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Police and the Constitution

Police and the Constitution

The police force has been abused systematically by successive governments at the centre and in the states. Its independence has been undermined and its morale sapped. The wonder is that it is still able to perform.

Civil liberties

Police and the Constitution

The police force has been abused systematically by successive governments at the centre and in the states. Its independence has been undermined and its morale sapped. The wonder is

that it is still able to perform.

A G NOORANI

T
here is not a single work on the British Constitution, that does not discuss the status of the country’s police force, its powers and duties, its relationship with the home secretary and its independence as a creature of statute. There is not a single work on the Constitution of India that discusses any of these matters, though our Constitution is modelled on the British Constitution. If at all the “police” is discussed, it is in the context of Union-State relations.

The police is a law enforcement agency and the Constitution of every democratic state rests on one fundamental principle – the rule of law which the hoary Dicey’s Law of the Constitution analysed so brilliantly and to such lasting effect. In India, the police force has been abused systematically by successive governments at the centre and in the states. Its independence has been undermined and its morale sapped. The wonder is that it is still able to perform.

Police Commission Reports

Now, no one even mentions the eight reports of the National Police Commission headed by Dharma Vira, a distinguished civil servant. It was set up by the Janata Party government on November 15, 1977. This was good reason for its successor Indira Gandhi to ignore it.

The First Report, submitted on February 7, 1979, dealt inter alia with the constabulary, its pay structure, housing, welfare measures, recruitment, machinery for redressal of grievances of its personnel and modalities for inquiry into complaints against the police. (Only the more important topics in the reports are mentioned here.)

The Second Report, of August 16, 1979, covered the “role, duties, powers and responsibilities” of the police and “interference with and misuse of police by illegal or improper orders or pressure from political, executive or other extraneous sources” and “remedial measures” against these.

If this report went to the defector regime of Charan Singh, the Third Report of February 1980 went to Indira Gandhi’s government. It covered the village police, relations with the weaker sections of society, public disorders, corruption in police, economic offences and modernisation of law enforcement.

The Fourth Report of June 19, 1980 is particularly relevant to the present situation with the Best Bakery and Jessica Lal cases. It covered investigation into prosecution and trial for criminal offences besides industrial disputes.

The Fifth Report of November 12, 1980 was concerned with the district police and the executive magistracy; Code of Conduct for police officers, women police and training.

The Sixth Report came in March 1981 and covered police and students, communal riots, and urban policing. The Seventh Report of May 12, 1981 covered organisation and structure of police, traffic regulation, home guards and disciplinary control, etc. The Eighth and concluding Report was submitted on May 31, 1981. It dealt with accountability of police performance, a chapter on ‘Booking Ahead’. In an appendix was published the draft of a new Police Act.

Only men of dedication could have toiled thus and for so long. An eminent lawyer, two former senior police officers and a distinguished scholar M S Gore were its members. The director of the Central Bureau of Investigation (CBI), C V Narasimhan, was its member secretary.

The reports were useful and by no means radical. A quarter century’s experience suggests many changes. But they cover a vast field and reflect hard work and serious thought. They ill-deserve neglect.

Law and Reality

As with other institutions and even high offices like that of the governor, the reality is the direct opposite of the law. The locus classicus on the subject is the judgment of the Calcutta High Court in the gherao case nearly 40 years ago. It said: “The criminal law of the land is principally contained in the Indian Penal Code and the Criminal Procedure Code. The former lays down the substantive law and the latter the procedural law. There are police acts which are applicable in various jurisdictions. Various other acts have declared the commission of certain acts to be penal offences.

“Once the laws are made whether substantive or procedural, neither the governor nor the cabinet nor the ministers nor a substantive executive authority had the power to add to or detract from its content, to interfere with the working or to effect any discretionary power given under it unless such power is clearly granted under the Constitution of the laws.”

The action that the police should take where breach of peace has been committed “is provided for in the criminal procedure code and the relative police acts. By executive fiats such procedure cannot be altered or varied.” No minister can order an arrest or a prosecution; still less order that neither be done.

