Someone must have slandered Josef K, for one morning, without having done anything truly wrong, he was arrested.
- Franz Kafka, The Trial.
It was the year 2012. The eminent counsel, Ram Jethmalani made a remarkable opening statement, before the then Acting Chief Justice of the Bombay High Court. He said,
“My client is an ordinary person, so he went to a court of law. My opponent is a rich builder, so he went to the police."
His client had dared to file a suit to claim his rights on a prime land against a powerful builder. The builder effortlessly had the person arrested by the police. This statement, succinct and terse, exposed the bitter but the untold truth of how our criminal administration system very often functions.
In the recent judgment of Neeharika Infrastructure Pvt. Ltd. V. State of Maharashtra, a builder was protected from arrest by an unreasoned ‘no coercive order’ by the High Court. This order was rightly set aside by the Supreme Court. As such, a coercive order was not warranted in the facts and circumstances of the case, by which the police were restrained to investigate a high crime. The text of the judgment follows a long line of decisions. The Court rightly held that passing of such a no coercive order “casts an onerous and more diligent duty on the Court” and that “such interim orders cannot be passed mechanically and/or without assigning any reasons”. A judgment, unblemished and correct, without doubt.
There is a caveat here. Every landmark judgment is like the message of great leaders. They create an imagery in popular perception. The Neeharika judgement seems to, in tenor, though not in text, send a signal to the High Courts to cease and desist from issuing ‘no coercive orders’.
“As observed hereinabove, it is the statutory right and even the duty of the police to investigate into the cognizable offence and collect the evidence during the course of investigation. There may be requirement of a custodial investigation for which the accused is required to be in police custody (popularly known as remand). Therefore, passing such type of blanket interim orders without assigning reasons, of not to arrest and/or “no coercive steps” would hamper the investigation and may affect the statutory right/duty of the police to investigate the cognizable offence conferred under the provisions of the Cr.P.C. Therefore, such a blanket order is not justified at all. The order of the High Court must disclose reasons why it has passed an ad-interim direction during the pendency of the proceedings under Section 482 Cr.P.C. Such reasons, however brief must disclose an application of mind”.
Is the tone in the judgment censorious? Is it a carte blanche for an investigation officer? Are his actions unhinged requiring no explanation to a constitutional authority? If that is the perception, the verdict can be misread to read as curtailing the power of the High Courts to pass ‘no coercive orders’. Unwittingly, this perception will entail the High Courts freezing passing of protective orders no matter what. This perceived embargo will, in effect, transfer power from the highest constitutional authorities to the ‘thanedar’ (Station House Officer) - unbridled and unhampered by the Constitution and free from judicial scrutiny.
Many members of the Constituent Assembly, who saw and experienced first hand the actions of the colonial police force, were extremely vocal in incorporating ‘the due process clause’ of the United States Constitution. This would have entailed the courts to question, when it came to the liberty of the citizen, the fundamental question of the fairness of their actions.
Chimanlal Shah, a vocal supporter for the induction of ‘the due process’ clause, understood the manner and methodology of our inherited colonial criminal administration system:
“We know it to our cost that even the Commissioner of Police does not look into these matters personally as he is expected to and signs and issues warrants on the reports of subordinate officials. It is better under such circumstances that there is some check upon the exercise of such powers if they are arbitrarily used.”
Despite the most persuasive arguments of KM Munshi and other vocal and erudite members, the Constituent Assembly dropped the ‘due process clause’. Despite the absence of a ‘due process clause’, the Supreme Court and the High Courts evolved principles to protect the innocent from the ravages of police power. A series of judgments made explicit the Court’s power under Article 226 of the Constitution which included the power to protect persons from imminent arrest. The judgments spoke to the powers that be, that it would be delusional to think that a person can only access the court once he is actually taken into custody.
The Neeharika Infrastructure judgement cannot be faulted, for it records a long line of decisions which takes care of the situations of miscarriage of justice. It preserves the power of the High Courts on the condition of recording the reason.
However, it will be unfair to the High Courts exercising their criminal writ jurisdiction and their powers under Section 482 of the Code of Criminal Procedure, if we do not understand the ground realities and constraints under which they work. In any of the High Courts anywhere, the calendar of a judge or a Bench hearing criminal matters will show an intense density of matters crying out to protect the liberty of its citizens. These Courts fight the constraint of time to expeditiously deal with the myriad constitutional liberty issues of the citizens. Legal practitioners are aware that judges on these benches have trained themselves to take decisions quickly. They have honed an innate instinct to cull out an unjust or malicious or corrupt police action. These Courts, on short hearings. pass no coercive orders to arrest actions which will scar the citizen for life.
In the year 2018, a prestigious women’s organisation brought to the notice of the Supreme Court a midnight intrusion by male policemen into the home of an estranged daughter-in-law living alone with a minor child. The arrest was a means to usurp the custody of the minor child. Outraged, the Supreme Court passed a cryptic ‘no coercive order’ to protect the lady from the machinations of her high-ranking in-laws.
The Supreme Court being seized of the matter had a sobering effect . Investigations were fairly carried out and completed. FIRs in two states were found to be false and closed by the police. The police even sought for prosecution of the complainant for having filed the false FIRs. The moral of this episode is that judicial scrutiny invariably checkmates the unfair power play by the thanedar.
A wrong perception governing the Neeharika judgment will expose many to malicious incarceration. They may be innocents in domestics disputes, journalists exercising free speech, those in the crosshairs of the powerful. The list is really endless. But for judicial intervention, the incarceration is often indefinite. The lower judiciary has acquired a reputation of being the last one to grant bail easily. For the innocents, it often is the end of the road: it emblazons a lifelong stigma, it destroys a career, it affects his/her rights in myriad ways, in the Indian context, it even transfers the stigma to the next generation in marriage prospects.
It was the hope of the framers that the power of protection against a vindictive thanedar by a constitutional court is untrammelled. The erroneous perception of the ratio of the judgment poses a clear and present danger posed by an unbridled thanedar. In this age, police powers are used with ever greater brazenness against journalists, dissenters and others.
It was this Court, which on a letter, penned the ground breaking decision in Sunil Batra. A clarification from the highest court, in a otherwise correct decision, will be a welcome move tilting the scales in favour of the liberty of its citizenry.
As the ink dries on this piece, a student who was desperately seeking bail to meet her father got bail after six months. But her father was not there to receive her.
The author is a Senior Advocate practicing at the Supreme Court.