TELANGANA (HYDERABAD, India) STATE POLICE’S LATEST BRAINCHILD: Cordon and Search Exercises – essentially a military option,being directed toward civilians.
THE CONSTITUTION: Article 21 of the Indian Constitution: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
INTERPRETATION OF THE CONSTITUTION: The Constitution of India does not specifically grant any right to privacy per se. However, it is only recently that such a right has been culled by the Supreme Court from Article 21 and several other provisions of the Constitution read with the Directive Principles of State Policy. The Supreme Court has asserted that in order to treat a right as a Fundamental Right, it is not necessary that it should be expressly stated in the Constitution as a Fundamental Right. Political, social, and economic changes in the country entail the recognition of new Rights. The law, in its eternal youth, evolves (or should evolve) to meet the changing demands of society.
The Supreme Court in the case of R. Rajagopal v. State of Tamil Nadu (1994 SCC (6) 632) directly linked the Right to Privacy to Article 21 of the Constitution and laid down: “The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a ‘right to be let alone’. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages.”
NEED FOR ”A STUDY” TO LEGISLATE A PRIVACY BILL: Recognizing the common occurrences of privacy violations by the police – and subsequent burden placed upon appellate courts to analyze and dispose of challenges therefrom, the Planning Commission of India constituted the “Shah Committee” to identify privacy issues and prepare a report to facilitate authoring of a privacy bill for India.
Among other related concerns, the Committee reinstated the fact that the individuals would have the option of making a complaint directly before the courts, which will act as a route of redress (so what else is new?). The complaints may relate to a data breach or violation or physical privacy. The Shah Committee submitted its report to the Planning Commission of India on October 16, 2012 . Nothing really earth shattering came of it. Perhaps another Committee is in the offing…
Ignorance Has Its Own Reward
BACK TO SQUARE ONE: One notices the Right to Privacy is not absolute. Courts may issue warrants if they have documented reasonable belief that restriction of this Right would
• Prevent incitement to the commission of any offense; or
• Prevent public disorder or the detection of crime; or
• Protect rights and freedoms of others; or
• would be in the interest of friendly relations with foreign states, or
• When public interest outweighs private interest of the individual.This would depend on the ‘facts and circumstances of each case’ (which means, in the absence of any reasonable guidelines, it is left to the arbitrary discretion of the learned magistrate)!
In Smt. Maneka Gandhi v. Union of India & Anr., (1978) (SC 7-Judge Bench), the Apex Court ruled `Personal Liberty’ in Article 21 covers a variety of rights & some have status of Fundamental Rights and are given additional protection under Article 19. They mandated a ‘Triple Test’ for any law interfering with personal liberty: (i) It must prescribe a procedure; (ii) the procedure must withstand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and (iii) it must withstand test of Article 14.
The law and procedure authorizing interference with personal liberty and right of privacy must also be right, just, and fair and not arbitrary, fanciful, or oppressive. (‘Amen’ to that). Nevertheless, an analytical mind could interpret these ”safeguard” provisions as textbook fiction because, as you will notice below, their practical value is less than zilch once the damage has already been done. I have taken the liberty of illustrating, relative to the ongoing Neighborhood Cordon And Search Operations, these notional constitutional considerations are notional at best and would, in fact, impede achievement of ‘’Gleichschaltung’’, conventional fascist police work.
Recognizing the blatant and excessive government intrusion in one’s private life (what’s more private than one’s bedroom?), the Delhi High Court (in Naz Foundation Case 2009) made a landmark ruling. Although the case pertained to consensual homosexuality, the court recognized that the Right to Privacy held to protect a “private space in which man may become and remain himself”…. ‘’Individuals need a place of sanctuary where they can be free from societal control – where individuals can drop the mask, desist for a while from projecting on the world the image they want to be accepted as themselves, an image that may reflect the values of their peers rather than the realities of their natures.’’
