POLICE AND HUMAN RIGHTS

POLICE AND HUMAN RIGHTS: THE POST

INDEPENDENCE SCENARIO

The Guiding Principal of criminal justice administration in a democratic society recognizes the centrality of human rights in the enforcement of the rule of law. Accordingly, detailed standards for the protection of the rights of the accused and convicted person are prescribed. The substantive relationship between the protection of the human rights and the prevention of crime and treatment of offenders is institutionalized through formal processes and procedures built into the body of rules and regulations which the functionaries are required to follow. Notwithstanding the lingering legacy of its colonial culture, the criminal justice system of post-independent India promises full and faithful adherence to the preservation and protection of human rights of the person accused and convicted of crime. Free India’s concern and commitment to human rights finds eloquent affirmation in several constitutional provisions and in large number of court judgments. However, there has been a growing criticism of widespread abuse of human rights in the country. The criticism predominantly refers to human rights violations by the police and Para-military forces. Reports on illegal detention, torture, custodial rape and encounter deaths occasioned by police and paramilitary forces bestir the nation’s conscience and expose the country’s human rights record to widespread criticism.

            The mounting evidence of human rights violations by the police make it hard to argue that our police and security forces follow the legal and constitutional provisions intended to safeguard the rights of the persons accused of committing crime. The situation, on the contrary, is that those who are meant to uphold the law, quite often violate it, and seek to justify their actions an the ground that such step are necessary to maintain law and order.

            This article intends to go into the dynamics of human rights abuses by the police, seeks to diagnose the malady; and ventures to make certain suggestions. The underlying idea is to make an honest appraisal of the system of policing, the constraints under which the system works, and the conflicting commands the system and its functionaries are forced to comply with. The author’s assumption is that such an appraisal is necessary to support the emerging demand for professionalized policing, which, he thinks, holds of the promise of promoting human rights culture in the country’s system of policing.

            Although the malaise afflicting the Indian police system are many and host of complex issue are involved, the discussion is confined to some of the basic structural-functional anomalies and incongruities which contribute to police inefficiency and encourage errant behavior on the part of the force. The issues selected for discussion are being presented priority wise in the following manner:

Obsolescent and Outdated Organization System

One of the most potent reasons for the inability of the police system to conform to the demands of the human rights mandate, as also to the demands of the democratic polity, is the continuance of an obsolete and outdated organizational system. The system is governed by an Act of 1861 which British rules had drafted to constitute their rule by controlling rebellion and containing the Indian people through the modes of repression, retribution and revenge. The Police, as per British designs, was a force to suppress people’s aspirations, silence their dissent and disobedience, and stamp out, by means fair and foul, and problem that held threat for the observance of their laws and the maintenance of the order of their perceptions. Unfortunately, the Act continues to be more or less unchanged despite the end of the empire and a radically different socio-political milieu. The British designed policing system is the root cause of many malaises, which all Police Commission and senior police official have repeatedly pointed out. All attempts to reform police system-piecemeal and cosmetic, as they had been, have yielded little result and, as a consequence, the police force is reportedly ruthless, as before. The charge of corruption, inefficiency and oppression tantamounting to torture, custodial rapes and deaths, fake encounter killing, false arrests, demanding and dehumanising methods of investigation and interrogation, and varied forms of excesses and abuse of authority are leveled in large number and substantiated in quite many in the official documents, including the reports of the National Police Commission, Indian Law Commission and the National Human Rights. T. Ananthachari (1977:27) comments: “The Police machinery in the country has not gone through any major reform to make its structure, role, attitude etc. compatible with the needs of a democratic policy”. Ved Marwah (1977:16) concurs with the view : “After Independence the basic role of the police and its structure did not undergo and change even though the demands of the police increased. The emphasis still remains on ‘order’ rather than the ‘law’. The Heart of the matter is that the Indian police system is not accountable to the people; it is not a service, it is a force, and finally it is one of the most unfortunate British legacies which the democratic India has retained and strengthened with all catapulations of a repressive colonial force”.

