Guest Post: Examining the Proposed Uttar Pradesh Special Security Force

(This is a guest post by Vaishnavi Prasad. Please note that the author’s analysis of the functioning of the force is based on press statements by public officials on the issue as the official state notification regarding the Uttar Pradesh Special Security Force has not yet been released. This post may be updated / supplemented once the notification is made public.)

On 13 September, the Additional Chief Secretary to the Government of Uttar Pradesh informed reporters that the State Government has given orders for the constitution of a special security force. The Uttar Pradesh Special Security Force is meant to provide security to the high court, district courts, administrative offices and buildings, metro rails, airports, banks, financial institutions, educational institutions and industrial units. However, the defining feature of this force is that it has the powers to arrest and search individuals without any warrant or the orders of a magistrate. The basis for this force is allegedly an order from the Allahabad High Court in December, 2019. In this piece, I will examine that order and the validity of such a force.

On 17 December, 2019, three men opened fire in the Court of the Chief Judicial Magistrate in Bijnor. The Allahabad High Court immediately took suo moto cognizance of this incident. The Bench recognised that this was not an isolated incident and over the past few years, similar incidents had taken place in various district judgeships. They recommended certain steps to ensure security in these district judgeships which included the following:

“(4) A specialized well-trained force be provided for the purpose of maintaining security in District Judgeships throughout the State of U.P. and whenever required, personnel from that Force may also be deployed in this Court along with existing security provided by C.R.P.F., if necessary.”

However, the Bench also stated that such recommendations are merely broad ideas and are subject to modifications and they invited suggestions from various District Bar Associations on the same. The matter of the participation of the State in the matter of security of court complexes was subsequently fixed on 20 December, 2019.

On the issue of specialised security personnel, the Allahabad High Court in its order on 20 December, 2019 stated that the Additional Chief Security (Home) must inform the Court regarding the formation of such a force via an affidavit and until such a time, an appropriate number of police personnel must be made available.

The matter was further listed to be heard on 2 January, 2020. The order includes an affidavit of compliance sworn by Sri Awanish Kumar Awasthi that stated that the State Government proposed to establish the Uttar Pradesh Special Security Force so as to maintain security of this Court at Allahabad, Lucknow, and other district judgeships. Further, the Special Security Force can be utilised for providing security of other installations and institutions, establishments or individuals notified by the state government for this purpose.

Two questions arise here: One, whether the High Court can direct the constitution of a special police force? Two, whether the present powers of the Uttar Pradesh Special Security Force are in consonance with the provisions in the Code of Criminal Procedure.

The State’s Authority to constitute a Special Police Force

The Constitution holds that Police is a subject governed by the State. The Police Act, 1861 governs the police in States such as Uttar Pradesh, Madhya Pradesh, Manipur and Nagaland. The State government shall exercise control over the police force and the superintendence of the police shall be vested in the State Government. The State Government’s executive function encompasses the creation and control of police forces. This power, to some degree, extends to police officers as well.

The Police Act, 1861 also gives police officers the authority to appoint special police-officers. Section 17 states that any police officer, not below the rank of inspector, may apply to the magistrate to appoint citizens as special police officers. Further, Section 18 specifies that these special police-officers have the same powers, privileges and protection as ordinary police officers.

The Supreme Court has established certain limitations to the State’s exercise of executive power in maintaining law and order. In Nandini Sundar and ors. v. State of Chhattisgarh, the Supreme Court discussed various aspects of the constitution and functioning of the Salwa Judum— an armed civilian vigilante group who acted as temporary police officers promoted by the Government of Chhattisgarh.  The respondent-State argued that due to the severe security issues caused by the threat of Maoist violence in Chhattisgarh, they have the executive authority to enforce law and order.

The Supreme Court held that while the State has the exclusive executive responsibility to provide security to its citizens, if it conflicts with core constitutional values such as the right to life and equality of its citizens, the Court is forced to intervene. Irrespective of the efficacy of such groups, they may not be used as a yardstick to measure constitutional permissibility. Therefore, the necessity of developing a well-trained and professional law enforcement capacity than function within the limits of constitutional action is emphasised.

