Preventive Custody – Valid or not?

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As much as I detest the actions of the Sri Ram Sene and its head honcho, Pramod Muthalik, I don’t approve of this concept of taking a person into preventive custody. I know it has been used regularly by the police but it presupposes the act of crime and shows the inability of the police to preclude the act itself. I guess it is far easier to simply take a person into custody instead of actually preventing his actions but it sets a dangerous precedent of declaring a person guilty simply based on his statements for an act he hasn’t committed yet. Investigate him but remanding to custody is taking it a bit too far. It is not a crime unless he commits it and I don’t think it passed the smell test of ‘shouting fire in a theater’ or ‘bomb in an airplane’.

Now if the police had arrested him for his attack on the women in pubs, it would be completely understandable because it was a crime that was committed but the lack of action on that first act set in motion the events that followed. He wasn’t remanded to custody for his pub attack crimes but for something that he has not yet done. Unless the police act on actual crimes and not on uncommitted ones, we will have a confusing law & order situation.

Mind you, this is in no way condoning his stated actions and I couldn’t disagree with his regressive views more. If you think, this might not be the best time to raise the question of such ‘preventive action’ given Muthalik’s history but then when is it? Tomorrow it could be you for a far more innocuous thought that you simply expressed aloud and had no intention of carrying it out. Any legal experts out there who would like to shed more light on this issue?

“Preventive Custody – Valid or not?” [Short URL: http://www.ipatrix.com/?p=2859] was published Friday, February 13th, 2009 at 12:13 pm by Patrix, filed under 9rules, DesiPundit, Law, and tagged as crime, free speech, India, Law, law & order, moral police, police. Both comments and linkbacks are closed.

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Harshad
Background:
You said on your twitter:
patrix @harshadbhutada Who will police the police? Using extreme cases as baseline begets injustices for lesser crimes. Rest discussion on my post
The people who deal with felonies have to make tons of judgment calls during their job, and I am not sure enough rules exist governing each and every decision that they have to make. It is not possible, when you have to deal with human beings.
So I believe judgment call based on the training and experience that they have had is the right thing to rely on.
Now as to “policing the police” in case mistakes are made, there is judicial system.
One thing is sure though: Not everything can be “fullproofed” [and "fool-proofed"] by the rule book alone.
Note that I am discussing this purely from the philosophical point of view, that whether the preventative arrests should be allowed or not. I don’t claim to have expertise to make the judgment call on whether it was justified in this particular case.
A related digression:
Lets be practical here. The laws exist in the manner they exist because of the various loopholes that the bad guys out there try to exploit and create all these lawsuits. And there is no way you can make these laws completely foolproof. So, we end up creating more and more laws / riders to the existing laws to create more such loopholes and the process is endless.

http://www.ipatrix.com Patrix
Harshad, I guess you share the same ambivalence as I do regarding the appropriateness of ‘preventive custody’. My only beef was that why didn’t the police arrest Pramod Muthalik for a previous act that was clearly criminal i.e. attacking and harassing women and why did it choose to remand him into custody for just a statement? It smacks of convenience and political expediency. I know such things exist in our system but that is no reason to accept them and not protest.
Re: policing the police, authority and power, like it or not, corrupts when given a long leash. Once granted those powers, it is difficult to reverse course. If I believed that our judicial system was efficient and expedient, then I would agree with you but sadly that isn’t the case. I rather let a hundred guilty men go free than incarcerate one innocent man.
Anyway, I’m looking for a legal argument and strict scrutiny standards for enforcing ‘preventive custody’; something that doesn’t go down the path of merely being a convenient tool for the police.

