How the police, lawyers, and the court got it wrong
The Tis Hazari scuffle and subsequent developments show that the criminal justice system is broken
The police is usually at the receiving end of any controversial incident which involves law and order. It is criticised for either failing to act in a given situation, or overreacting and using excessive force. In the recent clash between the lawyers and the police at the Tis Hazari courts in Delhi on November 2, however, it is the lawyers who are getting much of the flak, and there is sympathy for the police for unwarranted aggression by the lawyers.
Analysing the sequence of events at Tis Hazari, one gets the unmistakable impression that the police, the bar, and even the judiciary did not acquit themselves with the kind of patience, understanding and neutrality that is expected of these institutions. Sixteen years ago, Justice VS Malimath, who was appointed by the Government of India to suggest necessary changes in the criminal justice system, lamented that the system was “virtually collapsing”. He gave comprehensive recommendations, but, thanks to vested interests, those could not be implemented fully. The latest Tis Hazari incident is symptomatic of the collapse that Justice Malimath foresaw.
The police leadership, unfortunately, failed on two vital fronts. The ministry of home affairs was dissatisfied that the pent up anger of the policemen could not be contained, and that they came out on the streets, raising slogans and demanding justice. And the rank and file was unhappy with the leadership for not taking a stand and upholding the dignity of the uniform. There was an inexplicable delay in the registration of cases even in incidents which were widely reported in the media, showing lawyers attacking a policeman, manhandling another policeman, and misbehaving with a female deputy commissioner of police.
The Bar Council of India, in its first reaction on November 5, criticised these “acts of grave misconduct” and directed the associations to identify the lawyers as “hooliganism and violence” have “no place in the bar”. It even deplored that “we are tarnishing the image of the institution” by protecting such rowdy elements. However, the very next day, in a volte face, the Bar Council said that their demand was that the guilty policemen should be arrested within a week, failing which they will resort to a peaceful dharna. Apparently, the hardliners had prevailed. It is relevant to mention here that the Supreme Court had explicitly laid down in Harish Uppal vs. Union of India that the lawyers have no right to strike. The lawyers, however, in disregard of the court’s directions, continue to be on strike.
The Delhi High Court, according to a respected recently retired judge of the Supreme Court with whom I had occasion to interact, had “seriously erred in taking up the matter suo motu with such alacrity on a
Sunday ex parte and without having the full facts before it”. It forayed into what was essentially an executive domain, and then gave directions which were one-sided. The commissioner of police, the lieutenant governor of Delhi, and the ministry of home affairs were pre-empted from taking any action in the matter.
The Delhi Police was hurt by the mauling they had got from the lawyers. The judicial directions were like rubbing salt into their wounds. Even a disciplined force has a tolerance threshold. Discipline presupposes that you look after the personnel, take care of their welfare, and be fair and just in dealing with their problems. Once these conditions are satisfied, police personnel have no problem in facing the most hazardous situations, and even risking their lives. However, a feeling that they are being subjected to unwarranted attacks and, on top of that, they are not getting justice, rankled in their minds and proved to be the proverbial last straw. This is, however, not to justify any agitational activities by the uniformed forces.
There have been incidents of confrontation between the lawyers and police in the past also — in 1988, in Delhi, when Kiran Bedi confronted the lawyers; in 2009, in Tamil Nadu, when the police carried out lathi charge on the lawyers within the premises of the high court; and in 2013, in Rajasthan, when the police used force on lawyers trying to gatecrash the Vidhan Sabha. Interestingly, the police got the rough end of the stick on all the occasions. Are they always in the wrong?
All is not well with the different components of the criminal justice system, and they need to be overhauled. We need a professional police committed to upholding the rule of law, a lawyer fraternity that is dedicated to speeding up the disposal of cases, and a judiciary which, while upholding the principles enshrined in the Constitution, maintains its objectivity and independence under all circumstances.