Yophika Grace Thabah
This paper focuses on the presence of police discretion while invoking the criminal justice system especially those commonly found under the law of arrest laid down in the Criminal Procedure Code of 1973. The rule of law is a controlling factor while evaluating the judgment making process of investigating officers, commonly known as ‘selective enforcement’ as distinguished from ‘full enforcement’. The modern police functions cannot be isolated from the tenets of rule of law, which have been engrained in the Preamble to the Indian Constitution, which are fairness, equality and supremacy of law. Discretion is not completely an illegal concept, but for it to be considered lawful by the courts of law and public, it has to weighed and tested with the principles of democracy and legitimacy. With the advancement of discretionary power in the police department, also comes the problem of accountability and responsibility. Legitimacy cannot stand if the police as a hierarchical organ and the state itself bears, assumes or is called to account for the acts of its agent. A positive opportunity exists for introducing departmental control within the police force, barring the individual officer from making whimsical and erroneous judgments that would lead to miscarriage of justice. Men are involved in the criminal justice process, and thus, it would not be wise to eradicate or eliminate the use of ‘discretion’ completely, instead the country today, must appreciate and recognize the international concepts of ‘proactive policing’ or ‘democratic policing’ to motivate police officers to work in an atmosphere where borderline ambiguities of case to case can be resolved with proper knowledge of the law, having a closer relation with the community and by following the doctrine of ‘police independence’.
The notion ‘Rule of Law’ has attracted many deliberations and interpretations. It is important to distinguish the rule of law from the rule of men as more often than not, the legal rules manifest individual desires, partiality and irrationality. Legal rules are not permanent. They are created, amended and abolished by men. Nevertheless, as a universal accepting principle, laws must attempt to maintain independent of personal caprice. The rule of law is not merely an alternative to the rule of men; more importantly it stands for the principle that law is above men. These ideas are no longer original and innovative, but it is worth stressing on the idea of what the rule of law signifies. An allegiance to the rule of law would mean that the rules are respected and implemented to their full effect. The rule of law refers to various established legal principles imposing limitations on governmental authority. English legal scholar Albert Venn Dicey defined the Rule of Law as “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government…”
Dicey does not include democracy and human rights in his definition. Even the celebrated author Joseph Raz in his book titled ‘The Rule of Law and its Virtue’ have denied the relationship of rule of law with democracy, justice, equality, human rights of any kind or respect to persons or for the dignity of man. He says that “a non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened democracies.”Well, this proposition does not seem to favour the realities of the 21st century. Human rights and democracy are considered de rigueur for the successful administration of any criminal justice system.
Little efforts have been made to systematically spell out the relations between policing, democracy and human rights. Sometimes ‘democratic policing’ have been identified as maintaining procedural regularity and the rule of law. At other times democracy appears to be respect for certain substantive rights, for example, against unreasonable search and seizure and compelled self-incrimination. There is always something to lose in order to gain. It is important to strike a balance between letting the police do their job and preserving our democratic liberties. Yet again, when the issues of police functions come in the ambit of discussion, it seems that these definitions do not suffice to explain the legitimate use of discretion by police officers during investigation. Arbitrary uses of powers by the police have led to a common stigma that discretion would necessarily amount to violation of fundamental rights. The power of police during investigation has been structured by various rules and regulations. It would be legal and constitutionally valid if they confined the use of such power within the statutory limits and subsequently base their informed decisions after a thorough understanding of the existing laws. F.A. Hayek’s definition of the rule of law has to some extent provided a better explanation to this idea wherein he says:
“the government in all its actions is bound by rule fixed and announced beforehand-rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one’s individual affairs on the basis of this knowledge.”In the case of Prakash Singh v. Union of India, the Supreme Court made the following observation:
“The commitment, devotion and accountability of the police have to be only to the Rule of Law…”
The police in a democratic society are required to perform multiple functions, besides the maintenance of law and order. Today, the role of police has been redefined to include the values of democratic polity, secularism, social justice, human dignity and building up a democratic image of police to serve the community.
