The Arrest Trade


IT is highly disconcerting to read media reports that say that 101 police officials have been charged with the offence of ‘releasing’ people after arresting them in exchange of money.’ The assuring past of an otherwise unfortunate and unacceptable scenario is that the government has not only taken notice of it, but also issued orders to take action against the culprits.

What follows from the above is that indiscreet and untenable arrests have been made. In fact, these are clear cases of gross irregularities and what is at stake is the police’s image. That should cause concern. There is, therefore, an urgency to halt the downward slide of public confidence in a vital state organ in public interest. The delinquency in enforcement culture needs to be studied for remedial actions and certainly to ensure good governance.

A democratic polity may reasonably ask as to why our law-enforcement organisation is plunging headlong into a legally indefensible course and with such disconcerting gusto? Are they acting at the behest of ill-advised political masters? Are our police doing things they ought not to do or refraining from doing things they ought to do, to favour politicians in power? Are they asking politicians-in-power to use their influence to obtain choice postings, to avoid being transferred, to mitigate disciplinary sentences or to earn a promotion?

By resorting to practicing lawless law enforcement, which obviously is a contradiction in terms, the police inevitably further tarnish their adverse image. Paradoxically, such lawless police officers are reportedly in high demand in our perilously polarised polity. Believers in the rule of law and followers of strict legal methods are considered to be ‘cows’ and ‘sissies.’ The government is always more concerned with the so-called order than the observance or law. Therefore, the remedy largely lies in an attitudinal change in the police whereby our police culture will get relief from several scourges, including false implication of innocent persons in criminal cases. That would be some achievement as substantial remedy would follow from the change in the attitude of the political government, the real wielders of power. Their colonial mindset has to change.

What is required under Section 151 of the Criminal Procedure Code is that the police officer concerned must know that the person to be arrested is planning to commit a cognisable offence. An “apprehension” that he may commit an offence is not sufficient under the provision. Apprehension is not the same thing as knowledge. The former is mere feeling. Latter is definite conclusion. If arrest is made under this section without an emergency being there, the arrest will fall under the category of being illegal.

In a democratic set-up, the members of the police must be made to realise that they are not above the law but subject to it like all other citizens, and all their actions have to be supported on ground of legality when challenged before a court of law. The question is, how do we do that? One way of ensuring that would be to question police indiscretions and excesses, specially the major ones, in courts.

The legal authority and responsibility to arrest on suspicion is personal, so each individual officer must be made to account for rash and indiscriminate arrest, if so proved. To be more specific, a wrongful arrest of graver type should make the arresting officer liable to a charge of wrongful confinement under the penal law of the country. Therefore, if the authority arranges to commence criminal proceedings for wrongful arrest, the wrongdoers in enforcement outfit would get the message and hopefully, rash and illegal actions will be on the decrease. All segments of the judiciary have to assert themselves.

Our apex court has already given a number of procedural and administrative guidelines in respect of arrest under Section 54 of the Criminal Procedure Code. This has to be followed up in right earnest by issuing strictures and, where appropriate, by arranging to institute criminal proceedings against delinquent officers. One or two criminal convictions of wayward police officers would have a salutary effect. The fear of authority needs to be instilled.

For their part, the senior officers should be able to prove that law observance by the police is the best form of law enforcement in a democratic country under the rule of law. They should be ready to carry out the behest of law at any cost.

The concept of legal aid to the poor in criminal cases should be enhanced on a war footing. This step will reduce the possibility of wrongful confinement and false incrimination in offences. NGO activism should be encouraged to keep a close watch on police indiscretions, specially the arrest on suspicion. Simultaneously, investigative journalism should expose gross misuse of arresting power.

Claims for damages caused by wrongful arrest should be instituted by activating the law in this regard. There should be no bar in fixing the civil liability caused by wrongful arrest. That would be a damper to highhandedness.

Last but not the least, our politicians primarily have to realise that the right to live is not merely confined to physical existence but includes within its ambit the right to live with dignity.


The writer is a columnist of The Daily Star.