The Vestiges of Colonial Police Sub-Culture

The police in India carriers the vestiges of a colonial police sub-culture, which has certain distinct features of its own, not common to other police culture, particularly in the more developed countries of the world. This culture encourages servility to those in authority and induces them not to say ‘no’ to the superiors regardless of the illegality of their orders. These traits in the Indian Police, says Ved Marwah (1977:15), have encouraged cynicism in their conduct and character. The cynicism has had baneful impact on the working of the police under the changed circumstances of the society today. The Negative overtones of a ruler-responsible police are evident in the discharge of its duties and responsibilities (Ananthachari (1977:29). The police sub-culture allows handling of the law violators by lawless method, and tramples upon the rights of the accused. Sadism barbarity and callousness are still part of police sub-culture of the British days. Given the pervasive influences of this culture, policemen have little respect for human rights principal and philosophies. No wonder, therefore police are roundly accused of human rights violations.

The Mindset That Disdain Human Rights

The Policeman, generally speaking have a mindset that evokes little patience with human rights discourse. Quite a good number of policemen, especially at the lower and middle echelons, are not impressed with discussions and discourses that lecture them on human rights. The general refrain or the fear is that if human rights direction and dictates enter into policing, their power and authority will be controlled and ‘crisis policing’ will be impossible (James Vadackumchery, 1996 : 76). Many Police functionaries, in informal conversations, justify their violations of human rights by advancing arguments that police in crisis situations works under such great pressure that it is impossible to abide by human rights mandates. They frown on human rights advocates and say that they won’t be doing their duty if they remain tied up with human rights niceties. The mindset that disdains human rights principal and philosophies makes police force contemptuous of court strictures and continues to make it behave in a recalcitrant manner. In face of stringent criticism, high-ups in the force routinely, through reluctantly, order departmental inquiries, and if the charges are not passed hard, they justify or rationalize the otherwise illegal and unlawful acts. The result is that human rights violators in the police force get emboldened and merrily believe that they would not be touched whatever be the accusations of human rights organization and bleeding heart liberal advocates of a restrained and responsible policing.

Stranglehold of Political Interference

Growing political interference in the day to day working of police has turned the force into becoming the agents of the party in power. The pressures which the ruling political parties exert on the police to show quick result at all costs have contributed to the practice of torturing the political opponents. The politician in power uses the force to harass their adversaries and frame cooked-up charges against them. The interdependence of political authority and police creates a situation of quid pro quo under which the political masters are unable to question the human rights violation by the police. Once the politicians and the police become partners, the former are compelled to overlook the misbehavior of the letter. Given this situation the departures from expected norms of conduct go unnoticed or at best swept under the carpet. In today’s politician scenario, the policemen are judged not by honest hard work but on considerations of kow-towing the persons in authority (marwah, 1977: 16). As a consequence, many of the corrupt officers are the favorite of the administration. The policemen succumb to political pressure because of temptations or threats, and carry out illegal verbal instructions of the political masters. When police are urged to obey orders that are unlawful, they find themselves placed in a precarious situation: produce result, or else, get damned. The worst part is those unlawful actions that produce the desired result being recognition, promotions, decorations, rewards and favors. In such a situation means are not questioned once the results become an absolute touchstone Subramanian Comments: “When quick decisive results are demanded of police and no question regarding the means are raised, law enforcers-the police –in their eagerness to achieve the result take law into own their hands. When ends become important and the means are not questioned, human rights become the first casualty.