ANDHRA COURT’S OPINION: Despite a plethora of rulings that recognize and establish the sanctity of one’s private ‘space’, the Andhra High Court recently made a tangential disposition: A Public Interest Litigation filed in the High Court by T. Dhangopal Rao prayed for an injunction against the police’s Cordon and Search Operations on constitutional grounds; that this arbitrary police exercise is against Articles 14, 15, 19(1)(d)(e)(g), 21 and 22 of the Constitution (and, I might add, certain mandates in the Criminal Code pertaining to restricting/seizing a person’s liberty, property, and right to be left alone). The Hon. High Court directed him to complain to the Police Commissioner instead of deliberating on grounds for relief. This perplexing directive is just as ridiculous as the case of the chicken being directed to complain to the fox that’s guarding the hen house – a sobering realization of the leanings of our impartial tribunal!
EXECUTIVE BRANCH PRECLUDED FROM MAKING/INTERPRETING LAWS: The police personnel involved in the ‘’Cordon and Search’’ Operation are acting under the direct orders of the Police Commissioner. It is settled law that Department Circulars imposing conditions on the public do not have the mandate of rule or law as they are merely executive, in-house instructions. Imposing conditions that adversely affect guaranteed rights can be made only through legislation. Police are not empowered to make legislation. In the absence of such legislation mere Circulars cannot be acted upon, being violative of Articles 14 and 21 of Constitution of India. As such, the Police Commissioner is not empowered to breach Rights guaranteed by the Constitution and circumvent procedures mandated by statute and numerous Appellate Court rulings.
There are parallel considerations with the illegalities of Vijayawada’s ‘’Operation Night Domination’’ (I wonder which Telugu film script writer came up with that title!). There too, Police proposed new regulations making it mandatory for one to be in possession of ID cards at night while they merrily conducted random searches with impunity which lead to many arrests. The Hon. State High Court then ruled that the public at large should not be seen as suspects thereby negating the restrictions ordered by the Police Commissioner as invalid; a far cry from their recent ruling.
POLICE’S PREVIOUS EXPLANATION: In his interview with IndiaToday on October 2, 2013, Deputy Commissioner of Police V Siva Kumar stated, “Though we don’t have specific inputs on stay of terror suspects in these areas but this operation will help in maintaining a close watch on such elements also“. In other words, Police have (had) no specific leads that would legitimize intrusion into a private home. They were/are on a ‘fishing expedition’ hoping to catch someone – anyone even remotely suspected of being associated with a possible crime anywhere.
POLICE’S CURRENT EXPLANATION: However, now, with more than two years’ experience in ‘’Cordon and Search’’ Operations under the belt, and reciprocal, accumulated expertise in parrying media queries on legality of such arbitrary searches/seizures/arrests while confining freedom of movement of entire neighborhoods at unreasonable hours of night, police response seems to have evolved to reflect a semblance of legitimacy; not necessarily, credibility: On April 19, 2015, charismatic, straight faced Cyberabad Police Commissioner C.V. Anand and other Police brass stated to Deccan Chronicle that all searches are carried out ‘’as per law’’. One wonders, WHOSE law; an existing statute or an in-house circular from top brass? “An ACP or a Station House Officer has to get a warrant before conducting the search. The search memos are drafted and reasons are mentioned before obtaining the warrant”. Certainly sounds legit – Who’s to argue with an armed man, eh? But whether these words hold any water is a relevant, core issue on hand!
”DAAL-MEIN-KALA” STATEMENT: Realistically, if the charismatic, straight faced Cyberabad Police Commissioner C.V. Anand is to be believed, how many months would an Asst. Commissioner/SHO be devoting toward compiling (inventing?) a pseudo-credible search proceedings FOR EACH HOUSE IN HIS AREA, and what specific ‘credible’ reasons would he document to satiate the magistrate into justifying blanket warrants TO CORDON OFF ENTIRE NEIGHBORHOODS, authorize police intrusion during hours of darkness, and conduct a witch hunt for ‘’anything illegal-objectionable’’ in anybody’s home! Is this Stalin’s Russia we’re living in (or turning into)??
