Someone must have slandered Josef K, for one morning, without having done anything truly wrong, he was arrested.
Franz Kafka, The Trial.
It was the year 2012. The eminent counsel, Ram Jethmalani made a remarkable opening statement, before the then Acting Chief Justice of the Bombay High Court. “My client is an ordinary person, so he went to a court of law. My opponent is a rich builder, so he went to the police”. Jethmalani’s client had dared to file a suit to claim his rights on a prime land against a powerful builder. The builder effortlessly had the person arrested by the police. This statement, succinct and terse, exposed the bitter truth of how our criminal administration system often functions.
In the recent judgment ‘Neeharika Infrastructure Pvt. Ltd. V. State of Maharashtra’ the Supreme Court set aside a ‘no coercive order’ passed by the High Court protecting a builder. The High Court had not given any reasons for the protective order. This order was rightly set aside by the Supreme Court. Such a no coercive order was not warranted in the facts and circumstances of the case. The text of the judgement follows a long line of decisions. The Supreme Court rightly held that passing of such a no coercive order “casts an onerous and more diligent duty on the Court” and that “such interim orders cannot be passed mechanically and/or without assigning any reasons”.
There is a caveat here. Every landmark judgment of the Supreme Court is like the message of great leaders. They create an imagery in popular perception. The Neeharika judgement seems to, in tenor, though not the text, send a signal to the High Courts to desist from issuing ‘no coercive orders’. The Court declared, “therefore, passing such type of blanket interim orders without assigning reasons, of not to arrest and/or “no coercive steps” would hamper the investigation.”
But is this tone censorious? If that is the perception, it will entail the High courts stop passing of protective orders no matter what. This perceived embargo will in effect, transfer power from the highest constitutional authorities to the ‘thanedar’’ – unbridled and unhampered by the Constitution and insulated from judicial scrutiny.
It will be unfair to the High Courts, if we do not understand the ground realities under which they work. In any of the High Courts anywhere, the calendar of a judge or a Bench hearing criminal matter will show a intense density of matters crying out for the liberty of its citizens. A judge has a very little time on his/her hands. The constraint of time competes with constitutional liberty of the citizens. Legal practitioners are aware that judges on these benches have trained themselves and often have an innate instinct to cull out an unjust or malicious or corrupt police action. These Courts on short hearings pass ‘no coercive orders’ to prevent an arrest which could scar the citizen for life.
Many members of the Constituent Assembly, who saw and experienced firsthand, the bloodied minded actions of the colonial police force, were extremely vocal in incorporating ‘the due process clause’ of the United States Constitution. This would have entailed the courts to question the fundamental question of the fairness of police actions.
Chimanlal Shah, a vocal supporter for the induction of ‘the due process’ clause, understood the manner and methodology of our inherited criminal administration system. He spoke “We know it to our cost that even the Commissioner of police does not look into these matters personally as he is expected to and signs and issues warrants on the reports of subordinate officials”.
Despite the most persuasive arguments of K.M Munshi and other vocal and erudite members, the Constituent Assembly dropped the ‘due process clause’. The absence of a due process clause did not prevent the Supreme Court and the High Courts to evolve principles to protect the innocent from the ravages of police power. A series of judgements, made explicit the Court’s power under Article 226 of the Constitution which included the power to protect persons from imminent arrest.
In the year 2018, a prestigious women’s organisation brought to the notice of the Supreme Court a midnight intrusion by male policemen into the home of an estranged daughter-in-law living alone with a minor child. Outraged, the Supreme Court passed a cryptic ‘no coercive order’ to protect the lady and her child. The Supreme Court being seized of the matter had a sobering effect on the police. They conducted the investigations fairly. 5 FIRs in the two states were found to be false and closed by the police. The moral of this episode is that judicial scrutiny invariably checkmates the unfair power play by the ‘thanedar’.
The wrong perception governing the Neeharika judgment will expose many to malicious incarceration. They may be innocents in domestic disputes, journalists exercising free speech, those in the crosshairs of the powerful. The list is really endless. For an individual, an arrest is often the end of the road. It emblazons a lifelong stigma, it destroys a career, it affects his/her rights in myriad ways, in the Indian context, it even transfers the stigma to the next generation in marriage prospects of the children.
It was the hope of the framers that the power of protection which a constitutional court can give is untrammelled. The wrong perception of the judgement poses a clear and present danger by an unbridled ‘thanedar’. In this age when police powers are used with ever gay abandon against journalists, dissenters and others, a clarification from the highest court will be a welcome move.
Views expressed above are the author’s own.
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