Somnath Bharti's non-procedural midnight raid
For quite a few days, AAP is in the limelight but not for a motivational reason.
It's been a month since AAP has taken charge as the government structure in Delhi and it is already under immense controversy for the recent African incident. Delhi's law minister and senior AAP leader Somnath Bharti has been courting headlines through his hasty raid over some South African citizens residing in Delhi.
On the midnight of, 15thJanuary 2014, a group of South Africans were stuck in the middle of a political ruckus initiated by Delhi Law minister and senior leader of AAP who accused them of being a part of a 'prostitution and drug racket'.
What has made the issue more controversial is the man- handling of the women present in the raided group. The women, typically Ugandans and Nigerians, said in their statement post the raid that they were assaulted by people not in uniform and were subjected to racist remarks form the minister of AAP. The women also mentioned that they were hurled with abuses and insults
It has also been alleged that, an African woman was forced to give a urinary sample in public for a drug test during the raid. Later, two women were also taken to a hospital for tests post which they were allowed to return home.
Once the police reached the spot, the minister, had an animated disparity with the police when he asked them to arrest those operating the 'racket' as the Delhi Police, refused on the ground of not having a warrant.
The women earlier approached the Malviya Nagar Police Station seeking action against the men who had allegedly roughed them between 1 AM and 3 AM on the intervening night of January 15-16.
The women have alleged in their petition that they were subjected to a cavity search during their medical examination at AIIMS, which was a humiliating experience. They also alleged that the minister and his people had asked them in public to give urine samples.
According to the ministers, the action was taken as a result of complaints from women in the region about the illicit activities of some foreign nationals, which included Nigerians and Ugandans.
On the incident, Delhi Chief Minister Arvind Kejriwal on January 16th denied his ministers were intrusive in police work, saying 'it was the duty of the ministers to speak and act if they witnessed any crime'. He also demanded the suspension of the Delhi Police Officers involved in the event.
Legality of the issue- Procedure that should have been followed :
a) Legally, at night police raids without warrants are only permissible when there is hint of a possibility of the destruction of facts. Ministers and volunteers cannot conduct raids as this mostly results in the unruliness of the crowd which might also become life threatening, hence it is extremely important to follow procedures.
b) Jostling into someone's home and arresting them without search or arrest warrants has been fought for and maintained over centuries and none is allowed to violate these under any conditions.
c) Considering the matter of the two African women being attacked, even if they were wrong, nothing gives a right to anybody to show violence against women. What has been done in the case is immensely irresponsible. Despite having the evidences, one has to always follow the procedure. The incident has also raised questions on racial chauvinism. According to some activist groups, most of the Africans are in India for medical purposes, some for education, some running businesses.
d) Our law, also clearly states, that no woman can be arrested or detained between 6 pm and 6 am without the presence of a woman police personnel, which seems to have been ignored in this case.
Options and remedies if the above procedure and process is violated
a) In case someone faces such situations he/ she can approach the police to lodge a complaint under section 451 (house trespass), 427 (mischief), 506 (punishment for criminal intimidation) of IPC and such. If the police turns down their request, they can file an application before the court.
b) Under Section 50, a person has the right for the search to be mannered before a Magistrate or a Gazetted officer. Additionally, the officer carrying out the search must inform the person being searched of their right to have a Magistrate or a Gazetted Officer present when the search is to be carried out. Furthermore, all searches of persons must be done after they have been clearly informed of their rights.
c) Under Section 42 of the NDPS Act, a person may perhaps be detained without a warrant, on the notion of the commission of a drug-related offence. However, such detention must be followed by the instantaneous provision of a written order delineating the justification of arrest and the production of the arrested person before a Magistrate.
The Code of Criminal Procedure, 1973 ('CrPC'), sets out the general criminal procedure related to most penal offences. Under the CrPC, an arrest may be made by a junior police officer with no a warrant in the lead of a written order including the matter for arrest. The person under arrest has to be produced before a Magistrate without delay. Also, under Section 41(1)(a) of the CrPC, a person may be arrested without a warrant if there exists reasonable suspicion of such a person being a part of a cognizable offence.
Body searches of an insidious nature and sampling of urine or blood amount to a violation of the integrity of the human body. Such acts need to be authorised by law.
No matter what nationality one belongs to, it is significant to know one's rights when faced with accusations of having committed an offence that combats drug trafficking.
Since the incident happened around the time of Republic Day, i.e. 26th January 2014, Delhi Police imposed section 144 CrPC- the section is based on unlawful assembly. According to this, any magistrate anywhere in the country can stop more than five people from gathering in one place. The police are empowered to do anything to ensure this. This law is applicable whenever, in the opinion of the magistrate, there is sufficient ground for proceeding under this section.
The Home Ministry has sought a report from the Delhi Police over the incident for which Chief Minister Kejriwal has demanded action against four police officials.
The court has ordered the registration of FIR against the persons under sections 451 (house trespass), 427 (mischief), 506 (punishment for criminal intimidation) of IPC.