A travesty of justice?

A travesty of justice? Indiscriminate "Cordon and Search" operations in Hyderabad

The Right to privacy is guaranteed by the Constitution of India Article 21 (hereinafter referred to as the "Constitution"). The Supreme Court in the case of R. Rajagopal v. State of Tamil Nadu (1994 SCC (6) 632) directly linked the right to privacy to Article 21 of the Constitution and laid down:"The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has aright to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages."

Right To Privacy is inherent in Article 21 of the Indian Constitution: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

The Planning Commission of India had directed the constitution of the "Shah Committee" to identify privacy issues and prepare a report to facilitate authoring of a privacy bill for India. Among other related concerns, the Committee reinstated the fact that the individuals would have the option of making a complaint directly before the courts, which will act as a route of redress (so what else is new?). The complaints may relate to a data breach or violation or physical privacy. The Shah Committee submitted its report to the Planning Commission of India on October 16, 2012 (hereinafter referred to as the "Committee Report"). Nothing earth shattering came of it. Perhaps another Committee is in the offing.

One notices the Right to Privacy is not absolute. Courts may issue warrants if they have documented reasonable belief that restriction of this Right would

a. Prevent incitement to the commission of any offense; or

b. Prevent public disorder or the detection of crime; or

c. Protect rights and freedoms of others; or

d. Would be in the interest of friendly relations with foreign states, or

e. When public interest outweighs private interest of the individual. This would depend on the ‘facts and circumstances of each case’ (which means, it is left to the arbitrary discretion of the magistrate)!

In Smt. Maneka Gandhi v. Union of India & Anr., (1978) (SC 7-Judge Bench), the Apex Court ruled `Personal Liberty' in Article 21 covers a variety of rights & some have status of Fundamental Rights and are given additional protection under Article 19. They mandated a ‘Triple Test’ for any law interfering with personal liberty:

(i) it must prescribe a procedure; (ii) the procedure must withstand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and (iii) it must withstand test of Article 14. The law and procedure authorizing interference with personal liberty and right of privacy must also be right and just and fair and not arbitrary, fanciful or oppressive.

Recognizing the blatant and excessive government intrusion in one’s private life (what’s more private than one’s bedroom?), the Delhi High Court (in Naz Foundation Case 2009) made a landmark ruling. Although the case pertained to consensual homosexuality, the court recognized that the Right to Privacy held to protect a "private space in which man may become and remain himself"…. ‘’Individuals need a place of sanctuary where they can be free from societal control – where individuals can drop the mask, desist for a while from projecting on the world the image they want to be accepted as themselves, an image that may reflect the values of their peers rather than the realities of their natures.’’

 

Despite a plethora of rulings that recognize and establish the sanctity of one’s private ‘space’, the Andhra High Court made a tangential disposition: A Public Interest Litigation filed in the High Court by T. Dhangopal Rao prayed the court to stop the police’s Cordon and Search Operations on constitutional grounds; that this arbitrary police exercise is against Articles 14, 15, 19(1)(d)(e)(g), 21 and 22 of the Constitution and, I might add, certain mandates pertaining to restricting/seizing a person’s liberty, property, and right to be left alone. The Hon. High Court directed him to complain to the Police Commissioner instead of deliberating on grounds for possible relief. This perplexing directive is just as ridiculous as the case of the chicken being directed to complain to the fox that’s guarding the henhouse!

 

The police personnel involved in the ‘’Cordon and Search’’ Operation are acting under the direct orders of the Police Commissioner. It is settled law that Department Circulars imposing conditions on the public do not have the mandate of rule or law as they are merely executive, in-house instructions. Imposing conditions that adversely affect guaranteed rights can be made only through legislation. Police are not empowered to make legislation. In the absence of such legislation mere Circulars cannot be acted upon, being violative of Articles 14 and 21 of Constitution of India.

As such, the Police Commissioner is not empowered to breach Rights guaranteed by the Constitution and circumvent procedures mandated by statute and numerous Appellate Court rulings. There are parallel considerations with the illegalities of Vijayawada’s ‘’Operation Night Domination’’ (I wonder which Telugu film script writer came up with that title!). There too, Police made new laws making it mandatory for one to be in possession of ID cards at night while they merrily conducted random searches with impunity, leading to many arrests.  The Hon. State High Court ruled that the public at large should not be seen as suspects thereby negating the restrictions ordered by the Police Commissioner as invalid; a far cry from their recent ruling.

In his interview with IndiaToday on October 2, 2013, Deputy Commissioner of Police V Siva Kumar stated, "Though we don't have specific inputs on stay of terror suspects in these areas but this operation will help in maintaining a close watch on such elements also". In other words, Police have (had) no specific leads that would legitimize intrusion into a private home. They were/are on a ‘fishing expedition’ hoping to catch someone – anyone even remotely suspected of being associated with a possible crime anywhere.

