Section 144 Cr.P.C. — Part VII: Same Old, Same Old? (1950 to 1960)

(This post is the seventh part in a multi-post series. For previous posts, see here) 

A long time ago, this multi-part series studying the long historical arc of Section 144 Cr.P.C. had reached the decade leading up to India's independence and the coming into force of the Constitution of 1950. This post looks at the decade that followed: 1950 to 1960. 

Recap, and Setting the Scene

By the early 1920's, Section 144 had come to be increasingly identified as a tool to curb political speech. By the end of the 1930's, it had cemented its place within the repressive laws toolkit that was wielded by the colonial regime, and so became a target for attacks by nationalist members in the imperial legislature. What these legislative debates showed, however, was that beneath the fiery critiques targeting Section 144 as a means for curbing

At the same time, though, sitting in New Delhi was the Constituent Assembly, which sought to redress the balance of power between the state and the citizen in independent India. A key component of this effort was the recognition of fundamental rights and freedoms. The ultimate version of the

So, If a court were to examine it, would Section 144 be saved by being seen as a "reasonable restriction" on the freedom to peaceably assemble, or would it be liable to be struck down as unconstitutional? And about the curbs placed by Section 144 on the freedom of speech and expression? How would that violation be justified, considering that there was no "public order" exception in place? Nobody could know what the changed landscape would mean for Section 144. But we would soon find out.

The Constitutional Challenges

The Bihar Government passed an order on January 6, 1950 under Section 2 of the Bihar Maintenance of Public Order Act 1949, banning one Brajnandan Sharma from entering the districts of Bhirbhum and Manbhum. Sharma's lawyer did not challenge the order immediately, but after the Constitution came into force on January 26, he filed a writ challenging the validity of Section 2 of the Bihar Act. He argued that it placed unconstitutional fetters upon his client's freedom of movement guaranteed by Article 19(1)(d), and ought to be struck down. 

A Full Bench of the Patna High Court delivered its decision in Brajnandan Sharma on March 29, 1950 [AIR 1950 Pat 322]. By a 2-1 split verdict, the Court struck down Section 2 of the Bihar Act as being unconstitutional. Both Chief Justice Meredith and Justice Das arrived at this conclusion separately but through a similar route — interpreting the "reasonable" qualifier before any restrictions. Both the Judges held that a constitutional requirement for reasonableness could not be met by laws which permitted infringement of fundamental rights based on the subjective satisfaction of an executive official. There had to be some other, more objective yardstick, to determine the reasonableness of a restriction. Chief Justice Meredith put it plainly: "There can be no presumption that an executive official will always act reasonably. There may be a presumption that he will act bona fide; but that is a different thing."   

Take a moment to consider the consequences of this reasoning — all laws which allowed interference with fundamental rights and freedoms merely upon subjective satisfaction of executive officers would all now be under serious jeopardy. Effectively, within three months of the Constitution's coming into force, the entire edifice of nascent India's public order jurisprudence was now at risk of crumbling.

Less than two months later, on May 26, the Indian Supreme Court decided a writ petition filed by Dr. N.B. Khare (President of the All India Hindu Mahasabha) challenging a similar provision in the East Punjab Public Safety Act 1949, under which orders had been passed banning his entry into certain areas [AIR 1950 SC 211]. His petition was dismissed by a 3-2 split verdict, but all five Justices on the Constitution Bench agreed on one point: relying to the subjective satisfaction of an executive official to impose restriction upon enjoyment fundamental rights was not unreasonable per se.  Some years later in Virendra [AIR 1957 SC 896], when the Supreme Court upheld the validity of press censorship powers, it waxed eloquent about the necessity for an officer on the ground to have wide discretionary powers to prevent emergent threats to public order. Rather than restrict executive power, the Court sought to focus on procedural safeguards being available for an aggrieved citizen to agitate her grievance with the decision. Thus, the Supreme Court gave its imprimatur to a system where the injury to civil rights came first and justice could (maybe) follow, rather than support a setup where the infringement of rights could be prevented in the first place.  

Section 144 was not directly in issue in either case. However, this issue struck right at the heart of our protagonist. The vesting of wide-ranging powers with executive officers to upend civil rights when they thought it was necessary in the interests of public order etc. was how Section 144 worked, and history bore witness to just how often that assessment had proven wrong. Making it harder for an officer to take that step would, at least in theory, work to reduce safeguard civil rights.

