A travesty of justice- Part II

This is a follow up to my article A TRAVESTY OF JUSTICE published on May 1st, 2015

(A travesty of justice?).

Therein, I deliberately left numerous open-ended ‘’cliff hangers’’ hoping to prod our readership into scrutinizing and critiquing the (just as) numerous appellate court prerequisites cited as mandatory guidelines that would legitimize issuance of Warrants. The emphasis here is on ‘’PRE-‘’ requisites; in other words, ‘applying the mind’ and deliberating on the necessity (or pointlessness) of issuing Warrants – BEFORE they are issued (or declined).

These ‘’prerequisites’’ serve more as catalysts to judicial reasoning, for lack of a more appropriate analogy; sort of like ‘’A Guide To Due Process Of Law For The Intellectually Challenged’’.  The provisions therein are, no doubt, benign and intended to anoint some semblance of due deliberation on government actions that affect one’s privacy rights. The only action ‘’hardened into law’’ is magisterial discretion.

An analytical mind could interpret these provisions as textbook fiction because, as you will notice below, their practical value is less than zilch once the damage has already been done.   I have taken the liberty of reproducing below some typical examples from the original article and attempted to illustrate, particularly in the ongoing Neighborhood Cordon And Search Operations, these notional constitutional ‘’safeguards’’ would impede ‘’Gleichschaltung’’, conventional fascist police work.

The law and procedure authorizing interference with personal liberty and right of privacy must also be right, just, and fair and not arbitrary, fanciful, or oppressive. My comments after ‘’NOTES’’, may prompt some readers into re-assessing the health of our 60-year old Constitution and predicting its longevity...

LETTER OF THE LAW vs. SPIRIT OF THE LAW vs. IMPRACTICAL APPLICABILITY: The Supreme Court enumerated five points which would justify the constitutional validity of Section 144. They are as follows:

1) Although the Magistrate has power under this Section to pass ex-parte orders, 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, the Magistrate may resort to passing an ex-parte order.

[NOTE: But this ‘service of notice’ requirement would defeat the very purpose for the Police’s fishing ‘net’ (a practical synonym for ‘Cordon and Search’) where the tactical advantage is surprise].

2) Additionally, the persons aggrieved by the order have a right to challenge the order on grounds they find appropriate. This goes to supports the view that the power granted under this Section is not arbitrary.

(NOTE: Nevertheless, the likelihood of the ‘aggrieved person’ challenging this order beforehand is almost Zilch since the enthusiastic raiding party of 200-plus, beefed-up goon squad will have already conducted the raid and our ‘aggrieved’ hero would, most likely, already have his ass in custody).

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 purportedly reflected in this Section.

[NOTE: An opportunity for hearing and to show cause should present itself BEFORE the Warrant is executed, i.e., IF a Warrant truly existed in the first place! When a trial judge enters an order that “departs from the essential requirements of law” appellate review is, and should be, available by immediate petition for a writ of certiorari instead of allowing the error to stand and forcing the aggrieved party to seek appellate remedy only after entry of final judgment; in our case, issuance and execution of an all-inclusive Warrant.

For example, issuance of a writ is proper to reverse a trial judge order overruling objections to a request for the production of documents, since issuance of such an order allows irreparable injury that cannot be cured on appeal at the conclusion of a case. Nevertheless, there’s some showing here of ‘checks and balances’ that might arouse a fleeting nod of approval from constitution scholars in their ivory towers of academia. (NOTE: In practice, however, our disenchanted hero will have no voice in the matter. He will have acquired other more pressing concerns while prancing about in jail, like protecting his virgin derriere from overzealous, predatory cellmates)].

4) The fact that the aggrieved party has the right to challenge the propriety of the order, cloaks the magistrate’s decision with responsible deliberation based on rationale.

(REALITY CHECK: How common is it for a judge to over-rule a brother judge’s capacity and raison d’être while ‘applying his mind’)?

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.

(NOTE: Unless the Magistrate is a total schmuck, the HC will never find their brother-judge’s reasoning to be utterly without merit).

    

REPETITIVE WARRANT SEARCHES = ABUSE OF POWER: It is settled law that 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 to 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

(NOTE: There’s no mention of ‘timely’ here).

Further, the courts have to see whether the restrictions are in excess of the requirement or whether they are imposed in an arbitrary manner.

(NOTE: True! True! But this is Law in text books! The legislative intent of this mandate is clearly to afford an opportunity to contest the adverse proposal BEFORE it takes the form of an Order. These concessions are precautionary and imbedded as a protection from arbitrary, tyrannical rulings before such rulings are actually made. But, in real life situations occurring before us, their practical worth seems to be academic. What’s the point in critiquing a purportedly dubious ex-parte court order when the damage has already been done)?

More importantly, the Hon. Supreme Court continues, an order under Section 144 cannot be of a permanent or a semi-permanent nature, or ongoing as a matter of course: “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 Section DOES 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)].

Surely there’s no other way of assessing these ongoing Cordon and Search Operations as but routine and repetitive?

I am told that there have been cases where orders issued under CrPC 144 were struck down on appeal 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 had been a deviation from guidelines mentioned under Section 134 as also in various sub-Sections of CrPC 144. But I am yet to find a good, solid citation to support this hypothesis …

One must keep in mind that power to impose restrictions on 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 areas due to certain disputes. As such, the intent is to diffuse or control anticipatory crimes of emergent nature.

    

CONSIDER THIS: If you cheated on your Taxes, you’re a criminal. If you parked your vehicle in a ‘No Parking’ Zone, you’re a criminal. If you jumped a Red Light, you’re a criminal. If you ever flirted with the opposite sex, you’re a criminal. If you lied to get a job, you’re a criminal. If you failed to pay traffic challans, you’re a criminal. If you ever bribed a government official (a required practice here), you’re a criminal. A ‘Criminal’ is no different from the rest… except that he got caught! What is critical here is, was he caught lawfully, or through an illegal or improper search?

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 constant government control to offset that hypothetical possibility (– knowing fully well that some of our most celebrated crooks are in government)?

But, going by buzz words from police brass (e.g., ‘terrorism’, ‘fugitives from justice’, ‘money laundering activities’, ‘stolen vehicles’, ‘murder suspects’, etc.), that, by their linguistic connotation, effuse a sinister, panicky, clear and present danger-Type scenario, a hasty judiciary is influenced to allow extreme measures to augment routine police work. And a tolerant, gullible, intellectually challenged 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. To many, it’s a painful experience.

    

ARE THESE DESPERATE TIMES CALLING FOR DESPERATE MEASURES?? 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. So, is there any logic to, or genuine necessity for these flamboyant, extreme, Cordon and Search operations in day-to-day/night-to-night police work absent a seriously imminent national emergency?

Respectfully submitted,

CARLISLE COLLINS.

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