Limits of Interference by Constitutional Courts in Police Investigation

“Limits of Interference by Constitutional Courts in Police Investigation”.

In the context of the society that, we are living in now, constitutional freedom is a sine qua non for every citizen to expect a fair dealing by public authorities including the police. It is in this regard, essential to consider and deliberate on the topical issue such as to assess the extent to which constitutional courts in this country can at the very inception of a criminal process or enquiry interdict the public authorities which may include the police, the State or other statutory authorities start to regulate or monitor investigations on the apprehension of abuse of power or process. The role of the police in public life, maintenance of law and order, and public security is uncontested yet, should not courts more particularly constitutional courts if apprised of violations which can harbour on trampling on citizens’ rights guaranteed more specifically under Article 21 of the Constitution, step in to make course corrections and direct authorities including the police to follow the mandate of law. 

Introduction:

It is not peculiar to observe a pattern of abuse of power among those who are charged to protect the citizenry. Interestingly, the history of Imperial Rome was one that was marked by ascendency of the Praetorian Guards in whom vested not just the protection of the Emperors’, but also protection and security of the citizens of Rome. With passage of time, these ‘men-at-arms’ who were charged with protection of the citizens, came to be used in sinister tasks of confining and often exterminating those who were considered a threat to the Emperor. Soon the nature of excesses of the Praetorians reached such levels that the citizens were intimidated by the presence of the Praetorian Guards to the extent of being forced to commit suicide. And so the ancient Roman adage of ‘Who will guard against the Praetorians’ has often found resonance in periods of history marked by oppression of those in whom is vested the onerous task of protecting the public. For long the relationship between the police as protectors of the citizenry, and the courts as final arbiters of law has remained tenuous, and cataclysmic. In India, the relationship between the law enforcement agencies and the courts has been uneasy. A spate of landmark cases have catapulted to national spotlight the growing discomfort of the courts in India with the diminishing standards of investigation conducted by law enforcement agencies. While courts in India are conscious of maintaining the constitutional balance of power by not engaging in the judicial overreach or encroaching upon the primary spheres of influence of executive power; however, increased executive interference in critical cases has forced to courts to oversee the investigative process conducted by law enforcement agencies to ensure free, impartial and independent investigation which secure the ends of justice.

Leading Cases

In recent times, a spate of cases have constrained the Supreme Court of India to review the modus operandi of police investigation. But in the Bhima–Koregaon case[1] (vide Order dated 28 September 2018) involving arrest of five self-styled human rights activists, Advocates, and journalists whose arrests were challenged by certain social activists and “eminent personalities” who approached the Supreme Court under Article 32 of the Constitution alleging high-handedness by the Maharashtra Police while raiding their homes and arresting them for espousing a contrarian theory of dissent to which the ruling dispension did not agree to. The action of the police was based on offences under the Indian Penal Code, the Arms Act and the Unlawful Activities (Prevention) Act, 1967.

The Hon’ble Supreme Court (2:1) by a majority judgment inter alia declined to appoint a SIT probe while allowing the Pune police to investigate the arrests of five (5) activists involved in the Bhima–Koregaon Dalit agitations. It was urged before the Court by the State of Maharashtra that the State had not trampled upon any expression of political dissent but instead relied on strong digital evidence of Maoist links and plans of conspiracy against security forces to arrest the activists.

The Court observed:

“Upon perusal of the material (given by the investigating agency), we are of the considered opinion that it is not a case of arrest because of mere dissenting views expressed or difference in the political ideology of the named accused, but concerning their link with the members of banned organisation and its activities…”               (emphasis supplied)

The Court, however, in its dissenting opinion given by Justice DY Chandrachud opined:

“The court has to be vigilant in the exercise of its jurisdiction under Article 32 of the Indian Constitution to ensure that liberty is not sacrificed at the altar of conjectures. Individuals who assert causes which may be unpopular to the echelons of power are yet entitled to the freedoms which are guaranteed by the Constitution. Dissent is a vital symbol of a vibrant democracy…”

In contrast, the majority opinion represented by Dipak Mishra and A. Khanwilkar, JJ. relied on the position of the Apex Court in Narmada Bai v. State of Gujarat[2] (Tulsiram Prajapati murder case) to decide whether the accused persons can choose which investigative agency must investigate the offence committed by them. The Bench noted:

