Police Reform and Preventive Powers of Police in India – Observations on an Unnoticed

Problem
Author(s): Clemens Arzt
Source: Verfassung und Recht in Übersee / Law and Politics in Africa, Asia and Latin
America , 2016, Vol. 49, No. 1 (2016), pp. 53-79
Published by: Nomos Verlagsgesellschaft mbH

Stable URL: https://www.jstor.org/stable/26160092

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 53

Police Reform and Preventive Powers of Police in India

Observations on an Unnoticed Problem

By Clemens Arzt*

Abstract: The debate about policing in India usually focuses on the lack of ac
countability and professionalization of the organization. Writing a book on this top
ic is most popular with former high-ranking police officers. Analyzing the law of
the land almost 70 years after Independence and looking into police powers them
selves is, by contrast, much less popular in academic writing and the legal profes
sion. A popular and widespread opinion is that it does not make any sense to ana
lyze shortcomings in statutory law because India is a common law country and the
Indian police do not obey the law anyway. At the same time, it is objected that
granting the police a set of clearly stated but also delimited statutory powers would
automatically lead to even more powers for the police. Obviously, it has to be con
ceded that any revision and modernization of statutory powers, e.g. in Police Acts
and the Code of Criminal Procedure, implies the risk of an expansion of police
powers detrimental to fundamental rights. While stressing rule of law values might
lead to prioritizing fundamental rights, police powers rather point in the opposite
direction. However, since much of the existing Indian law stipulating police powers
is still based on a pre-constitutional model of police, it does not seem to be prema
ture in 2016 to discuss a fundamental rights based concept of police powers in In
dia. Besides, the inevitable need to modernize the Indian police and to enhance ac
countability mutually requires scrutinizing the current law of the land, which grants
the police vast and not at all clearly delimited powers to encroach upon fundamen
tal and human rights.

A. Preventive Powers of Police in India: A View from the "Outside"

This essay deals with "preventive" powers of police in contrast to police powers in criminal
procedure once a crime might have been committed; i.e. criminal justice. This distinction is
rather uncommon in the Indian legal discussion, even though the notion of "law and order
policing" somewhat reflects the idea, which however is not the base of a strict statutory dif

Dr. iur, Professor of public law at Berlin School of Economics and Law (HWR Berlin). Major re
search for this paper was carried out at Symbiosis Law School in Pune, India, which generously
supported a research stay in winter 2013/14. Contact: clemens.arzt@hwr-berlin.de.

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54 Verfassung und Recht in Übersee VRÜ 49 (2016)

ferentiation.1 The underlying assumption of this paper is that it would

better protection of constitutionally protected freedoms to "bundle
field of preventive policing in one Act, precisely, narrowly, and e
which powers the police have to counter public order problems. Fo
proach of this paper is to examine preventive police powers, i.e. the
interfere with one's constitutional and human rights, which are warr
Indian Constitution but also by countless Supreme Court (SC) decisi
policing in India. More than a few of these decisions have almost s
nored by both the legislature, which is supposed to set the rules of th
the police, even though being supposed to obey the rule of law.2 My s
German approach might seem a little narrow to a political or social sc
human rights activist. And yet, while a lot has been written on the sh
in India,3 enriched and enhanced by many official Commissions an
Union as well as on the State level, it seems that statutory law on pre
as such does not generate much attention in scholarly writing in In
server the academic silence on the legal framework itself is surpris
India appears "stuck" in a legal system that in many aspects does not a
rations as well as the needs of a modern society which promises
thought, expression, belief, faith and worship, equality of status an
other fundamental freedoms in its constitution.

Another point might be the obviously widespread opinion that it

sense to analyze possible shortcomings in statutory law itself because
law country and (b) the Indian police do not obey to the law anyway. A
well-known Indian lawyer Fall S Nariman can be cited: "The stark
there was a choice between common law and the Roman law (which
continental codes), the decision has always been in favor of Roman
was that the Roman law is in the form of a code, and is far more con
than the common law, the latter being a strange amalgam of case l
fact, the 'common law' is not so much Taw' as it is a unique method

1 Cf. Arshinder Singh Chawla, Separation of Law & Order and Investigation, P
All India Police Sciences Congress; at http://www.bprd.nic.in/writereaddata/
8-separation-a-field-model.pdf (last access for this and all other Internet s
also SC in Prakash Singh & Ors. v. Union of India & Ors.
2 But see Bipan Chandra/Mukherjee/Mukherjee, India since Independence,
referring to the "paradoxical" acceptance of the general concept of rule of la
state, which was "basically authoritarian and autocratic".
3 For lack of space only a very small selection: K. Alexander, Police Reform
2006; Sankar Sen, Enforcing Police Accountability through Civilian Over
Joshua Aston, Restructuring the Indian Police System: Need for Accounta
2011 ; CHRI, Police Reform Debates in India, 2011.
4 Exemplary exceptions are Uma B. Devi, Arrest, detention and criminal justic
and N. Krishna Kumar, Human Rights Violations in Police Custody, New D

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Arzt, Police Reform and Preventive Powers of Police in India 5 5

marks in original] of administering justice, a method which lawyers not reared in the sys
tem find difficult to comprehend!"5 Nothing much needs to be added to this, though I will
try. Besides, in contradiction to the common law demur, even in the "motherland" of Indian
law, Great Britain, today statutory law is prevalent if not exclusive when it comes to police
powers.6

B. Police Powers as a Concept

The notion of preventive police powers in this paper refers to means like, e.g., arrest,
search, but also interdictions to stay in a certain area or measures against assemblies, like
dispersals (e.g. Sec. 129 CrPC). Interestingly, in India such powers are settled in both Po
lice Law and in the Code of Criminal Procedure (CrPC 1973)7, like the power to issue an
order in urgent cases of nuisance of apprehended danger (e.g. Sec. 144 CrPC). Thus the Cr
PC is most relevant in vesting the police with preventive powers even in the case of a mere
prevention of dangers. While some preventive powers in the context of criminal justice can
be described as powers to prevent the commission of (cognizable) offences,8 this cannot be
said of major provisions in the CrPC which are directed at the maintenance of public peace
and order, which have to be distinguished clearly from criminal procedure. "Preventive de
tention" under special laws however will not be in the focus of this research, because such
power is out of the range of "ordinary" police powers.
Not being an Indian lawyer, my understanding of Indian law will never be completely
"detached" from my own legal background. While police powers in Germany today go far
beyond what seems to be desirable from a perspective of constitutional freedoms and hu
man rights, at least German law does have a clear-cut idea and system of how to delimit
police powers in the written law even though this approach is not very popular with law
makers today. And yet, at least sometimes the Courts stop excessive restrictions on person
al freedoms and lawmakers publicly have to justify any introduction of even more powers
for the police, which has an effect of somewhat deterring the introduction of "too many"
limitations on constitutional freedoms. Discussion on such topics in Germany goes far be
yond the legal profession while in India lawyers as well as human rights activists rather
seem to be opposed to the idea of a clear-cut system of police powers, arguing that this
would open the door to even more powers of the police.

5 Fali S. Nariman, Indian Legal System: Can it be saved?, New Delhi 2006, pp. 26-27.
6 See "Police Powers" in: Dictionary of Policing, Tim Newburn/Peter Neyroud (ed.), Cullompton
2008. On early deviations from common law powers in the UK in the 18th century see, e.g., David
Dixon, Law in Policing, Oxford 1997, pp. 54 et seq.
7 In this paper I will only refer to the CrPC but not to State amendments to this Code.
8 Cf. section 149, 151 CrPC.