There were several challenges to Section 144 before various High Courts during this decade. Some cases challenged the validity of the provision itself while most others sought to challenge specific orders on the anvil of Article 19. Considering the fact that public order was a clear restriction to the freedoms of movement, assembly and association since the Constitution's inception (and to the freedom of speech by 1951), and that by May 1950 the Supreme Court had saved executive discretion, It is unsurprising to note that none of these challenges were successful.

Notable amongst these are two cases. In the Allahabad High Court, the colourful Raj Narain and some of his fellow party-members challenged a 144 order [AIR 1956 All 481]. They did not raise a specific challenge to the validity of the provision itself but the Court considered the issue, and specifically noted that while the core of Section 144 was well within the limits of Article 19 as a whole, the same could not be said of the portions which restricted fundamental freedoms to prevent "annoyance" and "obstruction". In Amrao Singh [ILR (1955) 8 Punj 179], while the petition itself was filed before the First Amendment to the Constitution, it was decided much later and that made the court's job easy. Still, it was noteworthy that the Advocate General submitted that "a part, at least" of Section 144 was good law.  

New Parliament, Same Old Outlook?

Several High Court cases challenging Section 144 orders, or the provision itself, were filed by members of the Socialist Party and / or the Praja Socialist Party. These members of the opposition were also leading a charge in parliament against this unjust law. Socialist Party members who were part of the Parliamentary Committee which examined the mammoth Criminal Procedure Amendment Bill of 1954 issued a strong minute of dissent criticising the legislation for not doing anything about Section 144 and other similar clauses which conferred arbitrary power in the hands of magistrates. 

There were also specific bills moved by these members seeking a repeal of Section 144. However, again, the main focus was political speech and alleged misuse of the provisions to favour the Congress party, and only a feeble attack was mounted against the very power itself. To a reader, the parallels between the kind of rhetoric on display in debates during March - April 1958 when a Bill moved by Jagdish Awasthi was discussed, with the debates during the 1930s when Messrs Rangachariar , Gaya Prasad Singh, and Satyamurti were seeking to introduce Bills to repeal the law. Indeed, the parallels appear most striking when we read the stance taken by the Minister of State for Home Affairs on April 5, 1958. B.N. Datar argued thus:

"My submission to this House is that we have to look at this question form a practical and realistic point of view. If an administration is to be carried on - if a civilised administration is to be carried on - and if threats to law and order in a particular part of the country are there, then Government has got to use this particular Section with a view to prevent the creation of anarchy. ... You will find that in so far as this section is concerned, it is one of the most important sections, one of the most beneficial sections, in the sense that harm is prevented, danger is prevented, and proper action will have the effect of putting down all elements which are working for disorder. ... [T]he primary duty of a Government, whatever might be the type of Government ... is to maintain law and order. ... Therefore, you will have to look at this question from the larger point of view and then you will be satisfied that the provisions of section 144 are of a salutary kind." [Emphasis supplied]

B.N. Datar made it plain, then, that is government was no different from any other, arguably including the colonial one, and the primary duty for all these governments was to maintain law and order. Towards that end, Section 144 with its wide-ranging scope that allowed infringing a citizen's fundamental rights and freedoms on the subjective satisfaction of one officer, on grounds that are as vague as maintenance of public tranquility and the prevention of annoyance, was not only necessary but

Conclusion    

This post suggested that there was, at the start of the decade, cause for optimism when it came to the relationship between the state and a citizen. Of course a government would want more power — B.N. Datar tells it like it is. But in a country with a Constitution designed to curb state oppression, reasonable restrictions upon the enjoyment of fundamental rights could not be reduced to the arbitrary will of a single officer. It was, really, as simple as that. 

Then, in May 1950, the Supreme Court of India made a choice which reduced the fetters upon executive discretion. In doing so, it upheld the edifice upon which a public order jurisprudence developed over centuries of colonial rule had been built, and was now serving a nascent independent Indian state. That choice is one that we continue to live with today, even as India has completed more than seven decades of its independence. As a result, executive officials continue to retain truly awesome discretionary powers—which they wield with minimal oversight—by which the enjoyment of basic civil rights can be suspended for weeks or months on end. All that an aggrieved citizen can do is to challenge this exercise before a court which is likely to render a decision long after the damage has been done.

I will take some liberties here, and end with Kurtz's famous words from

What's in a Name? A Lot, Especially if that Name is "Anti-National"

Forgive the plain title as this writer is at his wits' end, exhausted, after a week-long wild goose chase. The object of my search? The meaning of "Anti National" in context of the law.

