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Towards a police state

It is marching ahead in slow steps, relentlessly but surely. The world’s largest democracy is being nibbled at from inside…

Towards a police state

Police

It is marching ahead in slow steps, relentlessly but surely. The world’s largest democracy is being nibbled at from inside and is getting corroded. A cruel irony, as it is supposed to function within the four corners of the democratic world’s finest written Constitution. The rule of law is largely benefiting the high and mighty, or those who can buy protection and safety with their influence or status. The general populace is at the tender mercy of the state – the emerging police state.

Let there be no illusions about it. We are marching towards a police state, where the almighty police force is out of control. It is virtually accountable to no one and does what it pleases. A number of recent cases have shaken the faith of the common man in the police, or whatever semblance of faith was left. Almost seven decades after the promulgation of the finest Covenant of democracy and the rule of law, the criminal justice system is in a shambles. The reason is obvious. Prompt and fair investigation – the bedrock of criminal justice delivery system – is more an exception than the rule.

Investigation of crime in India is done under the Criminal Procedure Code, arguably the finest code in the democratic world. Indeed, India owes a permanent debt of gratitude to our erstwhile British masters, in particular Lord Macaulay who bestowed on us a legacy of pure gold, the lustre of which radiates as brightly as it was more than a century and a half ago when the nugget, transplanted from UK was refined by one of the finest legal craftsmen of the 19th century. As eminent historian Sardar Pannicker put it, Macaulay was the second Manu of Indian civilisation.

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In spite of such a priceless legacy, we are, like with so many other precious legacies, busy squandering it. The police are the main agency for criminal investigation. It is investigation, and investigation alone that makes or mars the final result of a criminal case in a court of law. The independent judiciary comes into the picture only after the investigation is completed by the police. In other words, it is the police which play the critical role in the final determination of the court’s verdict, whether the criminal will be made to pay for his crime or escape scot free.

Broadly, the police are supposed to work under the executive magistracy even after the separation of the Judiciary from the Executive under the Constitution. Under the original Criminal Procedure Code, the police had no preventive jurisdiction whatsoever, to begin with. It was exercised by the executive magistracy exclusively. And in serious cases, say inquest on a dead body, the police again had no role. Increasingly, all this is now being grabbed by the police under the “Commissioner System”.

In the overall set up of the Government, the police are a directorate of the controlling Ministry – Home, which is manned exclusively by the civil service – all trained magistrates. In the states and districts, the police were similarly accountable to the executive magistracy. And police were not posted in the supervisory ministry. In the administrative units in the field, the magistrates annually assessed police performance and exercised powers of preventive criminal jurisdiction.

All this began to change after Independence, especially after the 1960s, when the old guard of the ‘steel frame’ began to retire – the ICS. They were trained in an altogether different school and were always particular about observing basic certitudes of good democratic governance which included full and strict accountability of the armed services of the state to the civilian executive, whether in the secretariat or the field. Part of the damage was done by successive Central Pay Commissions which are headed by members of the Judiciary who have no administrative experience.

Since Independence, the heads of police directorates were equated with the joint secretary of the controlling ministry, to whom they report on a virtually daily basis. Gradually, the police heads equated themselves with the additional secretaries and now with the Home Secretary. Today, there is just one civilian Secretary in the Ministry and around a dozen secretary-level officers from the police force. Consequently, there is no worthwhile accountability of the various police forces to the controlling ministry. The subordinate directorates are now virtually independent.

The argument is often advanced that the police officers are also members of an all-India service – the IPS. This argument is only partly valid. The civil servants that man the positions in the controlling ministry belong to a multifunctional service – the IAS, trained in myriad laws ranging from criminal, civil, revenue, municipal, summary procedure etc. In contrast, the IPS is a uni-functional service trained mostly in a single law – the Criminal Code. Hence, trained to serve in a single directorate.

Ironically, the first attempt at police reforms in India post-Independence ended up by further tightening the grip of the police on civil governance. Throughout the 1970s, the main staple of the Press in India, then as now, was unending stories of police malfunctioning throughout the country. The ultimate ignominy was conferred on the police by a renowned jurist, late Justice A.N. Mulla of the Allahabad High Court who described it as a mafia in uniform – “the largest organized criminal force in the country”. It ignited a nation-wide debate.

Things have since improved not at all. It is a sad commentary on the working of the police force that the debate continues even today. If anything, the level of the debate has been raised higher. Fifty years after the remarks were made by Justice Mulla, the National Human Rights Commission, headed by a former Chief Justice of India has repeated the severe indictment publicly (in the context of working of the UP Police).
The Government of India set up independent India’s First Police Commission in 1979 to suggest police reforms. It was flawed from the beginning. It comprised a majority of policemen, with a nominal civilian as Chairman. It was serviced by the police directorate, with a High Court judge and an academic. It was dominated by policemen, and made recommendations giving police more and more powers. A force, which was part of the problem, was to be made part of the solution. The elaborate farce was bound to be laughed out of court.

The Report found fault with all the various actors in the criminal justice system – the courts of law, the free media, the legal profession, the “interfering” political class, the supervising magistracy conveniently termed “bureaucrats” etc. The searchlight was pointed in all directions, of course outwards. The Government of India, in consultation with the state governments rejected it, as most of the suggestions were either self-serving or downright unconstitutional.

