[Reproduced from : Mainstream, August 14, 2004]

India: Beyond the Limits of Law

by Ajay K. Mehra [Posted online @ SACW on August 21, 2004]

As Prime Minister Dr. Manmohan Singh unfurls the countryís tricolour from the ramparts of the historic Lal Quila on Indiaís 58th independence day this 15th August, the country is still mulling over the most unlikely political scenario thrown up by Indiaís tumultuous politics. The Prime Minister himself, more an academician than a politician, but certainly a political leader without any mass base, who emerged as the most unlikely prime ministerial candidate, owes this high office to the past three decades of political churning in India. Though for the first time in the history of the politics of the country and the Indian National Congress, the functional and political autonomy of the Prime Minister is under question vis-à-vis the party President and some of his own colleagues, many of whom are political leaders with their own spheres of influence, Dr. Singh has begun on the right note by giving a call to turn attention to the institutions of governance and the need for institutional correctives on issues like criminalization of politics, rather than knee jerk reactions and solutionless partisan hullabaloo.

Even though the police have not been separately mentioned in the need for reforms in institutions and administrative practices stressed by him, given the controversies surrounding the police in India for the past three decades ó incompetence, corruption, brutalization, human rights violations, communal partisanship, et. al. ó and consequent discourse on reforms in the police and criminal justice system prevailing in the country, it is important that issues relating to the malfunctioning of this crucial institution of governance are highlighted and flagged for further discussion. The controversy over tainted ministers and ëpoliticization of criminalsí adds a further contemporary relevance to cast a critical eye over the role and functioning of the police in the Indian polity and society, for such leaders under whom the police have to function have little respect for the Rule of Law, the broad principle under which criminal justice system, nay the entire democratic governance, functions. Moreover, since the Prime Minister has himself expressed the desire for improving governance in the country, it would be appropriate to expect new, firm and sustained initiatives from the UPA government on initiating a process of institutionalising institutions like the police, which have over the years been systematically deinstitutionalised.

Systematic systemic deinstitutionalisation of the police in India over the years has led to their overstepping the limits of law more frequently, in greater dimension, more daringly and in a variety of bizarre ways. That aberrations associated with the ësubordinate ranksí (an euphemism for all ranks from Inspectors to constables) ó corruption, custodial death, highhandedness and more ó are now starkly visible among the coveted IPS of all ranks, unambiguously highlights the state of the rot in the entire police hierarchy. Unfortunately, politicization, criminalization and inefficiency of the police are overshadowing the efforts made by some voluntary orgnisations and well-meaning police officers to introduce reforms in the law and order machinery.

Indeed, the Gujarat carnage in recent times has emerged as a major indicator of systemic failure concerning the law and order machinery, for it raises questions far beyond the partisanship and involvement of the police in communal violence and collective violence of different kinds. What do the police do in cases of state (read the political dispensation running the machinery of the state) complicity in breakdown of law and order, for the police in India are a strong arm of the state? This is a critical question that deserves tackling in the discourse on police reforms. However, several other events of various dimensions and nature highlight the increasing rot within the organisation and the pressure that it is undergoing. The ongoing protest against the Assam Rifles, a paramilitary organisation operating in the northeast, in Manipur for alleged torture, assault and killing of a 30 year old woman on July 10 exemplifies the tendency amongst the police and security forces cross the legal boundaries. The encounter death of four alleged terrorists, including a Mumbai girl, on 15 June, reported to be on a mission to kill Gujarat Chief Minister Narendra Modi, by the Gujarat Police has once again raised question regarding ëencounterí as a tool of law enforcement, for despite establishing organisational linkages of those killed, the police have been unable to give convincing circumstantial reasons for the ëencounterí. The storm raised by alleged involvement of two top cops in Maharashtra, and several others from all over the country, in the judicial stamp scam orchestrated by Abdul Karim Telgi, in which the needle of suspicion for the first time has turned towards the prestigious chair of Mumbai Police Commissioner, has still to die. An Inspector General of Police of Haryana cadre is facing trial on the charges of masterminding murder of a journalist in Delhi, while several others of his rank, the highest position in the police hierarchy till two and a half decades ago, face serious criminal charges on one count or the other in different States of the country.

