HUMAN RIGHTS
The Common Man’s Personal Liberty
Prabhakar Sinha
Even 62 years after independence the common man’s personal liberty has not received the attention the citizens of a republic deserves. The jails in the country are overflowing with under trial prisoners detained for allegations of minor criminal offences. In fact, a very large number of them continue to languish in jails because they are too poor to move for a bail; many of them continue to be in the prison because the trial takes too long. In fact, if their cases had been tried in time and they had been convicted, they would have been free, as they have already spent more time in jail than their offence warranted. Since the independence, millions of the common citizens have suffered undeserved loss of their personal liberty and been forced to live in jail in inhuman conditions without anybody seriously taking up the cudgels on their behalf.
The cause of this widespread oppression lies in a draconian provision of the Cr.P.C. 1973, which was initially enacted by the colonial rulers in 1898. Section 41 of the Cr.P.C. empowers a police officer to arrest without a warrant any person “(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made. Or credible information has been received, or a reasonable suspicion exists of his having been so concerned.”
The colonial government vested this enormous and arbitrary power in the police to keep the subjects of the British Empire in awe and subjugation, but the same is unacceptable in a democracy, which, under Article 21 of the Constitution, accords great value to the life and personal liberty of a citizen. Despite the fact that Section 41 of the Cr. P.C. empowers a police officer to arrest any person purely on the basis of his subjective satisfaction that the person concerned is involved in any cognizable offence or that the compliant against him is ‘reasonable’ or the information against him is ‘credible’ or a ‘reasonable suspicion’ of his being concerned in a cognizable offence exists, there is no provision in the Act to make him accountable to ensure that the power is not misused. The sweep of this arbitrary power is so vast that just anybody may find himself behind the bars because the list of cognizable offences includes even very minor offences. In addition to this, there are other conditions (contained under sub-section 1(b) to (i) and sub-section (2) of section 41) empowering the police officer to arrest without a warrant.
The victims of the use of third degree methods, which occasionally lead to death in the police custody, are invariably the poor who are arrested without a warrant under this provision. The police often do not record these arrests and detain the arrested persons well beyond 24 hours or deny the arrest and killing of a person in their custody by manipulating the record. Following several guidelines and observations of the Supreme Court and High Courts to regulate the use of this arbitrary power of the police, the Law Commission requested the National Human Rights Commission to study the problem and make available suitable data collected by an expert body to enable it to consider suitable amendments. In its letter dated 20 July 1999 to the National Human Rights Commission, the Law Commission observed.
“The power to arrest a person without a warrant on reasonable suspicion or under the belief that he is concerned in any cognizable offence is an awesome power vested in one of the civil services- probably the only armed service in our polity, in as much as this power, vast as it is, is liable to misuse and has been very often misused, the Supreme Court and the High Courts have, on several occasions, explained the true content and spirit of the said provisions and have laid down the guidelines governing and regulating the exercise of the said power.
Even so, the misuse and abuse of the said power remains practically unabated” (emphasis added).
In a democracy, the personal liberty of an individual should not be treated lightly as has been done in our country. Arrest should be resorted to only under circumstances fully justifying it. It would be justified to arrest a person accused of grave crimes like murder, dacoity, and rape etc. to instill confidence in the victims or where the accused is capable of terrorizing the victim and witness or where there is a ground to believe that he might abscond or sometimes to save his own life itself. There may be other grounds justifying an arrest, which experts may specify. However, barring such people, nobody should be arrested on flimsy grounds.
Recently, Section 41 of the Cr.P.C. was amended to curb the power of the police to arrest by providing that normally the police would not arrest anyone without a warrant unless he is accused of an offence carrying a sentence of less than seven years. In other cases, the police would issue summons to the accused for investigation. The police may also arrest a person not accused of an offence carrying a sentence of less than seven years (without a warrant) but has to record the reasons for so doing. The amendment is welcome and could have gone a long way in protecting the personal liberty of a very large number of common men. However,, it has been vociferously opposed by lawyers on the ground that it would encourage crime. They have also claimed that it would save only the high and the mighty. Without going into the merit or motive involved, it is obvious that the loss of the personal liberty of the citizens far outweighs any gain to the society by retaining the Draconian legacy of the British Empire.
Unfortunately, nobody came forward to speak for the voiceless millions who have been falling a victim to this imperial law for decades, and the government, as usual, surrendered and put the amendment in the cold storage by not notifying it. It is the duty of all human rights activists to take up the cudgels for the personal liberty of the weak and the voiceless.