Ambivalent Public Attitude

Given the complex nature of crime problems and the painful slow judicial process (that takes year to decide cases and lets off the accused on technical grounds), the public, in their desperation, quite often approves of the police excesses in these restore tranquility and give hell to those dreaded terrorists, gangsters, dacoits and professional criminals who let loose terror in the area and victimize thousands of unresourced citizens. The policemen who confront these criminal and kill them in real or fake encounters earn people appreciation. The public is not bothered whether human rights of these criminal are respected or violated. The condoning public attitude of police highhandedness is used as an alibi for justifying police excesses. The crowed reaction to crime problem is often used by police force as a legitimate argument to cover up their unlawful conduct. The ambivalent public attitude in regard to human rights violations by the police force in crisis situations derails the human rights discourse in insurgency affected areas, in areas where the guns of the goons thunder and in where the activities of the  underworld have undermined people’s faith in the rule of law. This is exactly what had happened in Punjab.

The Confused Force

The Indian Police System faces a crisis of sorts in as much as it is unable to cope up with pressures of work, increasing demands from politician and public, growing criticism from the media, and an unending stream of court verdicts of human rights violations. An undermanned and ill-equipped force is being subjected to daily denigration for its failure to arrest the awesome some crime wave, increased lawlessness and, mounting socio-political tensions. The political and bureaucratic masters want quick result on the law and order front and direct the police to show instantaneous effects. They demand the police to keep the alarming law & order situations in disturbed areas seemingly under control, or else face the consequences-transfer, suspensions and punishment posting. Faced with such orders, the police keep the crime figures low by non-registering the cases and resorting to quick- fix solutions to local  crime situation by restoring to indiscriminate arrest and other oppressive and lawful activities. It is here, and in so doing, they are roundly criticized for committing a variety of human rights violations. They confront a dilemma of choosing between being lawful and lawless in carrying out the wishes of their masters. The force becomes confused and uncertain about its role, status and future. The easiest and the most expedient course of action left with the police is to misuse the powers vested in them. Under the compelling conditions of work they resort to short-cut methods of arrests, interrogations and investigations. This is how they stumble on people rights to life and liberty and other constitutional and legal safeguards falling under the ambit of human rights. Many policemen at the lower levels who indeed do the fire fighting work are not fully aware of the implications of implementing the human rights mandates in the performance of their daily duties.

The Road To Reform : Priorities of The Agenda

The Conditions and causes of human rights violations by the police give rise to question of what is to be done about making the police function in accordance with the law, rules, regulations, departmental instructions, court directions and other human rights mandates. Since no society can disown its police or do without one, it must fashion the police it wants. Punitive measures errant policemen are desirable and essential though. They do not promise durable results. Something more fundamental in nature has to be done, and that requires fundamental structural change in the police set up. In order to let this change take place, the role of police has to be redefined, it organization radically restructured and its outlook carefully molded and reoriented. Unless all these are attended to with seriousness and urgency, it is quite unlikely that our police will ever be able to protect and promote people’s rights. In this connection Ved Marwah (1977:77) caution: “police Problems can no longer be tackled by a conventional ambivalent approach and there is no short-cut to police reforms in India”. Fundamental changes in the Indian police system, he said, cannot be brought about by merely tinkering with the problem.

            The issue of reforming the police system has been very ably addressed to by the National Police Commission and other state-level Police Commissions. The problems have been thoroughly examined and many very valuable recommendations have been made. They pity is that many of the basic recommendations have not been accepted, or, when accepted, not faithfully implemented. I am of the view that the unimplemented recommendations of the National Police Commission (1977) and Gore Committee on police Training offer convenient starting point.

            As reiterated time and again, the first priority item in the agenda of reform requires replacement of an outmoded police Act of 1861. The replacement, many senior police officials argue, may enable the police to function as effective guardians of the law and perform their duties with discipline, dignity and pride (Narasimhan, 1977; 32). It is rightly argued that if the police function as an effective guardian of the law and order and discharges their duties lawfully, human rights violations by them cannot take place (Subramanian, 1992: 20). It is pertinent to recall that all police commissions in India have been unanimous in their view that human rights violations by the police take place because police in India functions under an archaic Act which came into existence much before the U.N. declaration on human rights (1948) and the Constitution of India (1950) which are the fountains of fundamental freedoms of right to life and liberty. Little wonder, therefore, the Police Act of 1861 does not assign to police any proactive social role of protecting the people’s rights. The Act only emphasizes the reactive role of the police in the maintenance of order and in the prevention and detection of crime (Vadackumchery 1966:7).