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 56 Verfassung und Recht in Übersee VRÜ 49 (2016)

C. The British Police Act (BPA) of 1861 and its Aftermath

The British Police Act (BPA) of 1861 was the outcome of the recom
drafted by the Police Commission 1860. The applicability of the Pol
Indian States and its substitution by "modern" police laws is governed
Seventh Schedule. However, which Indian States have enacted "new"
tute colonial law to date and to what extent such acts substantially
"role model" has never been researched thoroughly by academic wri
to force, the Act only applied to British India except for Bombay
ready had police acts comparable to the Act of 1861 (still in force tod
National Police Commission in 1979, the BPA of 1861 was "designed
totally subordinate to the executive government in the discharge of i
was made at all to the role of police as a servant of the law as such
ence to Sec. 23 the Commission pointed out that an "average police
order to be a lawful order provided it comes to him from someone ab
He would not pause to check whether there is any enabling provision
order to be issued", continuing with the rather depressing statement
present position".10 There is not much evidence that this has chang
days.
The BPA of 1861 was amended" several times without implementing major changes in
the Indian police system and law. Bayley, in his seminal book on the Indian Police in 1969,
comes to the conclusion that the BPA already in 1861 was neither revolutionary nor partic
ularly novel. According to his judgment, the significance rather lay in the fact that the Act
provided authoritative answers to the two questions implicit in the experiments with polic
ing British India, namely "what should be the relations between imperial and rural police
and how imperial police administration should be coordinated with other functions of impe
rial authority".12 According to him, the system at the end of the 1960s had been handed
down virtually intact since 1861.13 He goes on stating that "[wjhat is particularly striking
about contemporary police structure is its permanence. Its fundamental principles of organi
zation have remained fixed for over a century. (...) is the system still compatible with a
democratic political state as it was with a colonial one?"14 Almost another 50 years later
India, Bangladesh, and until 2002 Pakistan, regardless of some modernization in State law,
still follow the basic principles laid by the BPA of 1861, despite profound "regime

9 National Police Commission, 2nd Report at 14.24 and 14.28.

10 National Police Commission, 2nd Report at 14.26.
11 See, e.g., Police Act 1888; Jammu and Kashmir (Extension of Laws) Act 1956; Police (Incitement
to Disaffection) Act 1922; Police Act 1949; State Armed Police Forces (Extension of Laws) Act
1952; Police-Forces (Restriction of Rights) Act 1966.
12 David H. Bayley, Police and Political Development in India, Princeton 1969, p. 45.
13 Ibid. pp. 49-50.
14 Ibid. p. 57.

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Arzt, Police Reform and Preventive Powers of Police in India 5 7

changes" by Independence in the middle of the last century and even despite very distinc
tive constitutional provisions for the protection of fundamental rights, as it certainly is the
case in India. Perhaps, as some suggest, the perpetuation of the British system was (and is)
in the best interest of the new rulers as well.15

D. Critical Accounts on Policing

From a German lawyer's perspective it is astonishing how much has been published on
policing and the police in India - and how little seems to be published on statutory law gov
erning the legal means of policing, i.e., police powers. On the other hand, already in the
19th century and up to date many official committees and commissions have analyzed the
state of policing in India, most of the time without "tangible" results in real life and on po
lice powers, neither during the British Raj nor in modem India. Bay ley in 1969 concludes
that "contemporary police philosophy in India is an ironic combination of British liberal
tradition and British colonial practice".16 Has policing in general and the respect of consti
tutional and fundamental rights by the police changed for the better since then? More recent
publications and an evaluation of the extensive jurisprudence by the SC certainly do not de
pict a better picture than in 1969, rather to the contrary, as I will show in more detail later in
this paper. Interestingly, however, the legal means and police powers are hardly ever dis
cussed in academic writing or the public debate. Some authors mention the basic idea of the
rule of law. Nevertheless, this hardly ever transcends a passing mention of the law without
going into much detail. When discussing limitations of police powers, reference is made
rather to human rights than to fundamental freedoms under the Indian Constitution, which
is astonishing from my point of view. It seems that a well-grounded legal analysis of police
powers and their necessary limitations under the rule of law still is on the waiting list in
legal academia in India.

I. The Public Perception and the Supreme Court

Talking about the police to the aam aadmi (common man) in India will hardly ever result in
a positive statement about the institution. Not different in academic writing. In short, un
lawfulness, behavior and distmst in the police seem to be major problems of the Indian po
lice.17 Numberless examples of complaints about misbehavior, mala fide practices and un
lawful action can be found in the media, in scholarly writing, and in Jurisprudence. The Na
tional Human Rights Commission (NHRC), which was constituted under the Human Rights
Act of 1993, in 1999 alone received a total of almost 55,000 complaints, of which many

15 Cf. K.S. Subramanian, Political Violence and the Police in India, New Delhi 2007, pp. 63-64, 75.
16 Bayley, note 12, p. 422.
17 See, e.g., G.P. Joshi, Policing In India - Some Unpleasant Essays, New Delhi, 2013; Kamalaxi G.
Tadsad/Harish Ramaswami, Human rights and police administration, New Delhi 2012; Sankar
Sen, Enforcing Police Accountability through Civilian Oversight, New Delhi 2010.

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 58 Verfassung und Recht in Übersee VRÜ 49 (2016)

concerned the police.18 Obviously not satisfied with the police deali
fore this body, the Commission in a drastic step in November 2013 as
of Maharashtra to arrest and bring the Commissioner of Police, Pun
sion on a set date, because of his "casual and mechanical approach (..
to the human rights violation of a person of Scheduled Caste."19 In 20
ence to D.K. Basu v. State of West Bengal20 summarized with most
"Policemen must learn how to behave as public servants in a democrat
oppressors of the people."21 When studying the plethora of SC rulin
ior and use of illegal means, there remains little doubt that in many,
cases the victims belong to the poor and marginalized sections of s
changes may have taken place in the police of at least some States,
police are still facing a major problem when it comes to adherence
mental rights as well as to the rule of law.22 On the other hand, beca
perception of a malfunctioning criminal justice system, probably quite
the public does not mind when the police resort to illegal means as fa
i.e. extrajudicial killings23. As Sen puts it, the "police are encouraged t
of society because the criminal justice system is not functioning and
tire administration of justice is too big a task."24

II. Illegal Means and Third Degree Methods

As a result, discussion of the use of illegal means by police is "stand

ing.25 The use of illegal means to produce evidence and to obtain con
referred to as "third degree" methods of investigation. In addition, ev
just a few cases is said to be a product of padding and concoction,

18 See Sankar Sen, Tryst with Law Enforcement and Human Rights, New De
19 NHRC press release, 25.11.2013, at http://nhrc.nic.in/dispArchive.asp?f
on 16 March 2016).
20 (1997) 1 SCC 416.
21 Mehboob Batcha v. State, (2011) 7 SCC 45 (53), introducing the case agai
the remarks: "If ever there was a case which cried out for death penalty
47).
22 See, e.g. Sen, note 18, pp. 333-379; see also NHRC reports on some individual cases at http://nhrc.
nic.in/PoliceCases.htm-.

23 See, e.g., the case in People's Union for Civil Liberties v. Union of India, 1997 SCR (1) 923 at
929, where the police seized "two persons along with some others (...) from a hut, taken to a long
distance away in a truck and shot there. This type of activity cannot certainly be countenanced by
the courts even in the case of disturbed areas." Most actual Rotash Kumar v. Haryana, AIR 2014
SC (Supp) 182, were compensation of 2 Mio. Rs. was granted.
24 Sen, note 18, p. 352.
25 See also NPC, 4th Report, at 27.26.

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Arzt, Police Reform and Preventive Powers of Police in India 59

dards of evidence required by the Courts.26 This at least seems to be a broad perception on
the side of police officers even though already in 1978 the SC pointed out that the "[credi
bility of testimony, oral and circumstantial, depends considerably on a judicial evaluation
of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable
doubt should be adduced in all criminal cases, it is not necessary that it should be perfect
(...) Why fake up? (...) We are satisfied that the broad features of the case, the general
trend of the testimony and the convincing array of facts which are indisputable, converge to
the only conclusion that may be reasonably drawn, namely, that the accused are guilty."27
Especially when it comes to "gang dacoity" or "terrorism", fake encounters as well as
true encounters often seem to be the easiest device to earn rewards and recognition for a
police officer.28 It seems to be widely believed inside the police that the only effective strat
egy to deal with criminal and extremist violence is to "overcome" inadequacies and loop
holes in the laws and procedures that govern criminal trials.29 Some police officers are
downright known as "encounter specialists". The National Human Rights Commission
(NHRC) recently documented 555 cases of alleged fake encounters across India from Octo
ber 2009 till February 2013 alone,30 while the number of cases registered with the NHRC
amounts to almost 3000 for the period from October 1993 to April 2010. How many of
these cases really involved illegal killings by the police is highly controversial, however
there is no doubt that such cases do exist31 to a significant amount.32
The regular and indiscriminate use of handcuffing also was an issue under the scrutiny
of the SC,33 stating in more than one case that mandatory handcuffing during arrest violates
Articles 14, 19 and 21 Constitution. However, the guidelines of the SC in Prem Shankar
Shukla34 presumably did not bring an end to frequent resort of the police to handcuffing as
a more or less "normal" procedure.35

26 See, e.g., Kirpal Dhillon, Police and Politics in India, New Delhi 2005, p. 154.
27 Inder Singh v State, (1978) 4 SCC 161 at 162-63.
28 See NPC 8th Report, at 61.38; James Vadackumchery, Wounded Justice and the Story of the Indian
Police, New Delhi 2001, p. 11-31; Sen, note 18, p. 352.
29 Dhillon, note 26, pp. 174-176 and 193, giving examples of official "approval" of such methods.
30 India Today 4.7.2013 at http://indiatoday.intoday.in/story/fake-encounters-congress-ruled-states-n
arendra-modi-gujarat/1/286891 .html.

