INDIA: Is it for the police to form a policing policy?

Arrest brings humiliation, curtails freedom and cast scars forever. Law-makers know it so also the police. There is a battle between the law-makers and the police and it seems that the police has not learnt its lesson; the lesson implicit and embodied in the Cr.P.C. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. 

– Justices Mr. Chandramauli Kumar Prasad and Mr. Pinaki Chandra Ghose, in Criminal Appeal 1277 of 2014, Mr. Arnesh Kumar (appellant) and State of Bihar and Others (respondents).

This opening statement in the judgement portrays a wrong impression that all that is evil is the police. Indeed, the Indian police are infamous for abuse of power, torture, causing disappearances, extrajudicial executions, and, above all, for being corrupt and therefore incapable of undertaking civilian policing. Yet, seldom is the question asked: what is it that keeps the Indian policing the way it is?

The Indian Judiciary has voiced its concern about the appalling state of affairs in policing, more importantly against the practice of extrajudicial executions, on torture, and corruption. In the Arnesh Kumar Judgment quoted above as well the learned judges observe, “The need for caution in exercising the drastic power of arrest has been emphasised time and again by Courts but has not yielded desired result.” 

However, notable is it that on only on one occasion has the Supreme Court of India ever intervened in matters concerning unwarranted political interference in policing, i.e. one of the hearts of policing darkness. This intervention occurred when a former police officer, Mr. Prakash Singh, approached the Supreme Court seeking its intervention to end the political servitude that the police have to endure. 

The Court intervened and decided in Singh’s favour in 2006. It issued directives to the government, ordering the setting up of a Police Complaints’ Authority in each district to handle complaints against police officers, and to set up a mechanism to limit, if not end, unwanted political interferences in local policing. However, even this lone intervention to help free up the police from political coils has fallen flat. As in most other cases, the Court has failed to follow-up to ensure compliance of its directives.

So, in India today, there are Police Complaints’ Authorities constituted in some districts. However, most often persons biased against the complainants man these bodies. And, whenever these Authorities do make recommendations, respective governments do not care to follow up. 

A review undertaken by human rights organisation, Nervazhi, which is based in Thrissur District of Kerala state, reveals that the Thrissur District Police Complaints’ Authority summarily dismissed all the 17 complaints Nervazhi filed with meticulous detail; all 17 are cases pertain to custodial torture in 2013. However, the same complaints, when filed by Nervazhi with the State Human Rights Commission, were found by the Commission to have substance, and resulted in the Commission recommending action against the police officers. This is the story from a district that has such a complaint “authority”. In most parts of India, even such namesake bodies are yet to be formed. 

The Arnesh Kumar Judgment also speaks about the corrective and affirmative role a magistrate must play while dealing with detainees. The Supreme Court is of the opinion that if a magistrate is careful enough to assess the requirement of the person detained in custody, in each case, the possibility of the police misusing their power to arrest can be curbed. 

Unfortunately, most judges in the Indian lower judiciary consider themselves to be a part of the Executive and seldom use their authority within the powers conferred by law, and with caution. Worse, dereliction in duty by the lower judiciary is such that remands are extended without the detainee being produced before the judicial officer, though such a procedure is illegal.

Any presumption that each arrest made is part of an investigation is wrong. Often, arrest is made after extracting bribes from the complainant, or due to deeply rooted servitude to the ruling class. 

For instance, a 14-year-old boy was arrested by the Uttar Pradesh State Police on 16 March 2015 from his house, kept at a police station overnight, and produced before the Bareilly Magistrate, who promptly remanded the minor to judicial custody. The arrest of a minor and his remand to judicial custody is against the law. Yet, the police arrested the boy, since the complainant was the Media Secretary of a powerful minister in the state, Mr. Azam Khan. The alleged offence the boy committed was reposting a Facebook comment against the Minister. A judgment is not going to end such practice.

It is true that the police arrest persons without adequately investigating the complaints they receive, and the practice must be condemned. However, a more fundamental issue is the Indian police’s capacity to undertake proper investigation. Crime investigation in India begins and ends with a confession, though a confession is inadmissible as evidence. Indian police is stagnated in a mind-set of the dark ages where the investigation officer plays the role of the grand inquisitor. 

Often, a confession is the result of brute forms of torture. Most Indian police officers believe that a confession made under duress is true. Once the confession is extracted, the police prepare a case diary to fit the confession. Indeed, this is fabrication of evidence. The Indian police are not equipped to undertake proper investigation and end this practice. The policing institution, and those responsible for formulating India’s policing policy, do not believe this practice must end. 

In such a working environment, arrest of the respondent in a complaint and extracting a confession is the only means available to the police to investigate a crime. Most police officers, and the country’s bureaucracy, believe that India cannot be policed with a civilised police. It is for this reason that since independence, no government has put in place a policy to reform the police. 

This approach to policing has demoralised the institution and the officers. It has allowed police officers to get away with the crimes they commit. 

It is not for the Indian police to form a policing policy, though the institution can demand for it. It is the responsibility of the government. Until this is recognised and acknowledged, including by the Indian judiciary, judgments like the one in Arnesh Kumar’s case will remain meaningless.

Document Type : Statement
Document ID : AHRC-STM-043-2015
Countries : India,
Issues : Administration of justice, Impunity, Independence of judges & lawyers, Police negligence, Police violence, Rule of law, Torture,