Due Process and Law Enforcement – Published in The Statesman

The curtailment of civil liberty in the form of detention of a civilian has a long history. In third world countries, like India, police officers and generally the Courts take view that ‘the end justifies the means’. In their eyes, taking unauthorized liberties in stopping, questioning and searching a citizen is commendable police work, if subsequently it is found that the arrest made without reasonable grounds turns out to be of some worth against the detainee.

It is however undisputable that such an action of the police would be in violation of constitutional and basic rights of a citizen. The Supreme Court, in D K Basu’s case (1996), laid down guidelines for making arrests, detention and interrogation of suspects. To express the present position as spelt out by the courts, I have two fine examples coming from two different courts of jurisdiction to uphold and strengthen civil liberty in their respective societies. One is of the Kerala High Court delivered in May 2015 and the other is by the United States Supreme Court, delivered in April 2015.

In the Kerala High Court verdict, the action was initiated by one Shyam Balakrishnanon the premise of deprivation of his personal liberty without justifiable reasons under law stating that he was arrested wrongfully as a suspected Maoist and upon finding that there was nothing available to determine he was a Maoist or any evidence of unlawful activity,he was released. The police claimed that he was not arrested;no criminal case was registered against him. Rather, the police took the stand that they were in fact trying to protect Shyam from a group of people assembled in the area and took him in a jeep to the police station.

The police,however,admitted that Shyam was interrogated, his laptop and mobile phone were collected for verification and later returned and that his house was also searched. The court, at the outset, clarified that being a Maoist is no crime, though the political ideology of Maoists does not synchronize with our constitutional polity. It can only be interfered with when such ideology is confronted with positive law. At the time of arrest and interrogation,the police had no clue about the commission of any offence. The police released Shyam without registering a case only after they realized that they had committed a mistake. The police had no material for the foundation of belief or suspicion as to whether Shayam was engaged in unlawful activities.Hence the High Court took the view that the Police violated personal liberty by taking him into custody “without satisfying that the petitioner was involved in any cognizable offence punishable under the law” and directed the State to compensate Shyam by paying him Rs 1 lac and litigation expenses.

Another view has come from the US Supreme Court where one Rodrigues had been stopped by police for traffic rules violation and upon checking the required licenses and papers, he was not considered “free to leave”for a further period of 7-8 minutes and he had to wait outside the car till a second officer came. Then upon searching vehicle with the help of a K-9 Unit (sniffer dog),a bag containing drugs was found from the car. Criminal proceeding was initiated against him, where Rodrigues took the plea that the seized drugs were inadmissible as evidence because the police officer had “prolonged the traffic stop without reasonable suspicion in order to conduct the dog sniff”.

The first court rejected the plea and convicted him, stating that the extension of “seven to eight minutes”for a dog sniff was insignificant and did not violate his personal liberty. The First Appellate court upheld the view but the Supreme Court found reasons to interfere stating that personal liberty may not be violated with respect to an unrelated investigation in a traffic stop,in case it did not prolong the stop from the usual time taken for a road side detention.But prolonging the detention for a dog sniff was not and is not ordinary procedure for a traffic stop. Accordingly, the court directed the first appellate court to reconsider the issue as to whether reasonable suspicion of criminal activity justified detaining Rodrigues for extended seven to eight minutes. The curtailment of civil liberties of an individual, when faced with State action has quite a history. It spans almost 850 years and includes some of the most important documents in human history.

The Magna Carta (1215) had a provision which stated that “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so,except by the lawful judgment of his equals or by the law of the land.” I must also mention an old verdict of an English Judge, Lord Camden in Entick v Carrington (1765) while dealing with the limits on executive powers of state after which the principle “The State may do nothing but which is authorized by law, individual may do anything but which is forbidden by law”emerged as the accepted norm and became genesis of the concept of “due process”.

Today, long after such principles and constitutional democracy have been established, executive powers particularly exercised through the police, have no limits of excesses against citizens. Except in some parts of metropolitan cities in India, such grievances of innumerable citizens have reached the courts many a time. However, the case of Shyam Balakrishnanis not only an exception but a new beginning to ensure personal liberty of citizens. We have seen extreme examples of encounters by the police where life itself has been taken away and they have gone unchecked except in a few cases such as the murder committed by senior Delhi Police officer S S Rathi and company calling it an encounter with a gangster.

The cover up in cases of encounters has become apparent though the Supreme Court has issued detailed guidelines in 2014 as what steps should be taken after an encounter takes place. However,even after all is said and done by judicial pronouncements and a little through legislative process, the way of functioning of protectors of personal liberty does not call for any appreciation till now because the mindset itself is such where the authorities think that they have a right to detain whomsoever,wherever and whenever they feel by applying their wisdom irrespective of their right to arrest within the parameters set forth in such cases. The law does not need any further clarification but the mindset of the functionaries needs to be rectified and officers need to be trained to exercise the legal process to ensure the personal liberty of an individual.

This article appeared in the Print Edition of The Statesman on 18th June, 2015

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