31 For some most recent cases see, e.g., Mehboob Batcha v. State, (2011) 7 SCC 45 and Prakash
Kadam v. Ramprasad Vishwnath Gupta, (2011) 6 SCC 189.
32 Cf. Sanjeev Sirohi, Fake Encounters Must be Punished with Death, Criminal Law Journal 118
(2012), p. 164-67.
33 See Anu Tivari, Handcuffing of Detainees: A "Cuff' on Our Legal Thought and Process, Criminal
Law Journal 111(2005), pp. 98-104; NPC 3rd Report at 22.31; see also State of Maharasthra v.
Ravikant S. Patil, (1991) 2 SCC 373; Sunil Gupta v. M P, (1990) 3 SCC 119; Aeltemesh Rein v.
Union India (1988) 4 SCC 54.
34 Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526 at 538.
35 Tivari, note 33, p. 102, with reference to case law.

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 60 Verfassung und Recht in Ubersee VRÜ 49 (2016)

III. Arrest and Custodial Death

A person being taken into arrest by the police finds her- or himself in a very vulnera
position, which the National Police Commission (NPC) appropriately betokens as the "tr
ma of arrest".36 According to the Commission's findings, legal provisions granting disc
tionary power of arrest to the police, which might be unavoidable in general, lead to corr
tion and malpractices.37 Therefore the arrest of a person according to the NPC can only b
governed by public interest and the actual requirements of an investigation and not by
"mere desire of the police to show off their power".38 The NPC summarizes that pub
"fear of police essentially stems from the fear of an arrest by the police in some connectio
or other."39 However, the NPC also points to the fact that it is not only the police who ma
be responsible for a high number of arrests that at the end turn out to be unnecessary.40
"Apart from a legal perception of the necessity to make arrests in cognizable cases, the po
lice are also frequently pressed by the force and expectations of public opinion in certa
situations to make arrests, merely to create an impression of effectiveness. (...) The a
nouncement that no arrest has been made in a particular case is thus commonly "he
against the police."41 As a consequence, however, the NPC only demands guidelines fo
making arrests42 instead of examining in more detail the perhaps not sufficient safeguar
in the CrPC.

The National Human Rights Commission right after its constitution in 1993 ordered
that all cases of deaths in police custody have to be reported to the Commission within
hours for further inquiry 43 Cruel treatment and even death of persons in custody or arre
give reason for many rulings in individual or Public Interest Litigation (PIL44) cases and th
SC, e.g. in 1985, urged "to amend the law appropriately so that policemen who commi
atrocities on persons who are in their custody are not allowed to escape by reason of pauci
ty or absence of evidence. (...) Bound by ties of a kind of brotherhood, they often prefer
remain silent in such situations and when they choose to speak, they put their own glo
upon facts and pervert the truth (...)"45 Again in D.K. Basu v. West Bengal the SC raise
the point: "Custodial violence, including torture and death in the lock ups, strikes a blow a

36 NPC 3rd Report, at 22.22.

37 Ibid at 22.20-21 and 22.28.

38 NPC 4th Report, at 27.24.

39 NPC 3rd Report, at 22.24.
40 See NPC 3rd Report, at 22.23.
41 NPC 3rd Report, at 22.27.
42 NPC 3rd Report, at 22.28.
43 See, e.g., http://nhrc.nic.in/cdcases.htm (last accessed on 16 March 2016); see also Defining an
Absence: Torture 'Debate' in India; Economic & Political Weekly 28/06/2014, p. 69.
44 On the constitutional base of PIL see S.P. Gupta v. President Of India, AIR 1982 SC 149, at 188 et
seq.

45 State of U.P. v. Ram Sagar Yadav, AIR 1985 SC 416 at 421.

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Arzt, Police Reform and Preventive Powers of Police in India 61

the Rule of Law, which demands that the powers of the executive should not only be de
rived from law but also that the same should be limited by law. (.. .)."46
Not much has changed in policing since these two SC decisions. Still, the very law of
the land an its statutory foundations are in urgent need of close examination,47 not only pos
sible excesses of the police in enforcing that law. To counter illegal methods and shortfalls
the Model Police Act of 2006 proposed to introduce criminal penalties for common defaults
committed by the police, such as non-registration of a First Information Report (FIR) under
Sec. 154 CrPC48, unlawful arrest, detention, search and seizure, to bring into sharp focus
for the police personnel that some of their practices are not only illegal, but also criminal
offences under the law of the land.49

Since the Judiciary in cases of police misbehavior and infringements of fundamental

and human rights often cannot provide for redress in due time,50 the SC since the 1980s is
putting an emphasis on financial compensation for police abuse of powers also as a means
of preventing illegal action and enforcing due compliance with human and fundamental
rights by the police in the future.51 Thus financial compensation to some extent has become
a remedy under public law which not only has the function to "civilize public power" but
also to assure the citizens that they live under a legal system wherein their rights and inter
ests shall be protected and preserved.52 However, such compensation may not have any de
terrent effect unless police officers are personally made liable.53

E. Police Commissions and Committees

Several official and high-ranking commissions and committees on police reform have been
set up in India on the Union level54 in the last decades. The fact that the first one ever was
inaugurated only 30 years after independence is striking enough, underlining that at a

46 D.K. Basu v. West Bengal, (1997) 1 SCC 416 at 424.

47 One noteworthy exception is Devi, note , which remarkably has been published in the UK.
48 A very common problem; see, e.g. Lalita Kumari v. Govt, of U.P., 2014 AIR SC 187.
49 http://www.mha.nic.in/sites/upload_files/mha/files/pdf/Press_Brief_Oct_30.pdf (last accessed on
16 March 2016).
50 Cf. Sebastian Hongray v. Union of India, (1984) 1 SCC 339.
51 See Rudul Sah v. State of Bihar, (1983) 4 SCC 141, commonly referred as the first case; see also
Sebastian Hongray v. Union of India, (1984) 1 SCC 339; Bhim Singh v. State of Jammu & Kash
mir, (1985) SCC 677; D.K. Basu v. West Bengal, (1997) 1 SCC 416; Rotash Kumar v. Haryana
AIR 2014 SC (Supp) 182, were compensation of 2 Mio. Rs. for illegal killing by police was grant
ed.

52 Durga Das Basu, Commentary on the Constitution of India, Agra 2007, pp. 3215-16.
53 Devi, note 4, p. 74; see also Arvinder Singh Bagga v. State of U.P, 1995 AIR SC 117 at 119: "... it
will be open to the State to recover personally the amount of compensation from the police officers
concerned".

54 Many states set up State Police Commissions since Independence, which cannot be dealt with
here.

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62 Verfassung und Recht in Übersee VRÜ 49 (2016)

"colonial hangover"55 was accepted by government and legislators for

such Commission, the National Police Commission (NPC) 1977-81
Union government in 1977. It was given a very broad mandate, stating
changes have taken place in the country after the enactment of the In
and the setting up of the second Police Commission of 1902, partic
thirty years of Independence."56 The NPC produced no less than eight
tween 1979 and 1981, making wide-reaching recommendations on p
years after the enactment of the BP A of 1861, the NPC in 1981 als
comprehensive bill for a complete replacement of said Act. Chapter
powers and responsibilities of the police without clearly separating du
police. The draft grants - inter alia - vast powers to the police to limi
damental rights, e.g., freedom of assembly or freedom of speech, by m
The ambitious project of the first NPC however never attracted much i
Fifteen years later, two former senior police officers filed a PIL in
Court to direct Union and State governments to implement the rec
NPC 1979-81,59 which had not yet been implemented by any gover
the directions of the SC in May 1998, the Union government set up
Committee. The Committee released two reports which both focused o
and accountability, but not on the powers of the police. However, th
ing ranks with the NPC in its call for a new Police Act. Shortly after
reports, the Union government installed yet another committee to lo
form. The Padmanabhaiah Committee was vested with a broad agend
in a few months. The committee released its only report in Augus
Committee, the Police Act Drafting Committee (PADC), also known
Committee, was set up by the Ministry of Home Affairs and concluded
2006. The draft prepared by the PADC was also published online to m
in the Committee's deliberations. The Police Act Drafting Committe
hensive draft for a new Police Act.61 The Preamble already outlines a
inter alia stating "respect for and promotion of the human rights of
tion of their civil, political, social, economic and cultural rights" to be

55 Dhillon, note 26, p. 52, using this notion in a slightly different context.
56 NPC lsl Report, Preface.
57 Short summary at CHR1, Police Reform Debates in India, p. 3-19 at w
tive.org/publications/police/PRDebatesInlndia.pdf (last accessed on 16 Ma
at http://bprd.nic.in/searchdetail.asp?lid=407 (last accessed on 16 March 201
58 For a critical evaluation see Arvind Verma, The Indian Police: A Critical
2005, pp. 206-28.
59 Prakash Singh & Ors. v. Union of India & Ors, Writ petition (civil) No. 31
60 As for the Ribeiro Committee no official documentation of this commission

61 http://www.mha.nic.in/sites/upload_f1les/mha/files/pdf/ModelActO6_3O_
16 March 2016).

