What is needed is not just reforms in the organisation structures of centralised police and paramilitary forces but some rethinking to update criminal laws.
An independent fact-finding commission report recently found glaring gaps in the way police handled the brutal lynching of Pehlu Khan, a Muslim farmer who was beaten to death by self-styled gau rakshaks in Rajasthan’s Alwar earlier this year. This was one of the most highlighted cases in a series of lynching incidents that have taken place in the last three years, the killing of Mohammad Akhlaq being the other one.
In a number of reports, it was pointed out in both the cases that the police motivated doctoring of the evidence to enable the culprits to get off the hook and escape judicial scrutiny and punishment. It is surprising that the ruling party BJP and its government have not only remained silent on these developments but a few of its leaders have even lauded the seemingly guilty policemen.
Perhaps in such a scenario, it is too wishful to talk of police reforms to meet the ends of justice.
Since the early 1990s, political mobilisation against the Muslims in India articulated by BJP has only gathered strength. The criminal justice system is on the brink of a collapse under the Narendra Modi government. The police investigations, in none of the lynching incidents where Muslims were victims, have done a tight job, which has, in turn, let the perpetrators go scot-free.
The unreformed Indian police system has shown itself to be pliant and amenable to manipulation by political interests of the ruling party. This has happened often in the past. What is needed is not just reforms in the organisational structures of centralised police and paramilitary forces but some rethinking to update criminal laws such as the Police Act, the Indian Penal Code, the Criminal Procedure Code (CrPC) and the Evidence Act. Only this can ensure protection of the human rights of the people at the bottom who often become victims of lawless police violence and misdemeanour.
To understand how critically these reforms are needed in the current context and why it is high time for the civil society and political parties to mount pressure on governments in this regard, a historical examination of the police reform processes attempted by India’s Police Commissions before and after independence is necessary.
Police Commissions of 1860 and 1902 and related events
The point is that that in the absence of any new thinking on how police should work, India continues to have a coercive police machinery, as espoused by the Britishers before independence.
The British Raj, too, set up police commissions in 1860 and 1902. In September 1856, the ruling Court of Directors of East India Company, noted that the existing police system had failed lamentably in accomplishing the ends for which it was established; it was all but useless for the prevention and sadly inefficient for the detection of crime. Unable to check crime, it was unscrupulous in the exercise of authority, with a generalised reputation for corruption and oppression.
Sir Charles Napier, after much study and travel proposed the setting up of a police force for India modelled the Irish colonial paramilitary police. This was accepted. The police in colonial Ireland were a centralised paramilitary organisation, answerable solely to the government and untrammelled by local authorities. In its services to the colonial ruling elite in a restless and violent country, its availability as an armed force under civilian direction, and its centralised organisation, the Irish police model was ideally suitable for colonial India.
This paramilitary character of the Indian police has remained the enduring feature of the Indian police. David Arnold in Police Power and Colonial Control, 1986, viewed the system in the light of colonialism’s need to establish a relationship of control, coercion and surveillance over a subject population. Its structural and organisational features were helpful to a regime of exploitation and surplus appropriation.
The Police Commissions of 1860 and 1902 standardised police in British India. The trend towards centralisation of intelligence work, strengthened during the closing years of the colonial regime, came to be sustained and accelerated after independence. The rigid hierarchy of rank and function between the superintendents at the top, the inspectorate in the middle and the constabulary at the bottom was an essential feature. The entire police department was under the control of the civil service and the provincial government. The function of the superior police officers was not to engage in ordinary detective or protective duties but to keep watch on the lower levels of the departmental hierarchy.
Arnold emphasises the political surveillance functions of the Indian police. The setting up of the Indian National Congress in 1885, at a time of growing communal tension and anti-colonial resistance, led to the formation of an intelligence agency for collecting information about political and social movements.
The Police Commission of 1902 recommended strengthening of the armed police and intelligence work. The Central Intelligence Department was established in Shimla in 1904 precursor to Intelligence Bureau (IB) of today. By the mid-1930s, the Special Branch was active against the civil disobedience movement, the labour movement, the growing communist movement and the underground terrorist activities.
When the opposition Congress moved from agitation to constitutional action, the communists were increasingly perceived as the ‘main danger’ by the IB. The last ten years of British rule witnessed the rapid expansion of the political intelligence-oriented Special Branch and the range of its activities. The largest expansion of staff was related to the growth of communist activities, which has remained a central preoccupation. Police coercion became by the mid-1930s a vital instrument of state policy.
A massive expansion of police arms and surveillance took place during the 1940s. By 1947, the police ‘occupied a crucial position in the ordering of rural and urban society, in the suppression of political opposition and in the maintenance of state and class control’.
Did Indian governments recognise the need to reform the police after independence?
While there have been much discussions on the need to reform the police but the recommendations of various commissions were never implemented. In effect, while coercive powers were added, accountability was evaded. Independence in 1947 meant no structural change in the organisation and functioning of the Indian police.
The only changes after 1947 have been in the increasing numbers and strength of Central Armed Police Forces (CAPFs) as they are described today and the expansion of political intelligence work. The roots of these departures lay in the nature and functions of the colonial police.
