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The new Human Rights Watch report is a damning indictment of dysfunction, abuse and impunity in the Indian police system, says IPS veteran K S Subramanian
“This week I was told to do an encounter…. I am looking for my target…. I will eliminate him.” -- Police officer to Human Rights Watch (January 2009) In its 118-page indictment of the Indian police titled ‘Broken System: Dysfunction, Abuse, and Impunity in the Indian Police’, released recently, the US-based agency Human Rights Watch (HRW) has made a devastating assessment of the pervasive human rights violations committed by the Indian police and called upon the Government of India to make necessary and possible reforms in police structure and practices. Under the Police Act 1861, which is still in force, the police in India are nothing more than a government department lacking the autonomy under rule of law that exists for the police in other leading democracies. No doubt the Constitution of India is the supreme law of the land but the police are governed by the repressive 1861 Police Act and the regressive Indian Penal Code (IPC) and Criminal Procedure Code (CrPC) in their day-to-day operations. Indictment of the police in India must thus be taken as an indictment of the governments in India, both central and state. We begin by briefly setting out the overall context in which the HRW report should be viewed. We then examine the contents of the report. We conclude by noting some of its limitations. Context In 1856, the Board of Directors of the East India Company had observed that the Indian police were ‘all but useless’ in the prevention and ‘sadly inefficient’ in the detection of crime, and ‘unscrupulous’ in the exercise of authority with a ‘generalised reputation for corruption and oppression’. The view was largely endorsed by the Police Commission of 1902. After independence, the first ever National Police Commission (NPC) set up by the post-Emergency Janata Party government of 1977, documented the prevailing conditions in the Indian police in eight volumes (1979-81) and recommended far-reaching reforms. A partisan Indira Gandhi-led Congress regime, returning to power in 1980, ignored the NPC recommendations and also the Shah Commission report on Emergency excesses and the L P Singh Committee report on reform of the Intelligence Bureau (IB) and the Central Bureau of Investigation (CBI). Other enquiries have followed in the subsequent period: the Julio Ribeiro Committee (1998, 1999); the Padmanabhiah Committee (2000); the Malimath Committee (2003); the Soli Sorabji Committee (2005) and, last but not least, the 2007 report, ‘Public Order’, by the Second Administrative Reforms Commission (SARC). The Police Act Drafting Committee (PADC) led by Soli Sorabji submitted its report in October 2006 and a little earlier, in September 2006, the Supreme Court in the landmark Prakash Singh case issued seven directions to central and state governments in India to implement police reform measures as recommended by the NPC. In 2007, the Second Administrative Reforms Commission led by Veerappa Moily submitted a report on ‘Public Order’, which suggested structural and procedural reforms much in advance of the previous recommendations of the NPC and consolidating the recommendations of the PADC as well. The May 2009 Congress-led government of Manmohan Singh had, in its election manifesto, expressed its support for police reforms. Supreme Court directions The September 2006 Supreme Court directions to state and central governments asked them to - constitute State Security Commissions to ensure that the state governments do not exercise unwarranted influence or pressure on the police; to lay down broad policy guidelines, and to evaluate the performance of the state police;
- ensure that the Director General of Police is appointed through a merit-based, transparent process and enjoys a minimum tenure of two years;
- ensure that other police officers on operational duties (including Superintendents of Police in-charge of districts and Station House Officers in-charge of police stations) have a minimum tenure of two years;
- set up a Police Establishment Board to decide all transfers, postings, promotions and other service related matters of police officers of and below the rank of Deputy Superintendent of Police and to make recommendations on postings and transfers of officers above the rank of Deputy Superintendent of Police;
- set up a National Security Commission at the Union level to prepare a panel for selection and placement of Chiefs of the Central Police Organisations (CPOs), who should also be given a minimum tenure of two years;
- set up independent Police Complaints Authorities at the state and district levels to look into public complaints against police officers in cases of serious misconduct, including custodial death, grievous hurt or rape in police custody;
- separate the investigation and law and order functions of the police.