            The next priority in police reform refers to minimizing (if not altogether eliminating) the political interference, which most people believe is the bane of all police problems. Weighty opinions in favor of insulating the police form political and administrative pressures notwithstanding, there is little political support to this important issue of police reform. Those in political authority do not give any serious  thought to this issue, perhaps, and mainly because of the fear that once they lose the power of exert pressure on police, they will lose much political ground and a mighty source of their support and survival would vanish. Realizing the vexed nature of the issue and the improbability of getting the police force liberated from political interference of varied kind, the National Human Rights Commission (NHRC) in their latest (1995-96).Report meekly urged “The insulation of investigation function of the police from political and other extraneous pressures as essential to restoring confidence in the police and to reducing of complaints of human rights violations by the members of the force”. This “urge” of the NHRC derives sustenance from an earlier Report of the commission which decried political pressures in the working of the police. Whatever be the compulsions of the polity and the politician who lord over the police, the fast remains the as long as police remains under the tutelage of political and civil service bosses little improvement is possible in its working. Police can become a genuine law enforcement body only when it derives its authority from the law and the Constitution. To put the whole issue in blunt terms one may like to say that if police are to be insulated against violations of human rights their nexus with politicians have to be broken. The experience confirms that political pressures usually lurk behind many of the police excesses and abuses which tantamount to human rights violations.

            “Politicing the Police” is a new buzzword in all discourses on human rights violation these days. Lots of ideas have been thrown in already but the question who will do the policing and how? Still remains unsatisfactory answered. Those who believe that the courts hold the key and the judicial verdicts will set the police right must remember that had that been true, the Indian Police would have been effectively inoculated against the virus of human rights violations since the exists a plethora of fretting and frowning court verdicts.

These judgments have made little impact, save punishing/penalizing a few derelict police officials whose excesses and atrocities have been challenged in the court of law. It is a matter of common knowledge that many of the directions of the court which prohibit the use of demeaning and dehumanizing methods of arrest, investigation, interrogation handcuffing, custodial violence etc. have been more honored in breach than in observance. The incidents of human rights violation by the police continue as ever before. The lesson is loud and clear: the courts cannot effectively police the police. The task can only be done by the high-ups in the police hierarchy. I have seen this happening in Delhi when Mr. Vijay Karan was the commissioner of police there. His issuance of firm instructions to his men that the use of third degree methods and other incident of high-handedness will not be tolerated whatever be the circumstances, brought about a sudden change in the behavior of his force and things improved dramatically. The point I m making is simple: if the top men at the police hierarchy do not condone human rights violations, do not let the guilty go scoot-free, do not justify unlawful methods of policing under the pretext of maintaining order, none of the officers below would allow their men to go astray. The real problem is the leadership crisis at the top of the police system whether at the state or at district levels. If the senior officials at these levels sincerely want to curb police lawlessness amongst their subordinates they can certainly do that carrot and stick methods. Firm departmental actions, not window-dressing endeavors, carry the promise of delivering of delivering the message to the rank and file of the force that they would be held personally accountable for all their misdeeds. The police-sub-culture of violence is not a problem that cannot be tackled with if there is a real “will” to do that. The leaders of the service can certainly ensure that organizational sub-culture and values do not eulogies illegal actions and undermine legal mandates. This is possible only when the police bosses do not have the feet of clay and their own conduct and character is beyond approach.

            In order to strengthen the hand of police officers who want the problem of human rights violations by their men to be effectively rooted out, there is need for amendment in the law of evidence. The supreme courts in state Vs. Ram Sager Yadav (AIR 1985 SC 416) has proposed amendment in the evidence Act to ensure that police officers who commit human rights violation should no evade punishment due to paucity of evidence. The Court has impressed upon the government the need to change the law of evidence so that the burden of proof is shifted to police functionaries against whom allegations of human rights violations are made. In June 1985 the law Commission of India proposed that the Evidence Act should be amended by creating a new section 114 B, to provide rebuttal presumption that injuries sustained by a person in police custody have been caused by the police officer in-charge of his custody. It is indeed unfortunate that successive governments have failed to implement this recommendation.

