Why Indian courts can no longer stop the police from making illegal arrests

medium120148017Beginning in 1949, criminal lawyers in India began to plead that their clients were being targeted by malicious criminal cases filed by powerful and influential opponents, who had the local police in their pockets and used them to engineer arrests.What the lawyers sought was bail in anticipation of such an illegal arrest, on the grounds that allowing the person to suffer an arrest in such a case would be a travesty of justice.Such a form of bail was eventually codified in Section 438 of the 1973 CrPC [Code of Criminal Procedure], as a result of legislative acceptance both of the fact that the law was being used for such purposes and that the police undertook illegal arrests even in cases in which there were no allegations of malicious prosecution. Section 438, as a result, did not make it a mandatory requirement for those seeking anticipatory bail to allege malicious motives for their arrest — all that it required was for a claimant to show that they harboured a reasonable apprehension of arrest for an offence for which bail was not available as a matter of right.This was a revolutionary development in Indian law, since while police investigatory procedure involved making an arrest and then seeking custody, during which the arrested person remained either in a police lockup or in jail until a court could be convinced that there were grounds for bail, Section 438 undermined the power of the police to arrest and seek custody and thus inverted the power dynamic between the police and those they earmarked as suspects. It also created a scenario in which courts could dominate the investigative process by deciding the necessity and legality of every arrest in which a litigant was resourceful enough to file a plea for anticipatory bail.As a result, there were, not surprisingly, misgivings about this legal development. The State of Uttar Pradesh, for example, removed the clause from operation within its borders in 1976 (UP Act XVI of 1976), and that same year an amendment was passed in the Rajya Sabha to remove anticipatory bail from the CrPC (although following the dissolution of Parliament after the 1975-1977 Emergency it was never enacted).Aware that liberally granting anticipatory bail neuters the effective investigation of crime by taking away the key investigative tools of arrest and custodial interrogation, India’s High Courts also sought to limit the power to grant it. The Punjab and Haryana High Court, for example, issued guidelines in 1978 to the effect that individuals accused of certain classes of offences involving the public interest, such as corruption, national security, and so on, should never be granted anticipatory bail.Different opinions in the High Courts about how to interpret the law on anticipatory bail set the stage, furthermore, for an intervention by the Supreme Court, which delivered its first verdict on the issue in 1980. It clarified that no classes of crimes could be excluded from the scope of anticipatory bail as the text of the law contained no such restrictions. medium120148071At the same time, it recognised the serious interference an order of anticipatory bail brought to police investigations and declared that the solution to this was the exercise of judicial discretion, or entrusting courts to balance requests for anticipatory bail with the needs of investigations in determining whether to grant such bail.In the 1980s, the Indian Parliament, as well as state legislatures, also began to enact laws that denied the right to anticipatory bail for offences such as terrorism and caste-based violence, on the grounds that the interest of the state in such offences was too serious to be left to judicial discretion.Such efforts to limit an individual’s right to anticipatory bail reveal that custodial investigations were viewed as being too important for the successful investigation of crime to undermine. In order for courts to grant it, an accused person essentially had to demonstrate that the allegations against them were malicious in nature.But since the state could not be accused of malicious intent when it came to allegations involving offences affecting the public interest, anticipatory bail largely ceased to be granted in such situations, which undermined its initial potential to curb unnecessary arrests and reduce the reliance of the police upon interrogations to conduct investigations.This was aided by the Supreme Court assertively donning the avatar of public-interest and anti-corruption crusader beginning in the late 1980s, particularly in cases involving politicians.While dealing with such a case in 1998, for example, the Court acknowledged that custodial detention ensured the effective interrogation of suspects, which was of considerable advantage to the police in carrying out their investigations.When it came, moreover, to concerns about the use of ‘third degree methods’ by the police to extract confessions as a rationale for anticipatory bail, the Court essentially dismissed such reasoning by declaring that it could be ‘advanced by all accused in all criminal cases’.In other words, the fact that any accused person could request anticipatory bail on the basis that they would be subject to custodial violence nullified anyone’s right to request bail on such grounds when it came to public interest cases. Although the Supreme Court has occasionally, over the past two decades, sung the praises of anticipatory bail for its emancipatory potential, in cases involving allegations that affect the public interest Indian courts largely heed its wariness of such a form of bail and rarely deprive the police of their prerogative to interrogate an accused by granting it — which essentially accords the police the power to enact custodial violence with impunity.Excerpted with permission from Policing And Violence In India: Colonial Legacies and Contemporary Realities: Edited by Deana Heath and Jinee Lokaneeta (published by Speaking Tiger India).Lead illustration: Ajit Ninan