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Arzt, Police Reform and Preventive Powers of Police in India 63

of the Rule of Law". In the following years some States adjusted their Police Acts to a
broader or smaller extent (but see next chapter) to this Model Police Act, which cannot be
analyzed here in detail. However, with regards to preventive powers major changes obvi
ously did not take place.

F. The Supreme Court on Police Reform

In 1996, two former police officers joined by an NGO filed a PIL writ with the SC urging
police reforms to bring the police in line with the needs of a democratic system bound by
the rule of law, thus finally leaving behind the legacy of the colonial BPA of 1861. With a
delay of 10 years, the SC in 2006 in the landmark decision Prakash Singh v. Union of India
took a stand on the lack of modernization of the police in India giving very clear directions
to the legislative and executive in charge. The Court, inter alia, states that "[bjesides the
Home Minister, all the Commissions and Committees ... have broadly come to the same
conclusion on the issue of urgent need for police reforms. There is convergence of views on
the need to have (a) State Security Commission at State level; (b) transparent procedure for
the appointment of Police Chief and the desirability of giving him a minimum fixed tenure;
(c) separation of investigation work from law and order; and (d) a new Police Act which
should reflect the democratic aspirations of the people".62 The Court mandated the Central
Government, State Governments or Union Territories to comply with its directions by the
end of 2006 and to file affidavits of compliance by January 2007. As a consequence of the
obvious delay the SC extended the period for compliance for a couple of weeks. Apparently
the granted extension time did not solve the problem. On May 16, 200863 the SC set up a
Monitoring Committee to evaluate compliance, giving this commission a time limit of 2
years suggesting that extension might be granted if necessary. Summarizing its findings, the
Committee64 in 2010 stated that practically no State had fully complied with the SC's direc
tive. Some States chose to not even respond to several requests of the Committee. The
Committee concluded that "it would like to express its dismay over the total indifference to
the issues of reforms in the functioning of Police being exhibited by the States".65 How
ever, it seems that neither the SC's directives nor the Committee's findings could cut the
Gordian knot. Therefore, in October 2012 the SC ordered all State governments and Union
territories to file affidavits stating to what extent the September 2006 judgment had been
complied with. In August 2013 three major States in an attempt to block the SC's interven
tions - years after the first decision was handed down - raised constitutional objections
against any interference on the part of the SC claiming that the whole matter was within

62 Prakash Singh & Ors. v. Union of India & Ors.

63 Prakash Singh & Ors. v. Union of India & Ors., 16.05.2008.
64 https://docs.google.com/viewer?a=v&pid=sites&srcid=ZGVmYXVsdGRvbWFpbnxwcmFrYXNo
MXBhZ2V8Z3g6NmYxOGM3NzJlZTExNjdkYw&pli=0 (last accessed on 16 March 2016).
65 Ibid, para 29.

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 64 Verfassung und Recht in Übersee VRÜ 49 (2016)

executive powers and functions alone.66 At the end of 2013 many if n

67
still had not complied with many directions of the Court for police ref

G. Fundamental Rights under the Indian Constitution

Fundamental rights or "freedoms" are protected under part III of the Constitution, which
includes reference to generally accepted Human Rights as well.68 Most important for this
study are Articles 19, 21 and 22 Indian Constitution. Restrictions under martial law
(Art. 34) however, shall not be dealt with here because of their inherent discrepancy from
the very idea of fundamental rights and also because this is outside of the scope of this pa
per.

I. Art. 19: Freedom of Speech, Assembly, Movement and Other Rights

According to Art. 19, all citizens shall have the right (a) to freedom of speech and expres
sion; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to
move freely throughout the territory of India; (e) to reside and settle in any part of the terri
tory of India; and (g) to practice any profession, or to carry on any occupation, trade or
business. These fundamental freedoms protected by Art. 19(1) are considered to be "great
and basic rights which are recognized and guaranteed as the natural rights inherent in the
status of a citizen of a free country"69 by the SC. Freedoms are not without limitations or
restrictions though, as clauses (2) to (6) demonstrate. While Art. 19 does not grant absolute
freedom, the Constitution provides for limitations on the power of the legislature to restrict
such freedoms.70 "Reasonable restrictions" on said freedoms can be implemented by the
State to protect, inter alia, public order, decency or morality, which are the most important
justifications for limitations on freedoms protected under Art. 19 by the police.71 Any re
striction on a fundamental right thus has to withstand the test of reasonableness, subject to
supervision by the Courts.72 According to the SC, "reasonable restriction" signifies that the

66 See The Times of India, 16.8.2013, at http://articles.timesofindia.indiatimes.com/2013-08-16/india

/41416778_l_police-reforms-maharashtra-government-police-establishment-board (last accessed
on 16 March 2016).
67 See The Hindu 1.11.2013, at www.thehindu.com/news/national/fiat-on-police-reforms-still-re
mains-on-paper/article5302489.ece (last accessed on 16 March 2016).
68 Railway Board v. Chandrima Das, (2000) 2 SCC 465 at 481.
69 State of West Bengal v. Subodh Gopal Bose, AIR 1954 SC 92 at 95.
70 M.P. Jain, Indian Constitutional Law, Gurgaon, 2013, p. 1421.
71 Emergency or terrorism law, lying outside "standard" powers of police will not be covered by this
piece; on this , e.g., Jatinder Singh, Democracy and Anti-terrorism Laws, Economic & Political
Weekly 15/07/2015, p. 27; Alok Prasanna Kumar, Unconstitutionality of Anti-Terror Laws, ibid.
11/07/2015, p. 35.
72 V.N. Shukla, Constitution of India, Lucknow, 11th Ed 2012 (reprint), p. 11; Jain, note 70, p.
1422-1427, for a more detailed discussion.

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Arzt, Police Reform and Preventive Powers of Police in India
65

limitation imposed on a person in enjoyment of the right should not be arbitrary or of an

excessive nature, beyond what is required in the interests of the public. Any restriction
which arbitrarily or excessively invades a fundamental right "cannot be said to contain the
quality of reasonableness and unless it strikes a proper balance between the freedoms guar
anteed in Art 19(1) (g) and the social control permitted by clause (6) of Art. 19, it must be
held to be wanting in that quality."73
Art. 19(l)(b) protects the right to assemble peaceably and without arms, which excludes
any riotous assembly. Comparable to restrictions on Art. 19(l)(a), Art. 19(3) gives the State
the right to put "reasonable" restrictions on the freedom of assembly in the interest of pub
lic order, thus referring to the same concept as in Sec. (2). The SC has pointed out that,
unlike under Common Law in England, the right to assemble peacefully cannot be abridged
except by imposing reasonable restrictions.74 This is also an interesting counterpoint to the
common law argument in discussing the necessity of a critical analysis of statutory law. Re
quiring prior permission to be obtained before holding a public meeting a public street is
within constitutional limits. But the "State can only make regulations in aid of the right of
assembly of each citizen and can only impose reasonable restrictions in the interest of pub
lic order."75 According to the SC, anticipatory action under Sec. 144 CrPC against assem
blies is constitutional under the public order clause in Art. 19 (2) and (3).76 It is, however,
uncontested that reasonable regulation or restrictions of an assembly from a constitutional
perspective can never amount to a complete extinction of the fundamental freedom.77
The right of free movement under Art. 19(l)(d) and residence in the territory of India
under Art. 19(l)(e) gives every citizen the right to move freely between the States as well
as within a single state without any restriction whatsoever. Nevertheless, removal or extern
ment from a given place, e.g., a district or city, is one of the most relevant police powers
given its obviously widespread use.78 This preventive means clearly has to be distinguished
from punishment, even though the male fide practice of the police seems to be different in
more than a few cases.79 Limitations are only permissible in accordance with Art. 19(5) as
far as reasonable in the "interest of the general public". While the SC does not negate the
constitutionality of externment orders in general, the Court has put limitations on such or
ders with respect to Art. 19(5) in various cases.80 An "order of externment must always be

73 Bishamber Dayal Chandra Mohan v. State of Uttar Pradesh, AIR 1982 SC 33 at 46.
74 Himat Lai K. Shah v. Commissioner of Police, Ahmedabad, AIR 1973 SC 87 at 95.
75 Ibid.

