The pathos of mass arrest

Relatives of mass arrestees crowding the jailgate

The credibility of such arrests is open to serious question as no abnormal incident has taken place before or during the arrest to justify the grounds of so-called preventive arrest under the law. While it is a fact that police may interpose to prevent the commission of cognisable offence and cause arrest, the ground reality does not point to such contingency. One would, therefore, be not incorrect to understand that such arrests mostly, if not all, were made on subjective grounds and perhaps on political considerations and directions.

A large number of people apprehended before and during the siege have been shown arrested in connection with criminal cases lodged much earlier at different police stations. This manner of arrest will definitely raise grave suspicion about the genuineness of the arrest and the alleged high handedness of the law enforcers. The reality is that mostly an overwhelming majority of such arrestees are released in the not-too-distant future without any specific charge being framed against them. The disconcerting part in the whole transaction is that neither the lower judiciary takes a serious view of such indiscriminate and mindless action of the police and issue strictures for corrective action nor the suffering members of public are in a situation to take recourse to civil and criminal remedies for the apparent wrongful confinement and loss of liberty.

The above scenario, undoubtedly, does not augur well for a civilised democratic polity. In particular, such thoughtlessness on the part of a political government makes a mockery of the guarantee of the fundamental rights so eloquently enshrined in our constitution. Our leaders tend to forget that a fall-out of such a despicable process as above is the encouragement and development of a culture of political vendetta. This pernicious culture becomes an anathema to democracy because in such environment tolerance, compassion, sympathy, respect for a different view, all essential tenets of a lawful society take leave of us. Let us not forget that our people mostly are of excitable temper and thus if our political leaders do not adopt a moderating posture in matters affecting public good then our less-than-stable democracy stands to suffer grievously.

Worries of citizens
One may wonder if we are still living in a country where the paramount interests of the colonial and imperial power have to be protected by the sentinels of order, come what may. Concerned citizens may want to know how further low we shall stoop to dehumanise our law enforcement apparatus, specifically the police.

A democratic polity may, therefore, reasonably ask as to why our law-enforcement organisation is plunging headlong into a legally indefensible course and with such disconcerting gusto? Are they acting at the behest of ill-advised political masters? Are our police doing things they ought not to do or refraining from doing things they ought to do, to favour politicians in power? Are they asking politicians-in-power to use their influence to obtain choice postings, to avoid being transferred, to mitigate disciplinary sentences or to earn a promotion? Though unfortunate, there is a belief that a necessary basis has been provided for a mutually advantageous barter between police and the politicians. People think that the give-and-take between the police and the politician is thriving.

By resorting to practicing such lawless law enforcement, which obviously is a contradiction in terms, as doubted above, the police inevitably further tarnish their adverse image. Paradoxically, such lawless police officers are in high demand in our perilously polarised polity. Believers in the rule of law and followers of strict legal methods are considered to be 'Cows' and 'Sissies'. The government is always more concerned with the so-called order than the observance or law. Therefore, the remedy largely lies in the attitudinal change in the police whereby our police culture will get a relief from several scourges including false implication of innocent persons in criminal cases. That would be some achievement as substantial remedy would follow from the change in the attitude of the political government, the real wielders of power. Their colonial mindset has to change.

Preventive action of police
What is required under section 151 of the Criminal Procedure Code is that the police officer concerned must know that the person to be arrested is designing to commit a cognisable offence. An “apprehension” that he may commit an offence is not sufficient under the provision. Apprehension is not the same thing as knowledge. The former is mere feeling. Latter is definite conclusion. If arrest is made under this section without an emergency being there, the arrest will fall under the category of being illegal.

One may reasonably suspect that the above legal provisions, procedural directions and precautions as envisaged in the code have not been applied while making the staggering number of arrests within 2/3 days as reported in the newspapers.

Remedies to rash action
In a democratic set-up, the members of the police must be made to realise that they are not above the law but subject to it like all other citizens and all their actions have to be supported on ground of legality when challenged before a court of law. The question is, how do we do that? One way of ensuring that would be to question police indiscretions and excesses, specially the major ones, in courts. As has been mentioned hereinbefore, the legal authority and responsibility to arrest on suspicion is personal, so each individual officer must be made to account for rash and indiscriminate arrest, if so proved. To be more specific, a wrongful arrest of graver type should make the arresting officer liable to a charge of wrongful confinement under the penal law of the country. Therefore, if the authority arranges to commence criminal proceedings for wrongful arrest, the wrongdoers in enforcement outfit would get the message and hopefully, rash and illegal actions will be on the decrease. All segments of the judiciary have to assert themselves.

Our apex court has already given a number a procedural and administrative guidelines in respect of arrest under section 54 of the criminal procedure code. This has to be followed up in right earnest by issuing strictures and where appropriate by arranging to institute criminal proceedings against delinquent officers. One or two criminal convictions of wayward police officers would have a salutary effect. The fear of authority needs to be instilled.

For their part, the senior officers should be able to prove that law observance by the police is the best form of law enforcement in a democratic country under the rule of law. They should be ready to carry out the behest of law at any cost.

The concept of legal aid to the poor in criminal cases should be enhanced on a war footing. This step will reduce the possibility of wrongful confinement and false incrimination in offences. NGO activism should be encouraged to keep a close watch on police indiscretions, specially the arrest on suspicion. Simultaneously, investigative journalism should expose gross misuse of arresting power.

Claims for damages caused by wrongful arrest should be instituted by activating the law in this regard. There should be no bar in fixing the civil liability caused by wrongful arrest. That would be a damper to highhandedness.

Last but not the least, the political governments must stop politicising the police as that would mean compromising impartial and efficient service to the citizens. The politicians have to realise that the right to live is not merely confined to physical existence but includes within its ambit, the right to live with dignity.

Muhammad Nurul Huda is a former Secretary and IGP.