Meryam
Dabhoiwala, Human Rights School desk, Asian Human Rights Commission
There is
a lot of talk these days about the Indian police force, and much
literature
attesting to the corruption and brutality of Indian police. A recent
publication, Policing India in the new millenium (P J Alexander
[ed.],
Allied Publishers, New Delhi, 2002), offers a range of opinions on the
current
and future state of India’s police. As the government of India has
recently
promised to pursue the recommendations of the Committee on Reforms of
the
Criminal Justice System (the Malimath Committee), including several
that would
give the police more power over both victims and prosecutors, a brief
review of
these authors’ ideas is timely.
The
past in the present
To
understand the present, it is necessary to recall when India’s police
force
emerged, during the colonial period, “To protect and perpetuate the
interests
of the empire.”
According to
Manoje Nath, the police force had been “conceived in the immediate
aftermath of
the ‘mutiny [of 1857–58]’”, and as such, “The more anti-people the
police was,
the more it endeared itself to its masters.”
The 1861 Police Act, which to this day is the guiding legislation over
the
Indian police force, is an entirely authoritarian instrument devised to
suit
the specific needs of the colonisers at the time of legislating. Nath
writes
that,
It was
not for the police to question the rights or wrongs of [the Act]. They
were
obliged to quell dissent and enforce obedience whatever the costs.
[The] basic
duty was to provide an ambience of peace and tranquility for the
single-minded
exploitation of the enormous resources of raw materials and a captive
market.
Why this
century-old act is still on the books in a post-colonial, democratic
nation, is
an enigma. The answer as suggested by J Prabash, lies in the
‘personalist-centralized politics’ found in India, which are not
conducive to
nation building. Rather, such politics rely on the use of “force
instead of
policies to confront political dissent and popular movements, [which]
results
in excessive dependence of the state on the administrative apparatus,
particularly the police.”
Thus, the state confers arbitrary power to the police on the pretext of
maintaining law and order, thereby legitimizing human rights
violations. It
follows that there would seem to be little difference between the
motives
giving birth to the Indian police 150 years ago, and present-day
motives for
using it to maintain the status quo.
No
human rights talk; no human rights walk
India has
no history of human rights discourse. For thousands of years, the Law
of Manu
predominated, with its rigid social laws and immovable caste system.
Although the British brought western notions of law and justice with
them, for
the most part these were not implemented unless in regard to British or
European citizens. Most Indians were never exposed or educated in
contemporary
law, and would not have known their rights under such law. They would
also not
have known that at Independence the Constitutional Assembly agreed that
the
human rights violations that occurred under British rule should not be
repeated
in independent India.
India
possesses a wealth of laws and provisions to guarantee its citizens’
human
rights, and even its Constitution makes way for their primacy. The
presumption
of innocence, due process, right to freedom from unwanted arrest, right
to
bail, right to protection from unlawful search and seizure, and right
to public
and speedy trial are all encompassed within India’s various laws and
amendments.
India is
also a party to several international covenants protecting human
rights, such
as the International Covenant on Civil and Political Rights (ICCPR).
However,
these laws and mandates are poorly implemented, and today remain just
as
unknown as were such laws a century ago. A human rights discourse does
not
properly exist in India, and therefore human rights are not guaranteed.
Far too
little has been done to ensure that the rights promised in the
Constitution
have been implemented. Only recently have human rights groups and NGOs
begun to
make their voices heard.
The Law
of Manu permitted—indeed, obliged—that certain social groups, such as
low
castes and women, must be treated with contempt via explicit social
sanctions.
Such sanctions still exist, and are perpetrated by all state
institutions, most
significantly, the police.
For
instance, Indian police refuse to register complaints brought by Dalits
(‘outcastes’), or cause needless delays. For this reason, Dalits do not
lodge
many complaints with the police, and are further apprehensive of
threats,
grudges and more atrocities against them.
When the police feel they have no choice but to register a case brought
by a
Dalit, they change the nature of the offence so that it can be tried
under the
Indian Penal Code, rather than the Protection of Civil Rights Act;
between the
two, the IPC offers lesser punishments.
Such tactics point to patent subversion, abuse and double standards.
S K Verma
states that,
[Violations
of] human rights at the hands of the police... take many forms, from
non-registration of cases to fake encounters. In the matter of
non-registration
of cases, besides outright non-registration, there could be acceptance
of the
report but entry into some unofficial register, thereby giving the
complainant
an erroneous impression that the case had been registered.
Verma
also quotes the National Police Commission in saying that almost 60 per
cent of
all arrests made by the police are “unnecessary and as such
unjustified”.
A large
number of human rights abuses committed by the police are custodial.
While 35
custodial deaths were reported in 1995, the figure increased to 46 by
1998. The
conviction rate for such deaths however, dropped from 60 percent in
1995 to
36.4 per cent in 1998, while the conviction rate for custodial rape
remained at
zero.
Custodial torture is another major problem. The number of torture cases
in 1995
was 36,592, and in 1998, 35,275. The Law Commission of India has
recommended a
new provision that provides “for the prosecution of a police officer
for the
alleged offence of having caused bodily injury to a person in custody”.
To date, however, this amendment has not yet become part of statutory
law. One
reason for the delay may be because India has yet to ratify the
Convention against
Torture. Although it signed the Convention in October 1997, without
ratification its provisions do not translate into domestic law. Thus
torture in
India is not yet acknowledged as a crime subject to serious punishment.
The
National Human Rights Commission of India, as well as various other
human
rights activists, has urged the Indian government to ratify the
Convention to
no avail.
Conclusion
The
Indian police force is a largely unaccountable body, born in a bygone
era,
lacking respect for human rights and the rule of law. Police training,
then,
needs to inculcate a sense of responsibility for these principles.
Institutions
must be established to monitor the police force and ensure that these
principles find their way into practice.
In light
of the above, the recommendation of the Committee on Reforms of the
Criminal
Justice System to increase police power in relation to victims and
accused
persons seems rather despotic and militant. The Committee was set up to
suggest
improvements to the Indian criminal system. If this were in fact its
aim it
would do better to suggest ways to curb police human rights abuses,
rather than
increasing police power to ensure speedy case closures. The Committee
should be
urging the government to respect its obligations under the ICCPR, not
to
mention those under the national Constitution, to provide and protect
fundamental human rights, rather than undermine these commitments. It
should
also pressure the government to ratify the Convention against Torture,
and
undertake the necessary steps to implement the provisions of the
Convention.
These steps would by no means solve the immense and complex systemic
problems
facing India’s police force, however, they would be a good start.
Posted on 2003-11-07
