04 September, 2012

presumed innocent? don't bet on it!

the hullabaloo surrounding the breaking up of parties (or, in police, or, increasingly, media parlance, 'raiding of rave parties') is getting to me. i had avoided writing on it for several instances, thinking that an IPS educated police commissioner, with an IAS district magistrate, a so-called 'enlightened' judiciary and a progressive society would obviously self-correct the anomalies in the process of these 'raids' and what has happened was just initial hiccups in the larger war on drugs, drunk driving, teenage drinking and anti-social behaviour by some goonda elements

however, with sunday night's raid on the pune party, i think it might be time to raise some questions, and possibly, demand answers. the news article can be found here and here and here among several other places. just type in 'pune police maya party raid' in google and you would have about 250,000 results in 0.28 seconds or thereabouts

here are my questions:
excuse me bartender

  • if i were to ask for a drink and it were to be served to me, whether free or charged, am i breaking any law? the law, as far as i know, prohibits SERVING alcohol after a certain time (2300 hours?), not CONSUMING it
  • if i were to dance to music, shout and holler, along with 300 other people on a designated dance floor, am i breaking the law? the law, as far as i know, prohibits PLAYING music after a certain time (2300 hours again?), not DANCING to it 
let's party
  • if i were to drink, even to the extent of getting drunk, but if i were not to trouble other patrons, am i breaking the law? the law, as far as i know, prohibits DRIVING after drinking or creating PUBLIC NUISANCE, not DRINKING per se (strictly, this is not correct. more on this later)
    mini skirt? sari? you pick!
  • if i were to wear a miniskirt and a halter top (two words i have picked up from the local marathi newspaper, which announces this fact as if this alone is incriminating evidence of something highly illegal!), am i breaking the law? the law, as far as i know, prohibits public INDECENCY, not wearing CLOTHES of one's choice which are well accepted in the society one finds oneself during the period of one wearing those clothes (or not wearing any, for that matter)

let us, for a moment, leave aside the ridiculous bombay prohibition act of 1949 that mandates that a licence is necessary to drink and that india is actually a prohibition country. enough has been said about that already, and the topic of this blog is not the archaic laws that exist, not only in india, but also around the world

as an aside, i do have a licence. i got it in 2007, for life, by paying rs.1,000 (about US$20), after declaring that alcohol consumption is necessary for my physical survival ("...the preservation and maintenance of my health"), which meant a medical practitioner certifying me to be an alcoholic! by the way, this piece of paper is a great ice breaker abroad. it has never failed to get an amused response, which usually begins the exercise of passing it around the bar, examining it, and discussing it, thus making me several firang friends in the bargain!

let us also forget the fact that the so-called 'obscenity laws' are so subjective and the police have so much discretionary powers that they can declare almost anyone as outside the bounds. i am sure there are far smarter people, with far more legal education, who can comment on this
what is obscene?

i will also not go into the 'causing public nuisance' thing, since once again, the police have wide ranging discretionary powers. and here is the fun part. most lower court magistrates share the same moral and social sensibilities as the cop, and will see your actions as 'nuisance' or 'breaking public peace' or your dress as 'obscene'. it is only when you go to higher courts can you find someone who can understand the context in which you were shouting, singing, dancing, drinking and wearing bright makeup and mini-skirts. but then, the cops can harass you because you know you will need to use up a lot of your time, money and patience to fight these allegations and even if you come out clean at the end of it, you would rather just pay a bribe (at worst) or obeisance (at the least) than to challenge the charges and go to court

"Sadrakshnāya Khālanīghrahanāya"
(Sanskrit:"To protect good and to Punish evil")

do you really believe this, mr.commissioner?
let us also overlook the fact that despite having immediate, highly visible and high priority issues like terrorism, extortion, murder, rape, paedophilia, drug smuggling, corruption, scams and a complete breakdown of cordial relations between the policeman and the common citizen, the cops seem to concentrate and sensationalise, besides spend huge amounts of time, effort, public tax money, and stake their reputation on raiding a party which has overshot the allotted time by two hours. they are, if anything, lucky, methinks, that no terrorist activity happened in the city during that time, when so many of them were busy proving their manhood to a bunch of students

what bothers me, to be honest, is the 'presumed guilty' attitude of the police, the media, the judiciary and the lay people in such cases

what i want to write about is how this could have been handled differently if i were, say, the police officer-in-charge:

