Saturday, January 25, 2014

Discretion and the 'change which we seek'

Let us do some dissection of the Bharti-SHO scuffle to know what all went, and against the ideal way of doing things.
      To start, let us create a simple analogy which we will use later to help simplify and understand the event.
   Consider a police checkpoint where a lots of people are passing by. The police stops a few people to check their passes and catches hold of one person without a proper document (e.g. His bike registration/driving license.). This man argues with the police on being caught and makes a certain allegations on them.
1) He accuses the police of being biased against him because a lot many people had slipped through the checkpoint whom he knew didn't have the proper documents either, but were not checked by the police.

Can his argument be held valid- that the police acted biased targeting him in particular, for the reason that many had slipped through the checkpoint?

The law courts have generally disregarded such argument thereby upholding the Police Discretion that the Policemen can stop any person at their choice/at random and allow other to pass through.
It is because of a natural logic that all the people cannot be checked to a pin-point accuracy all the time regarding compliance of all the laws.
Consider the hypothetical situations - what if Someone has slipped through after showing his documents which are actually counterfeit?
Does this event give police a right to stop all people and hold them back even when they have displayed a valid document, simply because the police need time to investigate whether those documents are authentic or a counterfeit?

No.
Then what could be a general rule to handle this possibility?
The challenge is that there can be infinite such possibilities during the 'game' of the police and the criminals. Hence, a natural logic to the existence of the power of police discretion.
Discretions are hugely susceptible to bringing corruption in the functioning of the police. The Police may intentionally allow Someone to slip through and later claim legal defense of an intentional act as a simple mistake of discretion, if they are caught later.

However, consider a reverse situation regarding the limitations of the Police Discretions. Can a policeman 'still' refuse to act his duties on a complain when everyone is shouting or even witnessing a suspected crime scene, right from the Media, the Minister as an elected representative, and the people themselves? Can the policeman continue to hide behind the claims/his discretionary powers such as ''he doesn't have search warrant'', ''he knows his duty, nobody need to remind him'', ''he will act as per how and when he will deem correct''?
No.

The Discretion is not an infinite power which can be applied with any whimsical choice. It MUST be applied to preserve the interest of the people.It must bE aimed at preventing a crime to happen.

In the scuffle, The SHO's initial refusal to act was an act not in accordance with his prescribed duties. In the course of scuffle, Bharti might have spoken things which are inappropriate, racist, or even gender sensitive. He can be charged for those acts/words and be tried. The women groups and the human rights group are accusing Bharti on the same.
But the important question raised by this misdeamour of Bharti is the behaviour of police - if they have become habituated of acting at the call of VIPs and neglecting towards the Aam Aadmi? Have they become addicted to a certain kind of answers in regard to their functioning, and forgetful to what the ideal SOP requires of them.

We come back to another politically important question- what is that change which we seek??