Rahul Gandhi Fi­asco

The Darker Side of Democ­racy

Libertatem Magazine - - Content - By Shub­hen­dra Chakra

The in­ci­dent of 1st and 2nd Novem­ber, 2016 had marked the un­prece­dented chain of events which led to the ar­rest of MPS and even the Chief Min­is­ter and Deputy Chief Min­is­ter of Delhi. It has not been seen in the his­tory of In­dian Pol­i­tics that a leader be ar­rested or de­tained with­out the due process of law. The con­di­tion be­came even worse as the fam­ily mem­bers of the de­ceased (Ram Kis­han Gre­wal) were also de­tained and beaten but the ques­tion needed to be asked is: why did all this hap­pen? Was there a threat to Na­tional Se­cu­rity, or was there a threat to the Pub­lic or­der and tran­quil­ity?

Be­fore we pro­ceed to the le­gal as­pect of the ar­rest or de­ten­tion, it is per­ti­nent to know the fac­tual as­pect as to what led to this sit­u­a­tion? On the af­ter­noon of 1st Novem­ber, 2016, an ex-ser­vice­man Ram Kis­han Gre­wal was protest­ing against the non-im­ple­men­ta­tion of One Rank One Pen­sion Scheme and de­manded to meet the De­fense Min­is­ter Mr. Manohar Par­rikar in or­der to present his case re­gard­ing the uni­form im­ple­men­ta­tion of the scheme. In or­der to protest against the non-avail­abil­ity of min­is­ter, he con­sumed sal­fas tablet and al­legedly com­mit­ted sui­cide. The con­di­tion de­te­ri­o­rated af­ter all the lead­ers like Rahul Gandhi, Arvind Ke­jri­wal, Man­ish Siso­dia etc. were de­tained while they were try­ing to meet the fam­ily mem­bers of the de­ceased out­side Ram Manohar Lo­hia Hos­pi­tal. All the lead­ers were sub­se­quently re­leased but why were they de­tained in the very first place?

In our Con­sti­tu­tional Democ­racy, no one can be de­tained or ar­rest with­out the due process and pro­ce­dure es­tab­lished by law which is in­cor­po­rated un­der Ar­ti­cle 21and 22 of the con­sti­tu­tion and as well un­der the pro­vi­sions of the Code of Crim­i­nal Pro­ce­dure af­ter the land­mark judg­ment of D K Basu v. State of West Ben­gal. It is per­ti­nent to note that our coun­try is not a po­lice state and there is al­ways a sys­tem of checks and bal­ances on the three or­gans of the state. In this sce­nario, it is quite im­por­tant to de­fine as to what the term ‘ar­rest’ means be­cause Supreme Court in the case of Union of In­dia v. Padam Narain Ag­gar­wal [(2008) 13 SCC 305] re­marked that the term “ar­rest” has nei­ther been defined in the Code of Crim­i­nal Pro­ce­dure, 1973 nor in the Pe­nal Code, 1860 nor in any other en­act­ment deal­ing with of­fences, so does that vac­uum give the power to ar­rest and de­tain any­one with­out the pro­ce­dural safe­guards?

The word “ar­rest” is de­rived from the French word “ar­rater” mean­ing “to stop or stay”. It sig­ni­fies a re­straint of a per­son. “Ar­rest” is thus a re­straint of a man's per­son, oblig­ing him to be obe­di­ent to law. “Ar­rest” then may be defined as “the ex­e­cu­tion of the com­mand of a court of law or of a duly au­tho­rized officer”. So if we look into the present sce­nario re­gard­ing the de­ten­tion/ar­rest of the Rahul Gandhi and oth­ers, it can very well be said that it was the ex­e­cu­tion of the com­mand of the se­nior po­lice of­fi­cial who au­tho­rized to re­strain them from entering and meet­ing the fam­ily mem­bers of the de­ceased.

Un­der the Law of the Land, The Ar­rest of a per­son can be done ac­cord­ing to the Code of Crim­i­nal Pro­ce­dure, 1973 whereby Sec­tion 41 em­pow­ers a po­lice officer to ar­rest any per­son with­out war­rant. Sec­tion 42 deals with the power of a po­lice officer to ar­rest any per­son who in the pres­ence of such po­lice officer has com­mit­ted or has been ac­cused of com­mit­ting a non-cog­niz­able of­fence and re­fuses to give his name and res­i­dence or gives a name or res­i­dence which such officer has rea­son to be­lieve to be false.