There was one crucial suggestion though. The Police Commission report was written largely by the policemen themselves. During the course of studying the causes of politicisation of police, it was discovered that the main cause of the same was retiring senior police officers “hobnobbing” with the ruling politicians in the expectation of post-retirement rewards. So pronounced was the tendency that the Commission itself suggested barring the practice by enacting a law.

Of course, influential policemen ensured that the Government would do no such thing. Quite the contrary. The practice of retiring policemen being appointed to Constitutional posts such as Governors became the norm in the late 1990s and thereafter. The trend is most pronounced now, as retiring policemen are now being given even diplomatic assignments. Meanwhile, a handful of retired policemen petitioned the highest Court in the land to direct the Government of India to implement the suggestions of the Police Commission, in the form of an Affidavit.

The affidavit was not only self-serving but also false. It was submitted by a retired officer of the rank of Director General of Police. It presented a selective summary of only those suggestions which had been rejected by the government as mostly self-serving or removing the last vestiges of magisterial control on the force. The most critical suggestion – barring retiring policemen from post-retirement rewards to check politicization of the force while in-service, was conveniently blacked out.

One of the most damaging suggestions was to extend the Police Commissioner system, if it can be termed a “system” at all, to all metropolitan towns. It confers all authority on the police, with little or no accountability. The results are all too evident. Gurgaon has recently been brought under the “Police Commissioner” system. In one of its first acts of criminal behaviour, a posse of armed policemen proceed to Mumbai and brazenly gunned down a “gangster”. Gurgaon police as investigator, prosecutor, judge and executioner!

Some weeks ago, they were at it again. A schoolboy was murdered in the school’s toilet. The police promptly arrested the conductor of the school bus, and even extracted a “confession” from him, something barred by law as the power lies only with the magistracy. It was only when the case was handed over to the CBI that truth was out. The poor conductor was innocent. So much for the working of the police under the “reformed” Commissioner System.

That the police are doing investi gation in the most shoddy, unprofessional way will be established in any number of high profile cases. Take the Talwar murder case where the doctor couple have been let off by the High Court, with strictures against the police. That the Courts would eventually throw out the case was known to all but the Noida police. There was conspicuous negligence, or worse, at the highest levels of the police, right from the word go.

Soon after the murder, the Regional Inspector General ‘rushes’ to the spot from Meerut. He fails to secure the scene of crime, a first precaution as any primer on criminal investigation will tell us. He grandly announces that the police are hot on the trail of the servant and expect to nab him shortly. The fact of the matter was that the dead body of the servant was lying on the terrace, which the IG fails to inspect. Of course, it is now infra dig for “senior police officers” to soil their hands in such mundane matters.

The IG further announces, again publicly that the murdered girl had loose character. He thereby betrays his complete innocence of the Penal Code whereby such statements are defamatory for the kin of deceased victims. With such shoddy investigation ostensibly supervised at the highest levels, the eventual acquittal was a foregone conclusion. Of course, there will be no one to hold to account any of the police officers concerned in the entire sordid episode. If such is the standard of investigation in a case where the attention of most of the nation was riveted for several years, one shudders to think of the quality of investigation in ordinary cases.

That investigation is being done in such shocking ways, at all levels of the police is established from another sensational case from Shimla. A young girl is raped and her dead body is recovered. An innocent young man is framed by the police. The local populace is aghast, and popular anger spills over to the streets. To pacify the public, the CM sets up a Special Investigation Team under an Inspector General of police, no less. It is discovered that the latter is himself complicit in the murder of the innocent youngster, as now established by the CBI. The IG has been arrested.

One of the consequences of the emerging police state is that India is losing face in the comity of civilized nations. For all our justified pride in having one of the finest Constitutions in the world and aspiring to be a member of arguably the most exclusive Club in the world – the Security Council, we are unable to control our own police force and shed the stigma of an almost banana republic. In modern democratic jurisprudence, a police state is defined as one where the armed services of the state are accountable to no one.

To look to history for a remedy, the Founder of the former Soviet Union and the architect of the Russian revolution, Lenin was frustrated in all his attempts to reform the old feudal system and the corrupt monarchy. He was groping for the right remedy, when he suddenly came up with the right question: “What is to be done now?” A time has now arrived when we must ask ourselves the same question on the issue of police reforms, if we are to reverse the march of the creeping police state in India.

When the handful of disgruntled police officers approached the highest Court with selective suggestions, the most undesirable one was to extend the Police Commissioner “System” to all metros, without a thought about the accountability of the force. Undeniably, the Commissioner system is in vogue in West European countries but the criminal investigation is done under the supervision of magistracy. In India, the virtually independent Commissioner “System” is spreading like the plague.

First things first. As investigation is the critical input for eventual success, or failure, of a criminal case, it must be done under the supervision of civilian magistrates. It is too critical a function to be left to the police alone, without any check or balance. Secondly, the Police Commissioner should be re-designated as Commissioner-Magistrate, a civilian who will be a counterpart of the District Magistrate in the non-metros and outlying districts. This would be fully compatible with the certitudes of democratic governance – civilian control over the armed services of the State.

The writer is a retired IAS officer and Member, International Academy of Law.

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