The Commonwealth Human Rights Initiative recently published an able report entitled Police Accountability: Too Important to Neglect, Too Urgent to Delay. It is a balanced document which exposes abuses as well as the grievances of the policies. The nub of the problem is to devise institutional measures to ensure that the police are

Economic and Political Weekly March 25, 2006 accountable to the law and governments are not able to abuse their disciplinary powers to suborn the police. It is a useful document.

Kirpal Dhillon was DG of police, Punjab and Madhya Pradesh and later served as vice-chancellor of Bhopal University. His book Police and Politics in India: Colonial Concepts, Democratic Compulsions (Manohar, 2002) is by far the ablest work on the subject that has appeared. It provides a good picture of the situation that obtains today; especially the political environment, violence in insurgency and or terrorist affected regions, sectarian conflicts, socio-political violence, and the problems and the role of state police, the central police organisations, including the CBI, are all ably discussed. Punjab and Kashmir receive a chapter each.

The author is careful to link the malaise to corruption in high places, which he describes with remarkable restraint. The said truth is that an increase in the perks and privileges of ministers and legislators has not affected one bit the rise in the spiral of corruption. The police system has become “rotten” for a variety of causes, chief among them is the feudal outlook of independent India’s rulers. Dhillon spares none, including Jawaharlal Nehru, and rightly so. Corruption is endemic in a feudal order. The ministers took to it like fish to water. The police and the civil service could resist the trend only up to a point. The advantages in swimming with the tide were tempting.

It is vain to rely on the courts to provide the cure: “Recently, Indian judiciary has adopted an activist role in many areas of governmental activity. Their pronouncements and decisions have helped many a moribund government agency to come to life. However, judiciary can never be a substitute for good governance and they can only play a limited role in a few areas that are brought to their notice by public bodies or individuals. Police reform is a complex process, which can, in the final analysis, be brought about only by public awareness of their rights and powers in an enlightened but assertive manner. Until then, Indian police will continue to be governed by our twin legacies of servility and oppression. Over half a century of freedom and democratic affirmations have made no difference except for the worse.”

Dhillon is absolutely correct. Public awareness alone can help; but it has to be aroused and galvanised. Informed studies and active NGOs alone can do that.

EPW

International Seminar on “Gender and Access in South Asia”, organised by the IUSSP Panel on Gender and Bangladesh Institute of Development Studies (Dhaka).

Dhaka, Bangladesh, November 2006.

Deadline for submission of abstracts 15 April 2006

The seminar will focus on the following aspects of gender inequalities in South Asia: (1) Access to public services such as health care and education; (2) Access to opportunities such as employment and credit; and (3) Access to Public Institutions and Public Spaces such as political participation and leadership, legal protection, religious institutions and freedom from sexual harassment in accessing public spaces and transportation systems. We are looking for empirical papers using quantitative or qualitative methods that examine these issues in specific regional contexts and foster cross-national dialogue. Our goal is to generate evidence based discourse that helps us evaluate the role of public policies and institutions in creating or moderating gender inequalities in South Asia. A full announcement and description of this seminar is available at http://www.iussp.org/Activities/gender/call06.php. Selected papers from the conference will be published in an edited volume.

People interested in contributing to the seminar should submit either completed papers, which must be unpublished, or detailed abstracts by 15 April 2006, on the IUSSP website at: http://www.iussp.org/Activities/ gender/submissions/login.html

Applicants will be notified whether their paper has been accepted by 15 May 2006. In the case of acceptance on the basis of an abstract, the completed paper must be uploaded on the IUSSP website by 30 September 2006.

The organisers will pay for expenses at the meeting location for all participants, but funding for travel is limited. Applicants are encouraged to seek their own travel funding, but if they require travel assistance, they should indicate that need by ticking the appropriate box on the on-line submission form when submitting paper or abstract.

For further information, please contact Sonalde Desai: sdesai@socy.umd.edu or Simeen Mahmud: simeen@sdnbd.org.

Economic and Political Weekly March 25, 2006

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