So much is being debated about police arrests these days in view of the students of an elite university in Delhi having been arrested. Here, based on my experience in policing, I will try to explain when police make an arrest and when they don’t. Why do police in one case make an on-the-spot arrest, while in another they may wait, defer, delay or even not make one? Is it because it is to favour anyone? Or be unfair to another? What does the law say? Does it give the police any discretion? Further, who are the police accountable to when they use the power of arrest? Also, when and why do police seek police remand for some people they arrest, while in others they let them out on bail soon after? Also, why are some taken into custody for interrogation while some after arrest are released on bail either by police themselves or the courts.
Why these differences?
The answer to this lies in understanding the law and its processes. To arrest or not to arrest, when and where to arrest, are important discretionary powers the investigating officer exercises. It is a responsibility with full accountability and justiciability before the judiciary. In many democratic and developed countries, false arrests call for heavy penalties and loss of job for erring police officers under the law, which enables civil penalties and damages. In India, it calls for suspensions as well as criminal proceedings leading to prosecutions.
This discourse is against the backdrop of arrest of students from Jawaharlal Nehru University (JNU) for alleged seditious slogans raised in the university. Since the police arrested them for grave offences, which were non-bailable, and wanted to investigate intensely, they sought police remand and the courts gave it. By now, all arrested students have been sent to judicial custody by the courts and the bail petition of one of them is to be decided soon. On the other hand, the police, while dealing with the same case, did not make any spot arrest of riotous lawyers on the Patiala House court premises even when their ‘hooliganism’ was captured on camera. It’s a different matter that some of the advocates were summoned and later arrested and granted bail. In their case, the police released them on bail as the offences were bailable by police. While in the case of students the bail could be granted only by the courts.
Both happenings are under investigation, so I will desist from drawing any conclusions.
Power with responsibility
Coming back to the power of police to arrest, in my experience, every arrest is a power to be exercised with a great sense of responsibility. Because arrest means restraint on the other person’s fundamental right to freedom of movement.
No arrested person can be detained beyond 24 hours by the police without being produced before a magistrate. This ensures protection from illegal detention. Every arrest is a discretionary power to be exercised with total accountability. The police may or may not arrest. In both cases, the officer is answerable to his seniors and to courts.
Here is what the section of law on arrest says, and I quote here only the headline that is meaningful. Section 41 of Criminal Procedure Code says: When police ‘may’ arrest without warrant. The police ‘may’ arrest. It’s not ‘shall or must’ arrest. This is where the police officer on the spot gets the discretion by law. Now, the discretion which the officer exercises is scrutinised by the courts when the person arrested is produced before the magistrate. If the court feels the discretion has been abused, the court can even discharge the person and seek an explanation from the police. The police are defended in the court by the state prosecutor, who is not subordinate to the police. He is independent. Therefore, chances are that he will not defend before the court an unjustified arrest. The accused on production is made aware of the grounds of arrest. The accused has a right to defend and is also given legal aid in case he cannot afford a lawyer.
It is this discretion in power of arrest that comes under debate daily as it did in the incidents of both the JNU students and riotous lawyers.
Under court scrutiny
We may or may not agree with the timing or decision of arrests, but this is to make readers aware that justification of all arrests made or not made is scrutinised by courts. These are situational keeping in view several factors. Because it is the duty of the police to ensure law and order and not let it deteriorate. As then Delhi police commissioner BS Bassi said to the media that he did not order the spot arrest of the lawyers at Patiala House court “to avoid collateral damage or further aggravation of law and order situation”.
The courts, meanwhile, are reportedly issuing contempt notices to erring lawyers too. The Bar Council, too, is examining their conduct under the Advocates Act.
It’s a question of our believing or not believing in the judgment of police whenever they make arrests.
Over the years, we have been losing faith in police; we tend to doubt their intentions every time even when they are in keeping with the law or the discretion it gives. There is a thin line between prudence and cowardice.
The real test of such situations is the intention known only to the police officer in charge. But, we judge them and often doubt them, which is what makes the job of policing most challenging in polarised situations.
(The writer is former IPS officer and runs the NGO Navjyoti India Foundation. The views expressed are personal)