“The accused cannot ask for changing the investigating agency or to do investigation in a particular manner, including for court-monitored investigation”

The Bench also relied on Divine Retreat v. State of Kerala[3], where it was held that “Court in exercise of its inherent jurisdiction cannot change the investigating officer in the midstream and appoint an investigating officer of its own choice to investigate into a crime on whatsoever basis….(but) the High Court in exercise of its power under Article 226 of the Constitution can always issue appropriate directions at the instance of the aggrieved person if the High Court is convinced that the power of investigation has been exercised by the investigating officer mala fide”.

The Bench also relied on the position explicated in State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal,[4] where the Court held:

“…Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.”                                 (emphasis supplied)

However, Justice Chandrachud questioned “whether the Pune police can be trusted to carry out impartial investigation” given that it had already prejudiced public opinion by going public with the evidence which was a “disconcerting behaviour”. He noted:

“The police are not adjudicators nor do they pronounce upon guilt. In the present case, police briefings to the media have become a source of manipulating public opinion by besmirching the reputations of individuals involved in the process of investigation. What follows is unfortunately a trial by the media. That the police should lend themselves to this process is a matter of grave concern…The conduct of the Pune police in utilising the agency of the electronic media to cast aspersions on those under investigation fortifies the need for an investigation which is fair. When the Joint Commissioner of Police and the Additional Director General of Police cast aspersions in the public media against persons whose conduct is still under investigation, and in disregard of proceedings pending before a judicial forum, it is the duty and obligation of this court to ensure that the administration of criminal justice is not derailed.”                       (emphasis supplied)

Per contra, Justice Chandrachud, therefore, ordered a Court directed SIT probe noting that the mere technicalities of law cannot override substantive justice. He further added that “the basic entitlement of every citizen faced with allegations of criminal wrongdoing is that the investigative process should be fair…(and) if (the) Court were not to stand by the principles which have formulated, (there would be) a soulful requiem to liberty”, and that, “in the interest of justice, and particularly when there are serious doubts regarding the investigation being carried out, it is not only permissible, but our constitutional duty to ensure that the investigation is carried out by a special investigation team or a special investigative agency so that justice is not compromised”                                   (emphasis supplied)

He further relied on the guidelines of arrest set in the DK Basu v. State of West Bengal,[5] where the Supreme Court noted that “the requirements (of arrest) enunciated (in) Articles 21 and 22(1) of the Constitution and need to be strictly followed failing which action for contempt of court would be initiated…”

Conclusion

Thus, the judicial history of India is interspersed with uneasy calm over the nature of investigative process undertaken by the law enforcement agencies requiring constant intervention by the higher judiciary to ensure an impartial and independent enquiry. These custodians of public security in India stand at the cusp of change. Like the Praetorians of ancient Rome whose service was often marred by their treacherousness and oppression towards both emperors and the citizenry; so also the police in India as guardians of public security have much to regain in terms of the loss of public confidence in discharge of their public duties. The growing use of unbridled authority, servitude to political masters rather than service to the citizenry, and diminishing standards of accountability, all underscore the need for watching over these ‘praetorians’ under the gaze of the courts of justice. Unless systems of self-governance and accountability are embedded in the police system in India, and public confidence is infused in the integrity of the investigating process undertaken by the investigative agencies and the police system, the only haven of hope for the aggrieved citizens will continue at the doorstep of the sentinels of justice.

To suggest in absoluteness that in a given case where gross abuse of police powers is writ large a constitutional court can never step in, would be doing injustice to the constitutional protective scheme of the country. However, since adequate safeguards are ingrained in the Criminal Procedure Code and other penal statutes, to not give elbow room to the authorities to do their job would mean a lack of confidence in the system as a whole and would not ennure to the benefit of anyone however, for third parties not connected with the commission of an offence to invoke the jurisdiction of constitutional courts, if allowed, would result in, if one may be permitted to say, in JUDICIAL ANARCHY.

Rana Mukherjee, Senior Advocate, Supreme Court of India

President, Adivakta Parishad Supreme Unit Court, New Delhi