However, now, with more than two years experience in ‘’Cordon and Search’’ Operations under the belt, and concurrent, accumulated expertise in parrying citizen inquiries on legality of such arbitrary searches/seizures/arrests while confining freedom of movement of entire neighborhoods at unreasonable hours of night, police response seems to have evolved to reflect a semblance of legitimacy; not necessarily, credibility:

On April 19, 2015, straight faced Cyberabad Police Commissioner C.V. Anand and other Police brass stated to Deccan Chronicle that all searches are carried out ‘’as per law’’. One wonders, WHOSE law; an existing statute or an in-house circular from top brass? “An ACP or a Station House Officer has to get a warrant before conducting the search. The search memos are drafted and reasons are mentioned before obtaining the warrant”. Certainly sounds legit!

Now, if this statement is to be believed, how many months would an ACP/SHO devote toward compiling (inventing?) a pseudo-credible search proceedings FOR EACH HOUSE IN HIS AREA, and what specific ‘credible’ reasons would he claim to satiate the magistrate that would justify a warrant TO CORDON OFF ENTIRE NEIGHBORHOODS and condone police intrusion during hours of darkness and conduct a witch hunt for ‘’anything illegal’’ in anybody’s home! Is this Stalin’s Russia we’re living in??

Certainly, a Magistrate of the required Class is empowered to issue Warrants. Ordinarily,searches conducted by police officers or any investigating officer will be valid only if any formal accusation has been leveled against the subject person or he/she did not respond to summons, (e.g., subpoena to produce documents and things). But Warrants have to be specific. They specify the person, location, objects to be searched, and, often, the time for search.

We are unsure as to which section of the Criminal Code (henceforth, the CrPC) these ‘Cordon and Search’ Warrants get their authority from, nor WHO issued them (viz., to determine competency of the judge or whether he ‘applied his judicial mind’ before authorizing this widespread intrusion in the private lives of entire communities and neighborhoods). There is no information whether any resident victim of the Cordon and Search Operation was shown the substance of the Warrant as is required under CrPC Section 75. These exercises continue unabated because, as yet, no one has come forward to question the police, eye to eye. Even the local courts seem to go along with the charade.

Evidence; more appropriately, lack of evidence, certainly places serious doubt on the straight-faced Cyberabad Police Commissioner C.V. Anand’s public declaration that all searches are carried out ‘’as per law’’. It would be administratively impossible to generate Search Memos requesting Warrants for each house in the neighborhood. What is the criterion set for designating a neighborhood as a ‘Criminal Area’? If Warrants are, in fact, obtained, i.e., based upon good-faith, credible information, they would relate to a select few homes/individuals. But these organized assaults on entire neighborhoods by 200-plus policemen involves court-anointed muscle-flexing, house-to-house intrusion during hours of darkness, the questioning of awoken residents including children, the inspection of private-personal-letters-documents-paperwork, a fishing expedition for anything suspicious, and physically stifling indignant complainants and other strong arm tactics which our police is notorious for.

There is no doubt that everyone has something to hide from the public eye. It might be something petty, embarrassing, or even something serious. Police are already lawfully empowered with immense resources to do their job WITHIN THE EXISTING FRAMEWORK OF THE LAW. With the statutory division of the three Branches of Government, it is immoral, unethical, and illegal for courts to vicariously assume an Executive role as Police puppets no matter how purportedly benign the judicial ‘rubber stamp’ may appear. Or worse, don the ‘legislature hat’ and interpret laws in such a manner that a new perspective of the old law takes precedence. Besides, who’s to argue with a judge’s point of view that could land your patriotic ass into custody for ‘Contempt’? They are experts at logic and arguments and wield immense power to back their play.

So, as we, the intellectually paraplegic citizenry, set off on an academic (mis) adventure to speculate on which Section(s) of the Criminal Code could possibly authorize such drastic police intrusion in the private lives and homes that comprise large neighborhoods – absent a National Emergency - we stumble upon Section 144 CrPC.

In a nutshell, CrPC Section 144 confers plenary powers upon the magistrate to issue an immediate, absolute order exclusively in urgent cases of nuisance or anticipated danger when, in his subjective opinion, there is sufficient ground for proceeding immediately to accomplish a speedy remedy. If there is neither an urgency calling for the application of a speedy remedy nor apprehension of imminent danger to human life, health or safety, etc., the magistrate cannot issue such an ex-parte order under this section unless the emergency is sudden and the consequences sufficiently grave. Absent an emergent situation of sufficient gravity, the exercise of power conferred by CrPC Section 144 would be frivolous. The magistrate must assess the situation to his satisfaction (i.e., ‘apply his mind’) and issue the order in writing setting forth specific material facts of the case and in the manner provided by CrPC Section 134 and sub-sections of CrPC 144.

Certain stringent conditions have been imposed by the appellate courts on a magistrate exercising this absolute power. Not only would the magistrate’s specific written reasoning for taking cognizance be open for Appellate scrutiny, but also the specificity of his directions and conformance to well settled guidelines. This power can only be exercised in cases of imminent emergency, therefore it regulates the Magisterial function and, IF APPLIED PROPERLY, is not unconstitutional.

