Being a Maoist is no Crime: Interpreting the Kerala HC Judgement
A simplified version of the Kerala Court’s judgement which ruled that being a Maoist is not a crime.
Last week, Justice A Muhamed Mustaque of the Kerala High Court delivered a landmark judgement, ruling that just being a “Maoist” is no crime, and that the police cannot arrest a person just on that account. Over the years, the police and paramilitary forces have arrested several men and women without vail arrest-warrants for beliving in left-extremist ideologies.
Here is a simpler version of the 32-page judgement for easy understanding.
Keeping aside the particular facts of the case, which is to do with petitioner Shyam Balasubramanian being subject to an illegal search and detention by the police on suspicion of being a Maoist, here is how the judge elucidated his arguments in the judgement.
How do we define arrest? The judge goes into much detail on this question, and establishes that an arrest is taking away of a person’s liberties.
The judge also lists out the instances when the police may carry out the arrest without a warrant. This includes arresting for cognizable offences, committing a crime in the presence of a police officer and arresting a person against whom a reasonable complaint has been made or reasonable suspicion exists. For arrests based on complaint or suspicion, which is mostly the case in Maoist arrests, several conditions have to be met, which are listed out from the Code of Criminal Procedures.
The court also establishes that a balance has to be maintained between the needs of the law enforcement agencies and the protection of the citizen from oppression and injustice of the state. This is a crucial point.
The court then lists out several requirements for arrests on the basis of the case DK Basu vs State of WB. They include rules like the police should carry proper credentials like ID cards and badges, the police must prepare a memo of arrest after the arrest, attested at least by one external witness, counter signed by the arrested and that the arrestee shall be entitled to inform a family member or friend. There are 11 such conditions.
Having said this, the judge makes the most important points in Pages 18 and 19.
1. A reasonable suspicion or belief is more than a mere possibility of the commission of offence. The police officer must exercise “due diligence” and have “factual foundation” for arrest. That means, just because there is a possibility of one breaking the law does not mean the police has reasonable suspicion to arrest a person.
2. Being a Maoist is no crime, it is a basic human right to think in terms of human aspirations. Freedom of thought is a natural right.
3. There must be a line between private life and public life, and the line is drawn by the Constitution when it says that the person has the right not to be arrested.
4. The police must have a reasonable opinion that his activities are unlawful.
The judge further directs the state to pay a compensation of Rs 1 lakh as demanded by the petitioner, stating that the petitioner in fact deserves much more.
Interestingly, the judge also says that the policemen who make the arrest cannot be held responsible. The judge says that the state machinery failed, not the officers. What is required is a systemic change.
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