By Kritika Mahendra, New Law College, BVDU
Editor’s Note: It is a paradox that the citizens of the world’s largest democracy do not trust one of the most important administrative organs of its government – the Police. The ruling elite and middle class citizens see them as political decoys and blame politicians for not letting the police play their rightful role in society. The lower income class feels intimidated by them and is in constant fear of their convenient authority. It follows that there is a dismal lack of understanding about the nature and functions of the police in the country. This paper poignantly illustrates that respect for human rights does not come naturally to the Indian Police and Security forces. Brutal and barbaric policing practices prevail and need strong public condemnation. Thus, it is high time to re-enact our existing antiquated police laws to ensure better accountability, efficiency and society friendly approach.
The rights of people have been a matter of grave concern of all civilizations from time immemorial. Respect for human rights lies in the heart of good governance. All State institutions whether they are the police department, the army or civil administration are bounded by the duty to respect and promote human right regulations and punish the culprits. The police play a significant role in this respect as they are charged with the responsibility of maintaining order and enforcing laws. Unfortunately, at times, when discharging their duties, the actions of the police conflict with the human right regulations.
The NHRC too has issued guidelines for officers. The Commission has been established under a Special Act of Parliament to protect and promote the human rights of the citizens. It addresses the violations of human rights by recommending registration of criminal cases against the culprits, disciplinary actions against errant officers and prevents the culprits to walk away scot-free. The Commission strongly opposes custodial violence, as in the recent case of Agnelo Valdaris, 25 years, who died allegedly due to severe beating for stealing a gold chain. It also recommends measures like lie detector tests and good police-public relations. In India, where flagrant violations of human rights are a routine affair, the NHRC registered 94, 985 such cases of custodial deaths, which are bound to increase if not checked.
Therefore, ideal policing involves respecting human rights and upholding the Rule of Law which has been strongly emphasized by the SC and the NHRC. The current governing instrument of the Indian Police Force is the Police Act of 1861 which is outdated. Attempts to reform the Indian Police system has been made on both – State and Central Level since 1971. There have been 6 major reform committees[i].
The Committees have analysed the current structure and listed 5 defects with the system-
1) Unwarranted political interference and politically driven appointments, transfers and promotions;
2) Disparate functions performed by an overburdened police force hindering efficiency and domain specialization;
3) Lack of genuine empowerment of personnel;
4) Lack of independent oversight body; and
5) Inadequate collaboration between the police and the prosecutors.
Also, India has the lowest citizen police ration in the world. It has been recommended and followed by many police systems in the world that there must be 1 policeman for every 200 citizens though we are far behind this ratio. India has the highest number of police torture and custodial deaths among the world’s democracies and the weakest law against torture. The police often operate in a climate of impunity, where torture is seen as routine police behaviour to extract confessions from small pickpockets to political suspects.[ii]
In the aftermath of the Emergency, a period which saw great atrocities committed upon the citizenry by the police, there was a hue and cry against the police and demands for dismantling the Central Police Organizations. The Government of India appointed a National Police Commission[iii] for fresh examination of the role and performance of the police, both as a law enforcing agency and as an institution to protect the rights of the citizens enshrined in the Constitution. It came out with three reports.
The NPC submitted their 8 Volume Report between 1979 and 1981 which contained recommendations to re-organize the police and give them a new face, a new style of functioning, functional independence, strict accountability and professionalism. In their second Report submitted in August, 1979, the Commission in Chapter XV dealt with interference with and misuse of Police by Illegal or Improper orders or pressure from Political Executive or other extraneous sources – Remedial Measures.
Except for the formation of Police Associations, as a result of a nationwide police agitation (which as apprehended, have today ended up being support organizations to various political parties), not one recommendation was implemented. The third report of the NPC, referring to the quality of arrest by the police in India mentioned that power of arrest was one of the chief sources of corruption in the police. The report suggested that by and large nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the prison department.
