Manhar Bansal
Legal anthropologists Shrimoyee Ghosh and Haley Duschinski argue that Kashmir’s “permanent emergency” is sustained through a system of “indefinite incarceration” materialised through “proliferation of paperwork, jurisdictional complexity, and excessive legalism” (Ghosh and Duschinski 2020, 377). They note the manner in which, throughout a detainee’s “revolving-door detention”, it remains unclear which jurisdiction is being exercised – judicial, executive, or military – thus producing a state of “proliferating jurisdictions” (ibid 369, 379). Not very differently, Laleh Khalili argues that the jurisdictional status of Guantanamo Bay and its detainees has been deliberately kept “anomalous” to create an “ad hoc legal regime” that would provide “maximum strategic flexibility” to the United States while simultaneously rendering the detainees “as inaccessible, unapproachable, and indefensible as possible” (Khalili 2013, 76-78).
While the above two instances are located in the context of a “state of exception” where the norm is suspended, in this post I am interested in exploring the role which ‘jurisdiction’ plays in the case of inter-state arrests which take place during ordinary circumstances. In Ghosh/Duschinski, and Khalili, we see that ‘jurisdiction’ – as a political and legal tool – is used and manipulated by the modern state in a coercive manner to produce conditions of precarity for its subjects. In the case of inter-state arrests, we see a state’s police overstepping its ordinary criminal jurisdiction to arrest a resident of another state. This leads to a situation where the police acquire “maximum strategic flexibility”, while the detainee is left to navigate an alien, hostile environment of “jurisdictional complexity”.
In this post, I find it useful to think along with existing literature that critiques the casualness associated with criminal process protections (see, Chandra and Satish 2016). I begin by highlighting the centrality of the jurisdiction question in the extant law and procedural safeguards for carrying out inter-state arrests. I then argue that the viewing of such norms as mere procedural technicalities, and the consequent lack of concern towards the question of police’s criminal jurisdiction – including by courts – has dangerous implications for personal liberty and therefore demands greater attention.
The Law on Inter-State Arrests
In the recent past, several instances of inter-state arrests have been witnessed. These include the arrests of Disha Ravi in Bengaluru by the Delhi Police, Jignesh Mevani in Ahmedabad by the Assam Police, and Tajinder Pal Bagga in Delhi by the Punjab Police, etc.
These cases raise important concerns over the criminal jurisdiction of a state police to effect an arrest of an individual residing in another state. Criminal jurisdiction has been defined to mean the right of a state to inflict legal punishment on offenders, including the power to arrest (Chehtman 2014, 402). While the importance of criminal jurisdiction has been recognised in the realm of international law, the scope and extent of the powers of different state police within a national jurisdiction needs more investigation.
Kavita Singh summarises the law on inter-state arrests (Singh 2022). Section 48 of the CrPC allows a police officer to pursue an individual anywhere in the territory of India, who he is otherwise authorised to arrest without warrant. Sections 78 and 79 provide similar provisions for execution of arrests with warrant. However, precedent and police manuals have established that a state’s police is not ordinarily empowered to arrest outside its jurisdiction without informing the local police and obtaining what has come to be known as a “transit remand” from the nearest magistrate. The transit remand order adds a layer of protection for an individual who is being taken to an alien place; while also ensuring compliance with the constitutional and statutory protection of being produced before the nearest magistrate within 24 hours of arrest (for an explainer on inter-state arrests, see here).
Singh shows how this has been rampantly violated by state police in practice. In Disha Ravi’s arrest, the Delhi Police neither informed the local police nor obtained a transit remand. In the case of Sandeep Kumar v. State (Govt. of NCT of Delhi) (2019 SCC OnLine Del 11901), the UP Police arrested a man from Delhi and took him to a jail in Ghaziabad where he was illegally detained, criminally intimidated and possibly manhandled by the police for 3 days without being produced before a magistrate. The Delhi HC issued a writ of habeas corpus, provided compensation to the victims, and most significantly, approved the guidelines for inter-state arrests formulated by the committee appointed by it to enquire into the matter.
In addition to reiterating the usual procedural safeguards while making an arrest (which have been laid down by the Supreme Court on various occasions; see e.g., DK Basu v State of West Bengal (1997) 1 SCC 416; Joginder Kumar v State of UP (1994) 4 SCC 260; Arnesh Kumar v State of Bihar (2014) 8 SCC 273), these guidelines indicate the specific importance of jurisdictional protection. The guidelines require that the police officer visiting the other state must, inter alia, establish contact with the local SHO for assistance, carry translated copies of the complaint or the FIR in the local language, endeavour to obtain a transit remand from the local magistrate unless exigencies demand otherwise, record the details of the arrested person with the local police station before leaving, and so on. However, these guidelines have not been approved by the Supreme Court or any state authority (Singh 140), and have been flagrantly flouted in cases that followed.
