Editor’s Pick: A warning on the drastic power of arrest

(The Editor's Pick is a new newsletter from The Hindu that provides a snapshot of the most important stories from today's edition of our newspaper, along with a note from our top editors on why we chose to give prominence to these stories.)

The Supreme Court on Friday granted bail to the comedian Munawar Faruqui in a case registered by the Madhya Pradesh police for hurting religious sentiments, for a joke that he actually did not make. Faruqui was accused of ‘insulting’ Hindu religious sentiments in jokes that he had allegedly prepared and that the complainant in the case, the son of a BJP politician, had allegedly ‘overheard’ though they did not appear in the comedian’s set that night.

The Madhya Pradesh High Court had denied bail to Mr Faruqui, forcing him to approach the top court. The hearing was brief, and a three-judge bench led by Justice Rohinton Fali Nariman, also stayed a production warrant issued by the Uttar Pradesh government against Faruqui in a separate case based on the same facts.

Justice Nariman said the allegations against Mr. Faruqui were vague. He noted that the police had not complied with the lawful procedure prescribed under Section 41 of the Criminal Procedure Code (CrPC) before arresting the comedian and also pointed out that the Supreme Court, in a scathing judgment in Arnesh Kumar versus State of Bihar in 2014, had warned State governments and their police from depriving personal liberty without following due process of law. It’s worth going over some of the words in that 2014 judgement.

“The need for caution in exercising the drastic power of arrest has been emphasised time and again by courts but has not yielded the 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,” the Supreme Court had observed.

The case of Mr Faruqui throws up many urgent questions about the power of arrest, through which state governments can routinely harass individuals using just the local constabulary who in many cases can be coerced or intimidated into carrying out the will of politicians. Arrests under the law for hurting religious sentiments may have found the spotlight recently but there are other laws under which such arrests can be made. The law of sedition is perhaps the longest running example in the legal system. Sadly, despite repeated pronouncements by the Supreme Court, no answers to these questions seem to be forthcoming. That marks the story of Mr Faruqui’s bail as our top pick of the day.

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