Therefore, while the U.P. State Government may constitute a special police force, the members of such a force must be well-trained professionals and must operate within the boundaries of due process.

Arresting and Searching Property without a Warrant

From the perspective of a police-officer’s power to arrest, offences are broadly divided into cognizable and non-cognizable offences. Cognizable offences are those offences for which the police may arrest an individual without a warrant. This is specified in Schedule I of the CrPC. This includes offences such as kidnapping, murder, rape etc. Other offences are non-cognizable. A police officer cannot investigate a non-cognizable case without the order of a magistrate having jurisdiction over such a case. Further, a police officer has no powers of arrest without orders of a magistrate in such non-cognizable cases.

Section 41 of the Code of Criminal Procedure, 1973 provides certain circumstances where an individual may be arrested without a warrant. Section 41(1) of the Code of Criminal Procedure empowers a police official to arrest without a warrant, any person “who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned.”

Clear guidelines on the police’s power to arrest without warrant has been held in Joginder Kumar v. State of UP. The Supreme Court held that no arrest can be made simply because it is lawful for the police officer to do so and the police officer must justify their arrest beyond the fact that it is lawful for them to do so.

The Third Report of the National Police Commission suggested that an arrest during the investigation of a cognizable case may be justified in certain circumstances: One, if it involves a grave offences like murder, dacoity and rape and it becomes necessary to arrest the accused; two, the accused is likely to abscond and evade the processes of the law; three, the accused is given to violent behaviour; and four, the accused is a habitual offender. However, the police officer making such an arrest must record the same in a case diary and conform to due process. An arrest may be made only if there is reasonable satisfaction of the genuineness of the complaint after some investigation and there is necessity to arrest.  

Further, if arrest is effected, the individual who is arrested is entitled to certain rights guaranteed by Article 21 and 22(1) of the Constitution. They must have a relative or friend informed of their arrest and where they have been detained. The police officer must specifically inform the arrested person of this right and record the arrest in their case diary.

The aforementioned guidelines were reaffirmed in Som Mittal v. Government of Karnataka. Both Section 2(c) and Section 41 of the CrPC state that the police officer may arrest therefore implying that they’re not bound to arrest even in cases of cognizable offences. The Supreme Court observed the trend of immediately arresting individuals accused of cognizable offences even if the situation doesn’t meet the high threshold for arrest as held in Joginder Kumar.

Interestingly, the Supreme Court in this case also noted that due to the trend of arbitrarily effecting arrests as well as there being an absence of a provision for anticipatory bail in Uttar Pradesh, there is excessive overcrowding of jails, and hardship caused to both the public and the courts.

When one examines the prospective Uttar Pradesh Special Security Force, the officers of that force may arrest an individual without a warrant merely if they have reason to believe that a crime has been committed. This is a sharp contrast to the aforementioned threshold. The power of arrest is clearly based on the nature of the offence, and demolishing this legal requirement while vesting this power in any security force is arguably illegal.

Further, the UP Government has stated that Courts may not take note of actions of employees of such a force without government permission. This immunity from prosecution is not unknown in statutes in India. However, even then, there must be a showing that duties were discharged in "good faith" — if the proposed immunity clause here goes beyond this, it is a quick step into the realm of impunity.

Law and Order in Uttar Pradesh

This prospective move is yet another nail in the coffin of due process in Uttar Pradesh. The past few years displayed a shocking trend of rise in encounter killings by police (with reportedly media being "invited") and a spike in hate crimes against marginalised groups. Further, the jails are overcrowded, the courts overburdened, and the justice delivery system remains extremely inaccessible to ordinary citizens. It’s important to understand that the creation of another security force in a State where police atrocities go largely unquestioned is only diverting focus from the real issue of enforcing due process and improving transparency in police functioning. Even in the context of crime reduction, excessive policing is a poor (and expensive) replacement to actually improving welfare, quality of life and accessibility to justice, which have proven to effectively reduce crime rates in countries.