76 Babulal Parate v. State of Maharashtra, AIR 1961 SC 884 at 891.

77 Basu, note 52, p. 2730; see also Express Newspapers v. Union of India, (1986) 1 SCC 133 at 195.
78 Jain, note 70, p. 1487; Basu, note 52, pp. 2796-2814, with many references to case law.
79 See, e.g., Prem Chand v. Union of India, AIR 1981 SC 613.
80 See, e.g., State of Madhya Pradesh v. Thakur Bharat Singh, 1967 SCR (2) 454 at 458; Madhya
Pradesh v. Baldeo Prasad, 1961 SCR 970 at 978 and 980; more restrictive in Prem Chand v. Union
of India, AIR 1981 SC 613 at 616-17.

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66 Verfassung und Recht in Übersee VRÜ 49 (2016)

restricted to the area of illegal activities of the externee",81 which may

an entire State but may not specify any place outside that State whe
remain. The duration of such orders must also be reasonable, but the S
uphold Acts that provided for an externment of up to two years.82 Ev
for an indefinite period of time were held not to be unreasonable by
vided for the possibility of the aggrieved person to apply for review of

II. Art. 21: Protection of Human Life and Personal Liberty

Constitutional protection against illegal or unconstitutional use of poli

inter alia, in Art. 21, warranting the protection of human life and pe
tled that Art. 21 has to be read together with Art. 19 and 14.84 Accord
son85 shall be deprived of life or personal liberty except according
lished by law" which requires a valid parliamentary law.86 Besides, s
stitutionally valid under all (other) fundamental rights, too.87 The not
ty" over the decades was construed in a progressively broad sense by
perhaps be attributed to the experiences of the proclamation of emerg
and the attempt of the SC to resurrect its credibility. Today it is sett
and 21 are not mutually exclusive.90 The "procedure established by
under constitutional auspices and cannot be read "narrowly" to give th
delimit life and liberty almost at zero as long as the procedure is es
ever, the SC only in 1978 adopted an approach that any "law" under
the test of fair, just and reasonable law itself, not very different from
cess concept.91 With reference to Maneka Gandhi and later decisions
SC in Mithu v. State of Punjab summarized that these "decisions hav
of Art. 21 in a significant way and it is now too late in the day to cont

81 Lt. Governor, NCT Delhi v. Ved Prakash, (2006) 5 SCC 228 at 237.
82 Gurbachan v. State of Bombay, 1952 SCR 737; State of Maharashtra v. S
SCR (1)970.
83 State of U.P. v. Kaushaliya, 1964 SCR (4) 1002.
84 R.C. Cooper v. Union of India 1970 SCR (3) 530 passim; see also Mane
India 1978 SCR (2) 621; A. K. Roy v. Union of India 1982 SCR (2) 272 at 3
85 While Art. 19 refers to citizens, Art. 21 encompasses any person.
86 Basu, note 52, pp. 3152, 3154.
87 Ibid. p. 3155.
88 Shukla, note 72, p. 196.
89 Jain, note 70, p. 1571.
90 Maneka Gandhi v. Union of India 1978 SCR (2) 621 at 670.
91 Zhia Mody, 10 Judgements that Changed India, New Delhi 2013, p. 43; s
Rameshbhai Chandubhai Rathod v. Gujarat, (2009) 5 SCC 740 at 784.

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Arzt. Police Reform and Preventive Powers of Police in India 67

Legislature to prescribe the procedure and for the Court to follow it adding that "the
last word on the question of justice and fairness does not rest with the legislature."92
Another widespread means is (secret) police surveillance of one's home and move
ments, watching and keeping a record of visitors, or domiciliary visits at night, periodical
enquiries of officers into habits, income etc., and others means, aimed at the prevention of
the commission of crimes by the aggrieved person. The SC in an early finding refused to
consider such measures of surveillance to be an encroachment upon Art. 19(l)(d) or any
other fundamental right while the domiciliary visits were judged to be unconstitutional un
der Art. 21 because the relevant "police regulation" did not constitute a "law" under the
constitutional notion.93 With the advent of "a right to privacy" in the SC jurisprudence, this
understanding could no longer be perpetuated and regulations under police law of Madhya
Pradesh were therefore held to be interpreted narrowly, subject to reasonable restrictions on
the basis of compelling public interest.94 A few years later the Court, while dismissing the
case, emphasized that "[prevention of crime is one of the prime purposes of the constitu
tion of a police force. ... But surveillance may be intrusive and it may so seriously encroach
on the privacy of a citizen as to infringe his fundamental right to personal liberty guaran
teed by Art. 21 of the Constitution and the freedom of movement guaranteed by Art. 19(1)
(d)"95 (see also next paragraph). Thus, while a right to privacy is not explicitly laid down in
the Indian Constitution, the SC has construed such a fundamental right by interpretation of
Art. 19(l)(a) and, more importantly, Art. 21.96 After some controversy in an early case,97
with a majority rejecting a fundamental right to privacy being enshrined in the Indian Con
stitution, a bench of two Justices more than a decade later declared that the "right to privacy
is implicit in the right to life and liberty guaranteed to the citizens of this country by
Art. 21. It is a "right to be let alone".98 Consequently the lack of an explicit fundamental
right to the secrecy of letters, post, and telecommunications did not preclude the SC from
construing the protection of telecommunications under Art. 21, stating that the right to pri
vacy also grants protection against telephone tapping unless legitimately restricted by a pro
cedure established by law.99 To summarize, it seems to be appropriate to state that after
Maneka Ghandi the notion of "life" in Art. 21 has been given a very broad meaning as it is

92 1983 SCR (2) 690 at 698-99.

93 Kharak Singh v. State of Uttar Pradesh, 1964 SCR (1) 332, but see also the dissenting opinion
which held Art. 19(1) (a) and (d) to be infringed.
94 Govind v. Madhya Pradesh, 1975 SCR (3) 946.
95 Malak Singh v. Punjab & Haryana, 1981 SCR 311 at 317.
96 See "Architecture of Surveillance" in: Economic & Political Weekly 04.01.2014, p 10-12.
97 Kharak Singh v. State of U.P., 1964 SCR (1) 332.
98 Rajagopal v. State of Tamil Nadu 1995 AIR SC 264 at 276; referring however to the relationship
of a private person versus the media.

99 People's Union for Civil Liberties v. Union of India AIR 1997 SC 568 at 574; see also State of
Maharashtra v. Bharat Shanti Lai Shah (2008).

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68 Verfassung und Recht in Übersee VRÜ 49 (2016)

the case for "personal liberty" making this Article a "source of m

procedural safeguards"100 in Indian law.

III. Art. 22: Arrest and Preventive Detention

In addition to the fundamental rights guaranteed by Art. 21 on th

other hand specifies the procedural rights of a person under "arr
stantially protect his right to life and personal liberty. Accord
who is arrested shall be detained in custody without being inform
the grounds for such arrest nor shall he be denied the right to c
by, a legal practitioner of his choice. As an exemption to Clau
down special provisions for persons who are "alien enemies" o
tion". "Preventive detention", according to its wording and legal
British India101 however refers to a precautionary measure unde
guished from police law and criminal procedure law in general, w
here for lack of space. Arrest refers to any arrest on the allegatio
ted, or is likely to commit, an act of criminal or quasi-cnmma\ n
udicial to the public interest.102 In Joginder Kumar v. State o
pointed out that because "[ajrrest and detention in police lock-u
calculable harm to the reputation and self-esteem of a person",
cause it is lawful for the police officer to do so. The existence of
thing. The justification for the exercise of it is quite another. The
to justify the arrest apart from his power to do so." For lack of
with arrest in this piece, unfortunately.104

H. Preventive Powers of Police under the British Police Act of

Even though to date, many Indian States have enacted new Police
some extent still is a "role model" with regards to police powers
here, also because a detailed analysis of police law in the State
tions of this paper. Thus the following remarks can only refer to
seem to be important with reference to constitutional freedoms.

100 Jam, note 70, p. 1575-86.

101 See Shukla, note 72, pp. 218-19.
102 Jain, note 70, p. 1664 with reference to State of Punjab v. Ajaib Si
103 AIR 1994 SC 1349 at 1353-54.
104 But see Devi, note 4.