The immediate cause behind this exertion was set of the guidelines issued by the Delhi High Court's High Powered Committee on how jail authorities should exercise their discretion towards releasing inmates to manage the risks posed by Covid-19 [The most recent one is here]. After detailing what kinds of prisoner categories should be considered favourably for release, the Committee listed categories of undertrial prisoners — persons who are not convicted of crimes and theoretically still presumed innocent — which should not be considered for release. One such category, is

"Cases investigated by CBI/ED/NIA/Special Cell of Delhi Police, Crime Branch, SFIO, Terror related Cases, Riot cases, cases under Anti-National Activities and Unlawful Activities (Prevention) Act etc." [emphasis mine]

This left me perplexed as to what the Committee might have meant by "Anti-National" activity, since the guidelines themselves don't define the term. The "under" in the portion I extracted has got to be a typo, as there is no statute under which "anti-national activities" are proscribed. Even so, does that mean that one gathers the meaning of this phrase from its context, i.e. is anti-national activity a broad term that includes (i) riot cases, (ii) terror related cases, and (iii) cases under the UAPA? But then what about the innocuous "etc." at the end of that category? Also, considering that the purpose of the Committee is to give clear guidance on how to exercise discretion, does it help to use such undefined phrases which give no guidance and leave the jail authorities to their own devices?

Having found no satisfactory answers within the Guidelines, I decided to venture look elsewhere.

Statutes / Constitution

At one point in time the term "Anti-National" was part of the Indian Constitution itself: Article 31-D was added during the Emergency by the 42nd Amendment, to basically render laws for made for "prevention or prohibition of anti-national activities" exempt from judicial review under Articles 14, 19 or 31 of the Constitution. It had a long explanation on what the term meant:

... (b) 'anti-national activity', in relation to an individual or association, means any action taken by such individual or association — 

(i) which is intended, or which supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India or which incites any individual or association to bring about such cession or secession;

(ii) which disclaims, questions, threatens, disrupts or is intended to threaten or disrupt the sovereignty and integrity of India or the security of the State or the unity of the nation;

(iii) which is intended, or which is part of a scheme which is intended, to overthrow by force the Government as by law established;

(iv) which is intended, or which is part of a scheme which is intended, to create internal disturbance or the disruption of public services;

(v) which is intended, or which is part of a scheme which is intended, to threaten or disrupt harmony between different religious, racial, language or regional groups or cases or communities; ... 

Never before or after this brief interlude has the Constitution, or any statute for that matter, seen such an extensive engagement with the phrase. That does not mean that legislatures have entirely abandoned using the term either. Below is a short, non-exhaustive, list of statutes (both state and central) where we can still find reference to "Anti-National":

1. Arms Act, 1959 — The original Statement of Objects and Reasons [SOR] for the 1959 legislation referred to "anti-social or anti-national elements" using weapons and bombs, and the SOR for the 1988 amendments to the Act also refer to challenges posed by "terrorist and anti national elements"; 
2. National Security Act, 1980 — The SOR of what is today's the primary central statute on preventive detention referred to the "current crisis" posed by "anti social and anti national elements including secessionist, communal, and pro-caste elements" which "pose a grave threat ... and sometimes even hold society to ransom.";
3. Goa, Daman and Diu School Education Act, 1984 — Section 12 states that employees are to be governed by a code of conduct, and Section 12(2)(b) prescribes that the "Code shall prescribe, inter alia that no employee shall propagate  anti-national, communal, caste, or sectarian outlook.";
4. Cable Television Networks (Regulation) Act, 1995 — The SOR states that subscribers and others are unaware of their rights and duties in respect of "protection of subscribers from anti-national broadcasts from sources inimical to our national interest";
5. Uttarakhand Police Act, 2007 — Section 2(i) defines "internal security" as meaning "preservation of sovereignty and integrity of the state from disruptive and anti-national forces";
6. Sikkim Police Act, 2008 — Section 2(g) defines "internal security" in language identical to the 2007 Uttarakhand Act; [Note: similar clauses can be found in other recent police acts as well]
7. U.P. Fighters of Democracy Act, 2016 — The Act creates a framework for paying honour money to those who stood up against the Emergency. Section 5 of this statute specifies conditions for cancelling the payment of honour money, and one condition in Section 5(i) is the "participation in any crime of moral turpitude and in any anti-national activity" (Oh, the irony);
8. M.P. Loktantra Senani Samman Adhiniyam 2018 — The Madhya Pradesh version of the same law, and Section 9(1)(a) provides for an identical condition as the Uttar Pradesh law; [Note: similar clauses can be found in other state laws passed under Article 348(3) of the Constitution]
9. U.P. Private Universities Act, 2019 — Section 3 of the statute lays down conditions for establishing a university, and Section 3(2)(r) stipulates that the university "to undertake neither to be involved nor to permit anyone to cause or promote anti national activities inside the campus or under the name of the university"  
10. Besides these categories, there is also subordinate legislation passed through notifications where engaging in "Anti-National" acts deprives persons of some benefits or allows for prohibiting activity. This includes: (i) Government procedures on giving advertisements to newspapers etc., (ii) Service Rules for public servants, (iii) CBFC guidelines on censorship, (iv) Cancelling allotments of land under Government schemes, and (iv) As basis to issue Look-Out Circulars against persons. 

