Thursday, June 10, 2010

Your constitution and your traffic havaldar

The opposite of civil liberty is executive tyranny. The freedom of this nation after 1947 and adoption of Constitution of India after 1950 brought the people at par with the machinery called as the Sarkar, the executive. After that date, you and I got rights written explicitly in the constitution which even the sarkar could not flout anymore.

This executive tyranny should have been history after independence. But unfortunately, even now I still get into useless arguments with these sarkari traffic havaldars who don't seem to realise that we've won freedom.

They don't realise that after independence, the power to judge offences and ordering of impounding documents/property rested only with the courts, and not anymore with these fat bellied bribe sucking policemen.

You must know that most of the current system , including the Constitution of India, is very similar to what British had brought here before Independence. The Constitution of India is very similar to the Government of India Act(GOI) 1935 which the gori sarkar had brought in. This Act till then was the most voluminous Act written in the world. That is also partly the reason why our constitution is the largest in the world because its very similar to the GOI Act 1935.

The major difference that did arise after adopting the free constitution was the introduction of fundamental rights. Those rights were our gift of independence, the result of hardships of freedom fighters. The freedom fighters wanted to ensure that no sarkar in future, either of a "gori sarkar" or a homemade tyrannical sarkar, would be able to flout these fundamental rights of the people of India.

These rights come at a price ,though, to you and me. Eternal vigilance is that price of liberty.

If you and I do not use these rights against a useless in the executive, the sarkar, then just forget about that date 15 Aug 1947 ever happening in history. We may not deserve these rights in the first place then. The older readers would know how one particular right has already been lost since independence. Vigilance is the price that I have to pay, I know.

Let me bring the point a little closer home.

You and I regularly get harassed by these traffic havaldars on frivolous or cooked up grounds so that they can take a share of dough from you and me.

How many of you realise it then and there that this traffic havaldar is the "sarkar" very similar to the gori sarkar before Independence which used its arbitrary and discretionary power to keep the citizenry in control?

If that realisation does dawn on you, you'll also realise that there was something called as Independence of India which happened on the way, wherein you got a lot of rights against exactly such arbitrary and discretionary executive acts. In fact, because of those rights being constitutional, there couldn't have been a rule or a law in the first place over-reaching those rights.

Taking that example further.And ever try the following steps:

(1) Don't agree with the traffic havaldar that you did jump the signal, and would rather have it settled it in the court.

The traffic havaldar would then demand your car registration papers to be impounded(the RC papers) and tell you that you can get it from the courts only thereupon(which,obviously, you would really want to avoid).

(2) Tell that havaldar he has no authority to impound your car or its ownership papers. There is nothing as such provided in the Motor Vehicles Act 1988 or the rules. Tell him that car being a property (or its ownership papers) can only be impounded on the orders of a judge.

Even the traffic havaldar knows, and you should as well, that he has the authority to impound your vehicle only when it is unattended or wrongly parked, or when he writes that the offence as drunken driving or a hit-and-run type.

(3) Next, the havaldar may instead ask you to submit the driving license to him and he may tell you to take the license from the court only thereupon. Its his favourite trick to harass you.

Show him all the disrespect you can for exceeding his authority, and tell him to produce in writing the reasons for impounding your license. He will most likely write the alleged offence(such as jumping the light, driving with mobile switched on etc) as the reason for impounding your license.

Once you have his written reason on your hand, and before you hand over the license to him physically tell him the following :

The only reason you can record for impounding my license are the reasons which cause you to believe that I will avoid the court summons. As per the Motor Vehicle Act 1988, if the havaldar has

"...reason to believe that the driver of a motor vehicle who is charged with any offence under this Act may abscond or otherwise avoid the service of a summons, seize any licence held by such driver... ".

Stating that the person jumped a red light cannot be the reason for believing that he will not attend the court.

(5) Even then if this doesn't work then he is supposed to give you an acknowledgement slip signed by him.
Under no circumstances should you counter- sign the slip paper if you are not paying up the cash. Signing a paper as receipt for license, not the fine, would be admission of guilt as per the contents of that paper. Check up the text for yourself when, God forbid, if you get fined.

Here is an interesting judgement in Kolkata High Court( Dipankar Dutta Vs State of Bengal) and it appears a similar one was passed in Orissa High Court, where the judges upheld that these traffic havaldars cannot impound license of those individuals who are co-operating with them in giving all the information.

(At least it seems there is more freedom from these traffic havaldars tyranny in Kolkata than in Delhi due to the judgement being from Kolkata High Court. Common law system makes this judges' observation as the law in West Bengal till the time in future it is overruled either by a legislation in West Bengal Vidhan Sabha or the Supreme Court. Lucky Bongs! They can carry this judgement's certified copy in the car for showing to West Bengal cops. But I think us Delhi guys can also take respite in the judge's logic.)

The link of the judgement is on

Let the traffic havaldar know that he becomes liable for your claim for damages if he is insisting you to submit your license due to the reasons beyond those written in the law.

(6) And if you finally really think that you must sign on that form (to save any more heat), before your signature do write in the box that "the traffic policeman Mr XXX, on duty, has refused to provide the reasons mentioned in section 206 of MVA, 1988."

Face the court for once then, dude! From my personal experience, you can hope that the reason and rights will be upheld in the court in the first hearing itself. And besides, that cop will also have to make an appearance which even he would want to avoid because he loses a day full of bribes being away from the road.

Where does Constitution and citizen's right come in all this?

The article 20(3) in the constitution gives you the right against self-incrimination. It basically means the burden of proof in an allegation by the sarkar is on the sarkar. Sarkar can't insist you to sign up a document and produce it as record in their favour.

The traffic havaldar can't ask you to sign up, along with his signature on the receipt of your license.

We didn't have this right before independence. Now we do. Little things go a long way.

1 comment:

Anonymous said...

Great Job Milan
Please keep writing such articles
very very helpful and knowledgeable.
Atleast we will have some respite from these chor, corrupt, blood sucking, irritating Morons with stomach like a bloody footbal filled with our money...
im going to keep a chit of paper with a few jargons and fancy lines like impounding of license and motor vehicles act 1988 etc.
Then let me see which bloody lalchi good for nothing donkey has the guts to even argue..:)