The Parliament established the National Human Rights Commission (NHRC) to deal with such abuses but police torture continues unabated. According to the latest available government data, there were 1307 reported deaths in police and judicial custody, in India in the year 2002. The State of UP v. Ram Sagar Yadav[iv] discussed the issue of injuries in police custody. In Keshavananda Bharati v. State of Kerala[v], the Supreme Court observed that the Universal Declaration of Human Rights (UDHR) may not be a legally binding instrument but it shows how India understood the nature of human rights at the time the Constitution was adopted.
WHAT IS MEANT BY POLICING?
Policing is one of the most important requirements of peaceful coexistence of the society. Policing is a practice put in place to maintain social order in the society. It is basically installing ways to control crime in the community. It concentrates on the maintenance of law and order and the prevention and detection of offences. There are three styles of policing. There is watchman which emphasizes maintaining order. There is legalistic which emphasizes law enforcement and professionalism and then there is service which focuses on the treatment of the individual.
The purpose and objectives of police in a democratic society are:
- Prevention and detection of crime
- Maintenance of public order
- Respect for rule of law
- Respect dignity of humans
- Respect for freedom, liberty and rights of citizens
WHAT IS MEANT BY ETHICS?
The concept of “ethics” was introduced by Socrates, and defined as a “philosophical discipline” by Aristotle. Today, this discipline tries to set up criteria for “good” and “bad” behaviour, and to evaluate the motives for these behaviors and the consequences thereof. Ethics, also known as moral philosophy, is a branch of philosophy concerned with the study of questions of right and wrong and how we ought to live. Ethics involves making moral judgments about what is right or wrong, good or bad. Right and wrong are qualities or moral judgments we assign to actions and conduct.
HUMAN RIGHTS IN CONTEMPORARY WORLD
Human rights are based on the principle of respect for the individual. Each person is a moral and rational being who deserves to be treated with dignity. They are called human rights because they are universal. Whereas nations or specialized groups enjoy specific rights that apply only to them, human rights are the rights to which every human being is entitled—no matter who they are or where they live.
Human rights are universal legal guarantees protecting individuals and groups against actions by Governments that interfere with fundamental freedoms and human dignity. Human Rights law obliges Governments to do some things and prohibits from doing the others. The following are some of the most frequently cited characteristics of human rights:
- Internationally guaranteed
- Legally protected
- Focuses on the dignity of the human beings
- Protect individuals and groups
- Cannot be waived or taken away
- Equal and interdependent
CORRELATION BETWEEN POLICING AND ETHICS
While police officers must know the limits and nature of their authority, citizens must also know their rights. A proper balance has to be achieved between individual rights and public interest through the mechanism of the Rule of Law. This is the essence of human rights law.The NHRC guidelines are meant to inform citizens as well as the police about their rights and duties; to enable people to protect themselves with this knowledge and to guide the police in the performance of their task by indicating that any transgression would be illegal.
Accountability is a crucial aspect of the ethics of policing. It is not about the control of police but about the responsibility for the way in which the control is exercised. The accountability is threefold — accountability to the people, accountability to law and accountability to the organization.
In State of Gujarat v Kishanbhai[vi], SC took cognizance of the high number of acquittals happening due to shoddy investigations, and passed strict orders to take action against the erring police officials. In a recent case, the convicts of the attack on the Akshardham Temple were released after 11 years in judicial custody and the Court expressed its anguish about the incompetence with which the agencies conducted the investigation and the wrong done to the convicts, their family and the society. It is a clear case of transgression of human right regulations which adversely affects the society and its faith on the Indian judicial system. In my opinion, a reason behind is that the accountability of the police is not fixed. The investigation officer(s) handling the investigation resulting in such incidence should be punished. This will not only keep a check on the policing process but also it will send a clear message to the society that any wrong-doer, whom-so-ever, will not be spared.