Courts and "Anti-National" Conduct  

I also scanned cases spanning 1950 to 2020 from India's Supreme Court, the many High Courts, and some Central Tribunals, where the term was used. This exercise showed that courts have commonly used "Anti-National" as an adjective to describe a wide array of conduct, such as: 

1. Espionage / Spying;
2. Conduct prosecuted under anti-terror laws such as TADA / UAPA;
3. Making Secessionist / Communal Speeches;
4. Activity such as food adulteration, illicit drug trade, making / handling counterfeit currency, corruption, smuggling, etc. punishable under various laws or legal grounds for preventive detention. [Note: A vast majority of cases seemed to fall within this category]

Here, courts not only called such activity "Anti National", but often referred to it as "anti-social and anti-national" conduct. 

The other insight gained from analysing cases was seeing how executive authorities used the term "Anti National" while exercising their discretion. Thus, I came across government school contracts where the employee was barred from "anti national / anti government" activity. But most interesting in this regard was the context of preventive detention orders, which routinely carried the phrase. This was especially so in detentions ordered under the Jammu & Kashmir Public Safety Act, 1978. Curiously, I only found one case which pointed out that engaging in "Anti National" acts was not one of the possible grounds enlisted in the statute authorising preventive detention [Mohd. Saleem Wani v. State, 2010 J&K HC]. 

It was mildly disconcerting that from the large sample size that I played with — all cases between 1950 to 2020 — I found only four cases where courts had offered any semblance of discussion on what this vague idea of "Anti National" conduct might entail. Three of these are:

1. In K.V. Subbarao [AIR 1967 AP 202], the Andhra Pradesh High Court was considering the legality of a detention ordered under the Defence of India Rules, 1961, and the detention order stated that the activities of the Petitioner were "anti-national". Refuting the contention of the Petitioner that this was a vague, undefined phrase, that found no mention in the statute and rules and thus could not be the basis of a detention order, the Court held that "Anti-National Activity" had a wide scope and covered all kinds of activities for which detention could be ordered under the law, viz. acts prejudicial to the maintenance of public order, India's relations with foreign powers, maintenance of supplies, conduct of military operations, and the defence of India. 
2. In Gurkirpal Singh [(1990) 97 PLR 102], the Punjab High Court differentiated between political activity from "anti-national activity" by holding that only the latter could be basis to refuse appointment to a probationer [Here, it was alleged that the appellant was keeping contacts with extremist elements].  
3. In S. Thirumalaiappan [2011, Madras HC], the Madras High Court explained that the phrase "anti national activities" which came in Rule 40 of the Tamil Nadu Pension Rules, 1978 ["anti national activities such as espionage, sabotage, and the like"] as a valid basis for denying compassionate allowance, included a public servant found committing crimes such as cheating and forgery.

The fourth, and the most comprehensive discussion, comes in Priya Parameswaran Pillai [2015, Delhi]. Here, a Look-Out Circular had been opened against the Petitioner which barred her from leaving India. One of the purported reasons was her engagement in "Anti-National" activities, which according to the government was her intention of talking about matters of Indian state policy on before a committee of British parliamentarians, which had the "potentiality of degrading the image of India in the eyes of foreign nations, leading to a regression in the country's economic activities and endeavours...".

