With fighting terror a national priority, do we need to strengthen our laws or make them more humane? Is it fair to arrest a person for "suspicious behaviour"? And does preventive arrest amount to denial of basic human rights? These were some of the questions that had the Union ministry of home affairs (MHA) locking horns with the Prime Minister's Office in the last two months as the cabinet deliberated amendments to the Code of Criminal Procedure. The MHA was all for making the law more compassionate and in tune with the needs of a progressive society. The PMO, on the other hand, was not for any radical changes since it felt this would open up the UPA government to further charges of being soft on terror.
For the better part of early 2008, the MHA's justice division officials had worked on proposed changes in the CrPC. There were no major objections to suggested changes in laws dealing with rape cases, commuting of death sentences of pregnant convicts and making trials easier for undertrials. But Section 41 of the CrPC that deals with the powers of the police to effect arrests proved to be the stumbling block. And it is the proposed amendments to this crucial section that has faced objection from the PMO.
Here are the proposed changes in Section 41 included in the cabinet note that the MHA put up to the PMO:
- Do away with preventive arrests merely on grounds of suspicious behaviour.
- Follow a different procedure for the arrest of those committing crimes with a maximum punishment of seven years (called summons cases) and those committing crimes that carry sentences longer than seven years (warrant cases). The laws applied in the former should be less stringent and bail made easier.
- Only a registered government medical practitioner must examine all arrested.
- All witness statements should be recorded before a judicial magistrate.
- Police officials of the rank of sub-inspectors or above alone should be given the power to arrest.
- All arrests must be recorded on video.
To be fair to the MHA, its proposals were meant to make the law more humane and in tune with best human rights practices. For instance, its suggestion to remove the police's powers to make preventive arrests follows Law Commission recommendations. With thousands stuck in jails, often on flimsy charges, the MHA had endorsed the spirit of the commission's suggested steps for reform and taken them on board.
It is here that the PMO stepped in with a nuanced view of its objections to doing away with preventive arrests altogether. It felt that in the age of global terrorism, this was a major tool in the hands of the police. If the police couldn't make preventive arrests, the PMO reasoned, then it would become easier for criminals and terrorists to commit crimes.
It also pointed out that it was unrealistic to expect a police official to distinguish between a summons case and a warrant case. As a police official explains to Outlook, "Arrest is only the beginning or the initial stage of an investigation. The nature or extent of the crime can get radically redefined later. Therefore, it isn't desirable for a policeman to make such a distinction at the time of arrest. The quantum of punishment for an accused depends on what the investigation throws up. That is best left to the courts."
Similarly, the PMO noted it would be tough to expect that a "registered government medical practitioner" can always be found for the examination of an arrested person. More so in remote areas, argued the PMO, forcing the MHA to drop "government" from the criterion. "Now any registered medical practitioner—government or private—will suffice," a senior MHA official told Outlook.
Similarly, the PMO termed "impractical" the proposed amendment necessitating a magistrate's presence while recording every statement by a witness, though it said the initiative was "noble". With the judiciary swamped with thousands of cases, the additional burden of recording statements of all witnesses in a case could prove to be an impossible task. The PMO also argued that the clause empowering only a police sub-inspector to arrest an accused should be dropped, observing this was not in keeping with ground realities. "If a constable is witness to a crime, will he then search for a sub-inspector to make the arrest?" asks an official. This amendment has been put in the cold storage.
But would the changes proposed by the MHA have helped? Many in the police force see it as mere window-dressing and feel that there are other policing issues that need urgent attention. Says a senior police officer: "Since 1980, we have not had any semblance of police reforms. Negotiations have been stuck between the Centre and the states, so by merely tweaking Section 41 of the CrPC we will achieve very little. Why doesn't the MHA introduce reforms for the Delhi police and make it a model force?" According to him, once the police changes the way it functions, it will be a more competent, dedicated and accountable force. Well, that leaves the ball in the bureaucracy's court.