In order to eliminate lock-up deaths, there is need to heed recommendation of the National Police Commission and the Law Commission of India. The National Police Commission wanted compulsory judicial in all lock-up deaths and the Law Commission desired compulsory prosecution of all those responsible for causing such deaths. The Supreme Courts has already whittled down the doctrine of sovereign immunity by making the police officials personally responsible for paying compensation to the victim. Some senior police officials are also voicing the need for giving serious thought to ensure that police do not secure confessions by questionable means.

            The issue of training is of paramount importance in the inculcation of right kind of attitude amongst policemen in regard to the observance of human rights mandates in their law enforcement function. The training of police functionaries at all levels, especially at the lower levels, should aim at thoroughly educating and sensitizing the trainees about the implications of observance and non-observance (violation)of human rights in the discharge of their functions and responsibilities; about the constitutional provisions pertaining to citizen’ right to life and liberty; about key provisions in the India Penal Cade and Criminal Procedure Code that provide certain do’s  and don’ts  in matter of arrest, investigation, interrogation, search and seizure etc.; about the landmark court verdicts on the human rights of the accused; and about departmental instructions and directions  exhorting the non-infringement of human rights mandates.

            The training of the lower and middle level police functionaries should concentrate on humane and lawful methods of investigation and interrogation, because this is one area of police training which is least developed. In support of my observations, I quote Mr. Vijay Karan, former Police Commissioner of Delhi, “At present a police investigating officer does not know how to break a criminal except through third-degree methods. He gets no training in the techniques of interrogation other than few dull lectures during the initial period of training”. In this connection, Mr. Vijay Karan’s suggestion merits serious attention; “Every District Superintendent of Police should have under his control a proper interrogation centre with a pool of at least a dozen professional interrogations whose job should be to break suspects without torture”. Besides intensive training in interrogation all district headquarters of police should have a lie detector, at least two trained psychologists and a team of fingerprint and foot print experts, a clutch of cameramen and videographers, a dog-squad and a computerized record of  crime , criminals and their modus operandi, hooked to both the state and national terminals. This suggestion is part of the ongoing process of professionalization/ modernization of the police force.

            Here, I would like to drop a word of caution to those believe that better training would result in better policing. What is actually seen is that most police functionaries at all levels, conveniently forget what is taught in police academies or in training institutions. Once they enter the real field of policing, the malaise of the police sub-culture overtakes them. The process of unlearning deepens when they see their immediate superiors’ working more on the basic of experience and expediency than on education and skill imparted in training institutions. Their role models are their superiors who regard human rights discourses entirely utopian and idealistic, and hence unacceptable. The point I am making is that the police culture needs to be changed if training has to make a dent. And finally, the policemen at lower level do not need high-flown lectures on human rights. They only need to be trained in ordinary courtesies that are almost non-existent in them, and the absence of which makes them use abusive language and behave in impolite and discourteous manner with ‘ordinary’ citizen who reach them for protection and help. A civilized policing is all that the ordinady citizen wants.

References

Ananthachari T., “Democracy and Social Defense” Seminar, Oct. 1977.

Vijay Karan: “Human Rights and the Police” Paper presented at the National Seminar on Human Rights, Development and Democracy, Banaras Hindu University, March 29-31, 1995.

Ved Marwah, “The Sub-Culture” Seminar, October 1977.

Narasimahan, C.V., “Accountability”Seminar, October, 1977.

Subramanian S. Human Rights and Police, Association for Advancement of Police and security science, Hyderabad, 1992.

J. Vadackumchery, Human Rights and Police in India, APH Publishing Coporation, Delhi 1996.

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