Certainly, a Magistrate of the required Class is empowered to issue Warrants. Ordinarily, searches conducted by police officers or any investigating officer will be valid only if a formal accusation has been leveled against the subject person or if he/she did not respond to summons, (e.g., subpoena to produce documents and things). But Warrants have to be specific. They should specify the person, location, objects to be searched, and, often, the time for search. The wording cannot be vague. The police cannot be directed to search and seize any property which the police believe to be “objectionable articles” required for the purpose of investigation. This would indicate that neither the Magistrate nor the police knew what they were searching for! A plain reading of such ‘Warrants’ would show that the search is more of a `fishing expedition’ or a `roving search’. It would disclose no specific reasons or circumstances for the issuance of the Warrant and would, therefore, be clearly illegal.
POLICE ‘JUSTIFICATION’ SHROUDED IN MYSTERY: We are unsure as to which section of the Criminal Code (henceforth, the CrPC) these Cordon and Search Warrants get their authority from, or the substance of the Warrant, nor WHO issued them (viz., to determine competency of the judge or whether he ‘applied his judicial mind’ before authorizing this widespread intrusion in the private lives of entire communities and neighborhoods). There is no information as to whether any resident-victim of the Cordon and Search Operation was shown the substance of the Warrant as is required under CrPC Section 75 – or whether there even exists a Warrant at all in the first place!
These police excesses continue unabated because, as yet, no one has come forward to question them, eye to eye. Even the local courts seem to go along with the mockery while the passive public drowns in ignorance or wallows in apathy toward possible extra-judicial methods of policing.
What of those who paid for out freedom with their blood? What of the Framers of the Constitution who came up with the magna carta, due process, and the Rule of Law? One thing’s for certain: They don’t have a Swiss bank account! But that’s not the reason they’re rolling in the grave: there is little indication of anyone holding on to the Torch they paid dearly for. Where’s our independent Judiciary, the’ last bastion of Justice’, at a time we need them – to examine, on a case by specific case basis, the constitutional validity of these arbitrary intrusions into private lives and homes.? Have they relinquished their suo moto powers to uphold the Constitution they swore to protect? Or, are these signs of a crumbling world’s largest Democracy metamorphosing into the world’s largest Police State?
Evidence; more appropriately, lack of evidence, certainly places serious doubt on the charismatic, straight-faced Cyberabad Police Commissioner C.V. Anand’s public declaration that all searches are carried out ‘’as per law’’. It would be administratively impossible to generate Search Memos requesting Search/Arrest Warrants for each house in the neighborhood. What is the criterion set for designating entire neighborhoods as a ‘Criminal Area’? Does a Cordon and Search Operation in a ‘Criminal Area’ inoculate it from criminal elements and render it worthy of the label, ‘De-Criminalized Area! This area is free of crime’!?
If Warrants are, in fact, lawfully obtained, i.e., based upon good-faith, credible information, they would relate to a select few homes/individuals. But, one sees these organized assaults on entire neighborhoods by a horde of 200-plus policemen involves court-anointed muscle-flexing, house-to-house intrusion during hours of darkness, the questioning of awoken residents including school-going children, the inspection of private-personal-letters-documents-paperwork-photographs, heirlooms and jewelry, etc. : a fishing expedition for anything suspicious; and the physical stifling of indignant complainants thru’ utilization of typical strong arm tactics our police is notorious for.
FUNDAMENTAL CHARACTERISTIC OF PRIVACY: There is no doubt that everyone has something to hide from the public eye. It might be something petty, embarrassing, or even something serious. Police are already lawfully empowered with immense resources to do their job within the existing framework of the law. With the statutory division of the three Branches of Government, it is immoral, unethical, and illegal for courts to vicariously assume an Executive role as Police puppets no matter how purportedly benign the judicial ‘rubber stamp’ may appear. Or worse, don the ‘legislature hat’ and interpret laws in such a manner that a new perspective of the established law takes precedence. And who’s to argue with a judge’s point of view that could land your patriotic ass into the slammer for ‘Contempt’? They are experts at logic and arguing a case either way, and wield an industrial size boner to back their play. Ouch! Mercy!