Anandswarup Gupta in The Police in British India, 1974, has usefully observed in this context:
The Indian Penal Code (IPC) begins with chapters on criminal conspiracy and ‘offences against the state,’ as against the common preoccupation of the police everywhere with the prevention and detection of offences against the person and property…The Code did not repeal obnoxious regulations of earlier times such as the Bengal Regulation III 1818, used freely to deport leaders of the freedom struggle; the offence of ‘sedition’ was included in the Code in 1870.
Similarly, he wrote:
In the Criminal Procedure Code (CrPC), the chapters on security for keeping the peace and maintenance of public order, including the use of force by the police, take precedence over provisions for the investigation and trial of criminal offences…The Act further provides for punitive policing at the cost of the local population in the event of ‘disturbances’ and for the appointment of private persons as ‘special police officers.’ Besides the police officers were vested with vast powers and the lowest officer could arrest anyone and keep him in confinement for at least 24 hours.
These historical antecedents of such archaic laws in practice today are extremely significant but have not received enough attention from human rights activists.
This, despite several reports pointed out the loopholes that gave extraordinary power to police. The Second Law Commission, 1855, recommended that the police should not have the authority to record the confession of an accused person. However, its recommendations resulted in new provisions of the CrPC and the Indian Evidence Act that reinforced the factors which helped perpetuate corruption, malpractices and abuse of authority in the police stations.
The police remained distant from the people and hated as before. The process of new planning and development gave rise to corruption on a large scale. The blanket powers of superintendence vested in the government by the Police Act, 1861 were continued but proved to be inappropriate in a democracy. Further, the role of intelligence agencies was not redefined to protect the fundamental right to freedoms of association, expression and movement, except for the activities of ruling party.
Independent India’s first ever National Police Commission (NPC) was set up in 1977 after the end of Prime Minister Indira Gandhi-imposed Emergency regime (1975-77). The commission, which was set up by the opposition Janata Party regime, submitted eight volumes of analyses and recommendations. The reports were put in cold storage when Indira Gandhi returned to power in 1980. She never bothered to place the NPC report in parliament mainly perhaps because the commission had been set up by the Janata Party.
The NPC (1977-81) referred to unregulated political intervention in police work. It noted that in a democracy, police could not be wholly autonomous and political intervention was both inevitable and necessary to some extent and added that what appeared to be interference, was often justified supervision by elected representatives. It sought to specify areas where government interference was justified and others where it was not. It recommended the setting up of Security Commissions at the state level for police supervision with non-political persons as majority of the members and with fixed tenures.
The NPC did not deal with the primary role of the IB, whose secret activities were looked into by the Shah Commission, which dealt with Emergency’s excesses under Indira Gandhi. The IB was especially active since 1947 with regard to policies on Kashmir, China, Pakistan, the Northeast and Kerala as revealed by the former Director of the IB B.N. Mullik in his indiscreet memoirs My years with Nehru, 1972. The L.P. Singh Committee in 1979 recommended a legal framework and charter of duties for the IB. These, too, were ignored by Indira Gandhi along with the recommendations of the NPC.
The work of the NPC, though laudable, failed to address complex issues of police reform. For instance, the conflict between democratic politics and the authoritarian practices of the police leadership had led to ‘politicisation’ of the police was not given much value. The problems of the constabulary constituting over 80% of the total police force, were neglected, and so were cross-country experiences of police.
Supreme Court guidelines
Until the first decade of this millennium, some largely-infructuous committees – the Julio Ribeiro Committee, 1998; the Padmanabhiah Committee, 1999; the Malimath Committee, 2000 and so on – were set up to examine aspects of police reforms. The National Human Rights Committee too occasionally intervened to raise the matter.
In 2006, a senior police official, Prakash Singh, moved the Supreme Court through a public interest litigation. The court issued six major guidelines on police reforms based on the recommendations of the NPC and directed the Central and state governments to implement them. The guidelines were mainly aimed at providing autonomy from motivated political interference in police organisational activities.
However, legal experts found the guidelines ‘super structural’ rather than ‘infrastructural’. In other words, the guidelines failed to examine the living and working conditions of the subordinate police officers and neglected police accountability to the public especially on the issue of human rights violations by the police.
Yet, in the light of the these guidelines, a new Police Act attempted to replace the colonial Police Act of 1861. A civil society agency took up the task of ensuring implementation of the new Police Act by the Centre and the states in India and produced several progress reports. But observers noted that in the absence of fundamental structural reforms, the inherited police system remained largely unchanged.
Human rights violations continued on a large scale, especially in the state of Jammu and Kashmir, the Northeastern states and in the several Maoist-hit states. Moreover, political interference in police investigations has gone up alarmingly, especially in the period of conflicts.
Surprising as it may appear, despite many extensive discussions and report writing, no really original work on the police structure and the criminal laws in India appear to have occurred ever since the historic September 1856 observations of Board of Directors of the East India Company and the work of Napier, which led to the adoption of the colonial Irish paramilitary police model in India in the 1850s. At a time when minorities have never felt more alienated and the question of accountability is dodged if the police caters to the whims and fancies of the political establishment, the reforms seem more necessary than before.
K.S. Subramanian is a former officer of the Indian Police Service and has served in the Intelligence Bureau and the Union home ministry.