The answer to “why police high-handedness?” is usually found in the the force’s sense of exceptionalism and entitlement — that because of the uniform, they can get away with anything. And then there are cases where legal provisions, some good, some ambiguous and bad, are used as a cover for illegal intimidation and rampant extortion.
Last week, the Bombay High Court came down on such a law, or rather, an institutionalised malpractice — that of “chapter proceedings”. Simply put, these pertain to execution of bonds to secure good behaviour and maintenance of peace.
Under Section 107 of the Code of Criminal Procedure (CrPC), an Executive Magistrate, based on reasonable suspicion, as a preventive measure, might ask a person to execute a bond, swearing that he would not breach public tranquillity. Note, that it cannot be applied willy nilly — the law — Section 111 of the CrPC — mandates a detailed process designed to weed out any arbitrary action.
But Mumbai Police, which, like its counterparts elsewhere in India, considers it to be a law unto itself, had a different way of going about things. There was no Executive Magistrate to do the needful; instead, police stations were sending information to the respective Assistant Commissioners of Police (ACP) who were then issuing the orders. True, that an ACP holds the rank of a Special Executive Magistrate with quasi-judicial powers, but with authority, comes inexorable responsibility. However, not only was authority being used in the most irresponsible, even cavalier manner, it was also being abused.
An RTI campaign in 2009 by the National Anti-Corruption and Crime Prevention Committee, a city-based NGO, brought the abuses to light. The replies to RTI applications showed that between January 2007 and December 2008, 11 police stations initiated chapter proceedings in 1,418 cases. In 598 of those cases, notices and orders were issued without recording any evidence, that is, the provision mandating the existence of reasonable suspicion was flagrantly violated.
A 2013 case, in which a couple from Goregaon were served with such notices because they took on illegal hawkers in their locality, shows why evidence was dispensed with. Who needs proof when it can be manufactured, especially when very few dare to drag the police to court? But the couple did, and the High Court quashed the notices, upbraiding the police for their malice. It isn’t difficult to spot an obvious nexus between the “errant” cops and illegal hawkers, but the authorities took no penal action, let alone investigate the matter. Besides these notices for good conduct, the police also oversteps its jurisdiction and issues externment orders, called tadipaar in the local patois. A person can be ordered to stay off the limits of a particular area, so long as such order is based on some authority of law. But despite Section 107 providing for no such exercise of power, there were many cases of externment orders being slapped. In some of them, the police was acting as henchmen of those who wanted to fix their rivals.
One case did go to the High Court, which, in 2008, asked the government to ponder over the matter and come up with appropriate remedial action, but that’s all one has heard about it till date.
Then there are arcane laws such as Section 110 of the Bombay Police Act — which prohibits “indecent acts” — used as vehicles for moral policing and extortion. It is one of the most dreaded of provisions — because any act of intimacy or affection — a peck on your partner’s cheek, putting your arm around her, or couples’ arms around each other, holding hands with a member of the opposite sex in a public place — could make one liable for penal action. Since the law does not define “indecent”, we have too many instances of ‘vice squads’ in khaki running amok, heckling people, terrifying couples into coughing up sums of money. If there was a ‘Kiss of Love’ protest at Marine Drive, there would have been murder and mayhem.
This bullying provision is yet to be either repealed or challenged in the courts, but while we wait for that, perhaps the Police Commissioner could start by ordering his men to desist from enforcing it?
Saurav is associated with the Commonwealth Human Rights Initiative, Delhi which works towards better policing. You can follow him on Twitter @SauravDatta29