tag:blogger.com,1999:blog-20119036.post382027514239323211..comments2024-03-27T13:23:09.998+05:30Comments on BHASKAR: Chhattisgarh DGP faces barrage of questions from HR defenders at BerkeleyBHASKARhttp://www.blogger.com/profile/15358610336955926132noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-20119036.post-43939901954509404742008-10-20T16:28:00.000+05:302008-10-20T16:28:00.000+05:30CONFUSION ABOUT INDIAN CONSTITUTIONAL AND LEGAL PO...CONFUSION ABOUT INDIAN CONSTITUTIONAL AND LEGAL POSITIONS REGARDING CSPSA<BR/><BR/>I have been reading various write-ups and comments in web-sites on what DGP Chhattisgarh spoke in Berkeley and its contradiction by the DGP in one response. I also understand that about 50-60 students of Indian origin opposed his visit, shouted slogans, showed placards and posted posters against him. Even though the DGP has been the most popular and accessible police officer in Chhattisgarh not only in this present tenure as DGP but also because of his earlier postings as Superintendents of Police in Raigarh and Bastar, I can not object to slogan shouting etc. which was organized at Berkeley because we in India also have democratic right to oppose, raise slogans etc. We also raise slogans even though sometimes we are ignorant of full facts.<BR/> <BR/>However as a lawyer I must explain that there seems to be misconceptions about CSPSA which emanates from wrong understanding of India Constitution. While the 'Directive Principles of State Policy' and 'Fundamental Rights' enshrined in Indian Constitution are based on basic principles of human rights a balance has been created between protection of individual right and loss of protection for society at large in Indian Constitution. For this, the principle of "reasonable restrictions" has been introduced. There are many Supreme Court decisions to determine the reasonableness of imposed restrictions of already existing laws or a new law, like CSPSA. A law of internment (which restricts fundamental rights) can only be void if it does not offer a right of representation against internment or an opportunity to be heard. It would be similarly held void if it denies the higher courts the jurisdiction to go into the constitutional validity and legality of the law. The CSPSA does not deprive the individual the right to represent against internment, seek bail in the court or challenge the constitutional validity of this law in higher courts. Dr. Binayak Sen is a known social worker but his bail application was finally rejected by the Supreme Court of India.<BR/> <BR/>Secondly, Indian Constitution does not allow a police officer to be also a judge. The police officer charge sheets in the court a case, if there is prima facie evidence. Prima-facie evidence only means collection of evidences on which charges can be framed in a court of law. It is only after evidence is produced in the court; cross examination of witnesses done and examination of documentary evidence that the trial court comes to a judgment. Even then both the state and defendants can appeal to higher courts if they are not satisfied. <BR/> <BR/>There is also some confusion regarding police officer withdrawing a case. In criminal cases the police may decide not to prefer charge-sheeting a case if it has not been able to collect enough evidence and can send 'Final Reports' but it is for the court to accept them and it is free to return the cases to police for further investigation. Similarly, once the charges have been framed and the trial has commenced the state may decide to withdraw the charges but court may or may not permit withdrawal of charges. So the final decision rests with the courts in such cases and not with the government or the police. This is the settled legal position in India.<BR/> <BR/>There was another confusion in at least one of the letters/write-ups which talked of "legislative intrusion in the constitution". Well, if any aspect of the Indian Constitution is to be altered (and it can be altered), or if a new law is to be passed, it can only be done through legislative processes. Such things can not be termed "legislative intrusions". The settled law of India is that such alterations should not affect the basic frame work of the constitution.<BR/><BR/> I think that much of the opposition to DGP Chhattisgarh emanated from ignorance of Indian legal position, which is not much different from laws, in the most of the democratic nations. <BR/><BR/><BR/><BR/><BR/><BR/><BR/><BR/><BR/>H.S.Panda<BR/>Advocate, Raigarh, Chhattisgarh<BR/>India - 492001Anonymoushttps://www.blogger.com/profile/13216331293683626997noreply@blogger.com