India, since the Covid-19 pandemic and the subsequent lockdown, has witnessed a series of police excesses. This is most visible in the heavy handedness of the police force on migrant workers. On the other side, the same police personnel have drawn citizens’ attention and respect for their untiring work as frontline managers in maintaining law and order during the lockdown period.
However, two instances have caused a paradigm shift in citizens’ perception towards the police force across the country. First, the loss of two lives, ie, a father and son in the Sathankulam police station of Thoothukudi district in Tamil Nadu owing to police torture and violence in custody. Second, the killing of a criminal in a police encounter in Kanpur district of Uttar Pradesh. Both these reflect the functioning of deep remnants of the colonial legacy of a police state with variations.
In the first case, the Tamil Nadu government handed over the case to the Central Bureau of Investigation while the Uttar Pradesh government appointed a one-member commission to investigate the Kanpur ambush and the subsequent encounter killings.
Holding Accountable
The Supreme Court is considering the appointment of a committee on similar lines like the one constituted on the alleged encounter killings in Disha rape case. We will come to know the truth only after the submission of the reports of these committees and commissions. At this juncture, it is worth asking certain intriguing questions such as who should be held accountable for these deaths? Is it the police or political leadership or both? In fact, both police and political leadership have to provide answers.
Police excesses are not a new phenomenon in our society. We have witnessed custodial deaths since colonial times. The root of the problem lies in continuing the colonial legacy of custodial deaths as a process of normalisation in policing.
The National Human Rights Commission (NHRC) in its Annual Report of 2017-18 notes that “Custodial violence and torture is so rampant in India that it has become almost routine”. As per this report, in 2017-18 alone, the Investigation Division of the NHRC dealt with a total of 5,371 cases, including 2,896 cases of deaths in judicial custody, 250 cases of deaths in police custody and 2,225 fact finding cases. The division also dealt with 277 cases of death in police encounters.
Most of the police laws operating are enacted by the British regime which need an immediate change in accordance with the human rights envisioned in the Constitution. The main governing legislation is the Police Act, 1861, enacted in the aftermath of the 1857 Sepoy Mutiny.
Model Police Act
After Independence, the National Police Commission (NPC) was appointed in 1977, and it produced eight reports during 1979-81. The Commission recommended the repeal of the Police Act, 1861, and gave a template for the “Model Police Act”. Sadly, no State government took a keen interest in adopting this Bill. However, it served as a reference document for some of the States to come up with their own Acts like that of Punjab, Andhra Pradesh and Madhya Pradesh.
After this, a plethora of committees and commissions, namely Ribeiro Committee (1998-99), Padmanabhaiah Committee (2000), Malimath Committee (2002-03), Police Act Drafting Committee (2005), Supreme Court directives (2006) in the case of Prakash Singh vs. Union of India, Second Administrative Reforms Commission (2007), and the Model Police Bill (2015), has recommended police reforms.
The main reason for the non-implementation of the recommendations of the above committees and commissions is the nexus between criminals, politicians and police elites. The criminalisation of politics, high level of political interference, lack of adequate accountability mechanisms (both internal and external), loopholes in the criminal justice system, including the Criminal Procedure Code, insensitivity towards human rights, especially among district and below district police officials, continuation of the colonial police governance regime in day-to-day functioning, insufficient capacity building, inadequacies in recruitment and training at the State level are some of the contributing factors for the police excesses.
Internal Governance
There is a need to reform the internal governance system of the police force. This can be done through modernisation of the policing system with robust infrastructure, technological tools for interrogation of criminals without resorting to violent methods. The eight-hour working norm must be adhered to for reducing the pressure on the local staff, especially below the district level. Insulating the police force from political interference by strengthening internal accountability mechanisms is critical to sustaining the morale of honest officers.
A State Security Commission (SSC) could be the first step; separating law and order from the criminal investigation process will enhance the quality and credibility of policing. The NITI Aayog argues that it would be better to shift the subjects “police” and “public order” from the States to the Concurrent List. This needs a constitutional amendment and is a difficult proposal as it requires States’ consent. For this purpose, the idea of federal crime mooted by the Second Administrative Reforms Commission can be considered.
Adoption of external accountability systems on the lines of the UK – (Independent Police Complaints Commission [IPCC]), South Africa – (Independent Complaints Directorate) and Police Performance Evaluation Mechanism are necessary to check police excesses. Section 96 of the Kerala Police Act, 2011, contains provisions related to the reporting of the officers who use methods of “physical torture” to the District Police Chief. This Act also contains the provisions to engage the community in the policing activities.
Other States can replicate some of these provisions to improve the quality of policing. At the political level, the entry of criminals into the Assembly and Parliament must be barred by bringing changes in the Representation of the People Act, 1951, especially Section 8 (4). A visionary leadership and strong political will are necessary to fructify these internal police governance reforms.
(The author is PhD Fellow & Guest Faculty at Institute for Social and Economic Change [ISEC] and University Law College, Bangalore University. Views are personal)
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