Monday, February 15, 2010

To arrest or not to arrest -- Home ministry in excruciating pain

Ministry of home affairs had notified the CrPC amendments recently after full one year delay.  It seems they are in agony over the matter of restraining powers of arrest by police.  Read below:

NEW DELHI: The Centre’s efforts to simplify and restrict powers of arrest may take a while longer to yield fruit as the home ministry’s draft proposal to make it mandatory for a police officer to give reasons in writing for both arresting or not arresting a person has run into some resistance.

The contentious amendment to Section 41, CrPC, passed by Parliament, was not notified following voluble protests by lawyers who opposed the move to give police discretion over making an arrest in cases where the likely punishment was less than seven years. It was feared dilution in mandatory arrest provisions would hurt lawyers who depend on bail cases.

Even if we assume that people getting falsely arrested is no big deal, the real reason is not that a livelihood of a few lawyers will be hurt.  The real reason is that most of the lawmakers themselves are lawyers or have good knowledge of how to game the legal system, several of them having criminal cases pending or even convictions.   Having the full knowledge themselves of how to manipulate the system, they do not want to lose their power to terrorize common public or enemies by arrests in false cases manufactured by police.  Don’t we remember how ex-DGP Rathore allegedly put false cases against Ruchika’s family?  If police could not arrest arbitrarily, the powerful people will become just like the rest of us – citizens.

Now, the home ministry feels the amendment can state reasons for both arrest and non-arrest and this is likely to pass muster with bodies representing lawyers. The catch seems to be that the proposal may end up working contrary to the intended reform of making arrests less whimsical, arbitrary and opaque than has been the case. Though home minister P Chidambaram has said the existing provisions of arrest are capable of being misused and this perception is widely shared, some pertinent issues have arisen. It has been pointed out that asked to record reasons for arresting or letting a person go will see most police officers opt for the former. The instinct would be to play safe rather than be blamed for letting a suspect or criminal walk away.

This kind of anxiety on making decision is some kind of tragic-comedy on state of affairs in India.  It reminds of Hamlet and “to be or not to be” kind of dilemma.  If police has to give reason, then we assume it will be reasonable reason, and not just formality like “hereby I arrest this person because I feel that he could be a dangerous criminal”.  Come on, the whole idea of recording reason for arrest is that there is a written record which can later be used to bring guilty police person to book.

Discussions in government have seem PMO voice the view that the notification can either be held back for a while longer to allow a detailed review of various offences and decide whether they should be dealth with arrest, made compoundable or bailable. The review could also look at the quantum of sentencing — issues that have typically arisen in sexual molestation or drunk driving cases.

Just look at how meandering the decision making has gone from simple task of arrest/ no-arrest to quantum of sentencing and specific crimes.  This is just putting wool over eyes of public that something is being done by bureaucrats when all they are doing is delaying things and not taking any decisions whatsoever.

The need for a careful look at the arrest laws has been occasioned by a view that the guidelines for making detention more accountable, while in keeping with the government’s push for reform, may not cover certain important eventualities. Conditions such an apprehension of flight, recovery of stolen property or threat to witnesses may not always be easily established. This had to be addressed in a non-draconian manner.

And all these things are possible when fundamental issues are solved – a better police force, well-paid, in larger numbers, without interference from political and power bosses.  Right now the people who take police career in India probably do it because they could not get anything better, rather than doing it with spirit of service and pride.  With such low pay and atrocious working hours, it is ensured that police in India can do only one thing properly – do bidding of political masters and powerful people.

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