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Arzt, Police Reform and Preventive Powers of Police in India 69

I. Section 23: Duties of Police Officers are Different from Powers

According to Sec. 23 it "shall be the duty of every police-officer promptly to obey and exe
cute all orders and warrants lawfully issued to him by any competent authority, to collect
and communicate intelligence affecting the public peace, to prevent the commission of of
fences and public nuisances, to detect and bring offences to justice and to apprehend all
persons whom he is legally authorized to apprehend and for whose apprehension sufficient
ground exists: and it shall be lawful for every police-officer, for any of the purposes men
tioned in this Sec., without a warrant, to enter and inspect any drinking shop, gaming house
or other place of resort of loose and disorderly characters."
Notwithstanding its heading, Sec. 23 commonly is understood not only to implement
"duties" but also to grant "powers" to the police.105 The underlying assumption seems to be
that any duty transferred to the police automatically includes the necessary powers. This,
however, is in conflict with the idea of the rule of law. With regards to the discrepancy of
heading and full text obviously the rule requires interpretation and needs to be construed
according to the general rules for the interpretation of legal rules.106 While most of Sec. 23
clearly refers to duties of police officers, yet wording and grammar clearly indicate a shift
in perspective when stating that "it shall be lawful for every police-officer ..." to enter and
inspect certain areas. The literal meaning of "duty" refers to a legal obligation or responsi
bility.107 However, the meaning of words and expressions used in an Act must also consider
the context in which they appear and statutes must be read as a whole.108 Reference to the
historical intentions of the lawmaker may also be helpful, in this case however, a reference
to the pre-constitutional setting under the British rule does not appear to be justified in the
context of a modern constitutional state. From a grammatical point of view Sec. 23 deter
mines that it "shall be the duty to" carry out certain onuses, comprising the collection of
intelligence, the prevention of offences as well as the detection of such offences. Under
Sec. 23 police officers also have "the duty to ... apprehend" while subsequently it is clearly
stated that he may only apprehend "whom he is legally authorized to apprehend and for
whose apprehension sufficient ground exists".
From my point of view, a critical analysis leaves no doubt that Sec. 23 itself does not
grant any "power" (or authority) to apprehend a person but only makes clear that a police
officer has a "duty" to apprehend those persons mentioned under the legal provisions for
such an apprehension.109 Only the very last part of Sec. 23 really grants a "power" to act
against citizens when it is stated that "it shall be lawful for every police-officer, for any of

105 See, e.g., Chandra Behari, Police Act 1861, Allahabad 1961, p. 18.
106 Most sophisticated G.P. Singh, Principles of Statutory Interpretation, Agra 2008; see also
Raichurmatham Prabhakar v. Rawatmal Dugar, AIR 2004 SC 3625 (3630).
107 Oxford Dictionary of English (2010).
108 Singh, note 106, p. 338.
109 See also P.P. Bhanage, The Bombay Police Act, 1951, Bombay 1974, p. 142, who, however, in
terfuses duties and powers.

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70 Verfassung und Recht in Übersee VRÜ 49 (2016)

the purposes mentioned in this Sec., without a warrant, to enter and

shop, gaming house or other place of resort of loose and disorderly
wording it is unambiguous however that such powers are granted on
cumstances, i.e. when the place the officers enters itself is special
plicitly mentioned in the Act (drinking shop or gaming house) or
(place of resort of certain characters). A comparative look into th
1951 supports that there is a clear, distinct difference between "dut
ers" of the police as laid down in Chapter VI of this Act. Much in
BPA of 1861, Sec. 64 of the Bombay Police Act refers to duties of po
"power" to enter places is stipulated in Sec. 65(1), which under Sub
police officers to search suspected persons on the street. According
jarat High Court"0 "it is very clear that Sec. 64 does not refer to a
given to a police officer to obtain or record statement of person
able offences". Sec. 18 BPA of 1861 also confirms a clear-cut distin
and duties of police officers. According to this rule, every special po
17 "shall have same powers, privileges and protection, and shall be
same duties ... as the ordinary officers of police".
In conclusion it must be emphasized that the equalization of "p
which is still a widespread concept in India, does not correctly reflec
rather seems to reflect a lack of differentiation also present in the i
CrPC (see below). To impose certain duties on a police officer does
cer with powers or authority to execute such duties because it is t
decide under the rule of law which powers are granted and what sho
uisites and thresholds for such powers to protect the fundamental rig

II. Sections 30 - 32: Public Assemblies and Processions

Sec. 30 provides for the regulation of public assemblies and processions by the police but
also vests the Magistrate with some powers. According to Sub Sec. (1) the "District Super
intendent or Assistant District Superintendent of Police may, as occasion requires, direct
the conduct of all assemblies and processions on the public roads or in the public streets or
thoroughfares, and prescribe the routes by which, and the times at which, such processions
may pass. Sub Sec. (2) makes it obligatory to apply for a "license" if required by the police
to do so by general or special notice in case that an assembly or procession, in the judgment
of the Magistrate, "if uncontrolled, be likely to cause a breach of the peace". From the
wording, it is clear that the Magistrate may ask for such permission only in reaction to a
particular meeting or occasion but not in general for a specified or even unlimited period of
time.111 Even though it is agreed upon that the power to "control" does not include the pow

110 Kantilal Damodardas v. Gujarat, 1970 Crim.L.J. 1359.

111 B.R. Beotra, The police acts, Allahabad 1970, p. 123, 126; Behari, note 105, p. 29.

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Arzt, Police Reform and Preventive Powers of Police in India 71

er to prohibit an assembly or procession,112 Sec. 30 grants the police almost unguided pow
er and discretion to refuse a license for an assembly altogether. Even though this raises se
vere legal questions,113 the SC so far has not declared the unconstitutionality of this Sec
tion. According to Sec. 30A, any assembly or procession which violates the conditions of
license granted under Sec. 30, may be stopped or ordered to disperse by any Magistrate or
any of the police officers enumerated in Sub Sec. (1). According to Sub Sec. (2), any pro
cession or assembly which neglects or refuses to obey any order given under aforemen
tioned sections shall be deemed to be an unlawful assembly, making participation liable to
prosecution.114 Interestingly, the procedure of dispersal is not regulated in the Police Act
itself but under Sec. 129 to 132 CrPC, which gives a first hint to the preventive powers un
der the CrPC.

According to Sec. 31 it "shall be the duty of the police to keep order on public roads
and in the public streets, thoroughfares, ghats and landing places, and at all other places of
public resort, and to prevent obstruction on the occasions of assemblies and processions on
the public roads and in the public streets, or in the neighborhood of places of worship, dur
ing the time of public worship, and in any case when any road, street, thoroughfare, ghat or
landing-place may be thronged or may be liable to be obstructed."
In terms of a very general approach and comparable to Sec. 23, this Section too impos
es certain duties on the police. There is nothing in this rule that literally makes reference to
any "power" vested in the police to fulfil such "duty", a difference that again is not at all
noticed in legal writing.
Interestingly, Sec. 32 provides for penalties for disobeying orders issued under the
aforementioned three sections. Thus the Act itself implies the power to "order" a person to
do or not to do something while in a procession or assembly. Such orders can be very broad
as long as they can reasonably be considered necessary for keeping "order" within the
meaning of the BPA.115 However, different from, e.g., Sec. 68 Bombay Police Act of 1951,
the BPA of 1861 does not provide that "[a]ll persons shall be bound to conform to the rea
sonable' directions of a Police officer given in fulfilment of any of his duties under this
Act". While the latter one tacitly implies an obligation to follow police orders, the Bombay
Act makes it a duty to obey orders only if such order is reasonable.116 This at least puts
some limitations on such penalties and the reasonableness test could be the legal barrier to
unconstitutional limitations.

112 Beotra, note 111, p. 119-21; Behari, note 105, p. 27.

113 Basu, note 52, pp. 2732-35.
114 See Sec. 141 CrPC.

115 Beotra, note 111, p. 150.

116 Ibid. p. 149.

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72 Verfassung und Recht in Übersee VRÜ 49 (2016)

I. Preventive Powers of Police under the Criminal Procedure Code of 1973

From a German lawyer's perspective it seems to be rather disturbing to find most of the
preventive powers of police dedicated to public order in the CrPC, essentially a statute that
deals with criminal justice, not with public order policing. In effect thereof exists a parallel
statutory "anchorage" of police powers, both under police law as well as under criminal
procedure law. Besides, other preventive powers are provided for under special law, e.g., on
preventive detection or arms control, which cannot be analyzed here. Thus, the CrPC is not
only adjective law of criminal justice, providing the rules for prosecution and punishment
of offenders under the Indian Penal Code (IPC), but also comprises powers that constitute
substantive law for the prevention of dangers, nuisance, or offences. From a systematic
point of view this might call for a more articulate delimitation between preventive powers
under Police Law on the one hand and Criminal Procedure Law on the other hand, both
providing for significant powers of the police to encroach upon fundamental rights. Alter
natively it might also be in the interest of the protection of constitutional freedoms to unify
all preventive powers in one Act (preferably police law) to enhance the clear-cut separation
of duties and powers of the police. However, such delimitation, for whatever reason, does
not seem to be in the focus of legal writing in India.117

I. Powers for Maintenance of Public Order and Tranquility

Chapter X of the CrPC stipulates for a broad range of powers of police for the maintenance
of public order and tranquility, using again some very vague legal notions that have to be
scrutinized here as far as the police itself is empowered to take action guided only by its
own discretion.118

1. Section 129: Dispersal of assemblies

Sec. 129 deals with the powers of specified police officers (as well as the Executive Magis
trate) to disperse any unlawful assembly or assembly of five or more persons likely to cause
a disturbance of the public peace. It does not seem to be very clear, how this power can be
delimited from the power to disperse under Sec. 30-A BPA of 1861.