So, as we, the intellectually paraplegic citizenry, embark on an academic (mis-) adventure to speculate on which Section(s) of the Criminal Code could possibly authorize such drastic police intrusions in the private lives and homes that comprise large neighborhoods – absent a National Emergency – we stumble upon Section 144 CrPC.
CrPC §144 – THE GRANDADDY OF ALL WARRANTS: In a nutshell, CrPC Section 144 confers plenary powers upon the magistrate to issue an immediate, absolute order BUT exclusively in urgent cases of nuisance or anticipated danger when, in his subjective opinion, there is sufficient ground for proceeding immediately to accomplish a speedy remedy. If there is neither an urgency calling for the application of a speedy remedy nor apprehension of imminent danger to human life, health or safety, etc., the magistrate cannot issue such an ex-parte order under this section. Unless the emergency is sudden and the consequences sufficiently grave, the exercise of power conferred by CrPC Section 144 could be struck down as frivolous – or so we are made to understand.
The magistrate must assess the situation to his satisfaction (i.e., ‘apply his mind’) and issue the order in writing setting forth specific material facts of the case and in the manner provided by CrPC Section 134 and sub-sections of CrPC 144. Certain stringent conditions have been imposed by the appellate courts on a magistrate exercising this absolute power. Not only would the magistrate’s specific written reasoning for taking cognizance be open for Appellate scrutiny, but also the specificity of his directions and conformance to well settled guidelines, i.e., whether the order has been issued mechanically and without any consideration of the guidelines stressed by higher courts meant to protect us from abuse of such powers. This power can only be exercised in cases of imminent emergency; therefore, it purportedly regulates the magisterial function and, IF APPLIED PROPERLY, is not unconstitutional.
LETTER OF THE LAW vs. SPIRIT OF THE LAW vs. IMPRACTICAL APPLICABILITY: The Supreme Court enumerated five points which would justify the constitutional validity of Section 144. These ‘’prerequisites’’ serve more as catalysts to judicial reasoning, for lack of a more appropriate analogy; sort of like ‘’A Magisterial Guide To Due Process Of Law – Check List For The Intellectually Challenged’’. The provisions therein are, no doubt, benign and intended to anoint some semblance of due deliberation on government actions that affect one’s privacy rights. However, one notices, the only action ‘’hardened into law’’ is magisterial whim/discretion!They are as follows:
1) Although the Magistrate has power under this Section to pass ex-parte orders, generally, however, the procedure that is followed is to serve a notice to the person against whom the order is being passed. Only in cases of extreme critical situations, the Magistrate may resort to passing an ex-parte order. [NOTE: But this ‘service of notice’ requirement would defeat the very purpose for the Police’s fishing ‘net’ (a practical synonym for ‘Cordon and Search’) where the tactical advantage is surprise].
2) Additionally, the persons aggrieved by the order have a right to challenge the order on grounds they find appropriate. This goes to supports the view that the power granted under this Section is not arbitrary. (NOTE: Nevertheless, the likelihood of the ‘aggrieved person’ challenging this order beforehand is almost Zilch since the enthusiastic raiding party of 200-plus, beefed-up goon squad will have already conducted the raid and our ‘aggrieved’ hero would, most likely, already have his ass in custody).
3) To substantiate the above, an opportunity for hearing and to show cause is also provided to the person challenging the order of the Magistrate. Therefore, the principles of natural justice are also purportedly reflected in this Section. [NOTE: An opportunity for hearing and to show cause should present itself BEFORE the Warrant is executed, i.e., IF a Warrant truly existed in the first place! When a trial judge enters an order that “departs from the essential requirements of law” appellate review is, and should be, available by immediate petition for a writ of certiorari instead of allowing the error to stand and forcing the aggrieved party to seek appellate remedy only after entry of final judgment; in our case, issuance and execution of an all-inclusive Warrant. For example, issuance of a writ is proper to reverse a trial judge order overruling objections to a request for the production of documents, since issuance of such an order allows irreparable injury that cannot be cured on appeal at the conclusion of a case. Nevertheless, there’s some showing here of ‘checks and balances’ that might arouse a fleeting nod of approval from Constitution pundits in their ivory towers of academia. (NOTE: In practice, however, our disenchanted hero will have no voice in the matter. He will have acquired other more pressing concerns while prancing about in jail, like protecting his virgin derriere from overzealous, predatory cellmates)].
