STRIP SEARCH
Devyani Khobragade,an IFS officer,was posted as Dy.Consuler in India Consulate in NY.She allegedly found wanting in filling the visa form for a maid to be taken to NY.Iam not on correctness or otherwise of the contents of the visa form.It might have been a trivial affair between two strategic partners US and India.But I shall deal with the indiginity inflicted upon her by the NY Police on her.She was arrested,handcuffed and paraded in public.She disclosed her identity but it had no effect.She was subjected to STRIP SEARCH including Cavity Search and kept with drug abusers.
Let us see what is STRIP SEARCH and how it affects the human dignity.STRIP SEARCH is:-
" A STRIP SEARCH is a practice of searching a person for weapons or other contrabands suspected of being hidden on their body or inside their clothings,and not found by performing frisk search,by requiring the person to remove some or all of his clothings.The search may involve an official performing an Intimate personal search and inspecting their personal effects and body cavaties ( mouth,vagina,anus etc.).A strip search is more intrusive than a frisk and requires legal authority.Regulerations covering strip searches vary considerably,and may be mandatory in some situations or discrtionery in others"
The procedure of STRIP SEARCH was agitating the minds of ordinery Americans.The US Supreme Court came to consider the validity of STRIP SEARCH in a case Florence Vs.County of Burlington.The case was decided by the US Supreme Court by 5:4 ( Out of 9 Judges).In US all the 9 Judges sit togather and decide the case by majority unlike Indian Supreme Court where Courts sit in benches of 2 or 3 and decide the cases.Only cases involving interpretation of Constitution are decided by minimum of 5 Judges.However,on references made by smaller Benches,cases are decided by larger Benches.
The facts leading to Florence's case were as follows.One Albert Florence, an African American, a resident of NJ was arrested on the highway.The car w
as being driven by his pregnant and and the occupants of the car included a 4 yr.old son.It was Year 2005 and a Sunday when they were going for dinner.They were stopped by NJ Police. Florence was arrested,handcuffed and taken to jail and subjected to Strip Search including Cavity search bringing indignity to him.He spent 6 days in jail, and finally found innocent and released.But he had suffered inhuman treatment violating all his human rights.Florence had expressed " humiliating.It made me less than a man"
Florence brought this cause before the US Supreme Court on the ground of Fourth Ammendment to the US Constitution which guarantee that people should be free from unreasonable search and siizure by governtment agencies.He also pleaded Article 5 of the U.N.Declaration of Human Rights which lays down that " No one shall be subjected to torture or to cruel,inhuman or degrading treatment or punishment."
5 Judges of the Court namely Anthony M.Kennedy,John G.Roberts Jr.,Antonin Scalia, Clarence Thomas and Samual A.Alito Jr. took the majority view and upheld the power of Police to carry out STRIP SEARCH.However, 4 Justices namely Breyer, Ruth Bader Ginsberg,Sonia Sotomayor and Elena Kagan formed the minority opinion.
It was contended that Strip Search can be resorted depending upon gravity of offences.There is no reason why this search be resorted to cases such as violation of trivial offences such as driving without seat belt or trespassing during antiwar demonstration etc.
Rejecting all contentions, Justice Anthony M.Kennedy writing for the majority concluded " It is impractical --"unworkable" to expect overworked jail officials to have to take the time to distinguishr between harmless individuals guilty of nothing more than driving without seat belt and those who pose a true threat and may be reasonably suspected of carrying drugs or weapons."
It is my submission that the reasoning of US Supreme Court is palpably erronous and that the Court should have tested the submissions on the anvil of Fourth Ammendment which guarantee that people should be free from unreasonable search and siezure by government agents.I am sure that our Indian Supreme Court would not have taken this unreasonable view.
There is also Doctrine of Proprtionality which require that " If a nut can be broken with Nutcracker,hammer should not be used".The punishment should always be proportionate to the gravity of offence.This principle was given a complete go by by the US Supreme Court.
In Devyani's case, NY Police lost all rationality and subjected her to unreasonable treatment throwing the Strategic relationship in to tatters.India reacted angrily claring the barriers put by the US Embassy in Delhi,cancelling all the IDs given to their Embassy staff and even expelling an Embassy staff from Delhi.A little care by NY Police would have savedboth the countries from embarrassements and indignity to Devyani.