Indeed, the Gujarat communal violence in 2002 epitomized, aside from penetration of sectarian seaminess at every level in the state structure, politicisation of the entire criminal justice system. Not surprisingly, in its landmark judgement in the Best Bakery retrial case, the Supreme Court observed, ëÖthe role of the investigating agency (read police) itself was perfunctory and not impartial. Though its role is perceived differently by the parties, there is unanimity in their stand that it was tainted, biased and not fair.í That in the din and bloodshed of the riots the political leadership, even at the national level, could successfully fudge a proper investigation of the Godhra incident, the spark that lit the communal fire, shows both politicisation of and surrender to the political bosses by the police bureaucracy. The folly gets compounded as the successor political dispensation feels compelled to distrust the entire bureaucracy favoured by the previous regime. Let us recall the role of the top echelons of the Tamilnadu police in the arrest of the former chief minister Mr. Karunanidhi and the action against senior journalists of The Hindu sometime back. In neither of the cases the police could decline to the chief minister to carry out illegal orders. In a bizarre case recently in Saharanpur (UP), an officer-in-charge of a police station arrested and tortured some BSP leaders; when suspended, he not only confessed to the electronic media of his Samajwadi Party allegiance (boasting that he would be reinstated in a week), he also asserted that the IPS officers in the State were divided (and nurtured) on party lines. The high rate of transfers of the entire bureaucracy, particularly with regime change, buttresses his assertion. Increasing partisanship in the role of the police in incidents of all kinds of collective violence is indication of politicisation of a police organisation that has never been extolled for professionalism.

In fact, the police behaviour during the Gujarat riots (and of course in several preceding them) brings up the question of policing the Indian ëdiversityí in a democratic milieu. Trust, consent and accountability (social, political and administrative) are key to policing generally and more particularly in a multi-cultural situation. The need for a police organisation representative of the larger society has been discussed in this context. Though this is a complex question without a definite answer, a highly skewed composition of the police, tilting in favour of the majority community, has resulted in biased behaviour in critical times. It is important, therefore, to study this dimension and introduce correctives. Further, in order to judge the police behaviour in India in recent time, deficiency of the police personnel in each of the above three elements needs to be juxtaposed to the explicit expletive language of the political leadership in Gujarat against the minorities and the discourse on ëcultural nationalismí unleashed by the national leadership in the past decade and a half, projecting a significant section of the population as the ëotherí. The question is whether the police in the country would feel the need to win the trust and consent of the society and remain accountable to their duty under such a surcharged atmosphere, particularly when the minorities are not well represented within the organisation.

The Indian police, who are largely unarmed, face armed ëencounterí either when they plan to engage a gang of armed outlaws (including terrorists and revolutionaries), or when they get ambushed by such elements. It is an extreme measure, to be used only when other methods of policing are not useful in a situation. ëEncounterí is certainly not meant to mete out quick justice, or a short cut to escape delays and deficiency of the judicial process in eliminating a perceived nuisance. However, aside for being used for such purposes, ëencountersí have been used by some unethical and corrupt officers to earn quick promotions and against rival mafia groups for a consideration. Unfortunately, fake encounters have been reported even in terrorism or insurgency-ridden areas like the Jammu and Kashmir and the northeast. Not surprisingly, each encounter, as the recent one in Ahmedabad, comes under social scanner and becomes controversial till its authenticity has been settled. Since this instrument of policing has the greatest possibility of breaching the line of limits of law, it deserves greater circumspection by the policing experts.

The police alone among the civil agencies of government have functions which can be broadly described as coercive, and they, therefore, stand in the public mind as ultimate symbols of the brute power of the state. Since in the nature of things those who have coercive powers and the authority, under legal sanction, to use force are occasionally apt to abuse or exceed their powers, organisational and legal mechanisms are created to obviate such possibilities. The high rate of brutality and custodial crime by the Indian police suggests that such mechanisms are either non-existent, or weak and non-functional. In the introduction to its report on Custodial Crimes, the Law Commission of India observed: ëMembers of the weaker or poorer sections of society are arrested informally and kept in police custody for days together without any entry of such arrests in the police records.... The relatives or friends of the victim are unable to seek protection of law on account of their poverty, ignorance and illiteracy.... This situation gives rise to a belief that the lawsí protection is meant for the rich and not for the poor. If the incidents of custodial crimes are not controlled or eliminated, the Constitution, the law, and the State would have no meaning to the people which may ultimately lead to anarchy, de-stabilizing the society.í The NPC had attributed custody torture, at times leading to death, to weaknesses in training in investigating crime and pressure of volume on an overstretched police. The investigations by civil rights groups like the Peopleís Union for Civil Liberties have corroborated organisational weaknesses leading to such aberrations. However, they also blame attitude of highhandedness embedded in the police psyche in India, where non-compliance is not tolerated. The brutal reaction does not only lead to torture, but also fabrication of case against the victim. Of course, the democratic concepts of the rule of law are trampled in the process.

