person cannot be compelled to sign any statement given to the police during an investigation (sec. 162, Cr.P.C.).
• Unless it is absolutely necessary, the arrested person should not be photographed. If the arrested person must be photographed, prior sanction must be obtained from these officials – Superintendent of Police, Deputy Inspector General of Police, or the Criminal Intelligence Department (Rule 199, Bombay Police Act, 1959, v.3).
• The area magistrate should receive copies of all documents, including the memo of arrest.
• As soon as an arrest is made, the nearest Legal Aid Committee should be informed so as to obtain legal assistance (Sheela Barse v. State of Maharashtra, 1983 SCC 96).
• The state police headquarters should receive all information about the arrest within 12 hours of arrest and the place where the arrested person is being detained. This information should be prominently displayed in the police control room at both district and state headquarters.
Guidelines for the Arrest of Women:
• Arrest of women should be avoided between sunset and sunrise. To the extent possible, women police officers should be deputed where females are associated.
• Times selected for questioning should not be geared towards embarrassing or harassing them during questioning. Females should not be called to the police station, or any other place, other than their residence for questioning.
• Police making an arrest are duty bound to ensure that arrested females are segregated from men and kept in female lockups in the police station. In the absence of separate lockups, women should be kept in a separate room (Sheela Barse case).
• Female police officers/constables should guard women/girls. Body searches for females should only be conducted by women and with the strictest regard to decency. To the extent possible, one of at least two or more witnesses to the search should be women (sec. 51(2); 100(3); Cr. P.C.).
• Women/girls should only be examined under the supervision of a female medical practitioner (sec. 53(2), Cr.P.C.). All arrested females should be provided with necessary pre/post-natal care. Restraints on pregnant women should only be employed as a last resort. The safety of women and their fetus should never be endangered and women should never be restrained during labor.
Guidelines for the Arrest of Children:
• If it is necessary to arrest children, their detention should be for the shortest possible duration. As a general rule, children should not be arrested, if this is done it should be done as a last resort. According to the relevant law, anyone who has not completed 18 years is considered to be a child [The Juvenile Justice (care and protection of children) Act, 2000. Act# 56 of 2000].
• The National Human Rights Commission Guidelines stipulate that force should not be used when arresting children. Police should obtain assistance from respectable citizens to ensure that children are not terrorized and are not subject to coercive force.
• Upon arrest by police, the child must be placed in the charge of a special juvenile police unit, or a designated officer, who must report the matter immediately to a member of the Juvenile Justice Board (sec. 10, JJA, 2000).
• Upon the arrest of a child, the parents/guardians must be informed immediately (sec. 13, JJA, 2000).
• Arrested children should be kept in facilities that are separate from adults. Due care should be taken to protect them from torture and ill treatment such as rape and sexual abuse from other detainees and officials (Kosaru, Commonwealth Human Rights Initiative).
• In cases where children are below the age of 15 years they must not be called to the police station, or any other place besides their place of residence if they need to be questioned by the police (sec. 160(1). Cr.P.C).
While examining the goals for the criminal justice system, scholars have formulated these goals for a modern democratic society (Levine et al., 1980; Nagel, 1981; Hudzik and Cordner, 1983; Cushman, 1980). These goals may be summarized as:
• To protect the integrity of the law, to improve the quality of justice, and ensure due process of the law.
• To control crime and delinquency and/or to root out the causes of crime.
• To increase the efficiency of the criminal justice system and improve its related programs.
• To improve community protection and support for the criminal justice system.
• To make all personnel of the criminal justice system accountable to the public.
Two recent but troubling cases should wake us up from our slumber. The gruesome gang rape of a young student in Delhi and the Dhule riots (Mander, 2013; Kamdar, 2013). The Dhule police were themselves complicit in these riots. Footage on YouTube video shows the unprofessional, shameful and disgraceful actions of the Indian Police to the global community. Both these cases glaringly display how the weak and marginalized sections are faring in modern India.