4) The fact that the aggrieved party has the right to challenge the propriety of the order, cloaks the magistrate’s decision with responsible deliberation based on rationale. (REALITY CHECK: How common is it for a judge to over-rule a brother judge’s capacity and raison d’être while ‘applying his mind’)?
5) Finally the High Court’s power of revision under CrPC Section 435 read with Section 439, also pacifies any (righteous!!) trepidation that the order under Section 144 is non-appealable. The High Court can either quash the order or ask the Magistrate for the material facts, thus ensuring accountability. (NOTE: Unless the Magistrate is a total schmuck, the HC will never find their brother-judge’s reasoning to be utterly without merit).
REPETITIVE WARRANT SEARCHES = ABUSE OF POWER: It is settled law that any restriction which is opposed to the fundamental principles of liberty and justice cannot be considered reasonable. One of the tests to determine ‘reasonableness’ is to see whether the aggrieved party has a right to representation against the restrictions imposed or proposed to be imposed. ‘No person can be deprived of his liberty without being afforded an opportunity to be heard in defense and that opportunity must be adequate, fair, and reasonable’ (NOTE: There’s no mention of ‘timely’). Further, the courts have to see whether the restrictions are in excess of the requirement or whether they are imposed in an arbitrary manner. (NOTE: True! True! But this is Law in text books! The legislative intent of this mandate is clearly to afford an opportunity to contest the adverse proposal BEFORE it takes the form of an Order. These concessions are precautionary and imbedded as a protection from arbitrary, tyrannical rulings before such rulings are actually made. But, in real life situations occurring before us, their practical worth seems to be less than zilch. What’s the point in critiquing a purportedly dubious ex-parte court order when the damage has already been done)?
More importantly, the Hon. Supreme Court continues, an order under Section 144 cannot be of a permanent or a semi-permanent nature, or ongoing as a matter of course: “The Parliament never intended the life on an order under Section 144 of the Code to remain in force beyond two months when made by a Magistrate. The scheme of that Section DOES NOT CONTEMPLATE REPETITIVE ORDERS and, in case the situation so warrants, steps have to be taken under other provisions of the law when individual disputes are raised. If repetitive orders are made it would clearly amount to abuse of the power conferred by section 144 of the Code.” Acharya Jagdisharanand Avadhut v Police Commissioner [Equivalent citations: 1984 AIR 512, 1984 SCR (1) 447 – Bench: Misra Rangnath, Bhagwati, P.N., Sen, Amarendra Nath (J) – Citation: 1984 Air 512 1984 Scr (1) 447, 1983 Scc (4) 522 1983 Scale (2)565 – Citator Info: Ho 1987 Sc 748 (23), Rf 1992 Sc 377 (10)].
Surely there’s no other way of assessing these ongoing Cordon and Search Operations as but routine and repetitive?
I am told that there have been cases where orders issued under CrPC §144 were struck down on appeal when such orders were not warranted by the circumstances, or the orders so issued did not specifically mention the area on which the restriction are to be imposed, or there had been a deviation from guidelines mentioned under Section 134 as also in various sub-Sections of CrPC 144. However, I am yet to find a good, solid citation to support this hypothesis …
One must keep in mind that power to impose restrictions on personal liberties of individuals pursuant to CrPC §144, whether in a specific locality or in a town itself, pertains to situations that have the POTENTIAL to cause unrest or danger to peace and tranquility in such areas due to certain disputes. As such, the intent is to diffuse or control anticipatory crimes of emergent nature. Now, if you’ve been following the nocturnal adventures of our Police, you will notice a laundry list of ‘’accomplishments’’ (call it ‘’pat on their back’’ or ‘’blowing their own trumpet’’) resulting from their Cordon and Search Operations (Google it): seized vehicles (stolen, or unregistered, or unpaid traffic challans), some ‘’suspected’’ stolen mobile phones, some bail-jumpers or Rowdy-Sheeters apprehended, some suspects with suspected links to suspected terror groups nabbed, a modest amount of ‘’unaccounted for’’ money discovered, child labor or sex worker ‘’rescued’’ (who commonly revert back to the same line of work), and, if all else fails, there’s always a couple of knives in the kitchen that could be brought under the purview of the Arms Act, etc., etc.
