Cops PlayTom & Jerry
By Poonam I Kaushish
Remember lovable Tom and Jerry cartoon antics which we enjoyed in our childhood were today sullied by absurd theatrics, pull-and-push hyper-zealous police forces of three States —— Delhi, Haryana, Punjab on a collision course — acting at the behest of two dueling ruling Parties BJP and AAP in a deeply unedifying spectacle.
The ugly unprecedented saga over 48-hours last week started with abduction-arrest of a Delhi BJP leader from his residence by AAP-ruled Punjab police, followed by Delhi police registering a case of kidnapping on the plea they were not informed by their counterparts. Showing dizzying rapidity BJP’s Haryana police blocked the convoy carrying the leader at Kurukshetra on information he was being forcibly taken, then detained their Punjab counterparts culminating in the Delhi police taking the leader’s custody back.
The breathless drama then moved to the judicial domain with a local Punjab court issuing an arrest warrant and ended with Punjab and Haryana High Court granting relief at midnight. The case hearing resumes today but irrespective of its outcome the sordid tale exposes how all Parties cut a sorry figure.
Worse, the face-off showcases how in a hurry to score political points politics trumped process whereby the Administration flagrantly hijacked the due process of law and cemented the unsavoury trend by pushing the law enforcement machinery to cut procedural corners and act as proxies for their political mai-baaps in targeting opponents.
Alongside without going into the case merits against the BJP Yuva leader issuing threats to AAP Delhi Chief Minister Kejriwal, it highlights the unabashed use of police by Parties in States it rules, in barefaced disregard for established norms and rule of law that govern inter-State police action now popular across the political ideological spectrum. The vardiwallahs defy logic and accountability. Compromises are routine as threats of transfers to ‘insignificant’ posts, demotions and suspensions forces most policemen to toe their political mai-baap’s line.
Surely violations of rules of the game are not new. Nor is the misuse of police by a Party in power, weaponisation of the penal code to target a political opponent, crossing of State boundaries and federal norms in the course of vendetta politics. Wherein, neta-police are two sides of a coin: The former use the latter as instruments of partisan agendas by Parties in power for their grotty ends.
Consequently weakening State institutions and underscoring how urgently reforms are required to de-link law enforcement from political compulsions. Resulting in an exasperated Supreme Court accentuating: When a Party is in power, police takes side of ruling Party, when new Party comes to power it initiates action against those officials.
Besides, till yesterday the CPC guided routine inter-State arrests mandating cooperation between local police where the arrest is made and police where the offence has taken place via prior intimation and involvement in arrest.
However, this incident underlines the grim reality of how well entrenched political loyalties and bitter politics transforms routine procedure into a full-blown inter-State row and sets a disturbing precedent for States to prevent arrest by another Opposition-ruled State or Centre.
Legally, the power to arrest arises from a FIR which means it rests with the police in whose jurisdiction the offence is committed. If it is a cognizable non-bailable offence, the person can be arrested without a warrant, provided he is produced before a magistrate within 24 hours. Arrest without intimidating local police is at best irregular but not illegal if the person is produced before a magistrate.
Questionably, a grey area which police use to its advantage is whether local police can compel police of another State to produce the arrested person before a local magistrate before transfer. Article 22 (2) states: “Every person who is arrested and detained in custody shall be produced before the nearest magistrate within 24 hours of arrest excluding the time necessary for journey from place of arrest to the magistrate court, and no such person shall be detained in custody beyond the said period without a magistrate’s authority.”
Ordinarily, the nearest magistrate is assumed to be the magistrate in whose jurisdiction the FIR is registered if the individual can be produced within 24 hours. The crucial 24 hour rule allows police to skip obtaining a transit remand from a local magistrate where the arrest is being made as hearing for transit remand before a magistrate allows the arrested opportunity to seek bail and contest transfer before it happens.
Obversely, producing before a magistrate in a new State, even within 24 hours could make it difficult for an arrested individual to engage a lawyer and seek bail. Ultimately, the determination of whether an arrest is valid or not is made by a magistrate and not police.
In 2008, Delhi High Court upheld CBI’s decision to not obtain transit remand for the arrest of an individual in Raipur since the CBI did not anticipate more than 24 hours after his arrest would be needed to produce the petitioner before the jurisdictional court in Delhi. Pertinently, both Disha Ravi in 2021, Jignesh Mevani last month were arrested in Bengaluru and Gujarat without a transit remand.
Two, is the unusual manner in which Haryana police intercepted the police convoy of another State and took custody of the arrested individual, all without intervention of a magistrate. Clearly, blocking of Punjab police convoy also violates the law which states that a public servant cannot be prevented or detained for discharge of official duties when believed to have been done in good faith. The Delhi Police’s registration of an abduction case, after being intimated of an arrest by the Punjab Police, also raises questions of overstepping the law.
Legal experts are apprehensive the BJP leader’s case could set a new pattern for States to prevent arrests by Opposition ruled States, raising questions on a State’s powers in a federal structure in a fraught political environment. Already nine States West Bengal, Chhattisgarh, Rajasthan, Maharashtra, Kerala, Jharkhand, Punjab, Mizoram and Meghalaya have withdrawn general consent to CBI to investigate cases and over 173 requests are pending with them. Any wonder CBI and Enforcement Directorate routinely file cases involving those in Opposition ruled States in Delhi, and not in the respective States to ensure arrest is not risked.
Further, the drama again lobs freedom of speech issue. For a change the BJP is playing the victim card. Perhaps its leader is no paragon of political civility. He has multiple cases of assault and vandalizing to his name. But the irony is that increasingly, the BJP’s Opposition is playing by the Hindutva book. If it doesn’t have Delhi police it can play political master with Punjab police. Ditto in Mamata’s Bengal and Thackeray’s Maharashtra. As this Tom and Jerry pantomime continues it is cause for serious concern.
Certainly, it doesn’t bode well for our democracy as its strength and quality of life enjoyed by citizens is largely determined by the ability of the police to discharge its duties honourably and independently. It is imperative Parties and Governments despite their differences, find common ground to push through long pending police reforms that can lay down clear guidelines for inter-State police action and penalties for violating these norms. The vicious cycle of one-upmanship must end. As ultimately democracy only loses. — INFA