Report No. 177

1.10 Guidelines laid down by the Supreme Court.-

The effort of the courts, and in particular of the Supreme Court over the last more than two decades has been to circumscribe the vast discretionary power vested by law in Police by imposing several safeguards and to regulate it by laying down numerous guidelines and by subjecting the said power to several conditionalities. The effort throughout has been to prevent its abuse while leaving it free to discharge the functions entrusted to the Police.

While it is not necessary to refer to all of them for the purpose of this working paper, it would be sufficient if we refer to a few of them (which indeed reaffirm and recapitulate thedirections and guidelines contained in earlier decisions). In Joginder Kumar v. State of U.P. (AIR 1994 SC 1349), the pow exercise has been dealt with at length. It would be appropriate to refer to certain perceptive observations in the judgment:

"The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?

A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes firs.- the criminal or society, the law violator or the law abider; of meeting the challenge which Mr. Justice Cardozo so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered.

The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law."

This court in Smt. Nandini Satpathy v. P.L. Dani AIR 1978 SC 1025 at page 1032, quoting Lewis Mayers, stated:

"To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the lawenforcement machinery on the other is a perennial problem of statecraft."

The pendulum over the years has swung to the right.