Strip Search an Attack on Individual Dignity
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Author: A.K. Srivastava
(Twitter account @aksrivastava232) is Senior Advocate in Supreme Court of India, New Delhi where he is practicing since last 40 yrs. He had been Advocate General of Govt. of Sikkim & was Hon.Secretary of Supreme Court Bar Association for two years(1991-92,1992-93). He writes at http://ak-srivastava.blogspot.in & has agreed to post his articles here too.
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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. I am 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 indignity 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 STRIP SEARCH is and how it affects the human dignity. STRIP SEARCH is:-
“A STRIP SEARCH is a practice of searching a person for weapons or other contraband 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 cavities (mouth, vagina, anus etc.). A strip search is more intrusive than a frisk and requires legal authority. Regulations covering strip searches vary considerably, and may be mandatory in some situations or discretionary in others“
The procedure of STRIP SEARCH was agitating the minds of ordinary 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 together 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 was being driven by his pregnant 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 Amendment to the US Constitution which guarantees that people should be free from unreasonable search and seizure by government 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 distinguish 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 erroneous and that the Court should have tested the submissions on the anvil of Fourth Amendment which guarantee that people should be free from unreasonable search and seizure by government agents. I am sure that our Indian Supreme Court would not have taken this unreasonable view.
There is also Doctrine of Proportionality which requires 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 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 saved both the countries from embarrassments and indignity to Devyani.
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The truth is U.S. has/had a horrible history of racism. In Devyani’s case it was expected. India needs to be firm and concrete on foreign policy but its not the case. I myself living and travelling in foreign countries doubt that whether Indian Mission ever going to help just in case. I also know no Indian diplomat is safe in any country and can be subjected to abuse. Forget about Indian Diplomats as they get immunity from the govt. What about Indian citizens who are subject to same abuse and not been looked after by our same Indian Mission/Consular or rather govt. India has a very lousy foreign policy. It has to change for Indian Citizens and also for the Diplomats working for the citizens.
I agree with the commentator.