Now, if these are in fact bonofide crimes, THEY HAVE ALREADY OCCURRED; there is nothing ANTICIPATORY in their nature and not relevant to the prerequisites envisioned by CrPC §144; therefore, they are a blatant abuse of process.
ALSO CONSIDER THIS: If you cheated on your Taxes, you’re a criminal. If you parked your vehicle in a ‘No Parking’ Zone, you’re a criminal. If you jumped a Red Light, you’re a criminal. If you ever flirted with a nonreciprocating member of the opposite sex, you’re a criminal. If you lied to get a job, you’re a criminal. If you failed to pay traffic challans (fines), you’re a criminal. If you ever bribed a government official (a required practice here), you’re a criminal. A ‘Criminal’ is no different from the rest… except that he got caught! What is critical here is, was he caught lawfully, or through an illegal or improper search?
We all have potential to become crooks. We all have potential to commit crimes. Does this mean we should all be under surveillance or under constant government control to offset that hypothetical possibility (– knowing fully well that some of our most celebrated crooks are in government)?
But, going by buzz words from police brass (e.g., ‘terrorism’, ‘fugitives from justice’, ‘money laundering activities’, ‘stolen vehicles’, ‘murder suspects’, etc.), that, by their linguistic connotation, effuse a sinister, panicky, clear and present danger-type scenario, a hasty judiciary is influenced to allow extreme measures to augment routine police work. And a tolerant, gullible, intellectually paraplegic citizenry is left with little option but to grab its ankles and get a real-time perspective on what is REALLY happening to their patriotic derriere under color of law.
ARE THESE DESPERATE TIMES CALLING FOR DESPERATE MEASURES?? If such excessive measures are routinely employed by police to ‘deter crimes’ or ‘bring criminals to justice’, or pursue ‘possible’ terror suspects, it does not take a genius to figure out that the best method for crooks to escape detection is to simply move into a neighborhood that already had its share of pong from the police’s Cordon and Search presence. So, is there any logic to, or genuine necessity for these flamboyant, extreme, Cordon and Search operations in day-to-day/night-to-night routine police work absent a seriously imminent national emergency?
Bear in mind that the premise here is that a Warrant per CrPC §144 does in fact exist – it is merely a premise. If it does not exist, or if the Warrant is facially flawed (i.e., issued without due deliberation), then every arrest, detention, intrusion, etc., under the Cordon and Search Operation is a criminal act perpetrated by the Police.
One may perhaps condone flawed laws enacted by our chosen legislature (who merely represent the modest IQ of the voting public), but, our Judiciary, being the last bastion of equity and justice should seriously deliberate upon such usually unnecessary extreme violations of Privacy and Human Rights they swore to protect. Who is to determine whether there exists an improper exercise of judicial functions the cumulative effect of which would be to lower the dignity of the Judiciary and further undermine the confidence of the public in the administration of justice? Who is to determine whether these ‘Cordon and Search’ operations represent racial profiling at work and are are geared toward minority communities? Even worse, there seems a real possibility some elements of the judiciary may be unwittingly facilitating our transformation into a totalitarian Police State.
I leave you with this thought from Justice William O. Douglas, Former Associate Justice of the Supreme Court of the United States:
“As nightfall does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such a twilight that we all must be aware of change in the air—however slight—lest we become unwilling victims of the darkness.”
Copyright 2015. Carlisle Collins. havepenwillwrite. All Rights Reserved.