Author – Sanighdha (University Institute of Legal Studies, Panjab University)
“The main political problem is how to prevent police power from becoming tyrannical. This is the meaning of all the struggles for liberty.” – Ludwig Von Misses
Martin Luther King Jr. once famously remarked, “Injustice anywhere is a threat to justice everywhere.”
Criminal justice administration is the term attributed to the mechanism which seeks to provide justice to those who have committed crimes. Apparently, it’s an umbrella term which also includes preventing crimes in the society, addressing grievances of the people in matters of crime and punishing the wrong doers for their acts. Criminal justice holds great importance for democratic nations as in such nations, it seeks not only to hold on fast, the retributive theory of punishment but also balance it with strings of reformatory theory. In such circumstances, it becomes necessary to balance the wrongs and the punishment given for the same, alongwith mandating that the rights of the people are not trampled upon. For preserving peace and order in the society, it is inevitable and a dire necessity to keep the criminal justice administration mechanism in place and more than ever, it is now, in unprecedented times of COVID19 –an invisible foe, that India needs to look over and guard jealously , the cannons which uphold the democratic values of our country and the tenets of justice that we so proudly often highlight.
THE POLICE AND ITS POWERS:
Richard J. Daley in his famous quote remarked, “The Police are not here to create disorder but to prevent one.”
Police is an important organ of the executive branch of the government which has been given the authority for two major functions: preventing the commission of crimes and maintaining the law and order situation in the respected jurisdictional area. The police and its numerous powers with regard to the aforementioned are mentioned in the Code of Criminal Procedure (CrPC) , 1973. There are also some constraints on the use of power by the police , which are mentioned comprehensively in the Constitution under Article 21 and 22 as well as in the CrPC. These are not prima facie restraints but tend to guide the police in the course of using its powers in the correct manner. One of these restraints is that the police does not have power to make an arrest of an innocent person. The powers of the arrest of the police and the persons it can arrest are given under Sections 41-44 of the CrPC. The police is expected to follow these rules and regulations so as the most cherished right of the individuals i.e. the right to life and personal liberty mentioned under Article 21 could not be taken away, except according to the procedure established by law. In India and elsewhere as well for that matter, the police is not known much for its “good actions in law” but for the transgressions of power that it so willfully and frequently commits. As per a study (2020) conducted by the National Human Rights Commission under the aegis of the Ministry of Home Affairs, police brutality is on an all time high across all the states of our country. The data clearly points out that Kerala is worse than Bihar, Chattisgarh, Jharkhand and Punjab when it comes to police brutality on people under custody. Also, the number of police custodial deaths have seen a hundred percent rise in Kerala in 2018-19 from 2017-18. Whereas jurists are of the view that the only way to prevent police brutality is to ensure a fool proof system wherein actions of police officers shall be strictly monitored and punished, the higher echelons of the police department are keeping a steady silent on this issue. In such a situation, the police is left unaccountable thus tantamounting to a deadly silence.
SECTION 188 IPC AND COVID19:
“The language of law must not be foreign to the ears of those who are to obey it.” -Billings Learned Hand
The time that this world is facing right now is an unprecedented one, which no one wished and no one imagined for. The present time had been largely difficult for the migrants who have been left astray on the streets to help themselves on their own. Thrown out on streets, left out of the mainstream, secluded from the society as ever before and forayed into a realm which possesses neither assurance of jobs and employment nor caters to the basic needs of their families; migrants have been left with nothing much but with the promises of the government. While deciding on a nationwide lockdown, what missed the thorough eyes of the government was the exodus of migrants that was to take place once the news reached them.
What followed the “migrant crisis” was a slew of contradictory orders that forced the migrants to return to their home state while defying all the orders issued by the Magistrates of their official working state. The steps were taken by the Magistrates under an archaic Act, the Epidemic Diseases Act 1897 (State Government can take action under this Act) and the Disaster Management Act, 2005 (gives power to the Central Government to take action). Not to forget that Section 188 IPC provided the worst punishments in cases of defiance. It is no trite that maximum of these people booked were poor migrant labourers, suddenly thrown out on dimly lit, unsafe and unhygienic streets from their tin-shed temporary shelters which atleast didn’t make them an ideal ‘creature’ for police brutality.
Section 188 of the Indian Penal Code punishes violators who disobey the guidelines of a public servant. Mens rea or a guilty mind is not an essential requirement for commission of an offence under this section. What is required is knowledge of the order so contravene, and that such contravention may result in or is likely to result in actual harm. The punishment of this Section is directly proportional to the intensity of the contravention committed by the person concerned.
According to a news report (The Tribune , 10 May 2020) In Uttar Pradesh, 20000 FIRs have been registered and 60000 people have booked for violating the prohibitory orders. Due process was never followed during such unlawful booking of people. There is no provision for registration of FIR under Section 188 IPC and the same has been emphasised by the Courts time and again. However, a complaint can be made by such public servant whose orders have been violated (C. Muniappan v State of Tamil Nadu-2010). A person unaware of law is naturally, whether intentionally or unintentionally going to break it. Penalizing someone by the State for its own shortcomings doesn’t really suit a democracy. Unprecedented times do not warrant for usurping the law. In Jeevanandham &Ors. v State & Ors.(2018), the Madras High Court has ruled in a case under S. 188, IPC the role of a police officer will be confined only to preventive action as stipulated under S. 41, CrPC and he cannot register an FIR, even though S. 188, IPC is a cognizable offence. According to a recent World Bank Report (“COVID19- Crisis Through A Migration Lens”), 40 million internal migrants have been displaced from their places of work since the nationwide lockdown was imposed. The same Report also quoted that 50,000-60,000 have moved from urban to the rural centres of their origin within a span of few days. The people who have been arrested under the orders have not been released yet and the criminal justice system is not working in their favour because too many powers have been given to the police and other authorities leaving them less accountable than ever before and giving them much freedom than given before.
In Prakash Singh v Union of India( 2006 (8) SCC1 ) and Vineet Narain v Union of India (1998 (1) SCC 226) , the Apex Court has upheld the importance of accountability and transparency in police forces. The Court also mandated the prosecution and granting of severe punishments to the erring police officials. But most of the guidelines laid down by the Court in this regard have not been followed. These guidelines were meant to be a roadmap and could have been helpful in trying times like these, had they been considered. But the police goes on to use its powers freely without any control and the innocent get to suffer, an innocent who does not even know what crime has he/she committed. Does the principle of Ignorentia Non Excusat Legem come into play here? Or does it not? Once the crisis end, the police will be made to give answers to its misdoings. The Court must step in when one organ of the government is not functioning properly. A democracy is meant to be a system of checks and balances and that alone ensures a healthy and participative democracy; without which- ruins await a nation.
According to Blackstone,
“It is better that ten guilty persons escape than that one innocent suffer.”