The SARC set up by the present government in its previous incarnation has, in its report ‘Public Order’ endorsed and carried forward the recommendations of the NPC and the Sorabji Committee and in addition has made a recommendation for the fundamental restructuring of the police organisation into three wings dealing with three separate aspects of policing: investigation, law and order and local policing. All these reports are pending with the Government of India, which has not yet indicated the direction in which it would like to move. The central government’s position so far has been to make no changes in the existing police structure, which has not only been retained but also further strengthened by the phenomenal increase in the strength of Central Paramilitary Forces (CPFs), especially the Central Reserve Police Force (CRPF), together with the increasing number of repressive legislations. Not just lack of political will to change, but an active and strong political will to maintain the existing order has been shown. Every political party which has come to power at the Centre after independence (except the Janata Party government in 1977) has found the British-built police, intelligence and criminal justice systems not only useful but also essential for the retention of its political power. Menacingly, sections of this police force actively participated in the violence and destruction perpetrated during the anti-minority violence in Orissa 2008, Gujarat 2002, Babri Masjid 1992 and the anti-Sikh riots 1984, not to mention the persistent anti-dalit/adivasi/minority violence in the country for a long period. All this together with the manner in which civil society groups have often been allowed to take the law into their own hands and perpetrate violence, indicate a situation in which the state in India appears to have lost its legitimacy and sovereignty. Contents The Human Rights Watch report is based on a year of research work and examines police practices in three states: Himachal Pradesh, Karnataka and Uttar Pradesh, which report the largest number of human rights abuses by the police in India as documented by the National Human Rights Commission (NHRC). Included in the report are cases which show the varying conditions in rural and urban settings and in richer and poorer states. HRW consulted national police reform experts and analysed existing extensive research on police practices and their human rights record nationwide, including government-sponsored studies, independent scholarship by senior police and criminal justice experts and domestic and foreign NGO reports. HRW examined cases arising since 2005, which illustrate the most common human rights abuses by the police. Over 60 victims and witnesses, including 37 victims of police torture or ill-treatment, or members of their families, were interviewed. Eight individuals arrested or detained on false charges though not suffering torture, were interviewed along with six interviews with family members and lawyers of individuals killed by police in alleged shoot-outs or deaths in custody. Eleven interviews were held with individuals for whom police had failed to register or investigate crimes. Group interviews were held with more than a dozen individuals threatened and harassed along with extortion of money on multiple occasions. Findings from research into institutional problems at the police station level not widely reported or investigated are included. HRW also visited nine police stations in big and small cities and villages. Some officers spent full days with HRW to give them a better understanding of their day-to-day practices. About 80 police officers of different ranks were interviewed. Forty-five constables and others were interviewed inside police stations and outside in the presence of officers above the rank of assistant sub-inspector; a dozen other low-ranking officers were spoken to in the presence of their superiors. Also interviewed were 20 junior-ranking officers who worked as heads of police stations, investigators and assistants to senior police, many speaking on condition of anonymity. Fourteen current senior-ranking police officers, including chief-ranking officers of Karnataka and Uttar Pradesh were interviewed along with seven former police officers, including former members of the National Human Rights Commission. Thus, the range of human interest coverage and documentation by HRW for this study is impressive. Characterised as a ‘dangerous anachronism’, the Indian police were found by HRW to have failed to evolve from the ruler-supportive, repressive force they were designed to be under colonial rule. While much of India is in the process of rapid modernisation, the police use abuse and threats as the primary tools of investigation and law enforcement. The institutional culture discourages officers from acting otherwise, failing to give them the resources, training, ethical environment and encouragement to develop professional policing tactics. Many officers are ordered or expected to commit abuses. The report examines two separate but linked issues: i) abuses by the police against individuals, usually criminal suspects; and ii) the conditions that facilitated and encouraged the police to commit those abuses. The findings are that the misbehaviour is deeply rooted in institutional practice. Government failure to enforce accountability and to overhaul the structure encourages abusive practices to continue. Drawing on extensive literature that exists and its own new research HRW found four clusters of issues that need attention: a) police failure to investigate crimes; b) arrest on false charges and illegal detention; c) torture and ill-treatment; d) extrajudicial killings. Traditionally marginalised groups are especially vulnerable to the first three abuses. Though arising from the discriminatory biases of the police, the vulnerability is a product