The basis for executive power was a clause 8(j) in the official memorandum, which allowed issuing a Look Out Circular "In exceptional cases, ... without complete parameters and/or case details against CI suspects, terrorists, anti-national elements etc. in larger national interest…." (emphasis mine). The Court acknowledged the inherent vagueness in the phrase "Anti-National":

Pertinently, the word anti-national does not find a place in most dictionaries; it is in effect a combination of two words. If one were to deconstruct the meaning of the word anti-national, one would perhaps have to look to the meaning of the word, “Nationalism”. The nearest equivalent to the word ‘Nationalism’ would be patriotism. Patriotism as a concept would be linked to nationhood. Nationhood has several attributes which are, inter alia, inextricably connected with symbols, such as: the National Flag; the National Anthem; the National Song; and perhaps, the common history, culture, tradition and heritage that people of an organized State share amongst themselves.

In respect of each of these attributes of nationhood, there may be disparate views amongst persons who form the nation. The diversity of views may relate to, not only, the static symbols, such as, the National Flag and National anthem, etc. but may also pertain to the tradition and heritage of the Nation and the manner in which they are to be taken forward. Contrarian views held by a section of people on these aspects cannot be used to describe such section or class of people as anti-national. Belligerence of views on nationalism can often lead to jingoism. There is a fine but distinct line dividing the two. Either way, views held, by any section or class of people, by itself, cannot be characterized as anti-national activities. [emphasis mine]

The Court acknowledged that this inherent vagueness had the potential to confer arbitrary discretion upon the executive which could label any activity as "anti-national" based on the subjective views of certain officers. Considering that the term was also notably absent from the enumerated list of valid grounds to restrict the freedom of movement under Article 19(2). Accordingly, to render it legal, the Court held that the meaning of anti-national must be gleaned from the rest of the clause, and thus must refer to activities such as terrorism, or counter-intelligence. 

Taking Out "Anti-National" and Restoring the Law's Legitimacy

The 42nd Amendment is considered to be the greatest frontal assault on the character of India's democracy and its Constitution. Article 31-D with its constitutional cloak of safety for statutes condemning the anti-national was an integral part of that dastardly amendment. While it may no longer be more than a footnote within the constitutional text itself, the review of statutes confirmed that the concept continues to capture the imagination of our legislatures.  

The list of statutes and subordinate legislation within which the notion of anti-national activity provided here should provoke alarm in any right-minded person to whom arbitrary executive power causes concern. What that indicative list shows is that an undefined category of "Anti-National Activity" is being used across various contexts such as criminal laws, labour laws, and social welfare laws, as a basis to confer discretionary powers upon executive officers. Exercising these powers entails arbitrarily labelling conduct with extremely pejorative connotations and tarnishing a person's reputation. Not to mention the arbitrary interference in the enjoyment of basic freedoms, and a potential to bring about life-changing consequences by stopping welfare benefits, terminating employment, or causing incarceration.

That courts have uncritically bandied about this phrase in decisions (with the honorary exception of one case) is even more alarming. It might be alright for executive authorities to use high-pitched phrases to make arguments, but it is not alright for courts to reduce a phrase with such obvious taint as an ordinary adjective to describe a garden-variety of conduct. Using vague ideas to justify conclusions means that the arbitrariness of executive officers is transplanted on to the courts. What this leads to is a situation where a Single Judge of the Delhi High Court recognises the vagueness of the "anti-national" in Priya Pillai and the potential for arbitrary discretion that it entailed. Yet, just a few months later in March 2016, a different Single Judge of the same Court passed orders in Kanhaiya Kumar's bail petition [Discussed on the blog], extensively used the same vague phrase throughout the order, and even made it a condition for granting Kumar bail that he take all steps to "control anti-national activities in the [JNU] campus". Words fail me.

A review of the decisions and statutes confirms that far from it being imperative to the functioning of our legal system, the category of "anti-national" is almost entirely unnecessary and frivolous. As identified by the Delhi High Court in Priya Pillai, it is nowhere mentioned in the enumerated grounds for restricting the basic freedoms, and can only be made sense of by being fit into one of those phrases. If that be so, what is the point of persisting with the phrase and inflicting persons with its horrible taint which they carry for years in our system of delayed justice? The value addition is extremely minimal. The damage done to the legitimacy of the law and the ideals of the Constitution, is incalculable.    

Which brings me back to the Delhi High Court's High Powered Committee. When the guideline already refused to extend temporary mercy to imprisoned persons who stand accused in riots cases, corruption cases, cases under anti-terror laws, drug cases, corruption cases, and money-laundering cases, what was left to be covered by way of this amorphous category of "Anti-National Activities"? Nothing. So why not bunk it in the next revision, and restore some bit of the law's legitimacy in the process.