117 Cf. R.V. Kelkar, Criminal Procedure, Lucknow 2011, p. 743, stating: "it was felt expedient and
necessary to include in the Code certain pre-emptive measures for the prevention of crime and
certain other precautionary measures for the safety and protection of society"; without bothering
to mention who felt such need in which context? See also Gulam Abbas v. State of Uttar Pradesh,
1982 SCR (1) 1077 at 1083: "The power conferred under section 144 Criminal Procedure Code
1973 is comparable to the power conferred on the Bombay Police under section 37 of the Bom
bay Police Act, 1951 - both the provisions having been put on the statute book to achieve the
objective of preservation of public peace and tranquility and prevention of disorder ..
118 Ratanlal Ranchhoddas & Dhirajlal Keshavlal Thakore, Code of Criminal Procedure, Gurgaon
2011, p. 219.

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Arzt, Police Reform and Preventive Powers of Police in India 73

Obviously the dispersal of an assembly in effect infringes on the fundamental right un

der Art. 19(l)(b) of the Indian Constitution.119 However, the Constitution itself provides for
restrictions on the fundamental right in Art. 19(3). Whether the dispersal amounts to an en
croachment upon the constitutionally protected freedom of assembly therefore depends on
(i) what the Constitution protects, (ii) whether statutory restrictions exist, and (iii) whether
these restrictions are reasonable means to protect the sovereignty and integrity of India or
public order. "Unlawful assembly" under Sec. 129(1) refers to an assembly unlawful under
Sec. 141 IPC.120 Only if the elements of an offence under said provision are fulfilled, an
assembly can be considered to be unlawful. This requires a common object of the partici
pants to commit any of the acts falling under Sec. 141 IPC.121 Failure of an assembly to
disperse does not make it unlawful but might entitle the police to disperse such assembly
according to Sec. 129(2).122 The question whether an assembly is unlawful under Sec. 141
IPC does not open discretionary power to the police but is a strictly legal question.
Much more troublesome from a constitutional point of view is the second alternative of
Sec. 129(1) which allows for the dispersal of any assembly of five or more persons "likely
to cause a disturbance of the public peace". Obviously the notion of "public peace" needs to
be construed in accordance with the constitutional guarantees, including the question which
amount of probability is necessary to make a disturbance "likely". The very concept and
notion of "public peace" seems to be far from clear. Construing this narrowly under the
auspices of the Constitution, an assembly is likely to cause disturbance to public peace only
if there is evidence to establish that this assembly would, in the immediate future, develop
into an unlawful one.123 Sec. 129(2) provides for the power of police or the Executive Mag
istrate to disperse an assembly by force if (i) upon being so commanded, the assembly does
nor disperse or (ii) without being so commanded, it conducts itself in such a manner as to
show a determination not to disperse.124 While alternative (i) at least requires an explicit
order of the police (or Magistrate) that stipulates clearly and precisely for the participants
that they are supposed to leave and gives them a chance to comply, this is not the case with
alternative (ii). Here it would be necessary for the participants, who at least might presume
to be protected under Art. 19(l)(b) to anticipate the legal assessment of the police or Magis
trate to escape the use of force, i.e., an encroachment upon their fundamental right protect
ed by Art. 21.

119 See Himat Lai K. Shah v. Commissioner of Police, Ahmedabad AIR 1973 SC 87.

120 Ratanlal & Dhirajlal, note 118, p. 219; S C. Sarkar, The Code of Criminal Procedure, Gurgaon
2014, p. 448.
121 Durga Das Basu, Criminal Procedure Code, 1973, Gurgaon 2010, p. 676 with reference to case
law.

122 R.C. Sohoni, The Code of Criminal Procedure, 1973, Allahabad 2003, p. 1153.
123 Ibid. p. 1155.
124 See also Sections 145, 151 IPC.

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 74 Verfassung und Recht in Übersee VRÜ 49 (2016)

This does not seem not to be acceptable from a constitutional point

police could always first resort to an explicit order under the first alt
the dispersal of an assembly, before force is to be used against part
dispersal of an assembly without prior explicit command to disperse i
constitutional safeguards for the fundamental right of freedom of ass
(b).

2. Section 144: Power to issue order in urgent cases of nuisance or apprehended danger

Especially with regard to freedom of speech and assembly126 protected by Art. 19(l)(a) and
(b), Sec. 144 must be scrutinized here, although it does not explicitly vest the police with
any powers. Given the possibility of appointing the Commissioner of Police as a special
Executive Magistrate according to Sections 21 and 20(5), powers under Sec. 144 are being
conferred to the Police at least in metropolitan areas (Sec. 8 CrPC) where the State law pro
vides for such measure. This is the case - at least - in Mumbai, Kolkata, Chennai, and Del
hi.127

According to Sec. 144(1), it is possible to "direct any person to abstain from a certain
act..." Even though Sec. 144 provides for very wide powers with a significant impact on
fundamental rights, the wording is very vague and in reality the police seem to make broad
use of the provision.128 However, from a constitutional point of view only exceptional cir
cumstances can legitimize an encroachment upon fundamental rights under this provi
sion.129 Thus Sec. 144 needs to be limited to extra-ordinary situations of "emergency"130 or
"urgent cases of nuisance or apprehended danger".131 "Danger" here seems to be the more
appropriate notion to make it clearly distinguishable from "emergency law". An imminent
danger to values like human life and safety certainly may legitimize such measure. Never
theless, it seems that Sec. 144 also in cases of disturbances of the public tranquility seems
to be a "door-opener" for abuse, its powers broadly being used within the realm of freedom
of assembly, e.g., to prohibit an assembly or a meeting, the uttering of "provocative slo
gans" or the use of loudspeakers.132

125 Cf. Chauhan, J. (concurring), Ramlila Maidan Incident v. Home Secretary, Union of India,
(2012) 5 SCC 1 at 122.
126 See Ramlila Maidan Incident v. Home Secretary, Union of India, (2012) 5 SCC 1 at 44.
127 See Sarkar, note 120, pp. 65 and 492.
128 Manupatra gives 1600 counts on this provision (as of 16/02/2016).
129 Sarkar, note 120, pp. 487,489 with reference to case law.
130 Ibid. pp. 487-90; see also Ramlila Maidan Incident v. Home Secretary, Union of India, (2012) 5
SCC 1 at 67.

131 Gulam Abbas v. State of Uttar Pradesh, 1982 SCR (1) 1077 at 1083.
132 See, e.g., In Re Ramlila Maidan Incident v. Home Secretary, Union of India, (2012) 5 SCC 1; see
also reference to cases in Basu, note 121, p. 717.

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Arzt, Police Reform and Preventive Powers of Police in India 7 5

Sec. 144 also seems to be broadly used against persons held to be "criminals" or "anti
social elements" by the police. Given the possibility of severe restrictions on fundamental
rights, the question of constitutionality of this Section and orders under this provision has to
be raised. The SC never repudiated the powers under this Section in toto but requested the
restrictions to be reasonable.133 The SC therefore sets certain standards to be followed.
With reference to reasonable limitations to protect "public order" as mentioned in
Art. 19(2), the SC in Madhu Limaye required "urgency of the situation and its efficacy in
the likelihood of being able to prevent some harmful consequences. (...) As it is possible to
act under the Section absolutely and even ex-parte it is obvious that the emergency must be
sudden, and the consequences sufficiently grave".134 The Court also held it to be admissible
to pass an order not directed against a specific person but general orders "when the number
of persons is so large that the distinction between them and the general public cannot be
made (...). (...) "[t]hat Sec. 144 is not unconstitutional if properly applied and the fact that it
may be abused is no ground for striking it down. The remedy then is to question the exer
cise of power as being outside the grant of the law".135
With regards to restrictions on public assemblies the SC summarized the legal require
ments under Sec. 144 "being an order which has a direct consequence of placing a restric
tion on the right to freedom of speech and expression and right to assemble peaceably,
should be an order in writing and based upon material facts of the case (...) such an order is
révisable and is subject to judicial review".136 Furthermore it was emphasized that "the per
ception of the officer recording the desired/contemplated satisfaction has to be reasonable,
least invasive and bona fide. The restraint has to be reasonable and further must be mini
mal. (...) the perception of threat to public peace and tranquility should be real and not
quandary, imaginary or a mere likely possibility".137 However, even an incorrect order is
not necessarily a colorable and/or mala fide exercise of power on bad faith, according to the
SC.138

II. Preventive Action of the Police under the CrPC

Police powers under Chapter XI are considered to be very wide and extensive and the po
lice are authorized to act on their own initiative and knowledge.139 Coming back to the idea
of strictly delimiting preventive powers from criminal justice, it is not clear how preventive
provisions under the CrPC can be delimitated against "comparable" powers in police law,

133 See, e.g., Babulal Parate v. State of Maharashtra, AIR 1961 SC 884 at 889.
134 Madhu Limaye v. Sub-Divisional Magistrate, (1970) 3 SCC 746 at 757.
135 Ibid.

