Recently in Indian Express, a Chief Editor of Studies in Indian Politics questioned: ‘Where’s our George Floyd?’ … Answers are many. Politically as well as Legally. Floyd said:
I can’t breath and his death blasted out the violence as well as blown up a worldwide debate on racism.
However, in India, we hardly debate consistently on such issue. Many deaths have been occurred since independence on religious hatred, due to clash of castes, on account of gender bias and much more other social reasons like honour killing etc. But, our society notices it very lightly. We used to hear that in country of 1.3 billion people such things happen. Don’t take it seriously. We are like that only.
In the last month, a person named Vishnudatt Ramashankar Shahu, resident of Banda, Uttar Pradesh was having a small grocery shop in Surat area (Gujarat), reported [i] to commit a suicide, as his shop was opened till late evening on 10-5-2020 and customers did not maintain social distancing and so, Sachin, GIDC Police arrested him u/s.188 of the IPC, fined him of Rs.4,000/- and according to his family he was forced to do squatting in his society – publicly and due to such grave humiliation and loss of reputation before all the residents, he felt deep shock and he told his family that he was never insulted publicly in this manner. He ended his life by hanging on ceiling fan in an adjoining room of the house.
This was not only one such incident in the country during the lockdown since 25-3-2020. There are hundreds of such incidents, where police used to beat people with sticks on roads when they were out just to get free air. Many videos were viral for forcing youth and many other persons to do squatting in public. Police just wanted to teach a lesson to such persons that do not get out of your home; otherwise, you will not only be booked but also punished publicly by the police. No doubt, in this testing time, police is the frontline worker. Their duties are 24×7. They work very hard in tough conditions. People salute them. However, we cannot just ignore, what is not according to law.
The function of the police is to book the person, who breaks the law. But there is no legal power or any lawful authority with the police to punish the person on the spot for the alleged breach of law. All the same, police had done this in numerous cases and frequently. Supreme Court has time and again said in respect of behavior of the police in many of its judgements. In case of Arnesh Kumar Vs. State of Bihar, the Apex Court has observed … “Arrest brings humiliation, curtails freedom and cast scars forever. Lawmakers know it, so also the police. There is a battle between the lawmakers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.
Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make arrest, as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation…”
The aforesaid observation, though, in respect of Section-498A of the IPC and also Section-41(1)(b) of the CrPC, but here I am submitting the different point with regard to “on the spot punishment awarded by the Police” without any legal authority under any legislation. In fact, George Floyd was subjected to same kind of punishment severely. In India, this had become rampant during the lockdown, because, our courts are almost dormant. Large section of the people justifying the same, as they see it is deterrent for others and genuinely believes that police do have such powers. Police on the other hand always believe to have such power to penalize the wrongdoers on the spot and now, they have support of public, as people are almost silent. They never dare to say anything against Police, because they were already in fear during the lockdown and they frightened by the harsh police power. The question is: where are we marching?
The issue crop up for consideration that if suicide is due to such gross humiliation and if suicide is due to further fear of extending the lockdown for no reasons (if this is in the mind of ordinary people) and there are no means to survive and someone commits suicide or in case of death of migrant workers due to unable to reach to their homes, can it not be covered u/s.306 of the IPC: Abetment of suicide[ii]? As the abetment is defined u/s.107 of the IPC: ‘… instigating any person to do that thing, engaging in conspiracy or intentionally aids, by any act or illegal omission, the doing that thing[iv]’.
The time has come to realize that when we miss the legal obligation under the law and State’s lawful omission ends the life of a human being, then, it fastens the legal liability. It is equally true that in India human life is cheap, if you are poor or nobody in the society. Everyday, at various places in different regions – people are dying unnaturally (by committing suicide or through an accidents) and no one cares. Our institutions are sleeping. Journalists do report, but after reading the same: what happens? Nothing. We are in a state of almost lawlessness, where human lives are grossly neglected and desperately ignored. Retired judges and society talks about poor, marginalized people and unprivileged persons, but in reality, neither the lawmakers nor the executors of law care for the same, much less our judicial system, who remained in almost coma for a long time. Kudos to our rule of law and glory of civilization, who lacks complete sensitivity, but the question is: in the wake of hope, how long we are going to suffer this time? At present, our existential crisis is so much that we have to forget about the civil society, civil rights and civil liberties … Thus, there are many George Floyds in our country, but we are habituated with injustice and frequent assaults on democracy… so, in our society, Truth does not always Triumph, but sometimes!
[i] News 18 Gujarati by Kirtesh Patel, Surat dated 13-5-2020
[ii] 306. If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
[iii] 107. Abetment of a thing.—A person abets the doing of a thing, who—
(First) — Instigates any person to do that thing; or
(Secondly) —Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or
(Thirdly) —Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2.—Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.
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