The discrimination and prejudice against Indian Muslims has gone on unabated even after numerous investigations and commissions have pointed out the glaring problems facing the nation. Most of these commissions are now merely used by unscrupulous politicians to buy time till things cool down and the public forgets about it. These have now become a farce by the political and administrative apparatus to shirk responsibility. Due to a lack of will to make crucial changes, these problems have now reached a critical level and have now begun to affect the next vulnerable and marginalized group of Indian society - women. If a woman is not safe in modern India and can be brutally gang-raped in a public space there is little hope. This trend towards social cannibalism, where the strong prey upon the weak, calls for a thorough revamp of the public safety and security apparatus of the state. A drastic change is long overdue - to move from a law and order focus to one that calls for an evidence-based, community-oriented police with a focus on efficiency, due process, professional integrity, and accountability. It calls for a service oriented culture that treats all Indians with dignity and seeks to protect the weak and marginalized sections of society. It also calls for meaningful reforms within the Indian police, with a focus on racist and discriminatory practices or individuals who perpetuate these. The colonial masters have long gone from the Indian shores. A modern, independent, and democratic India should not tolerate this colonial policing apparatus. It deserves better.
Cushman, Robert (1980) Criminal Justice Planning for Local Governments. Washington, DC: LEAA.
Hudzik, John and Gary Cordner (1983) Planning in Criminal Justice Organizations and Systems. New York: Macmillan Publishing Company.
Kamdar, Seema (2013) Economics at Heart of Dhule Riots. Daily News and Analysis. January 22, 2013.
Kosaraju, Aravinda. Guidelines for Police Officers on Making Arrests. New Delhi: Commonwealth Human Rights Initiative. Accessed on January 3, 2013 at www.humanrightsinitiative.org/programs/aj/police/papers/guidelines_on_ma...
Levine, James et al., (1980) Criminal Justice. A Public Policy Approach. New York: Harcourt Brace Jovanovich.
Mander, Harsh (2013) Safety for the Last Woman. The Hindu. January 27, 2013.
Nagel, Stuart (1981) The Means May Be a Goal. Policy Studies Journal, 9, Special Issue # 2 (1981), 567-578.
Patil, Sanjay (2008) Feudal Forces: Reform Delayed. Moving from Force to Service in South Asian Policing. New Delhi: Commonwealth Human Rights Initiative.
Sachar Commission (2006) Socioeconomic and Educational Status of the Muslim Community in India: A Report. New Delhi. Government of India.
Miranda v. Arizona, 384 U.S. 436 (1966)
Brown v. Mississippi, 297 U.S. 278 (1936)
Joginder Kumar v. State of U.P. and others 1994 (4) SCC 260
Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96
Sunil Batra v. Delhi Administration (1978) 4 SCC 494
Prem Shankar Shukla v. Delhi Administration, (1980) Cri. LJ 930.
D. K. Basu v. State of West Bengal, AIR 1997 SC 610.
Prakash Singh and Others v. Union of India and others (2006) 8 SCC 1.
The Hindu (2013) Fact Finding Team Alleges Deliberate Targeting of Muslims in Dhule. Report by Special Correspondent. January 18, 2013.
Human Rights Watch (2009) Broken System Dysfunction, Abuse and Impunity in the Indian Police. New York.
Jamia Teachers Solidarity Association (2012) Dossiers of a Very Special Cell.
-- (2012) The Case that Never Was:The SIMI Trial of Jaipur.
-- (2009) 'Encounter' at Batla House: Unanswered Questions.
The Juvenile Justice (Care and Protection of Children) Act, 2000.
The Code of Criminal Procedure, 1973.
The Constitution of India, 1950.
The International Covenant on Civil & Political Rights, 1966.
UN Blue Book for Law Enforcement Agencies.
Bombay Police Act, 1959.
Universal Declaration of Human Rights, 1948. University of Minnesota: Human Rights Resource Center.
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