The Telegraph
Friday , November 16 , 2012
Since 1st March, 1999
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SC tough stand on cop ‘excesses’

New Delhi, Nov. 15: The Supreme Court has said that “police excesses” cannot be countenanced even while dealing with “anti-national elements”, while ruling in a case where blast accused shouting anti-India slogans were allegedly beaten up in a Mumbai jail.

The court accepted that India faced an extremist threat and that many officers were sacrificing their lives to protect the country, but it held that breaches of the law or abuse of official power must be punished if proved.

The two-judge bench also ruled that undertrial prisoners or convicts cannot be transferred from one jail to another on mere executive orders --- that is, in the exercise of “ministerial” powers. This can be done only under a judicial order, else it would adversely affect the prisoners’ interests.

“In a country governed by the rule of law, police excesses, whether inside or outside the jail, cannot be countenanced in the name of maintaining discipline or dealing with anti-national elements,” Justices T.S. Thakur and Ibrahim Kalifullah said.

“Accountability is one of the facets of the rule of law. If anyone is found to have acted in breach of law or abused his position while exercising powers that must be exercised only within the parameters of law, the breach and the abuse can be punished.”

The bench added: “That is especially so when the abuse is alleged to have been committed under the cover of authority exercised by people in uniform. Any such action is also open to critical scrutiny and examination by the courts.”

The apex court passed the ruling while partly allowing the Maharashtra government’s appeal against a Bombay High Court direction for disciplinary action and criminal prosecution of Arthur Road jail officials.

Undertrial inmates at the jail were allegedly beaten up while resisting the transfer of 37 prisoners to other jails.

The high court too had held that the prison authorities had no right to transfer the prisoners, many of them facing charges in the 2006 Mumbai blasts, as this can be done only under judicial direction.

An inquiry by a sessions judge, ordered by the high court, had concluded that the prisoners had raised anti-national slogans, but it passed strictures against the jail authorities for using excessive force against the inmates.

Aggrieved, the state appealed in the apex court, which said it could not ignore the fact that the country faced an extremist threat from within and outside.

“Those dealing with such elements have at times to pay a heavy price by sacrificing their lives in the discharge of their duties. The glory of the constitutional democracy that we have adopted, however, is that whatever be the challenges posed by such dark forces, the country’s commitment to the rule of law remains steadfast,” the court said.

“Courts in this country have protected and would continue to protect the ideals of the rights of the citizen being inviolable except in accordance with the procedure established by law.”

The apex court, however, said that in the present case, the (sessions judge’s) inquiry against the prison officials was “flawed” and that most of the officials were not examined.

It asked the state government to take a “considered decision” whether to conduct a further investigation. It also clarified that the future probe, if any, shall not be influenced by the high court’s observations about the accused officials.

On whether the government has the administrative powers to transfer prisoners, the apex court said: “Exercise of ministerial power is out of place in situations where the quality of life or the liberty of a citizen is affected, no matter (whether) he/she is under a sentence of imprisonment or is facing a criminal charge in an ongoing trial.”