Devyani Khobragade,an IFS officer,was posted as Dy.Consuler in India Consulate in NY.She allegedly found wanting in filling the visa form for a maid to be taken to NY.Iam not on correctness or otherwise of the contents of the visa form.It might have been a trivial affair between two strategic partners US and India.But I shall deal with the indiginity inflicted upon her by the NY Police on her.She was arrested,handcuffed and paraded in public.She disclosed her identity but it had no effect.She was subjected to STRIP SEARCH including Cavity Search and kept with drug abusers.
Let us see what is STRIP SEARCH and how it affects the human dignity.STRIP SEARCH is:-
" A STRIP SEARCH is a practice of searching a person for weapons or other contrabands suspected of being hidden on their body or inside their clothings,and not found by performing frisk search,by requiring the person to remove some or all of his clothings.The search may involve an official performing an Intimate personal search and inspecting their personal effects and body cavaties ( mouth,vagina,anus etc.).A strip search is more intrusive than a frisk and requires legal authority.Regulerations covering strip searches vary considerably,and may be mandatory in some situations or discrtionery in others"
The procedure of STRIP SEARCH was agitating the minds of ordinery Americans.The US Supreme Court came to consider the validity of STRIP SEARCH in a case Florence Vs.County of Burlington.The case was decided by the US Supreme Court by 5:4 ( Out of 9 Judges).In US all the 9 Judges sit togather and decide the case by majority unlike Indian Supreme Court where Courts sit in benches of 2 or 3 and decide the cases.Only cases involving interpretation of Constitution are decided by minimum of 5 Judges.However,on references made by smaller Benches,cases are decided by larger Benches.
The facts leading to Florence's case were as follows.One Albert Florence, an African American, a resident of NJ was arrested on the highway.The car w
as being driven by his pregnant and and the occupants of the car included a 4 yr.old son.It was Year 2005 and a Sunday when they were going for dinner.They were stopped by NJ Police. Florence was arrested,handcuffed and taken to jail and subjected to Strip Search including Cavity search bringing indignity to him.He spent 6 days in jail, and finally found innocent and released.But he had suffered inhuman treatment violating all his human rights.Florence had expressed " humiliating.It made me less than a man"
Florence brought this cause before the US Supreme Court on the ground of Fourth Ammendment to the US Constitution which guarantee that people should be free from unreasonable search and siizure by governtment agencies.He also pleaded Article 5 of the U.N.Declaration of Human Rights which lays down that " No one shall be subjected to torture or to cruel,inhuman or degrading treatment or punishment."
5 Judges of the Court namely Anthony M.Kennedy,John G.Roberts Jr.,Antonin Scalia, Clarence Thomas and Samual A.Alito Jr. took the majority view and upheld the power of Police to carry out STRIP SEARCH.However, 4 Justices namely Breyer, Ruth Bader Ginsberg,Sonia Sotomayor and Elena Kagan formed the minority opinion.
It was contended that Strip Search can be resorted depending upon gravity of offences.There is no reason why this search be resorted to cases such as violation of trivial offences such as driving without seat belt or trespassing during antiwar demonstration etc.
Rejecting all contentions, Justice Anthony M.Kennedy writing for the majority concluded " It is impractical --"unworkable" to expect overworked jail officials to have to take the time to distinguishr between harmless individuals guilty of nothing more than driving without seat belt and those who pose a true threat and may be reasonably suspected of carrying drugs or weapons."
It is my submission that the reasoning of US Supreme Court is palpably erronous and that the Court should have tested the submissions on the anvil of Fourth Ammendment which guarantee that people should be free from unreasonable search and siezure by government agents.I am sure that our Indian Supreme Court would not have taken this unreasonable view.
There is also Doctrine of Proprtionality which require that " If a nut can be broken with Nutcracker,hammer should not be used".The punishment should always be proportionate to the gravity of offence.This principle was given a complete go by by the US Supreme Court.
In Devyani's case, NY Police lost all rationality and subjected her to unreasonable treatment throwing the Strategic relationship in to tatters.India reacted angrily claring the barriers put by the US Embassy in Delhi,cancelling all the IDs given to their Embassy staff and even expelling an Embassy staff from Delhi.A little care by NY Police would have savedboth the countries from embarrassements and indignity to Devyani.
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