Could New Criminal Laws Raise the Risk of Wrongful Arrests?

Police Officers Now Possess Greater Discretionary Powers to Enforce Arrests

Newsreel Asia Insight #269
July 2, 2024

The provision for preventive arrest under Section 172 of the new criminal code, the Bharatiya Nagarik Suraksha Sanhita (BNSS), raises significant jurisprudential concerns, especially when compared to existing legal standards and principles of justice and fairness as established in landmark cases and constitutional doctrines.

Sub-section (1) of Section 172 of the BNSS states, “All persons shall be bound to conform to the lawful directions of a police officer given in fulfilment of any of his duty under this Chapter.”

The term “lawful directions” is not explicitly defined within the section. This leaves open the question of what constitutes a lawful direction. Without clear parameters, this term can be interpreted in multiple ways, depending on the officer’s understanding or intent at the moment.

Sub-section (2) adds, “A police officer may detain or remove any person resisting, refusing, ignoring or disregarding to conform to any direction given by him under sub-section (1) and may either take such person before a Magistrate or, in petty cases, release him when the occasion is past.”

The terms “Resisting, Refusing, Ignoring or Disregarding” cover a broad range of behaviours but do not specify the intensity or nature of the actions that would warrant detention. For instance, “resisting” typically implies some form of active opposition, but does not specify whether this must be physical or if verbal disagreement counts. “Refusing” suggests a denial to follow orders but does not indicate how this refusal must be communicated. And “ignoring” or “disregarding” are even more subjective and could include a failure to immediately comply due to misunderstanding, distraction or other benign reasons.

The language, which grants police discretionary powers that are not tightly regulated or clearly defined, could lead to arbitrary enforcement, where decisions to detain could be based on subjective interpretations rather than objective evidence.

Consequently, the provision for preventive detention could result in numerous instances where individuals are wrongfully detained by police. Below are seven examples from a multitude of potential scenarios.

One, a person who is non-confrontationally questioning a police directive or seeking clarification might be perceived as refusing or ignoring the direction. This misinterpretation can lead to detention even if the individual’s intentions were not to defy but to understand the police order better.

Two, during protests or civil demonstrations, individuals often gather to express dissent peacefully. However, if a police officer interprets any action—such as chanting slogans, displaying banners or even passive resistance like sitting down—as a refusal to comply with dispersal orders, it could lead to preventive detention. This can occur even if the protest remains peaceful and non-violent.

Three, imagine a scenario where a police officer issues a direction that is not related to any immediate law enforcement need—such as moving away from a public space where no threat is apparent. A person who believes the direction to be unreasonable and does not comply immediately could be detained for what is essentially a normal and reasonable response in a democratic society.

Four, in areas with diverse populations, misunderstandings can arise due to language barriers or cultural differences in interpreting police commands. For instance, a tourist or a non-native speaker might not fully understand a police directive due to language proficiency issues and fail to comply promptly, leading to their detention.

Five, bias, whether based on race, ethnicity, age, gender or social status, can influence a police officer’s perception of non-compliance. For example, young individuals, particularly from minority communities, might be more likely to be deemed non-compliant or defiant by police under subjective interpretations of the law, leading to wrongful detentions.

Six, authorities could misuse the broad detention powers to suppress political opponents, journalists, activists or critics of the government by interpreting any of their actions as non-compliance with police directives. This could be particularly problematic in politically charged environments where the line between lawful directives and suppression of free speech becomes blurred.

Seven, in emergency situations where there is chaos and confusion, such as after an accident or during a natural disaster, individuals might not immediately comply with police directives due to shock or confusion. Quick judgment to detain individuals in these circumstances could lead to wrongful detentions of those who are merely disoriented rather than defiant.

Given these scenarios, as citizens, we may now effectively be unable to inform a police officer when they are acting beyond their jurisdiction, as the fear of arrest would serve as a significant deterrent.

When compared to the Criminal Procedure Code (CrPC), which generally prescribed more specific circumstances under which arrests and detentions can occur, the powers under BNSS appear disproportionately broad and unregulated.

The provision for preventive detention appears to go against the principle of procedural fairness firmly established in the landmark case of Maneka Gandhi v. Union of India (1978), which fundamentally transformed the understanding and application of personal liberty under the Indian Constitution.

In this case, the Supreme Court expanded the interpretation of Article 21 of the Constitution, which guarantees that no person shall be deprived of their life or personal liberty except according to the procedure established by law. The court held that the procedure must be “fair, just and reasonable,” not merely statutory or procedurally correct.