Delhi Police Circulars & Standing Orders for Regulating Protests

The many public demonstrations across the territory of Delhi and also other parts of the country that began last December brought the police powers of regulating such demonstrations into sharp focus. The statutory powers of the police were easily traceable — the Delhi Police Act of 1978, modelled on the old Police Act of 1861 — and confer wide powers to regulate any conduct threatening public order. Additionally, there are broad powers conferred under the Criminal Procedure Code of 1973 itself. 

Together with this, though, there are a host of circulars, standing orders, notifications and regulations that govern not only how the police are supposed to respond to demonstrations and protests, but also the very ability of persons to engage in such acts of speech. And this kind of regulation is well-within the sphere of legality, as things stand today.

Unfortunately, these documents are not easily accessible in the public domain, which is a serious problem that directly undermines the law by denying to persons the ability to educate themselves about what the law says, and then shape their actions accordingly. But, thanks to an RTI request, I was able to get my hands on a few of these circulars. These are, by no means, all the circulars on the subject. For instance I don't know about the contents of Circular No. 10/2018 which is mentioned in a recent Order passed under Section 144 Cr.P.C. (dated 10.01.2020) in respect of regulating any demonstrations in the area around India Gate. Nevertheless, I think these may prove useful, and I have shared them below:

1. Standing Order No. 309: This is the primary document that lays down the system for filing an application to carry out a rally / procession, and is also the source of the rule which limits the number of people at Jantar Mantar to 5,000, and provides that gatherings up to 50,000 be conducted at Ram Lila Maidan, and even larger gatherings be offered space in Burari.

2. Standing Order No. 72: This explains the manner in which police forces are supposed to manage the dispersal of unlawful assemblies, and requires that the least force be utilised. It became prominent in light of the In Re Ramlila Maidan case [(2012) 5 SCC 1].

3. Circular No. 35 of 2011 (dt. 22.06.2011): By way of this Circular, the Delhi Police updated the terms and conditions under which a protest can be organised, on the lines of orders passed by the Supreme Court as well as Delhi High Court. The terms are part of the document.

4. Circular No. 19 of 2012 (dt. 16.03.2012): This Circular communicated the guidelines passed by the Supreme Court in Ramlila Maidan for regulating protests and processions.

5. Circular No. 20 of 2012 (dt. 28.03.2012): The Police shared a new format for filing applications, updating the old one in light of orders in the Ramlila Maidan case. 

6. Memo No. 15181-200 (dt. 13.05.2013): The Memo communicated Guidelines received from the Ministry of Home Affairs (vide letter dated 06.05.2013), which were a reiteration of the earlier orders passed by the Supreme Court in Destruction of Public & Private Properties v. State of A.P. [(2009) 5 SCC 212], calling upon the police to arrange for videography of incidents and making of reports.

Besides these, also see Circular No. 56 of 2011 (dt. 21.12.2011) and Circular No. 34 of 2012. These are a slap on the wrists issued by Police HQ to all districts, for not responding quickly enough to applications filed seeking permission to protest, or for not doing basic follow-up tasks after receiving an application to facilitate processing of the same.  

The purpose of sharing these circulars was twofold. First, to make them available publicly, in order to better appreciate the entire process of protests / demonstrations and their regulation. And second, to push for some serious critical scrutiny of these regulations and ask whether they pass constitutional muster. I hope it helps, and encourages more folks to share resources to help further the conversation.

Guiding Police Discretion: Police Circulars and The Limits of Top-Down Reform

Let's do a thought experiment. Think of the criminal justice system — or criminal process as I like to call it — as a building. Now, the basic architecture of this building is fairly well-known to us, and exists in the form of three statutes: the Indian Penal Code 1860, Indian Evidence Act 1872, and the Criminal Procedure Code 1973. The interplay and intersections between these statutes, and the many judicial decisions that have interpreted their text, gives us a four-walled structure. Add to these the Police Act 1861, and the different state laws on policing, and now you get a real building with doors, floors, and windows. 

But what's inside these structures? To get a glimpse of that, we need to think about the various actors who are at the heart of the process. Go to any criminal court and you will find a judge, a prosecutor, a defendant, her lawyer, probably a victim, and the police. The incentives guiding these actors are what mark the ebbs and flows of the criminal process. But if I had to pick one actor out of these as being the most critical to the process, it has to be the Police.   

