* Editorial 2

It is time to rethink the power of arrest and the concept of cognisable offences

Let us say we were creating the law on criminal process from scratch, for a just utopia. The law would need to empower police to arrest persons who are probable, not merely possible, suspects. Inbuilt in such a power to arrest must be a restriction against arbitrarily arresting people who are not probable crime suspects. Such a restriction would have to be founded in the right of individuals against arbitrary intrusions into their lives by the state and law enforcement, recognised in Puttaswamy v. Union of India (2017). Departing from the view of privacy as a bundle of rights, the Supreme Court held that privacy is essential for protecting personal liberty as it allows us to define ourselves and our relations to others.

But it is not enough to merely recognise a right of individuals, and a corresponding restriction on the power of the police. The restriction must also serve to deter the police from intruding willy-nilly into the private lives of individuals. On balance, criminal process in a just utopia ought to incentivise honouring the individual’s right to privacy as autonomy while discharging law enforcement duties. After all, one is presumed innocent until proven guilty.

Cognisable offences

How close is India to being this utopia? Activist Shehla Rashid, on FIRs accusing her of sedition and promoting enmity between religious groups, had to recently secure protection against arrest from a court. This is because both the named offences are “cognisable” — that is, an officer can take cognisance of and arrest a suspect without seeking a court’s warrant to do so, if she has “reason to believe” that the person has committed the offence and is satisfied that the arrest is necessary on certain enumerated bases. Within 24 hours of the arrest, the officer must have any further detention of the arrested person ratified by a judicial magistrate.

How would officers make the decision on whether to arrest someone? They must first weigh the probability of a person having engaged in the criminalised conduct. This is a factual question. Next, they must assess if the conduct in question fits the definition of the offence, to decide if the person ought to be arrested. This too is a factual question. However, this question is comparatively easier to answer when the offence criminalises conduct for constituting the harm. For instance, the offence of murder constitutes the harm of loss of life — the police officer must decide, on facts, whether the loss of life resulted from the intentional conduct of the accused. But it is a harder question to answer in case of offences such as those in the FIR against Ms. Rashid, as officers must answer whether the suspect’s conduct will result in or cause harm as a downstream effect. Needless to say, this prediction can only be accurate and free of error if officers are clairvoyant!

Whether the offence criminalises conduct for constituting harm or causing harm as a downstream effect, there is no restriction on the powers of the police that deters arrests based on an error in answering these factual questions. In the case of offences mentioned in Ms. Rashid’s example, factual errors can result from exuberant policing, driven by subjective convictions on what might cause hatred, contempt or excite disaffection against the government or promote enmity between religious groups. In offences like these, the line between exuberant policing and a reasonable belief that the arrested person engaged in criminalised conduct can be hazy. Therefore, it is unclear what parameters can be employed by the judicial magistrate in deciding whether to remand the accused person to further custody for investigating the acts of the accused.

An arrest based on such an error would unconstitutionally curtail not only the arrested person’s freedom to engage in speech and conduct, but also her liberty against arbitrary arrest. Further queering the pitch is the requirement on the police to apply judgments of the Supreme Court modifying definitions of offences to bring them in line with the Constitution. For instance, the definition of sedition was read down in Kedarnath Singh v. Bihar (1962) to encompass only speech or conduct that can “incite violence” or “involves the intention or tendency to create disorder”. Thus, an officer examining a sedition FIR needs to accurately understand and apply Kedarnath Singh, before taking cognisance of the offence. The Court restated this requirement in September 2016, in Common Cause v. Union. The question is whether such an essentially mixed question of fact and law can be left to the police force, an essentially executive authority trained to undertake investigative decisions.

Non-cognisable offences

On the other hand, a non-cognisable offence would need officers to approach a court for a warrant before they can arrest a suspect. Why some offences can lead to arrests only upon judicial intervention for issuance of warrant is unclear. One rationale proposed by some courts is that grave and serious offences are cognisable. However, the Malimath Committee noted in 2003 that many serious offences like public servants disobeying the law to cause injury to any person; bribery during election; buying or disposing of any person as a slave; cheating; mischief; forgery; making or using documents resembling currency notes; and criminal intimidation were non-cognisable.