Harshad
Re: policing the police, authority and power, like it or not, corrupts when given a long leash. Once granted those powers, it is difficult to reverse course.
This is wrong approach. Deal with corruption on its own and don’t let it affect other things. I believe rules are not exactly right way to deal with corruption.
How will you deal with the following scenario:
The police get information regarding a probable attack through their informers. Clearly this won’t stand the court of law, now then how will one go about making arrests ? I think this is the type of dilemma that they have to deal with and make the best use of their judgment call.
If I believed that our judicial system was efficient and expedient, then I would agree with you but sadly that isnâ€™t the case.
Again, lets not mix the two problems together, you will not get anywhere.
Anyway, Iâ€™m looking for a legal argument and strict scrutiny standards for enforcing â€˜preventive custodyâ€™;
I think it is illegal in US at least. Not sure about India.
And I definitely agree that they shuold have made arrests when the pub attack happened.

http://www.ipatrix.com Patrix
Harshad,
Deal with corruption on its own and donâ€™t let it affect other things.
I use the word ‘corrupt’ as a verb (as in “the disk got corrupted”), not the noun although I can also argue that corruption (as you define it) is inextricably linked to police power.
How will you deal with the following scenario
Foil the perpetrators capabilities to attack and arrest them red-handed and not just on basis of “our informer told us”. It would take an ordinary lawyer to question the credibility of the informer and throw out the case thus freeing the alleged culprits.
lets not mix the two problems together, you will not get anywhere.
Law & Order are two integral parts of policing the society and the judiciary is in charge of policing the police actions to keep them in line with the Constitution. So any discussion of one requires the other.

Harshad
There is power associated with a lot of things. And as you say, power corrupts. Does that mean that we do not grant the power to folks that need it to get their job done?
I still think that there is no running away from the judgment one has to make when dealing with human beings (and felons at that).
foil the perpetrators capabilities to attack and arrest them red-handed
umm… lets be practical. Its not always possible, and keep in mind there could be lives at stake here. The only thing one can rely on is his/her judgment in this scenario IMO.
So any discussion of one requires the other
I agree, but we can’t have a one size fits all solution to any two problems. The judiciary system being what it is today doesn’t mean that we in principle not rely on it at all. If that is the case, then we need to re-haul a LOT of other things.
http://www.ipatrix.com Patrix
@Harshad:
Does that mean that we do not grant the power to folks that need it to get their job done?
Yes; unless adequate accountability and transparency measures are put in place. See Emergency. It has happened before.
ummâ€¦ lets be practical. Its not always possible, and keep in mind there could be lives at stake here.
Not everything is a ‘ticking bomb scenario’. As Benjamin Franklin said, “They who would give up an essential liberty for temporary security, deserve neither liberty or security.” Your principles matter only when they are tested and every civilized legal system in the world assumes people to be innocent unless proven guilty.
http://le-chronicle.blogspot.com Tanuj Lakhina
I agree with the opinions you mentioned.The whole preventive custody shows how the police are not capable of arresting such religious outfits leaders for their acts and preempt their actions.
Considering Sri Ram Sene is a small organisation and still can make the police personnel sweat,imagine how difficult it would be if it were done by a larger organisation.
For example,MNS is another organisation which uses its might and power to attract attention and muscle the common man.Although MNS has another agenda which it “works” towards but both of them are against the sentiments of peace and quiet and affect the common man.
Would the Mumbai police then arrest Raj Thackrey if they preempt any actions before Valentines day?
Harshad
Do you think that when such corrupt-by-power people are at the helm, they will not do what they shouldn’t because of a few rules? I am sure there are tricks that these people could very easily play if they want to arrest somebody — preventative or not — unless you take away the power of arresting itself from them, which would defeat the whole purpose of their existence.
My whole point is, when you try to patch something because something else is wrong, you will keep doing the patchwork without fixing anything.
I guess we will just have to agree to disagree on this.
“adequate accountability and transparency measures” need to there on their own right.

http://www.ipatrix.com Patrix
Harshad, Taking away the power of arresting anyone isn’t the issue but making them prove a probable cause is. Something a person can do in the future is no probable cause. But this argument has gone beyond the limit and as you say, we have to agree to disagree although I’m not sure what we are disagreeing on.

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Preventive Custody – Valid or not?

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