Discovering discretion and the law of arrest
Police investigations form a critical part of the Criminal Justice System. Error or malpractice in collection and preservation of evidence can result in gross miscarriage of justice. The prosecution of the guilty lies on the edifice of proof ‘beyond reasonable doubt’ and this is proportionately linked to the careful search for truth and collection of evidence which is both admissible and is of high probative value. The Police Act of 1861 has laid down the role and responsibilities of police in crime prevention, investigation, maintenance of law and order and so on and so forth. Simultaneously, the Indian Constitution, Indian Evidence Act of 1872, the Criminal Procedure Code of 1973, the Indian Penal Code of 1860, and various state regulations have also acted as checks and balances on the arbitrary use of power by the police during investigation. However, the legal framework confers vast discretionary powers to the police in matters of arrest, search, seizure and other functions that form the crux of investigation of an offence. Provisions in the Code of Criminal Procedure, 1973 contain words like police officer must have ‘reasonable suspicion’, ‘reason to believe’ and be ‘satisfied’ during the entire course of investigation. For instance the powers of the police officer to investigate a cognizable offence as given under Section 156 Cr.P.C are wide and unfettered (in strict compliance of the provisions of Chapter XII of the Code). Courts also do not have any supervisory control over the investigations except in cases where non-interference would result in miscarriage of justice.
Investigation is not mandatory as the police may investigate at their own discretion. Under the proviso (b) to Section 157(1) of the Code, the police can refuse investigation and they cannot be held accountable in law for refusing investigation.However, under Section 157(2) it is necessary for the officer in charge of the police station to record in writing the failure to investigate a complaint.
The law of arrest is provided under Chapter V of Cr.P.C (Sections 41-60). It is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other. In People v. Defore, Justice Cardozo observed:
“The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed and on the other, the social need that law shall not be flouted by the insolence of office.”
The National Police Commission in its Third Report (1979-1981) made a stark remark that in India, the power of arrest provided to the police is one of the chief sources of corruption. Such a finding makes it worthy to address that the Royal Commission on Criminal Procedure, 1981 recognized that “there is a critically important relationship between the police and the public in the detection and investigation of crime and suggested that public confidence in police required that these conform to three principal standards: fairness, openness and workability.”
The provisions of arrest under the Criminal Procedure Code, 1973 provides for extensive and sweeping language and the consequent discretion to arrest is indeed wide and that has been the very source of abuse and misuse.
This takes us to another crucial aspect where officers believe staunchly that their primary duty is to ensure successful prosecution, and therefore would be disinclined to record statements or collect physical evidence that would contradict the accusation. A universally shared feature of policing is that policemen’s work is not just a way of life but a vocation to be pursued with evangelical zeal. In India, two norms are in conflict when it comes to role of police in investigation; they are ‘being efficient’ and ‘being legal’. Police often perceived themselves to be social workers and while altering legal boundaries for the ‘greater good’ ends into a dangerous concoction that often results in well-meaning officers either overdoing or ignoring certain legal and procedural requirements.
Discretion as a study gained momentum in the United States in the 1960s. It is a fundamental feature of every stage of the administration of criminal justice within common law legal system (distinguished with the ‘principle of legality’ which prevails in many European civil law systems). A system of discretionary justice exists and the legal authority of the police is a pivotal element of this system. Legislations suggest that the police while exercising their powers in investigation, detention, arrest, surveillance, search and seizure, etc. are authorized to exercise discretion. But what is the legal limitation to such powers? It is at this juncture that the Eight Principle of rule of law propounded by Joseph Raz is significant to be addressed. He stated that ‘the discretion of the crime-preventing agencies should not be allowed to pervert the law.’
Legal scholarships in India have not attempted to theoretically understand the problem of discretion prevalent at every stage of investigation by the police let alone laying down guidelines for police discretion. The concept of ‘discretion’ would connote that where there is a right there is also a duty. Thus, it is imperative for the police officer that before the power of arrest is exercised; he has to apply his own mind in forming an opinion as entitled on the material and facts before him for the exercise of an independent judgment.
To form an independent judgment, the police officer must have oversight of the principles of rule of law. This is precisely expressed in the Concise Oxford English Dictionary’s definition of discretion as “the liberty of deciding as one thinks fit, absolutely or within limits”. The limits here would mean the principles of rule of law of fairness, equality and supremacy of law. Decisions made by police officers must be principled rather than arbitrary, and that human and civil rights are not ignored.