Contradicting the gravity-of-offence rationale is the 177th Law Commission Report which states that cognisable offences are those that require immediate arrest. However, lawyer and scholar Abhinav Sekhri notes that Part B of the Schedule comprising cognisable offences in the Code of Criminal Procedure (CrPC) carries several offences that do not necessitate immediate arrest, such as making unauthorised constructions, repairs and modifications to one’s house under a Maharashtra town planning law. This raises questions about the rationale behind selectively requiring judicial scrutiny of some arrests, while permitting full police-discretion over other arrests.

The CrPC was written in 1973. Ever since, multiple judgments of the apex court such as Joginder Kumar (1994), DK Basu (1997) as well as Law Commission Reports (154th, 177th) critiqued the wide powers of arrest for cognisable offences. This led to the 2009 amendment which restricted the power to arrest, to persons against whom “a reasonable complaint” or “reasonable suspicion” exists, or “credible information” is received, of having “committed a cognisable offence.” Even so, the CrPC neither deters arbitrary arrests, nor comprises incentives for carrying out arrests consistent with the individual liberty and autonomy of individuals. What then happens to the right to privacy and autonomy of a person who is arrested on a charge that does not meet the tests laid down by the Court — such as in Kedarnath Singh or, worse, on a charge that is proved to be empty?

A code that does not compel the police to constantly be accountable to individual liberty and the Constitution is merely a police procedure manual. After Puttaswamy’s emphatic recognition of the right to privacy as autonomy, inherent in individual dignity, it is imperative that we rethink the powers to arrest for cognisable offences against the state and against public tranquility. For the CrPC to truly realise criminal justice, we might even profitably reimagine the very concept of a cognisable offence as we presently know it.

Malavika Prasad is a lawyer and doctoral fellow at the Nalsar University of Law

India needs to have a non-coercive sanitation policy for those who continue to use the outdoors

October 2 was not only Mahatma Gandhi’s 150th birth anniversary, but also the fifth, and perhaps final, anniversary of the Swachh Bharat Mission. Speaking in Gujarat, Prime Minister Narendra Modi declared India “open defecation-free”.

But is rural India really open defecation-free? The Swachh Bharat Mission website claims with some caveats that the country has achieved 100% coverage of latrine ownership. If this was the definition of being open defecation-free, then, again with some caveats, India can be declared so.

Study findings

Ten months ago, our team revisited families we had interviewed in a 2014 survey in Bihar, Uttar Pradesh, Rajasthan and Madhya Pradesh. We asked about the defecation behaviour of nearly 10,000 people. Between 2014 and the end of 2018, latrine ownership in the region had increased by 34 percentage points. Yet, even in States that had already been declared open defecation-free, the actual coverage was far below 100%. Although the percentage of people defecating in the open declined by 26 percentage points, close to half still reported to be relieving themselves in the open. And sadly, the programme barely managed to bring any change in the behaviour of latrine owners. Like in 2014, about a quarter of people who own a functional latrine continued to defecate in the open. Overall, the study found that 44% of people in these four States defecated in the open. These facts are unlikely to have radically changed in only 10 months.

Some may call Mr. Modi’s declaration a political overstatement and move on to celebrate the reduction in open defecation. But doing so will leave us with an unanswered question: Will India have a sanitation policy that will address the remaining who openly defecate? For those who care about India’s abandoned toilets and stunted health outcomes, this is an important question.

In the past five years, the Indian government has built a 100 million toilets. This implies that it constructed 38 toilets every minute that had passed since the Swachh Bharat Mission was launched. With a country as large as India, this is a big achievement. But another important question to ask here is: how was this achieved?

The other half of the story

Hard-working government officials going around convincing people to build and use a latrine might be half the story, but the remaining half is alarming. From talking to 156 government officials, we learned that many rural Indians were threatened with or even denied their legal rights, such as PDS ration, for not building a latrine. Officials resorted to threats of fines and jail terms to intimidate people in some places.

“The tehsildar came [to our village] once. He told the patwari that he should cancel the Kisan Credit Cards of people who did not build toilets,” said a village secretary in M.P. In Rajasthan, a ration dealer told us that the government had asked him to “stop people’s ration until they had a niralo ghar [house with a toilet] stamp on their ration card”.

With unrealistic targets pushed down from the top, “Swachh Bharat Mission beneficiaries” were not alone in facing coercion. Government officials at every level – whether elected, appointed, or contracted – faced immense pressure and threats from their bosses. A block coordinator in M.P. said, “We have to motivate people but we also have construction targets. We have to build 18,000 toilets before October 2 [2018]. So, we have put motivation aside and we focus on the construction target. I am a contract worker. They tell us that if we don’t get 700 toilets built, we will be fired.”