Police officers are at the heart of our criminal process. Like many other jurisdictions, police play a critical role in funnelling disputes, as suggested below:

Total Incidents of Crime = 100% → Total Incidents Reported / Noted by Police = 70%   → Total Cases Investigated = 50% → Total Cases Prosecuted in Court = 30%      

Let's take a moment to appreciate the dimensions of this suggestion. Even though we might forget it sometimes, at some level we all know that every incident of crime does not end up in court. What we often don't ask, is whether this selection is by design or by accident: Is it purported incompetence which leads to cases not being pursued, or the outcome of the police being aware of the limitations of the criminal process? 

The honest answer is that it is a little bit of both. But what matters for us is the fact that there is a very real design element to the funnelling process. This element tends to remain hidden if we only look at the statutes, or even at the judicial decisions. It only comes to light if we look at the many rules that govern the police as an organisation. The problem is that a large part of these rules and circulars are hidden in a more literal sense. Despite being public documents, they are often not published in a Gazette, or are not readily available in a bookshop or on the internet. 

In Delhi (where I mostly operate) we are lucky, insofar as the Punjab Police Rules of 1934 are not very difficult to find in court libraries or bookshops (and online). These Rules tell us the manner in which the Police are supposed to exercise the powers they are granted under law. But again, looking at the Rules to figure out how the police work means you are only looking at half the picture, and are bound to end up coming to incorrect conclusions. This is because there are a host of internal circulars that are issued under the offices of senior police officers to control different aspects of police powers and guide their exercise of discretion. 

Thanks to the Right to Information Act, I was able to get my hands on some of these police circulars that are relevant for the investigative process. These circulars, which are now available online, span a decade (from 2008 to 2018) and shed light on many different aspects. Some musings are below:

• The circulars show that the Delhi Police (and the Delhi High Court) was quite concerned with arrests in matrimonial cases, and created internal mechanisms that were designed to limit the possibility of arrest in such cases. For instance, by requiring that prior permission for arrest be sought from Deputy Commissioner of Police level officers, even though this is not required in the Cr.P.C. itself  (Circular No. 330 of 2008, Circular No. 48 of 2011). This is very interesting, especially if we consider that the Supreme Court itself proceeded to adopt a policy of curbing the powers of arrest generally in a matrimonial case as well (Arnesh Kumar v State of Bihar).
• On the subject of the Arnesh Kumar judgment, one finds that this is also the basis of a circular (Circular No. 38 of 2014). Importantly, while this judgment curbing police powers came out in July 2014, the corresponding Circular is only issued on 17 November 2014. This gap, between the rendering of a judgment and issuing a corresponding Circular, helps to grasp the idea of a lag in our systems of communication between the different branches of state. Perhaps a study can be constructed which looks at such internal circulars to determine the many factors which affect the time-lag, and thus help us improve our systems of governance (see here, for a related study in context of Section 66-A of the IT Act). 
• The General Guidelines for investigation (Circular 15 of 2015) shows that the police agencies are clearly receptive of the objections being faced in trial courts, and are using this feedback to issue appropriate instructions to officers in a bid to prevent future objections of the same kind from arising. 

There will be many more of these circulars guiding different aspects of the swathes of discretionary power that police officers are vested with. At the same time, this multiplicity of internal circulars — especially those affecting our right to personal liberty — force me to ask: what is the point? 

For instance, consider Circular No. 16 of 2017, which requires that the "calling of any person to the police station should be properly documented." This Circular was issued pursuant to the orders of the Delhi High Court, and is effectively guiding the statutory powers of police to examine suspects and witnesses, and arrest persons. So, we have all three sources of law guiding police conduct here: rules, statutes, and judicial decisions. All of them are curbing police powers that interfere with personal liberty. But how often are these rules, laws, and decisions not followed? Let's just say the probability is closer to 1 and not 0. And what are the odds of officers being punished for misconduct? Exactly the opposite.  

Should we think of our system of laws as a pointless paper tiger then? I wouldn't go so far. Rather, I'd say that these Circulars offer more proof for the view that top-down reform efforts, that focus on the Supreme Court and hope to make practices change on the ground, are securing very limited impact. Without a concerted reform effort from the bottom-up, by focusing on police stations and trial courts, the core values of liberty and freedom that we want our system of laws to protect will continue to remain illusory.