(This is a guest post by Prasun Nabiyal)
In India, police are responsible for carrying out a myriad of functions and roles. “Prevention of crimes” is one of them. Police agencies perform preventive duties through several methods. This post focuses on one of these methods, namely “surveillance”. Firstly, it lays down the framework through which the subjects of police surveillance are classified under Indian law. It proceeds to analyse the role played by courts in delineating the scope of individual discretion vested with the police in such classifications. Finally, at its tail-end, the post provides a case for “balanced discretion” to make the current regime less prone to abuse of discretionary power.
Existing Framework
In line with the Constitution, "Police" falls under the jurisdiction of individual states, prompting each state to enact its own Police Acts. These laws generate distinct sets of rules (many of them pre-independence), typically documented in Police Manuals, which are tailored to each state's context. Since Police Manuals serve as the primary reservoir of police surveillance authority, variations in surveillance powers are observed from one state to another. This post primarily focuses on the Andhra Pradesh Police Manual, and Punjab Police Rules, 1934, as the regions covered by these rules have the highest number of reported cases in India’s higher judiciary by my count. Thus, they bring a more developed and fleshed out jurisprudence to study as against to the rest of the country. Focusing on these rules/regions thus allow us to better understand the legal development inter alia prevalent judicial attitude surrounding police surveillance.
The Subjects of Surveillance
The police exercises surveillance powers with the aid of documentary records such as “history sheets”, “rowdy sheets”, “surveillance registers” etc. For instance, A.P. Police Manual prescribes the keeping of a “Station Crime History” to make it easier to research crime and offenders. The final part of this five-part record consists of History Sheets. Besides History Sheets, the A.P. Manual also allows for “rowdy sheets” u/rule 601. Further, under rule 102(1)(H), the SHO is required to maintain surveillance over people named in these rowdy sheets, alongside “bad characters” and “anti-social elements” of his jurisdiction. The manual later lays down chapter 37 to deal specifically with “surveillance”. It lays down the procedure for dissemination of information and rules for the same. It also extends surveillance to other personalities besides history sheeters and rowdies, namely — “bad characters”, “suspicious strangers” etc. This surveillance is mostly limited to the sphere of “movement” and “livelihood”.
Chapter 23 of Punjab Police Rules, 1934 espouses a system of surveillance almost identical to Andhra Pradesh. Moreover, “deviations” present in these rules are mostly nomenclature-based, while being the same in substance. For instance, these rules introduce a new record besides history sheet u/rule 23.4, i.e.: surveillance register.
The recent 2023 Delhi HC judgement of Amanatullah Khan v. Commissioner further sheds light upon the process behind registering entries in such sheets and registers under these rules. It explains that the Station House Officer in charge of a Police Station can submit a proposal to open a history sheet on someone’s name and to classify him as a “bad character” in the surveillance register. This proposal can be submitted to the Addl. Commissioner of Police and Dy. Commissioner of Police for approval. Upon such approval, the history sheet is opened and classification as “bad character” is done. Both documents are, however, silent on the subject of notifying the individual whose name is entered in the sheets.
Behind the Classes
The application of police surveillance powers is confined to specific categories of individuals like "rowdies", "history-sheeters", and "bad characters". This is rooted in the concept of preventive justice, aiming to prevent crimes before they occur, as embedded in rule 711 of the A.P. Manual. The categories are usually defined in the concerned police manual in the form of a conditional list. Conditions are of 2 types: objectively assessable conditions; and subjectively assessable conditions. For instance, u/S.O. 601 of the A.P. Police Manual, conditions such as “persons bound over u/section…”, “persons who have been convicted more than once in two consecutive years u/section…” fall in the former type / category because they are based on grounded facts subject to objective verification such as checking criminal record. On the other hand, conditions such as “persons who habitually commit, attempt to commit or abet the commission of offences involving a breach of the peace” and “persons who habitually tease women and girls and pass indecent remarks” shift the basis of classification towards aspects which cannot be objectively verified.
Perhaps due to this nature of the second category, judicial decisions have brought in clarity in how the classifications are to be applied. For instance, in Puttagunta Pasi (1998), the A.P. HC. focused on “rowdy” as a habitual offender— a person who regularly engages in or aids offences that breach public peace. In the judgement, the High Court also referred to other cases dealing with the the interpretation of “habitual”. Among these, the 1984 judgement of Vijay Narain Singh [AIR 1984 SC 1334] stands out. Dealing with the Bihar Control of Crime Act, the Supreme Court defined "habitually" as a pattern of repetitive acts, ruling out a single act falling within this scope. It also stated that only individuals accustomed to leading a criminal life, whereby, it would be “a force of habit, inherent or latent, in an individual with a criminal instinct, with a criminal disposition of mind, that makes him dangerous to society in general”, are categorized as “habitual”.
