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Mainstream, Vol XLVI No 29

Defending the Indefensible

Friday 11 July 2008, by D. Bandyopadhyay


The Statesman (June 10) carried a report entitled, “Cops can come to search without papers: Home Secretary”. Responding to queries the Home Secretary of West Bengal, Ashok Mohan Chakraborty, “insisted that he was not yet posted with facts involving Jadavpur University students”. Nevertheless, he defended the police action of trying to search flat without a warrant.

I waited for a day to see whether Mr Chakraborty would issue a contradiction. There was no contradiction. Hence it may be presumed that the report was correct.

The question that arises is that if he was not aware of the facts of the incident, how could he justify the patently illegal action of the police in Jadavpur? Was he trying to be more loyal than his king? His king (the Chief Minister of West Bengal), appreciating the political fall-out of this despicable behaviour of the police and his party followers in his own constituency, had to admit that the move was uncalled for. So Mr Chakraborty’s pontification was shattered. Attempts by bureaucrats to curry favour with political bosses should not cross the limits of decency. A senior officer of the stature of the State’s Home Secretary should not make himself a laughing stock.

For Mr Chakraborty’s edification, the constitutional and legal position on this subject needs to be clarified. It is presumed that Mr Chakrabortty is familiar with the Constitution. Article 21 says: “…no person shall be deprived of his life or personal liberty except according to the procedure established by law.”

This Article has a glorious history. It started from the Magna Carta on June 15, 1215 AD, when King John of England promised to his rebellious barons in writing that: “To no man will we sell, or deny, or delay, right or justice.” The Fifth Amendment of the US Constitution has similar provisions. The Universal Declaration of Human Rights, 1948, has some such unambiguous articles. Mrs Gandhi ratified it. As a result, it is part of Indian jurisprudence. Article 3 of this declaration reads: “Everyone has the right to life, liberty and security of person.” It has to be read in conjunction with Article 9, which states: “No one shall be subjected to arbitrary arrest, detension or exile.”

Through judicial interpretation, the ambit of Article 21 was expanded to mean the right to live with dignity which, inter alia, included the right to privacy. In the People’s Union for Civil Liberties versus the Union of India, the Supreme Court held that Article 21 of the Constitution should be interpreted in conformity with Article 17 of the International Covenant on Civil and Political Rights, 1966, and Article 12 of the Universal Declaration of Human Rights, 1948, to protect the right to privacy. Article 12 of the Universal Declaration states: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” The Supreme Court has settled the principle that the right to privacy is an integral part of the right to life under Article 21 of the Constitution. The court laid down this principle in a number of judgments. It is true that there is no separate law on the protection of privacy in India. This is a lacuna in our legal code. But in a narrow sense this right is protected by different sections of the Indian Penal Code (IPC).

The police in any civilised country should have the greatest respect for personal liberty. They are not expected to flout or violate the Constitution and the law of the land by stooping to “bizarre acts of lawlessness”. That was the observation of the Supreme Court in Bhim Singh versus the State of J&K. Against this obiter dictum of the Apex Court let us analyse the Jadavpur incident.

The facts of the case are briefly as follows. A few women students of Jadavpur University were staying in a private building in an informal mess. By their own admission, they belonged to an organisation called the Matangini Mahila Samity (MMS). On June 7 morning, some policemen tried to enter the premises, having found the doors open, with the intention of conducting a search without a warrant. When the inmates protested, they temporarily withdrew. Obviously they tried to force their entry to intimidate and insult these students because the police thought they were Maoists. Incidentally, Maoist organisations are not banned in West Bengal. It was clearly a case of criminal trespass by the policemen who intruded into the building and violated the right to privacy of the inmates of the flat, without a valid warrant.

The second part of the story was that the residents had put out a few posters to dry in the outer compound. Obviously, these posters did not contain any subversive material threatening to wage war against the state. Some local toughs, presumably belonging to the CPI-M, took away those posters hoping they would get material to prove that these women were Maoists. By doing so they committed the offence of theft. Lastly, the police, aided and abetted by the Democratic Youth Federation of India (DYFI) and All India Ganatantrik Mahila Samity (AIGMS), both CPI-M fronts, laid siege to the building for more than five hours preventing the inmates from moving out. These two CPI-M outfits played the dirty role of both police informers and auxiliaries quite unbecoming of the prefixes “democratic” and “ganatantrik”. The police and their undemocratic allies committed the offence of wrongful restraint. Thus it was not the inmates of the flat but the police and CPI-M fronts who committed the three offences of criminal trespass, theft and wrongful restraint.

Since the Chief Minister called the police move uncalled for and since there is prima facie evidence of the commission of crimes, Mr Chakraborty has to respond to the citizens’ queries about initiation of penal action against the offenders. If he does not, he can be treated as an abettor to these offences.

The highly contrived and convoluted justification of the illegal police action by Mr Chakraborty has no legs to stand. He deliberately resorted to falsehood to confuse the public to be one-up on his political masters. Circumstances under which search could be conducted under Section 165 of the Criminal Procedure Code did not exist in this case. He could only invoke the “doctrine of hot pursuit” to justify the illegalities of the police and the DFYI and AIGMS. This doctrine, though controversial, can be operationalised if there are three ingredients. First, a non-bailable and cognisable offence had to be committed. Second, there had to be some fugitives trying to escape arrest. And third, there had to be some contraband and/or stolen property about which the police had definite information. None of these was present. Thus, there was no case for pursuit, hot or cold. It was a case of deliberate violation of the Constitution and IPC by the police to help the CPI-M thugs settle some political score against the MMS members, branding them as Maoists.

This calls for a short discussion on the possible commonality between Matangini Hazra and Mao Zedong.

In 1942, at the peak of the ‘Quit India’ movement. Hazra led a procession with a national flag to plant it at the office of the Sub-Divisional Officer, Tamluk, pulling down the Union Jack. As she approached the building, she was shot dead. She fell to the ground holding the flag up. She was a nationalist and a great patriot.

Mao fought Japanese invaders collaborating with his arch enemy, Chiang Kai-shek, and defeated the Japanese. After the revolution one of his first statements was that “from now on no foreign devil would dare call a Chinese a coolie”. He was primarily a nationalist and a patriot who had the vision of refashioning the Chinese society on socialist lines. Both Hazra and Mao were great patriots. If the CPI-M theoreticians think patriotism is an extension of Maoism, the Chief Minister may authorise his cohorts to search Rabindra Bhavan at Visva Bharati where Tagore’s memorabilia are preserved, to seize a copy of the letter he wrote relinquishing his knighthood as a protest against the Jalianwallah Bagh massacre and posthumously file a case against him for furthering Maoism. That would be a fitting tribute of the CPI-M to the memory of the “feudal-bourgeois poet” as they used to describe him.

This is not levity. For the people who rule this State anything is possible.

(Courtesy : The Statesman)

The author is a former Secretary to the Union Ministries of Finance (Revenue) and Rural Development and the former Executive Director, Asian Development Bank.

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