Sec­tion 43 en­ables a pri­vate per­son to ar­rest any per­son who in his pres­ence com­mits a non-cog­niz­able of­fence, or is a pro­claimed of­fender. Sec­tion 44 deals with cases of ar­rest by a Mag­is­trate. Sec­tion 46 lays down the man­ner of ar­rest.

In the case of Jogin­der Ku­mar v. State of U.P., [(1994) 4 SCC 260] the Court stated that 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. 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 his lib­erty is a se­ri­ous mat­ter.

In the present sit­u­a­tion, all the de­tainees were hold­ing the con­sti­tu­tional of­fice and their duty to­wards the cit­i­zens is much higher than any or­di­nary cit­i­zen. The law pro­vides for the pro­ce­dural safe­guards re­gard­ing the ar­rest/de­ten­tion of the MPS, whereby ar­rest of the con­sti­tu­tional elec­tive has to be done ac­cord­ing to a set pro­ce­dure and ar­rest­ing them with­out the due process of law is the vi­o­la­tion of the con­sti­tu­tional rights of the de­tainees. Ac­cord­ing to rule 229 of the Rules of Pro­ce­dure and Con­duct of Busi­ness in Lok Sabha; im­me­di­ate in­ti­ma­tion re­gard­ing ar­rest, de­ten­tion, con­vic­tion or re­lease on bail of a mem­ber of the Lok Sabha is re­quired. When a mem­ber is ar­rested or af­ter con­vic­tion, re­leased on bail pend­ing an ap­peal or oth­er­wise re­leased, such fact shall be in­ti­mated to the Speaker by the au­thor­ity con­cerned in the ap­pro­pri­ate form. As per the stand­ing or­der no. 153 of 2013, the fol­low­ing guide­lines were given with re­gard to the ar­rest and de­ten­tion of the Mem­ber of Par­lia­ment.

1.Such in­ti­ma­tion should con­tain de­tailed grounds for ar­rest/de­ten­tion.

2.In­ti­ma­tion should also be given when the ar­rested/de­tained per­son is trans­ferred from one place of de­ten­tion to an­other.

3.Such in­ti­ma­tion should also be sent when ad­di­tional charges than those al­ready ex­ist­ing are lev­eled against the ar­rested/de­tained Mem­ber.

4.Such in­ti­ma­tion should also be given when na­ture of the cus­tody changes i.e. de­ten­tion which may be lead to sub­se­quent ar­rest or cus­tody change be­tween po­lice re­mand and ju­di­cial re­mand.

5.Sim­i­larly in­ti­ma­tion about con­vic­tion and re­lease has to be given by the con­cerned au­thor­ity in a pre­scribed for­mat.

The ar­rest or de­ten­tion by the au­thor­i­ties has to be in­ti­mated to the speaker of the house by way of post which should con­tain the charge against the ac­cused, time of ar­rest, place of de­ten­tion and other fac­tors which led to the ar­rest of the M.P. The re­port should also be given to the Sec­re­tary, Min­istry of Home Af­fairs and to a range deputy com­mis­sioner of po­lice with a copy to the as­sis­tant in­spec­tor gen­eral of po­lice.

All in all, the events of the Novem­ber 1st and 2nd were the dark days in the con­sti­tu­tional democ­racy, not be­cause that the Rahul Gandhi or the Chief Min­is­ter of Delhi were ar­rested but be­cause of the ar­bi­trary and mala fide ar­rest and de­ten­tion of the ac­cused against the prin­ci­ples of the Con­sti­tu­tion. In­dia, be­ing the largest democ­racy, can­not act in con­tra­ven­tion of the set­tled prin­ci­ples of law and vi­o­late the fun­da­men­tal rights of any­one with­out fol­low­ing the due process. It is also that, these events showed us the grim face of re­al­ity as In­dia be­ing an elected Democ­racy still can, very well, in­hibit the au­to­cratic side of the Gover­nance with­out chang­ing the robe of democ­racy.

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