136 In Re Ramlila Maidan Incident v. Home Secretary, Union of India, (2012) 5 SCC 1 at 45.
137 Ibid, at 46.

138 Ibid at 54, where order under Sec. 144 was held to be against the law not being justified by the
facts and circumstances of the case (passim).
139 Ratanlal & Dhirajlal, note 118, p. 269.

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76 Verfassung und Recht in Übersee VRÜ 49 (2016)

which in terms of transparency and constitutional limitations under

seem to be a good solution.

1. Section 149: Prevention of cognizable offences by the police

According to Sec. 149 "every police officer may interpose for the
and shall, to the best of his ability, prevent, the commission of
The exact content and the powers of police stipulated here are f
scholarly writing does not bother to get into detail. An SC decisio
not be found. One commentator states that Sec. 149 "enables a polic
commission of a cognizable offence"140 while others are more perm
imizing encroachment of fundamental rights141, stating that "a poli
things, e.g., arrest preventive action [sic!], dispersion of unlawfu
continuing that he "may do those things while investigating or
tion".142 Another author at least points to the necessity of certain
"interpose" in Sec. 149 does not "cover all sweeping orders that
with the liberty of the citizens".143 Yet another opinion points to
does not specify which acts can be carried out by a Police Officer f
ing arrest without warrant144, which seems to presume that Sec.
power at all. Understanding these contrarieties requires a bit of
power to arrest without warrant is already settled in Sec. 41 and
lawful assembly in Sec. 129. More importantly, Sec. 151 also ve
power to arrest in order to prevent the commission of cognizable o
powers, to what aims, are transferred under Sec. 149?
Starting from a perusal, Sec. 149 either grants a police officer
powers he "needs" to whatever he thinks to prevent (only) a cogn
scribes a mere duty of police officers without transferring any pow
zens' fundamental rights, which might be supported by the fact th
rest or the power to disperse an unlawful assembly are already expli
Sections of the CrPC. That Sec. 149 provides for a mere duty145 bu

140 Ibid.

141 Sohoni, note 122, p. 1641: Sec. 149 and 151 result in "curtailment of valuable fundamental rights
in the interest of public order".

142 Sarkar, note 120, p. 593.

143 Surya Narayan Misra, The Code of Criminal Procedure, Allahabad 2011, p. 202.
144 Basu, note 121, p. 794, referring to Sec. 151 for arrest.
145 Henry Thoby Princep, The Code of Criminal Procedure, 1973, Delhi 2008, p. 593, seems to sup
port this point of view, when referring in effect only to "duties of police" with regards to Section
149.

146 Rather confusing C. K. Thakker Takwani Criminal Procedure, Gurgaon 2011, pp. 363-64: "Sec.
149 enables police officer to prevent... it imposes on him a duty".

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Arzt, Police Reform and Preventive Powers of Police in India 77

be supported by the very idea of the rule of law, which certainly requires that any citizen -
as well as the police - are able to understand and to know for sure if under the provision of
a specific Act the police are vested with powers to interfere with fundamental rights or not
Even more, the rule of law not only requires that citizens and the police can deduce from
the written law whether the police are vested with such powers; also, the extent of such
powers should be specified clearly and exclusively by statutory law. This might be done in
more generic terms like "public order", if such notion is understandable and its boundaries
and content are well settled by jurisprudence, but Sec. 149 does not even approximate to
this basic requirement from my point of view.

2. Section 151 : Arrest to prevent the commission of cognizable offences

Sec. 151 grants the police a "very vast power"147 and discretion148 to arrest in order to pr
vent any cognizable offence. Sec. 151 however does not grant any power to detain a person,
which is uncontested with reference to Sub Sec. (2).149 Regardless of these broad powers
Sec. 151 gets rather little attention in commentaries on the CrPC and the SC considere
said provisions to be constitutional, pointing however to the procedural safeguards applic
ble under this Section.150 There are two prerequisites for an arrest under this Section: The
police officer (i) must "know" and not only "apprehend" that a person has a design to com
mit a cognizable offence, and (ii) the commission of such offence cannot be otherwise pr
vented, which is a matter of proportionality. The latter prerequisite requires urgency of an
arrest; otherwise, the arrest is illegal.151 Comparing Sec. 149 and Sec. 151 (as well as Sec
152) from my point of view152 demonstrates that Sec. 149 does not vest the police with any
"power" to arrest or any other power to encroach upon citizen's fundamental rights. On the
other hand, Sec. 151 could also affirm the view that Sec. 149 grants a more than broad vari
ety of permissible police actions without any explicit limitations at all, except for arrest and
cases handled under Sec. 152. This interpretation however does not convince under the ba
sic principles of the rule of law. Certainly Sec. 151 facilitates more than mere safeguards to
the person arrested, because Sub Sec. (2) explicitly refers to the power to arrest under Sub
Sec. (1), which hence cannot be included in Sec. 149.

147 Law Commission 177th Report on "Law Relating to Arrest", p. 21.

148 Sohoni, note 122, p. 1617.

149 Cf. Sarkar, note 120, p. 595; Sohoni, note 122, p. 1618; see also Basu, note 121, p. 798, with a
less than clear notional differentiation between arrest and detention.

150 Ahmed Noormohmed Bhatii v. Gujarat, AIR 2005 SC 2115

151 Sohoni, note 122, p. 1617, with reference to case law.
152 To the opposite Sarkar, note 120, p. 593.

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78 Verfassung und Recht in Übersee VRÜ 49 (2016)

3. Section 152: Prevention of injury to public property

Sec. 152 is aimed at the prevention of injury to public property. Acco

a "police officer may of his own authority interpose to prevent any
committed in his view to any public property, movable or immov
injury of any public land mark or buoy or other mark used for nav
this Section allows for police action regardless of whether the of
not.153 So Sec. 152 has to be distinguished from Sec. 151 in cas
against public property is concerned, which would permit an arrest
As outlined above under Sec. 151, this (again) confirms the opinion
provide for all necessary means whatever this may be but emphasize

J. Preventive Powers of Police - A Legal Void?

Discussions about the police in India are predominantly focused on

fessionalization of the police. When trying to discuss the idea of a m
ry provision of police powers at a law school in India, the author e
missive response, which was paradigmatic for the Indian discus
seems to be that granting the police a set of clearly stated but also d
ers would "automatically" lead to even more powers of the police,
versial topic already in early 19th century modernization of police in
sion and modernization of statutory powers of the police, e.g. in Pol
implies the risk of an expansion of police powers detrimental to fun
stressing rule of law values might lead to prioritizing fundamental r
rather point in the opposite direction.156 Rule of law in this context
substantive,157 not only formal, concept. Since most of the existing
police powers is still based on a pre-constitutional model of police,
premature in 2016 to discuss a fundamental rights based concept of
protecting such rights that were not in force when the law of the land
From my point of view this would add another important feature to
reform in India. If policing in India is to ever comply with essent
cratic society under the rule of law, police training, professionalizat
vironment, adequate payments schemes, attitudinal changes in the p

153 Law Commission 177th Report on "Law Relating to Arrest", p. 68.

154 Sarkar, note 120, p. 596.
155 Cf. Dixon, note 6, pp. 56 et seq.
156 Cf. Andrew Sanders/Richard Young, Police Powers, in: Handbook of
Cullompton 2008, p. 282, on "due process" vs. "crime control" values.
157 Cf. D.K. Basu v. West Bengal, (1997) 1 SCC 416 at 424; see also Jam, n
158 Ironically, a discussion on the (non-)applicability of the European Con
as a binding part of the law of the land has started in the UK recently.

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Arzt, Police Reform and Preventive Powers of Police in India 19

indispensable prerequisites of change for a modern police in a democratic society bas

fundamental rights of its citizens. But for all that, the current law of the land, grantin
police vast and not at all clearly delimited powers to encroach up fundamental and h
rights needs to be scrutinized, too. This has yet to be done in India.

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