These views have been repeated in other cases dealing with surveillance under Police Manuals, [see B. Satyanarayan Reddy (2003), Kamma Bapuji v. SHO (1997), Udathu Suresh (2022), Mohd. Anis (1993), Mohd. Anwaruddin (2023) etc.] For example, in Satyanarayan Reddy, A.P. HC while applying Vijay Narain stated that “the word ‘habit’ implies a tendency or capacity resulting from the frequent repetition of the same acts” and defined “habitually” as repeatedly or persistently. It then clarified that an individual's involvement in a single case was insufficient to categorise them as “habitually” committing crimes.
Similarly, another Supreme Court judgement, Gopalan Chari v. State of Kerala [AIR 1981 SC 674] is also used for interpretative aid in police-surveillance cases despite its different context i.e. Section 110 of the Criminal Procedure Code 1973 [CrPC]. Here, the Supreme Court interpreted “habit” as “a consistent course of conduct convincing enough to draw the rigorous inference that by confirmed habit, which is second nature, the counter-petitioner is sure to commit the offences mentioned if he is not kept captive.
Role of Discretion
Police surveillance systems as illustrated in Punjab Rules and A.P. Police Manual employ a 2-category classification process for choosing surveillance subjects. Moreover, due to the subjective nature of the second category, individuals come under surveillance based on exercise of discretion by officials. Rule 23.4(3) of the Punjab Police Rules, for instance, grants significant discretion to the Superintendent of Police [S.P.] in the process. It permits the S.P. to make entries in Part II of the surveillance register solely based on their reasonable belief that the individual in question is a habitual offender or receiver of stolen property. Similarly, rule 595 of the A.P. Police Manual allows initiation of a history sheet based on the belief that the individual is involved in criminal activities.
The exercise of individual discretion invites arbitrariness and abuse, making rules like these highly contentious. Consequently, courts have often grappled with the extent and scope of this discretionary power in sanctioning surveillance. For instance, in Amanantullah, the Delhi High Court emphasised that authorities should not apply these discretionary powers mechanically but should engage in a thoughtful assessment of the facts and circumstances. Much earlier, a similar view was taken in Puttaganta Pasi: “it is clear that rowdy sheets cannot be opened against any individual in a casual and mechanical manner”. Courts can thus be seen discouraging “casual and mechanical application of individual discretion”. However, both decisions did not lay down any test for identifying what is bad exercise of discretion. The only test that can be inferred out of the judgements is: “If the court opines that the concerned person does not fall under the invoked conditional category, the individual discretion’s exercise shall be deemed as casual and mechanical”. A reading of other cases such as Malak Singh [AIR 1981 SC 760] and Sarjeet Singh (2002 DHC) sheds further light on the inferred test.
In essence, courts deem exercise of discretion “casual and mechanical” if it opines — in the light of relevant factors such as records and accused’s conduct — that the invoked category is not sufficiently fulfilled. However, as observed in Dhanji Ram v. Superintendent of Police [AIR 1966 SC 1766] a “reasonability” factor is also observed in this test. The Court ruled that a "reasonable belief" that the official's discretion-fueling belief must be grounded in “reasonable grounds” rather than mere belief. It finally deemed the belief in question to be reasonable after assessing the present evidence such as submitted affidavits.
Thus, the text of police manuals only lists the categories of people subject to police surveillance. Courts have supplemented this written text with factors which are to be relevant for the purpose of reducing discretionary abuse. It thus introduced dimensions such as “the reasonability factor”, “past conduct” and “casual & mechanical application”. Despite varying nomenclature, these considerations collectively strive to curtail arbitrary use of official discretion in the surveillance domain.
The Normative Question
As showcased in the previous section, courts have put in place some mechanisms to deal with the issue of discretionary abuse in surveillance classification. However, in the 2022 judgement of Udathu Suresh, the A.P. HC took judicial recognition of the fact that on-ground abuse of these powers is still a rampant phenomenon. The court-introduced dimensions and tests, as laid down in the previous section, were proving ineffective in reducing discretionary abuse.
In Udathu Suresh, however, the court ended up basing its final conclusion on the principle that the official discretion over continuing history sheets must be based upon “credible material” instead of pure subjective satisfaction. Thus, although the court recognises the problem, it ends up using another dimension, i.e.: “credible material” akin to the ones laid down in the previous section.
I posit that instead of adding more dimensions to the classification process, certain checks and balances should be introduced for the exercise of discretion in the manual/rules itself. Primarily, I suggest that the empowered individual’s discretion should not directly lead to action. The blatant abuse of these powers as highlighted above, the concern of the aggrieved individuals’ privacy cannot be ignored. For instance, chapter VIII of the CrPC puts in place a similar check-mechanism in the sections empowering magistrates with preventive justice powers. It lays down several instances where the magistrate can require the concerned individual to execute a bond “for keeping the peace”, “for good behaviour” etc. Magistrate’s individual discretion plays an important role in this classification as he must be of the opinion that there are “sufficient grounds for proceeding”. The check-mechanism is one where the concerned person is required to “show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period”. A similar proviso can perhaps be inserted in the surveillance classification process. Such a mechanism will aid in balancing the police surveillance measures necessary to maintain security with the rights of citizens.
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