of an abusive police culture related to an ability to pay a bribe, trade social status or call on political connections. Why do the abuses persist? Part of the problem is the working conditions of individual officers. The civil police, especially constables, live and work in abysmal conditions. They are often exhausted, demoralised, always on call, working long hours without shifts and necessary equipment only to return to government provided tents or filthy barracks for a few hours of sleep. Junior-ranking officers often face unrealistic demands from their superiors to solve cases quickly. Even if officially encouraged, their use of professional crime investigation techniques is effectively discouraged by the dearth of time, training and equipment. Local political figures frequently intervene in investigations and sometimes act to protect known criminals. To get around these systemic problems, many officers take ‘short cuts’: refusal to register complaints; illegal detention, torture and ill-treatment of alleged criminals; eliciting of confessions known to be false. Such abuses contribute to a climate of fear in which many Indians avoid contact with the police who do not get public cooperation so essential to solving and preventing crimes. A vicious cycle is created in which the crimes go unreported and unpunished and the pressure of the police mounts to deal with rising criminality. The Manmohan Singh government which came to power in May 2009 has promised to pursue police reform. It faces the challenge of transforming the police institution from one that enables and encourages abuse to one that promotes human rights and rule of law. A critical step is to hold abusive officers accountable. Incentives to officers must change. Disobedience to illegal orders, failure to meet superiors’ expectation to solve crimes without the necessary means must not be punished. In the long run, a sustainable drop in police abuses can only come from overhauling archaic police laws and structures and investing in training, personnel and equipment to build professional, rights-respecting police forces that are needed. Dangerous state of disrepair The Indian police is tasked to tackle armed militancy, terrorism and organised crime but lack of political will to invest in improvements has overstretched an ill-equipped police force. India has just one civil police officer to every 1,037 Indian residents, far below the Asian average of one officer per 558 people and a global average of 333 people. However, the creation of an increasing number of paramilitary police forces is getting priority. Though law and order and the police are state subjects in the Constitution, the Central Paramilitary Forces (CPFs) are growing in numbers. Though meant for specific purposes such as border security and industrial security, they are increasingly being deployed in local conflict management as requested by state governments themselves. Manpower deployment for ‘VIP’ security and misuse of police ‘orderlies’ as family servants continue. Colonial police laws do not allow lower-rank police to have operational authority or advanced professional training. Constables make up 85% of the Indian police though for the most part they are not trained to investigate cases. Junior officers have little chances of promotion and are subject to the unrealistic demands of the senior officers who are, for the most part, directly recruited to management positions at the top with no first-hand knowledge of the difficulties of the constabulary. Political interference and stalled reforms Partisan policing, including politically motivated refusal to register complaints, arbitrary detention and torture and killings, sometimes perpetrated at the behest of national and state-level politicians, have produced unprecedented levels of public distrust and fear of the police. The Supreme Court judgment in 2006 in the Prakash Singh case directed the central and state governments to enact new police laws to reduce political interference. However, the response has been discouraging with the central government, which funds most police activities in the country, including state police budgets, disingenuously holding that police are a state subject in the Constitution and thus passing the buck to state governments and the latter going about the business at their own pace or altogether resisting the move. Key government officials seem hesitant to accept the need for far-reaching reforms including the need to make the police accountable for widespread human rights violations. The immediate need to improve the living conditions of the subordinate police, which encourages such violations, is also not widely recognised. Failure to register and investigate cases Police officers are often under pressure not to register cases on account of political pressure from ruling parties keen to show that the law and order situation in their states is not bad. Many of the victims of such non-registration of cases belong to the deprived communities such as the dalits and adivasis. Crime victims who are poor are often unable to obtain police assistance. They cannot afford to pay the bribes that the police demand for registration of cases or for the cost of investigation that the victims are expected to pay on behalf of the police. They may also find it more difficult to elicit political support than the socially more powerful perpetrators of crime. Illegal arrest, detention and police torture Arrests are often made in retaliation for complaints of police abuse, in return for bribes or due to political considerations or influence of powerful local political figures. The police also often use coercion and torture to elicit confessions to fabricated charges. The procedure indicated in the Supreme Court in D K Basu v West Bengal included production of a suspect before a magistrate within 24 hours of arrest. Severe ill-treatment