Arrest of Bikash Swain: An Instance of Contempt against the Constitution and the Supreme Court

Subhas Chandra Pattanayak

The media community is feeling unsafe under the climate of crime cultivated against the Press in the present regime. The climate is so anti-Press that the Police are encouraged to torture any person connected with media under any pretext anywhere just to send alarming messages that any action disadvantageous to administration can land any media person in jail anytime. Arrest and under-trial incarceration of Suryaprabha publisher Bikash Swain is the latest instance.

Suryaprava is a major daily that adheres to ethics of journalism in informing the public about administration and therefore it exposes instances of maladministration.

Because of this, its publisher Bikash Swain was not in the good books of the Government. Arrested by the Bhubaneswar Police, he is in the prison as an under trial accused.

The founding fathers of our sovereignty were conscious of how Police may misuse its powers against any citizen under personal motive or extraneous influence and dismantle his/her right to personal liberty. Therefore, under Article 21 of our Constitution, it was stipulated, “No person shall be deprived of his life or personal liberty except according to procedure established by law”.

But the procedure save the bare provision under Article 22 (1) was not established by law for long.

In the circumstances the Supreme Court of India formulated the procedure in Joginder Kumar V. State of U.P. and others case in Writ Petition (Criminal) 9 of 1994 wherein the rights of an arrestee were made clear. “No arrest can be made because it is lawful for the Police Officer to do so. The existence of power to arrest is one thing. The justification for the exercise of it is quite another” said the Supreme Court.

Action against Police contemplated by Court

The bench comprising Chief Justice of India M.N.Venkatachaliah and Judges S.Mohan and Dr.A.S.Anand in fact stressed that a Police Officer should be punished if he/she arbitrarily arrests a person.

While holding “No arrest can be made in a routine manner on a mere allegation of commission of an offense made against a person”, it said, “It would be prudent for the 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 complain and a reasonable belief both as to the person’s complicity and even so as to the need to effect the arrest”.

By putting the words “and perhaps in his own interest” the Apex Court has laid emphasis on punishment in case of absence of justification on “the need to effect the arrest”.

For effective enforcement of the fundamental right to liberty enshrined in Article 21, at Para 26 of the above judgment reported at 1994 CRI.L.J.1981, the Supreme Court mandated three requirements in matters of arrest and ordered that the said requirements “shall be followed in all cases of arrest till legal provisions are made in this behalf”.

The Supreme Court also ordered that the “Directors General of Police of all the States in India shall issue necessary instructions requiring observance of these requirements”. But the requirements formulated by the Court were more ignored than honored.

Therefore, the Supreme Court improved upon these requirements in B.K.Basu V. State of West Bengal in its judgment delivered on 18 December 1996 as reported in (1997) 13 OCR (SC) – 214, stipulating that the new set of requirements must be “followed in all cases of arrest and detention till legal provisions are made in that behalf, as preventive measures” against misuse of Police power in arrests.

When in the first requirement it was made mandatory that the Police personnel carrying out the arrest “should bear accurate, visible and clear identification and name tags with their designations”, in the second requirement, the stipulation was that “The Police Officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either may be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest”.

These and other requirements are blatantly and contemptuously contravened in arrest of Sri Bikash Swain.

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  1. Pingback: Bail to Bikash is not surprising, surprising is the delay | Orissa Matters

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