Is a Police Officer subject to a ministerial direction? Certainly not. A police officer performs his functions under law. His power to investigate, search, arrest and prosecute a suspect or an accused is regulated by the code of criminal procedure and other laws.
The celebrated British judge Lord Denning laid down this principle in 1968 when he said:
‘I have no hesitation, however, in holding that, like every constable in the land, he should be, and is, independent of the executive. He is not subject to the orders of the Secretary of State,….I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and the honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant to anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone’.
This principle was affirmed by the Indian Supreme Court in the Vineet Narain (Jain Hawala Case) in 1998. A police officer is strictly bound by the law. His powers under the law are to be balanced with the citizens’ right to life and liberty. If he violates a procedural safeguard, in the course of exercising his powers, he acts contrary to the law. The battle for preservation of a person’s liberty has been more on account of procedural safeguards rather than substantive law.
Compare it with what happens elsewhere. On July 6, 2000 the then British Prime Minister Tony Blair’s son 16-year old son was arrested for being ‘drunk and ‘incapable’ in London’s West End. To save the embarrassment of disclosing his father’s name, he gave a false identity. He was taken to the Charing Cross Police Station. He was kept inside a cell. Subsequently, Prime Minister Blair and his wife Cherie, who were holidaying at Portugal at that time, had to accompany their son to a Police Station. The Prime Minister and Mrs. Blair acted appropriately as adults and the son was released after a final warning. Subsequently, Prime Minister Blair found nothing wrong in his having to go to a Police Station rather than the Police come to him. His comment was, ‘being a parent is tough’. The Prime Minister was subject to the powers of the police and not otherwise.
Regrettably, on account of a local minister in Delhi, some ladies who were foreign nationals had to undergo harassment. They were beaten up and forced to undergo a medical test. This included a cavity search. This was not done by the Police but the party cadres of the Aam Aadmi Party. In any civilized jurisprudence, for this unlawful act, the minister would be liable to pay them damages for his unlawful conduct. One man who stood out and has earned my respect is the unknown ACP Shri B.S. Jakhar, who defied the minister but stood by the law. We must all salute ACP Jakhar.