  • if i suspected that an illegal party is being planned (there were hoardings across the city inviting people for this party), i would find out prior to the party beginning and stymie it right there
  • if i suspected that the party has started and has extended beyond the allowed timelines and is causing disturbance to the neighbourhood, i would reach the venue with one other cop, possibly (or delegate this task to a junior), seek out and find the owner/manager, tell them to stop with immediate effect, give them a warning, and write to the commissioner so that a record be created in their name, which can be pulled up when they next apply for a party licence
  • if i suspected that underage people are drinking, the course of action is the same as above: meet the management/owners, ask them to call in the bartenders to be interviewed, and get to the truth. then, follow the law. the onus on refusing a drink is on the server and not on the drinker. ditto for asking for some kind of identity/age proof, as i have seen so many bars abroad do, and do quite effectively. at most, a clandestine filming of the so-called underage drinkers could have been conducted so as to stop any false denial by the management. if necessary, those filmed could be brought in and asked to prove their age. even this is unnecessary since just the fact that no id proof was asked (as seen in the film), it can be assumed the bartenders have no control over who drinks
  • if i suspected drug abuse or sale, i would send undercover cops to find these, film or record them (and the equipment is available with pune police...what the hell, the equipment is available with everyone who has a smartphone!), and do a surgical strike to take them out. if i find that it is very wide-spread, i can then raid the party
  • if i suspected there is obscenity, i could film it, and take action against the management/owners

in any case, it becomes irrelevant to raid the entire party unless any of the above is observed, recorded and confirmed as happening on a large scale and appears prima facie to be planned by the party-goers

was this necessary?
and in any case, it is completely unnecessary, illegal and immoral to subject the entire population of party-goers to the kind of treatment that was meted out. to be arrested, detained, insulted, physically assaulted, denied water, food or phone calls, humiliated, filmed, exposed to media, paraded in public, made to sit on the floor, photographed on personal mobile cameras, mocked and made to feel like criminals without having a single shred of evidence, is condemnable to the extreme. more so, when the 'crime' (what crime? obscenity, public nuisance, drinking without permit) is obviously bailable

i do not know the legal stand on this, but does not the accused in india have the following rights?:

  • the right to be told the charge under which s/he is being detained
  • the right to call a lawyer
  • the right to water and toilet facility
  • the right to prescribed medicine
  • the right to freedom from physical abuse
  • the right to dignity
  • the right to demand, and receive, the name and service number of the arresting cop

maybe some legal expert will shed some light on these rights. i would love to know what my rights are in case i have a run in with the law, which usually happens when the law decides to have a run in with me, as with these party-goers who did not go seeking trouble, but the cops decided to create it for them

the only online reference i found was here, which is articles 19 to 22 of part III of the constitution of india

right to refuse?
and yes, one more thing: when the blood tests are carried out, do i have the right to demand a clean needle and a professional nurse? do i have the right to demand to see the purity of evidence? what if the bottles get switched? what if some samples get contaminated or lost? what if the needle used is infected? whose liability is that? i would like to know if i have the right to refuse a test that, while being conducted, may endanger my life (maybe through contaminated needles, maybe through loose controls, maybe due to lack of proper safety precautions etc)

we hope truth triumphs
in any case, the point i am trying to make is not only why the party-goers in this case were accused (they were detained and made to undergo tests, for sure. in my books, that is accusation) but when they were accused, why were they denied the basic fundamental rights guaranteed by the constitution? and why are we so scared of the police and the police so uncaring of us, that even with all of these party-goers belonging to educated, urban, intelligent, cultured people (or at least a majority of them are), no one seems to have raised their voices in the 11-odd hours of illegal detention? the noise made in the media seems to be only once the shock has waned and seems like an afterthought

and the last question: will anyone be found guilty of this outrage, even given the number of petitions to the courts and amount of media coverage this has generated? if so, how would that person be punished? i ask this last question because if at all there is a deterrent for the next lot of moral policemen/goondas, it has to come from the same legislature that has made (and continues to stick to) these archaic laws, and/or the same judiciary which  enforces them!

भ्रष्ट्र तंत्र का भ्रष्ट्र सिपाही

as for the 'policeman is your friend' campaign, mr.police commissioner, your people have done more damage to your force's reputation in one night than you could have managed had you planned to purposely soil the face of pune police with a sustained 'your policeman is an uncivilised, uncultured boor' campaign. this is not a one-off incident and i am not just an educated, urban party animal who has taken offence. this is a fundamental issue and if at all you think you have the time from all the terrorist activity happening in the city, it might be better utilised to look into the attitude of your officers to the common manआपण समजूतदार आहात!