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.
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. T N Dhar, ‘Governance, policing and human rights’, Policing India in the new millennium, P J Alexander (ed.), Allied Publishers, New Delhi, 2002, p. 336.  Manoje Nath, ‘Human rights and the police’, Policing India in the new millennium, P J Alexander (ed.), Allied Publishers, New Delhi, 2002, p. 462.  Nath, ‘Human rights and the police’, p. 463.  J Prabash, ‘Police and human rights violations in India’, Policing India in the new millennium, P J Alexander (ed.), Allied Publishers, New Delhi, 2002, p. 398.  For further discussion see, for instance, W J Basil Fernando, ‘An examination of caste discrimination in India’, Discrimination and toleration, K Hastrup & G Ulrich (eds), Kluwer Law International, pp. 141–63.  See S Subramanian, ‘Police and human rights in criminal justice administration’,Policing India in the new millennium, P J Alexander (ed.), Allied Publishers, New Delhi, 2002, pp. 379-90.  Mumtaz Ali Khan, ‘Legal enactments and the status of Dalits’, Policing India in the new millennium, P J Alexander (ed.), Allied Publishers, New Delhi, 2002, p. 503.  Khan, ‘Legal enactments and the status of Dalits’, p. 502.  S K Verma, ‘Police and human rights’, Policing India in the new millennium, P J Alexander (ed.), Allied Publishers, New Delhi, 2002, p. 363.  Verma, ‘Police and human rights’, p. 364.  Verma, ‘Police and human rights’, p. 362.  Verma, ‘Police and human rights’, p. 369.