Police in India has unfortunately been synonymous with corruption. Barely four decades since the current police system was created by the Indian Police Act 1861, the Police Commission of 1902 indicted the organisation: ëThe police is far from efficient, it is defective in training and organisation; it is inadequately supervised; it is generally regarded as corrupt and oppressive; and it has utterly failed to secure the confidence of the people.í Sir John Shore, one of the members of the Commission, observed: ëSubordinate police officers in India were paid so low as almost to justify corruption.í Elimination of corruption remained among the most vital concerns of all the State police commissions and of the NPC in India. While the subordinate officers and ranks could never get over the curse of corruption, the leadership of the police today, despite good salary and enormous perquisites, including the antiquated feudal-colonial orderly system, appears not only corrupt, but is also being infected with criminalization, which has come with authority, politicization and corruption. Bihar had witnessed a uniform scam a few years back involving some senior officers. That no one heard of it subsequently is indicative of the hydra-headed unholy nexus involving corrupt mandarins, politicians, contractors, scamsters, and even criminals. Bizarre though it is, the Manipur Rifles went on an arms-down stir on December 8, 2000 when they discovered that money drawn for their allowances between 1996 and 1998, instead of being credited to their accounts, had allegedly been siphoned off by some persons in authority. The matter was apparently sorted out, but nobody knows if the guilty were caught and punished.

Corruption and tendency to curry political favours was never completely absent amongst the police leadership. Indiscretion of the police leadership and interference by the politicians led to a major ërevoltí in Haryana in October 1991. Political interference in police affairs was among the complaints when the Bihar Police struck work in July 2000. Politicization of police assumed the gigantic proportions of today, moving close to criminalization, as the Indian politics entered a highly competitive phase, in which a pliable and unscrupulous officialdom became an asset. Obviously, with criminalization of politics the pressure on the police to turn a blind eye to violations of law has been increasing. Recently the Bihar police chief accused politicians, including the RJD chief Laloo Yadav, of paying obeisance to the stateís biggest don Shahabuddin, who also happens to be a RJD MP. The spate of transfers and shuffling of police chiefs in several States with each regime change are meant to convey the savage message to be pliant. A recent report highlights the soft corner the Laloo-Rabri (themselves facing trial in fodder scam and disproportionate assets case) regime in Bihar has for IPS officers charge sheeted by the CBI. Bihar has naturally bequeathed many such officers to Jharkhand, where at least half a dozen Superintendents of Police and Deputy Inspectors General are facing serious corruption charges. Such reports abound from most other States. Under such circumstances if a police officer is not personally corrupt or criminalized, (s)he certainly functions with Nelsonís eye. 
The police have also been accused of abetting atrocities on dalits by siding with the perpetrators. The report on caste violence by Human Rights Watch noted, ëLaws designed to ensure that Dalits enjoy equal rights and protection have seldom been enforced. Instead, police refuse to register complaints about violations of the law and rarely prosecute those responsible for abuses that range from murder and rape to exploitative labour practices and forced displacement from Dalit lands and homes.í

True, as a result of historical circumstances, India inherited a regimented and extremely repressive and highly corrupt police organisation on independence, there was a need to get down to the task of police reforms at the very outset. As the policepersons of all ranks across the length and breadth of the country are increasingly working beyond the limits of law, many a times with political patronage, there is an express need to turn attention to comprehensive reforms in the police and criminal justice system. Since Prime Minister Dr. Manmohan Singh has expressed his desire to introduce correctives in the institutions of governance in the country, police reforms should be a top priority of the UPA government despite inherent coalitional contradictions.

[The writer is Director, Centre for Public Affairs, Noida, UP]

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