Coercion in some form or the other was ubiquitous in almost all the places we visited. More than half of the families we talked to reported the use of coercive activities in their villages to get people to build or use latrines; one in every four families told us that they have heard of government benefits being withdrawn for not having a latrine; and Dalits and Adivasis were at least twice as likely as others to report that they or their family members had faced coercion.

The spirit of bidding farewell to open defecation as a gift to Gandhi deserves accolades. But we must not forget that there are still miles to go. India needs to have a sanitation policy that focuses on reducing open defecation. And most importantly, it should follow Gandhi’s path of ahimsa and compassion.

Nazar Khalid is a research fellow with the research institute for compassionate economics (r.i.c.e.) and Nikhil Srivastav is a graduate student at the University of Texas at Austin and a research fellow with r.i.c.e.

Tanzania, which has long enjoyed a reputation for democratic stability, is taking an authoritarian turn

As Tanzania nears the 2020 election, its anti-corruption crusade seems headed to a one-man dictatorship. President John Magufuli, leader of the ruling Chama Cha Mapinduzi (CCM), or Party of the Revolution, made waves when he took office in 2015. He purged thousands of ghost workers from public payrolls, fired incompetent bureaucrats and implemented targeted austerity. A bold move to abolish tuition fee in secondary education signalled continuity with the country’s impressive record of investment in primary schooling. Initiatives to reclaim lost revenues from extractive industries were seen as essential to financing economic and social reform programmes. But at the end of four years of his term, no institution has been spared Mr. Magufuli’s erratic, impulsive and brutal style of functioning. The President has done little to disguise his image as “bulldozer”, a nickname he was given in his previous role as public works minister.

Tanzania had long enjoyed a reputation for political stability in a region notorious for military coups. Its periodic democratic elections contrast with states that tend to subvert fixed terms. A sense of national identity fostered over decades distinguished Tanzania from the bloody conflict arising from ethnic and religious divisions that has marred the continent. A climate of relative peace, coupled with its transition to a more open economy, is why Dodoma had been the darling of donors and investors.

The numbers problem

But the perception was dealt a blow by a law enacted to criminalise any dissemination of data that contradicted official figures. The World Bank froze its aid package to Tanzania in 2018, lifting the embargo only this September after the government amended the statistics law in June to remove the threat of jail. In April, an International Monetary Fund report was banned because it criticised the government’s policies as unpredictable and the statistics, unreliable. Dodoma’s recent denial of instances of Ebola in the country, without furnishing World Health Organization evidence, is thus no surprise.

Another casualty of Mr. Magufuli’s whimsical style is the state of the economy. Investment in Tanzania’s mining sector has stalled over the last two years. Acacia Mining, Tanzania’s largest producer, was cleared only in April for the resumption of gold ore exports. Operations were crippled following accusations of underreported sales and unpaid taxes.

Dissent contained

The suppression of democratic dissent has been the biggest casualty of the Magufuli presidency. There has been a systematic assault on popular institutions. The ban on opposition rallies, discontinuation of live telecasts of parliamentary proceedings, and intimidation of journalists are proof that Mr. Magufuli has ripped up the democratic rule book. Tundu Lissu, a staunch government critic and leader of the opposition party Chadema, or Democracy and Progress, was arrested multiple times before he was wounded in a gun attack in 2017. Chadema officials have expressed concern that the attack was politically motivated. Under the prevailing political vacuum, the government has unleashed repression against the LGBT community and expelled teenage mothers from schools.

Tanzania’s authoritarian drift may have to do with the growing challenge to the ruling CCM. The party’s vote share has steadily dropped from 2005 resulting in major gains for Chadema. Tanzania’s unity is also under strain, as tensions deepen between the mainland Tankanyika and the archipelago of Zanzibar, which were merged in 1964. An instance was the annulment of the 2015 polls for Zanzibar’s regional parliament, after the opposition Civic United Front (CUF) claimed victory. The CUF then boycotted the rerun, which CCM won with a landslide.

Given the promising country’s descent into authoritarianism, Tanzanians may feel some nostalgia for the founding President Julius Kamperage Nyerere, who is among Africa’s towering anti-colonial leaders.


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