The exercise of discretion, finally, surely involves discrimination. On the negative connotation, “discrimination” may be applied to improper or prejudiced race-based decision making. It is frequently stressed upon to police officers, that they must not discriminate on the basis of the race, caste, religion, color or culture of the suspect in making law enforcement decisions, while instead they are urged to be sensitive in diversities and differences while dealing with accused persons as a tenet of the rule of law. Totalitarianism and its horrors cannot be tolerated today in modern policing. The use of discretion in investigation is not always negative but, its purpose should shift to a broader ‘public interest’ rather than a narrow ‘private or political’ interest. Foreign judgments have established the doctrine of “constabulary independence”wherein courts have urged that police need to be free from political influence while discharging their powers and duties. This principle is seen as echoing from the 1968 judgment R v. Metropolitan Commissioner of Police, ex parte Blackburn, wherein it was stated that “the duties which it was generally agreed in the evidence should be performed by chief constables unhampered by any kind of external control are not capable of precise definition, but they cover broadly what we referred to earlier as “quasi-judicial” matters, that is, the enforcement of the law in particular cases involving, for example, the pursuit of enquiries and decisions to arrest and to prosecute. We entirely accept that it is the public interest that a chief constable, in dealing with these quasi-judicial matters, should be free from the conventional processes of democratic control and influence” (emphasis added). Lord Denning further stated that “the responsibility for law enforcement lies on the police officer himself. He is answerable to the law and to the law alone.”
Sir Robert Peel’s, ‘Nine Principles of Policing’ do not address the issue of discretion directly, but the idea of discretion accentuates several of them.
Departmental control and police accountability
With the advent of time and the creation of the ‘new police’, it is salient and vital to understand that discretion is not always a negative concept. To recognize discretion as an essential feature of the exercise of police authority invites a normative justification to it, where overly strict implementation and interpretation of the law, without appropriate sympathy and empathy in suitable cases, will lead to injustice. All the police officer is required to have is good judgment and not whimsical justifications.
There is ‘departmental dualism’ in the police organization, that is to say, the whole law enforcement machinery is not entirely arbitrary while invoking discretion. Taking this in mind, departmental control would be a positive step towards curbing excessive use of powers by police during investigation. The control mechanism provides a means for ensuring that the statutory authority acts, or refrains from acting, in certain ways. The answerability mechanism provides information to the controller, and may indicate the occasions in which the control mechanism is to be brought into play.
It is through departmental decisions that enforcement tactics can be regulated, for such decisions if left to the individual officer can lead to miscarriage of justice. Bureaucratization and political influence often cause police to use arrest as a means to control crime. Modern police departments rely heavily on arrests in order to demonstrate their effectiveness. If this continues without constraints, then democratic liberty would be in danger. The doctrine of “police independence” argues that the police department be free from any external control in order to act in an impartial manner. They are to be subject to the law which should also be motivated towards the betterment of society. This doctrine can be traced back to the Social Contract Theory, where the essential part of the theory is the correlation between policing and community.The police as an agent of the government are bound to uphold the rights of the citizens.
The problem with police discretion is accountability. If legitimacy and legality is to be met, then accountability stands as a strong base for the same. Legitimacy in simple words would mean public trust and obligation to obey. The Committee to Review Research of the National Research Council in 2004 explained that by “legitimacy we mean the judgments that ordinary citizens make about the rightfulness of police conduct and the organizations that employ and supervise them.” Tom Tyler’s model of process-based regulation holds that trust is impacted by procedural justice. In this model, legitimacy revolves around procedural justice as the focal point, which means that legitimacy is maintained by the fair exercise of authority on the part of police when they deal with the public that is through the provision of procedural justice. It is noteworthy to point out Justice Tankebe’s notion of legitimacy that is lawfulness, procedural fairness, distributive fairness and effectiveness. Thus, reverence and implementation of Tyler’s trust model and Justice Tankebe’s four dimensions of legitimacy by the police while invoking discretion under domestic law would bring about a balance between discretion and control, which is one of the most important demands in constituting public accountability. This is the basis of ‘proactive policing’ or ‘democratic policing’. Thus, it is crucial that in such situations the state bears, assumes or is called to account as one responsible for the violative acts of its agents. If the police as a hierarchical organization assume responsibility for its daily acts, then legitimacy and respect for rule of law would be achieved.
Discretion by police officers during investigation is a legally authorized act; however, it is to be tested with the principles of rule of law. A regularized system of review is an indispensable tool for insuring buoyant compliance by the administrators of criminal justice with these rules of law principles. Pre-trial hearing, trial, appeals and the writs constitute a formal system for assessing the actions of officials invoking the criminal process. The concept of ‘selective enforcement’ as part of discretionary powers of the police has been a great challenge to the rule of law. Legislatures, therefore, ought to reconsider what discretion, if any, the police must or should have while investigating offences, especially during arrests, and what tools and mechanisms, if any should be designed to increase transparency and hence making review of such police decisions more successful.
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