is sometimes intensified over a period of an individual’s detention. Individuals who are poor and socially or politically marginal are especially vulnerable to prolonged detention and repeated ill-treatment because they are unable to pay a bribe or have no connections with local political figures who can intervene. Arrested children are often not provided the protections required in India’s Juvenile Justice Act. Also frequent are sexual and physical harassment of deprived women in custody. Some police officers admit that ‘using force’ is their primary investigative tool. False confessions lead police to gather faulty evidence, which often leads to cases being thrown out of court or in wrongful convictions. Impunity for extrajudicial killings While the practice is not the norm in most of India, fake encounter killings do occur frequently. The NHRC reported 201 complaints of such killings in the state of Uttar Pradesh in 2007, more than any other state. Police are usually the only witnesses to these alleged encounters, which are typically carried out by junior officials. There is evidence of unofficial sanction for such practices. Criminal suspects, members of minority communities are often the victims of fake encounter killings. Obstacles to police accountability HRW reports that efforts at police accountability are hampered by systematic police deniability arising from the absence of records, post-mortem examination, record of arrest and detention. Independent investigations are rare in much of India despite the existence of National and State Human Rights Commissions. Investigations undertaken by the police or at the behest of other agencies are hampered by a ‘code of silence’ that makes police unlikely to disclose incriminating evidence. Criminal prosecutions by victims often do not take place because of fear of police retaliation. Further, section 197 of the Criminal Procedure Code provides immunity from prosecution to all public officials without government sanction. Efforts by the NHRC have often resulted in police investigating themselves. In most cases, the NHRC recommends only provision of interim compensation to victims without proper prosecution of officers. The country’s 18 state human rights commissions (SHRCs) vary in resources and willingness to act with local lawyers describing the staff as inadequate in number, lacking human rights training, and biased against complaints. In exceptional cases, the punishment is often temporary suspension or transfer of the accused. Until officers know that they will be prosecuted, fired, or their careers seriously damaged, the problem will not go away. Conclusion The HRW report, analysed above, is indeed an empowering document, which strengthens the hands of those targeted by government for fighting against police violations of human rights in the country. It is a solid contribution to the protection and promotion of human rights in India. Some missing elements in the report may, however, be noted: - Despite the rhetoric on rule of law, constitutional provisions, the existence of human rights laws and institutions such as the NHRC, the fact remains that at bottom the Indian police are a government department functioning under government orders with hardly any meaningful autonomy, an issue that needs serious analysis.
- The focus on crime and investigation detracts attention from the fact that the Indian police organisation, based on the colonial Irish paramilitary police model with specific characteristics as designed by Charles Napier in the 1840s, was originally set up to put down by brute force political resistance to British rule; that structure has not only been retained without change in the post-colonial period, but has been vastly strengthened to put down political resistance to regressive development policies, whether non-violent resistance as in the Narmada Bachao Andolan or violent resistance as in the Naxalite movement.
- Most of the provisions of the Indian Penal Code and the Criminal Procedure Code possess a narrow focus on security of state and public order at the cost of human rights protection and service provision, which needs to be removed along with similar reform of the Police Act of 1861.
- The sample size of the HRW report (excluding Uttar Pradesh) may appear small considering that India is a large country with 28 states and 7 union territories.
- The issues of decentralisation, democratisation and empowerment of panchayati raj institutions (PRIs) for discharging police functions need to be addressed.
- The sufferings of large sections of ordinary people in Jammu & Kashmir, the north-eastern states and the Central Tribal Belt including women and children, under the adverse impact of the imposition of ‘lawless laws’ such as the Armed Forces Special Powers Act and Criminal Law Amendment Act, affecting human dignity needs addressing.
- Intelligence systems oriented to security of the state and public order do not respect human rights concerns and priorities and must be addressed.
- The structural reform of the Indian police recommended in the report on ‘Public Order’ by the Second Administrative Reforms Commission needs attention.
- The role of the two All India Services, the IAS and the IPS, in over-all law and order management needs reconsideration.
(K S Subramanian was a member of the Indian Police Service (IPS) from 1963 to 1997. He was Director of the Research and Policy Division of the Ministry of Home Affairs (1980-85). He retired as Director General of the State Institute of Public Administration and Rural Development in the government of Tripura. He is currently Visiting Professor, Jamia Millia University, New Delhi, and is the author of three books 'Parliamentary Communism: Crisis in the Indian Communist Movement', 'Political Violence and the Police in India' and ‘Understanding the Police in India'.) Infochange News & Features, August 2009 |