The Supreme Court enumerated five points which justified the constitutionality of Section 144. They are as follows: 1) Although the Magistrate has power under this section to pass orders ex-parte, generally, however, the procedure that is followed is to serve a notice to the person against whom the order is being passed. Only in cases of extreme critical situations that the Magistrate has to resort to passing an ex-parte order. 2) Additionally, the persons aggrieved by the order have a right to challenge the order on grounds they find appropriate. This supports the view that the power granted under this section is not arbitrary. 3) To substantiate the above, an opportunity for hearing and to show cause is also provided to the person challenging the order of the Magistrate. Therefore, the principles of natural justice are also complied with under this section. 4) Next the court also stated that the fact that the aggrieved party has the right to challenge the propriety of the order, this makes the action of the Magistrate more reasonable and based on rationale. 5) Finally the High Court's power of revision under CrPC Section 435 read with Section 439, also compensates for the condition that the order under Section 144 is non-appealable. The High Court can either quash the order or ask the Magistrate for the material facts, thus ensuring accountability.

Additionally, any restriction, which is opposed to the fundamental principles of liberty and justice, cannot be considered reasonable. One of the tests to determine reasonableness is to see whether the aggrieved party has a right of representation against the restrictions imposed or proposed to be imposed. No person can be deprived of his liberty without being afforded an opportunity to be heard in defense and that opportunity must be adequate, fair and reasonable. Further, the courts have to see whether the restrictions are in excess of the requirement or whether they are imposed in an arbitrary manner.

More importantly, an order under Section 144 cannot be of a permanent or a semi-permanent nature, or ongoing as a matter of routine. The Supreme Court held: "The Parliament never intended the life on an order under section 144 of the code to remain in force beyond two months when made by a Magistrate. The scheme of that sectionDOES NOT CONTEMPLATE REPETITIVE ORDERS and in case the situation so warrants steps have to be taken under other provisions of the law when individual disputes are raised. If repetitive orders are made it would clearly amount to abuse of the power conferred by section 144 of the Code." Acharya Jagdisharanand Avadhut v Police Commissioner [Equivalent citations: 1984 AIR 512, 1984 SCR (1) 447 - Bench: Misra Rangnath, Bhagwati, P.N., Sen, Amarendra Nath (J) - Citation: 1984 Air 512 1984 Scr (1) 447, 1983 Scc (4) 522 1983 Scale (2)565 - Citator Info: Ho 1987 Sc 748 (23), Rf 1992 Sc 377 (10)].

There have been (rare) cases where orders issued under CrPC 144 were struck down when such orders were not warranted by the circumstances, or the orders so issued did not specifically mention the area on which the restriction are to be imposed, or there has been a deviation from guidelines mentioned under Section 134 as also in various sub-Sections of CrPC 144.

One must keep in mind that power to impose restrictions on the personal liberties of individuals pursuant to CrPC 144, whether in a specific locality or in a town itself, pertains to situations that have the POTENTIAL to cause unrest or danger to peace and tranquility in such an areas due to certain disputes. As such, the intent is to diffuse or control anticipatory crimes of emergent nature.  But we all have potential to become crooks. We all have potential to commit crimes. Does this mean we should all be under surveillance or under government control to offset that hypothetical possibility?

But, wait a minute: We are jumping ahead of ourselves. We are ASSUMING that Police are acting under authority of a legitimate Warrant when history tells us Police usually act outside the perimeter set by Law. For the sole purpose of establishing faith in our judiciary, the courts should suo moto determine the legitimacy of each and every intrusion/ search/seizure/arrest affected through these notorious Cordon and Search Exercises and hold those who function outside the law accountable for criminal breaches.

But, going by chosen buzz words from police brass (e.g., ‘terrorism’, ‘fugitives from justice’, ‘money laundering activities’, ‘stolen vehicles’, ‘murder suspects’, etc.), that, by their linguistic characteristic, effuse a sinister, clear and present danger scenario, a hasty judiciary is influenced to allow extreme measures to augment routine police work. And a tolerant, gullible citizenry is left with little option but to grab its ankles and get a real-time perspective on what is REALLY happening to them under color of the law.

If such excessive measures are routinely employed by police to ‘deter crimes’ or ‘bring criminals to justice’, or pursue ‘possible’ terror suspects, it does not take a genius to figure out that the best method to escape detection is to simply move into a neighborhood that already had its share of pong from the police’s Cordon and Search presence.

One may perhaps condone flawed laws enacted by our chosen legislature (who merely represent the modest IQ of the voting public), but, our judiciary, being the last bastion of equity and justice should reconsider; at the least, examine, these gross violations of Privacy and Human Rights they swore to protect. Who is to determine whether there exists an improper exercise of Judicial functions the cumulative effect of which would be to lower the dignity of the Judiciary and further undermine the confidence of the public in the administration of justice. Even worse, there seems a real possibility some elements of the lower judiciary may be unwittingly facilitating our transformation into a totalitarian Police State.

I leave you with this thought from Justice William O. Douglas, Former Associate Justice of the Supreme Court of the United States:

"As nightfall does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such a twilight that we all must be aware of change in the air—however slight—lest we become unwilling victims of the darkness."

Respectfully submitted,

CARLISLE COLLINS

 

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