Prabhakar Sinha
Even 62 years after independence the common man’s personal liberty has not received the attention the citizens of a republic deserves. The jails in the country are overflowing with under trial prisoners detained for allegations of minor criminal offences. In fact, a very large number of them continue to languish in jails because they are too poor to move for a bail; many of them continue to be in the prison because the trial takes too long. In fact, if their cases had been tried in time and they had been convicted, they would have been free, as they have already spent more time in jail than their offence warranted. Since the independence, millions of the common citizens have suffered undeserved loss of their personal liberty and been forced to live in jail in inhuman conditions without anybody seriously taking up the cudgels on their behalf.
The cause of this widespread oppression lies in a draconian provision of the Cr.P.C. 1973, which was initially enacted by the colonial rulers in 1898. Section 41 of the Cr.P.C. empowers a police officer to arrest without a warrant any person “(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made. Or credible information has been received, or a reasonable suspicion exists of his having been so concerned.”
The colonial government vested this enormous and arbitrary power in the police to keep the subjects of the British Empire in awe and subjugation, but the same is unacceptable in a democracy, which, under Article 21 of the Constitution, accords great value to the life and personal liberty of a citizen. Despite the fact that Section 41 of the Cr. P.C. empowers a police officer to arrest any person purely on the basis of his subjective satisfaction that the person concerned is involved in any cognizable offence or that the compliant against him is ‘reasonable’ or the information against him is ‘credible’ or a ‘reasonable suspicion’ of his being concerned in a cognizable offence exists, there is no provision in the Act to make him accountable to ensure that the power is not misused. The sweep of this arbitrary power is so vast that just anybody may find himself behind the bars because the list of cognizable offences includes even very minor offences. In addition to this, there are other conditions (contained under sub-section 1(b) to (i) and sub-section (2) of section 41) empowering the police officer to arrest without a warrant.
The victims of the use of third degree methods, which occasionally lead to death in the police custody, are invariably the poor who are arrested without a warrant under this provision. The police often do not record these arrests and detain the arrested persons well beyond 24 hours or deny the arrest and killing of a person in their custody by manipulating the record. Following several guidelines and observations of the Supreme Court and High Courts to regulate the use of this arbitrary power of the police, the Law Commission requested the National Human Rights Commission to study the problem and make available suitable data collected by an expert body to enable it to consider suitable amendments. In its letter dated 20 July 1999 to the National Human Rights Commission, the Law Commission observed.
“The power to arrest a person without a warrant on reasonable suspicion or under the belief that he is concerned in any cognizable offence is an awesome power vested in one of the civil services- probably the only armed service in our polity, in as much as this power, vast as it is, is liable to misuse and has been very often misused, the Supreme Court and the High Courts have, on several occasions, explained the true content and spirit of the said provisions and have laid down the guidelines governing and regulating the exercise of the said power.
Even so, the misuse and abuse of the said power remains practically unabated” (emphasis added).
In a democracy, the personal liberty of an individual should not be treated lightly as has been done in our country. Arrest should be resorted to only under circumstances fully justifying it. It would be justified to arrest a person accused of grave crimes like murder, dacoity, and rape etc. to instill confidence in the victims or where the accused is capable of terrorizing the victim and witness or where there is a ground to believe that he might abscond or sometimes to save his own life itself. There may be other grounds justifying an arrest, which experts may specify. However, barring such people, nobody should be arrested on flimsy grounds.
Recently, Section 41 of the Cr.P.C. was amended to curb the power of the police to arrest by providing that normally the police would not arrest anyone without a warrant unless he is accused of an offence carrying a sentence of less than seven years. In other cases, the police would issue summons to the accused for investigation. The police may also arrest a person not accused of an offence carrying a sentence of less than seven years (without a warrant) but has to record the reasons for so doing. The amendment is welcome and could have gone a long way in protecting the personal liberty of a very large number of common men. However,, it has been vociferously opposed by lawyers on the ground that it would encourage crime. They have also claimed that it would save only the high and the mighty. Without going into the merit or motive involved, it is obvious that the loss of the personal liberty of the citizens far outweighs any gain to the society by retaining the Draconian legacy of the British Empire.
Unfortunately, nobody came forward to speak for the voiceless millions who have been falling a victim to this imperial law for decades, and the government, as usual, surrendered and put the amendment in the cold storage by not notifying it. It is the duty of all human rights activists to take up the cudgels for the personal liberty of the weak and the voiceless.
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