CORRELATION BETWEEN POLICING AND HUMAN RIGHTS
Police functions are mostly prohibitive and regulatory in nature and this leaves an impression on the individual citizens that police interferes with the life, liberty and freedom of the people. It is the duty of the police to preserve order and prevent crime. When there is a violation of law, it is the duty of the police to apprehend the offenders and produce them before the court to be dealt with the procedures established by law. Whenever violations of human rights by police are reported, it causes an overall effect of loss of faith in the police as a protector and upholder of citizens’ rights. Corruption erodes public faith in police and undermines the rule of law, leading directly or indirectly to a violation of human rights. It further affects the image and reputation of the individual police personnel and the police organization.
Human Rights Watch observes that while not excusing abuses, abysmal working conditions for police officers contribute to violations. Low-ranking officers often work in difficult conditions. They are required to be on-call 24 X 365. Instead of shifts, many work long hours, sometimes living in tents or filthy barracks at the police station. Many are separated from their families for long stretches of time. They often lack necessary equipment, including vehicles, mobile phones, investigative tools and even writing paper to record complaints and make notes.
POLICING, HUMAN RIGHTS, AND JUDICIAL SYSTEM
The Police Act, 1861 visualized the role of the police as a mere law enforcement agency. The NPC suggested that the police should assume a service-oriented role of which law enforcement is only a part. Due recognition must be given to the police station as the basic unit of contact between the people and the police. Police and judicial system are part of a system which protects and safeguards the society from various crimes. They also play a vital role in safeguarding the rights guaranteed to the citizens by the Indian Constitution and proper implementation of laws made by the Parliament.
The primary duty of the police is to curb any wrongdoing, investigate crime, apprehend criminals, prepare charge sheets, help Courts in summoning witnesses and finally help the Court adjudicate. Courts i.e. judiciary, the fourth pillar of the democracy, guarantees people living in a lawful manner, enjoy all the rights granted to them by the Constitution. Nobody is above the law and one who violates it should be punished by the Court of Law. India is modernizing rapidly, but the police continue to use their antiquated methods: torture, abuse and threats[vii].
It’s time for the Government to stop talking about reforms but fix the system. The technologically supporting evidence are still not taken as a conclusive piece of evidence as compared to oral and documentary shreds of evidence. Such evidences are accepted only if they get corroborated with other evidence; otherwise, the Courts do not rely on them. The police, at times, in order to complete the chain of pieces of evidence are compelled to interrogate the convicts and concoct a story to somehow reach a conclusion.
If human right regulations protect the convicts from any unethical behavior or illegal detention, it fosters human values to flourish in our society. It also sends out a clear message, that no injustice will be done to any citizen. On the other hand, as explained above, if human right regulations become a hindrance in the investigation and affect the judiciary and judicial orders adversely, then surely it misleads the people. It shall raise a question on the credibility of judicial system of this country and faith of the people in the fourth pillar of democracy will be shaken.
In India, the policing must be efficient, lawful and humane. It is the responsibility of the Government to ensure that police agency are properly resourced. Also, there must be continuous external supervision and monitoring by the Government and legal institutions. The police must abide by the human right regulations to ensure human dignity and involvement of society in policing. This will not only strengthen the bond between the police and society but also create a police-friendly environment. Before I conclude, I would like to add that the Government needs to amend the law appropriately so that policemen who commit atrocities on persons in their custody are not allowed to escape by reason of paucity or absence of evidence. The police should not be the rulers but guardians of the people and there must be no political intervention. Also, India must take immediate steps to curb inordinate delays in adjudication and accurate policing and investigation is a must for right judgement.
Formatted on 13th March 2019.
[i] 1) Gore Committee; 2) National Police Commission (NPC); 3) Riberio Committee On Police Reforms; 4)Padmanabhaiah Committee On Police Reforms; 5) Group Of Ministers On National Security; 6) Malinath Committee On Reforms Of Criminal Justice System.
[ii]Joginder Kumar V. State Of UP And Others; D.K. Basu V. State Of West Bengal; Sheela Barse V. State Of Maharashtra; Icchu Devi Choraria V. Union Of India; Gopalanachari V. State Of Kerala.
[iii] On 15th November, 1977
[iv] 1985 SCR (2) 621
[v] AIR 1973 SC 1461
[vi] 2014 (1) SCALE 177