Mere Procedural Technicalities?
This entire account gives rise to one question, which is: when the CrPC explicitly allows for inter-state arrests, why must the ‘substantive’ powers of the state police be constrained from effecting an arrest anywhere in India due to ‘procedural’ requirements, such as jurisdiction? In other words, what is the significance of restricting the power to arrest based on jurisdiction?
In Sandeep Kumar, the Court-formed Committee comprising Justice S. P. Garg, a former Judge of the Delhi High Court and Ms. Kanwaljeet Deol, IPS former DG (Investigation), NHRC, relied on both constitutional guarantees of due process enshrined in Article 22 as well as statutory criminal process protections provided for in Sections 48, 56, 57, 77, 79 and 80 of the CrPC to justify the procedural regulation of the police’s power to arrest. Additionally, the Committee made reference to the Model Police Manual published by the Bureau of Police Research and Development, and a circular issued by the Ministry of Home Affairs – both of which stress the central role of the police station and the magistrate having jurisdiction (Sandeep Kumar, paras 11-14). The Delhi High Court also took cognisance of a string of past High Court decisions which had reprimanded the high-handedness of state police in the case of inter-state arrests, including its own decision in the case of Tasleema v. State (NCT of Delhi) (ILR (2009) 6 Del 486) where policemen from Gujarat had arrested a juvenile from Delhi without informing the Delhi Police (ibid para 19). The Court remarked that “in a country governed by the rule of law, this is simply unacceptable” (ibid para 3). Therefore, it is clear that far from being non-existent, the source of the procedural requirements relating to jurisdiction is very much grounded in the Constitution and the statutory law on arrest as interpreted and given effect to by both the executive – through its police manuals and circulars, and the judiciary – through case law.
However, while such procedural safeguards exist, ‘procedure’ continues to be seen as “the handmaiden of justice” – a mere technicality. Aparna Chandra and Mrinal Satish argue that courts in India have privileged the “public order perspective” over the “liberty perspective” while dealing with constitutional criminal process rights. The burden is placed on the accused to show, ex-post, factual prejudice caused to him, instead of recognising, ex-ante, categorical prohibitions against illegal state action (Chandra and Satish 813).
This attitude is seen at play in inter-state arrests. The focus of the courts is on the effective discharge of the state’s policing functions while also sticking to procedure, rather than viewing questions of procedure and jurisdiction as themselves determinative of the legality of the arrest. For instance, in her bail hearing in Delhi, Disha Ravi argued that she was “falsely arrested” in Bengaluru without obtaining any transit remand. While the Court awarded bail to Ravi on substantive grounds, it did not comment on the procedure of arrest followed by the Delhi Police (State (NCT of Delhi) v Disha A Ravi, Bail Application No. 420/2021). Thus, the procedural violations were given a free pass and the jurisdiction question remained unasked – let alone answered.
Asking the Jurisdiction Question
Richard T Ford writes, “the logic of government is the logic of jurisdiction – question it and all that is solid melts into air” (Ford 1999, 843, 851). In his iconic dissent in the (in)famous case of ADM, Jabalpur v. Shivakant Shukla ((1976) 2 SCC 521), Justice HR Khanna opined, “The history of personal liberty, we must bear in mind, is largely the history of insistence upon procedure” (para 583). My attempt in this post has been to argue that when it comes to the criminal justice system, the seemingly academic, abstruse and technical question of ‘jurisdiction’ comes with high stakes. As a container of the sovereign power of the modern state, ‘jurisdiction’ becomes a tool for the deprivation of individual liberty in a manner that makes it hard for the detainee to challenge (by taking them to an alien environment thereby depriving them of quick legal assistance for example).Therefore, far from viewing it as a ‘mere procedural technicality’, this concept requires special and urgent attention. This requires a shift in the attitude of courts towards demanding a greater “culture of justification” in cases of inter-state arrests. This will include, for instance, taking a serious view of the violation of established guidelines while deciding on bail. There is also scope for codification of these guidelines in the form of enforceable standards. The ethnographic work of scholars such as Ghosh/ Duschinski and Khalili – prefaced at the beginning of this post – warns us of the perils of taking jurisdiction lightly. While Ghosh & Duschinski show how shifting jurisdictions can produce indefinite incarceration and Khalili highlights the strategic flexibility offered by anomalous jurisdiction, the case of inter-state arrests in India brings to light how the overstepping of criminal jurisdiction by state police can endanger personal liberty. The solution lies in regarding such ‘procedural’ transgressions as categorically impermissible – regardless of their ‘substantive’ impact. And therefore, it is imperative that we ask the jurisdiction question with greater force.
The author is a second-year B.A., LL.B. (Hons.) student at the National Law School of India University, Bengaluru. The author would like to acknowledge the guidance provided by Ms. Zeba Sikora in the writing of this article.
