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What Jitender Tomar's arrest says about cops carrying out illegal orders

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Markandey Katju
Markandey KatjuJun 13, 2015 | 11:00

What Jitender Tomar's arrest says about cops carrying out illegal orders

I have pointed out in my article published in The Hindu that the arrest of Jitender Kumar Tomar, the Delhi law minister, was clearly illegal, being in contravention of the Supreme Court decision in Joginder Kumar vs State of UP (1994) as well as Section 157(1) CrPC.

It is obvious that the policemen who carried out this illegal arrest were complying with some order received by them from some higher authority. The important question which arises for our deliberation is whether the police are bound to carry out such an illegal order.

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The settled position in law is that they must refuse to carry out an illegal order, failing which the policemen concerned will themselves have to face severe criminal as well as civil penalties.

In R vs Commissioner of Police for the Metropolis, exparte Blackburn, (1968) 2 QB 118, Lord Denning observed that the police are under a duty to follow the law. It follows that if there is a conflict between the law and an order issued by an executive authority, the police must follow the law, and ignore the illegal order of the executive authority, however high.

In the Nuremberg Trials held after the Second World War, the Nazi war criminals took the plea that they were only carrying out orders of their superior authority, Hitler. This plea, that "orders are orders" was rejected by the International Tribunal, and many of the accused were sentenced to be hanged.

A bench of the Indian Supreme Court of which I was a member, held that fake "encounter" killings by the police were illegal, and the guilty policemen must get a mandatory death sentence, vide Prakash Kadam vs Ramprasad Vishwanath Gupta (2011). In that decision we also observed:

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"Trigger-happy policemen who think they can kill people in the name of encounter and get away with it should know that the gallows await them."

So if a policeman gets an illegal order, whether from a higher police authority, or a political authority (like a minister), it is his duty to refuse to carry it out, otherwise he will have to face criminal and civil liablility. To make an illegal arrest is a crime (wrongful restraint and wrongful confinement) punishable under Sections 341 and 342 IPC.

A wrongful arrest is violative of Article 21 of the Indian Constitution, which guarantees life and liberty to all persons. In Deepak Bajaj vs State of Maharashtra (2008) the Supreme Court observed:

"The purpose of Article 21 is to safeguard the liberty of the citizen which is a precious right not to be lightly transgressed by anyone. The imperative necessity to protect those precious rights is a lesson taught by all history and all human experience. Our founding fathers had lived through bitter years of the freedom struggle and seen an alien government trample upon the human rights of our citizens. It is for this reason that they introduced Article 21 in the Constitution".

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In Ghani vs Jones (1970)1 QB 693 (709) Lord Denning observed:

"A man's liberty of movement is regarded so highly by the law of England that it is not to be hindered or prevented except on the surest ground."

The above observation has been quoted with approval by the Indian Supreme Court in Govt of Andhra Pradesh vs P Laxmi Devi JT 2008 (2) SC 639 (vide para 90).

In the Gita, Lord Krishna said to Arjun that a man should do his duty, irrespective of the consequences. The policeman's duty is to follow the law, irrespective of the consequences.

Last updated: June 13, 2015 | 11:00
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