The arrest of Delhi Law Minister Jitender Singh Tomar, who has now resigned, was illegal.
I do not know Mr. Tomar, and have no personal interest in the matter. I have also been very critical of the Aam Aadmi Party and its leader Arvind Kejriwal in the past. But Mr. Tomar’s arrest is certainly objectionable and raises an extremely important question relating to personal liberty guaranteed by Article 21 of the Indian Constitution.
The charge against Mr. Tomar is that he obtained a fake law degree from Tilak Manjhi Bhagalpur University in Bihar. Even if that is true, does it justify his arrest by the police? To answer this question, we must know the legal position. In Joginder Kumar vs. State of U.P. (AIR 1994 S.C. 1349), the Supreme Court observed: “No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so.”
“Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen, and perhaps in his own interest, that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest.”
“Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.”
The last sentence in the passage quoted above is important, though usually ignored by policemen. In the same judgment, which can be seen online, the Supreme Court has observed that the power to arrest in the police is a major source of corruption, and that according to the Third Report of the National Police Commission, about 60 per cent of arrests in our country are either unnecessary or unjustified.
The observations of the Supreme Court are, in fact, in accordance with Section 157(1) of the Criminal Procedure Code, which states: “If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith… proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender…”
It may be noted that the words “and, if necessary, to take measures for the discovery and arrest of the offender” have been deliberately used in the provision. The use of the words “if necessary” indicates that the law does not authorise the police to arrest in every criminal case. But the reality in India is that the moment a first information report of a cognisable offence is lodged, the policemen rush in to arrest, and often demand money for not doing so.
In Mr. Tomar’s case, where was the need to arrest him? It was not a case of murder, burglary or any such serious crime. There was also no likelihood that he would abscond or tamper with the witnesses. The alleged fake law degree was reportedly from a university in Bihar, whereas Mr. Tomar was a Minister in Delhi, not Bihar. So the last sentence in the passage from the judgment of the Supreme Court in Joginder Kumar’s case quoted above squarely applies. Where was the need to arrest Mr. Tomar?
The incident must trigger a debate in India on the power of the police to arrest. Otherwise the civil liberties won by our founding fathers after so much sacrifice in the freedom struggle, which were incorporated in Part 3 of our Constitution (the Fundamental Rights), will become nugatory, and India may be headed towards becoming a police state.
(Markandey Katju is a former Judge of the Supreme Court.)
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