The Bihar Legislative Assembly passed the Bihar Special Armed Police Bill 2021 on 23 March. The passage of the Bill was marked by violence that included a scuffle in the Assembly that captured national headlines. The Bill proposes to rename the Bihar Military Police - the State Armed Police Force of Bihar - to the ‘Bihar Special Armed Police’ (BSAP) and grants it powers that are not given to any State armed police force. Opposition parties in Bihar vehemently protested the Bill and claimed that it effectively transforms a part of Bihar’s police force into an armed militia.
The Bill's preamble stated that its provisions are necessary for the maintenance of public order, combating extremism and ensuring that specific establishments are secured and protected. The Bihar government’s press statement stated that the Bill, ‘aims to develop the Bihar Military Police into a well-trained and fully equipped armed police force with multi-domain expertise to cater to the development needs and the larger interest of the state...’.
A close look at the Bill reveals something curious: its core provisions resemble those of the infamous Armed Forces (Special Powers) Act, 1958 (AFSPA) that gives exceptional powers to the Indian Army. These special powers have been subject to intense controversy for decades and heavily criticised by human rights activists.
So, how does the Bill resemble the AFSPA?
First, much like the AFSPA, the Bill allows the BSAP to search and arrest without seeking a warrant from a Court or Magistrate. A Special Armed Police Officer may arrest any person against whom there is ‘reasonable suspicion' of committing hurt or a cognizable offence to life or property or any other offence under Section 7 of the Bill. The officer may also detain and search a person who they believe might escape or conceal evidence.
Second, the Courts cannot take cognizance of any offence committed by an officer under this Bill unless a report with the sanction of a higher officer is authorized by the Government.
Lastly, exactly like the AFSPA, the Bill also requires any person arrested and taken into custody to be taken to an officer or the nearest police station along with a report of the circumstances of the arrest. Unlike the provision under the Criminal Procedural Code, 1973 the AFSPA and the Bill do not prescribe a time limit for detention nor require the arrested person to be presented before a magistrate.
During a debate on federalism in the Constituent of Assembly of India, a group of Members wanted clarification on the distinction between the Army and the Police. The Assembly President raised the question put forth by HN Kunzru: 'whether a province will be able to raise an army, without calling it an army, but calling it police? To this, B.R. Ambedkar replied, ‘…if a province is going to play a fraud on the Constitution, the Centre will be strong enough to see that that fraud is not perpetrated.’
The Bihar government through the Bill has given extraordinary powers to a unit of its police force that until now have only been given to the Indian Army.
Would Ambedkar have called this a fraud on the Constitution?