INSULATING THE POLICE FROM ILLEGITIMATE POLITICAL CONTROL
Mr. P.C. Chidambaram’s recent counsel to the heads of police forces to raise their voice against arbitrary postings and frequent transfers of police officers done by the state governments once again brings into focus the important question of how the police should be controlled and governed.
The fact that the quality of political control exercised over the police in this country is poor and that this has led to gross abuses is fairly well recognized. It has resulted in subverting the rule of law and obstructing the growth of a professionally healthy system of policing. Almost all state police commissions and the National Police Commission have found overwhelming evidence of misuse of police system by the politicians for narrow selfish ends. Innumerable examples can also be cited from recent history to show how the police have either remained silent spectators to incidents involving major violations of law or not discharged their responsibility of investigating cases in an impartial manner to protect the interests of party or people in power.
The excessive use of the police for partisan interests in this country has led many to advocate the concept of police independence and this is where the debate on the subject has assumed a highly unrealistic tone.
There is no country in the entire world and there has never been one in the history of mankind where the police have been completely freed from political control. Total divorce between politics and policing is neither feasible nor desirable.
The police enjoy awesome powers, which must be controlled to prevent their misuse. Since controlling the police itself becomes a source of tremendous power that can be misused to serve partisan interests, the important question is how to balance these two apparently conflicting objectives?
Long ago the National Police Commission made some recommendations to deal with this problem, which were later reiterated by the Supreme Court in its judgment of September 26, 2006. Unfortunately, there has been considerable misunderstanding about the recommendations of the NPC. It’s most important recommendation about the constitution of a State Security Commission (SSC) was wrongly interpreted to mean that the SSC would substitute the state government in exercising control over the police force. The NPC never made this recommendation. All that the NPC recommended was to “lay down that the power of superintendence of the State Government over the Police should be limited for the purpose of ensuring that police performance is in strict accordance with law.” and that the SSC would “help the State Government to discharge this superintending responsibility in an open manner under the framework of law.”
The way the package of reform has been interpreted, the initiatives taken so far have failed to make a significant impact. What is required is to convey the idea that police reform does not mean removing the control of the political executive over police; it aims only at ensuring that control is exercised legitimately and for the public good.
The problem of illegitimate political control over the police has been faced in advanced western countries too. They have taken the help of law to set up new mechanisms and arrangements to ensure that control exercised over the police is legitimate. We can learn some lessons from them.
For instance, one can emulate the British example where a very subtle distinction has been made between the police as an organisation and policing as a set of functions or activities. While it is the responsibility of the government to formulate policies, set standards, monitor performance and provide money and other resources to the police, it has no authority to give directions about police operations. This is strictly the preserve of the chief of police. This type of distinction between policy formulation and operational directions, though thin, can be made. The Police Act can define the word ‘superintendence’ to highlight this division of powers and responsibilities.
Law should further define clearly the roles and responsibilities of different agencies controlling the police. Broadly speaking, all over the world, there are three agencies that are involved or have a say in exercising control over the police. These are (i) the government, (ii) the police and (iii) the community. If the law can define the role and responsibilities of all the three agencies, a part of the problem will be over. The Police Act of UK does it very well. Another example of clear definition of role is the Police Act of Queens Land in Australia. Under this law, the communication between the Minister and the Commissioner of Police is clearly defined in the Police Act. Areas where the Minister is authorised to give directions to the police are mentioned in the Act. Directions from the Minister have to be in writing and the COP is bound to comply with the directions, but keep a record of all that is received.
There are two other problem areas. One is about the appointment and removal of the head of the police force. The right of the government to appoint the head of the police force is recognised almost all over the world. However, in some foreign countries, they have taken important statutory steps to cut down the government’s discretion in such cases. One, the process of selection for final appointment of the police chief is not confined merely to the government; it involves other parties too. Two, law lays down the criteria that should govern the choice and prescribes the procedure for appointment and also of removal.
The other problem area is the arbitrary and frequent postings and transfers of police officers. The proposed Police Establishment Board, even if established, would deal with the postings of lower ranks in the police; officers’ postings would remain with the government. This problem is not amenable to easy solution as the state governments justify frequent transfers on the ground of administrative expediency. What is required is for the civil society to set up pressure groups and mechanisms that help in ensuring that the government frames policies based on acceptable standards and norms and is not allowed to get away with violations. This type of pressure has been seen whenever some good officers have been posted out of districts or other places of posting.
Some of these ideas may look or sound utopian, but the experience of some other countries shows that such steps do help in bringing about police reform.
Sunday, September 27, 2009
Friday, September 11, 2009
FAKE POLICE ENCOUNTERS
EXTRA JUDICIAL KILLINGS BY THE POLICE
Ishrat Jahan’s killing is another one in the long list of fake encounter cases that occur frequently in different parts of this country. According to information given by the Ministry of Home Affairs to the Parliament on August 4, 2009, as many as 346 fake encounter cases were registered by the NHRC during the three year period (2006 to July 09). Incidentally, it was not Gujarat but UP that topped the list, with more than half the cases i.e. 182 reported from that state.
No government or state can really claim to have a clean record. As long as the incident remains hidden, neither the government nor the police department shows concern. The hue and cry is raised only when the entire story comes out in public.
It is the public scandal that offends; to sin in secret is no sin at all, so said the French playwright Moliere. Unfortunately for the Gujarat Police, who, like other state police forces, have been sinning for considerable time, the Ahmedabad Metropolitan magistrate S P Tamang’s report has created a public scandal.
As usual, and this is another reason for our failure to take serious note of the problem and find solutions, the incident has been politicised. The Congress Party has called Narendra Modi’s a ‘rogue’ government- a ‘man eater.’ The CPI (M) has demanded the resignation of Chief Minister Modi. These parties forget that the record of their governments is equally bad, if not worse.
Since the publication of the report has been banned by the Gujarat High Court, the public do not know the full facts of the case. The question that remains unanswered for many is- who directed the magistrate to conduct the probe and when?
There are two versions. One, the inquiry was done under Section 176 Cr PC. If this is so, why should the report come out more than five years after the incident occurred? An inquest inquiry under Section 176 Cr P C is mandatory and is done immediately after the custodial death occurs. The other version is that the magistrate was asked to conduct inquiry on August 13, 2009, the day when the Gujarat High Court had already set up a committee to investigate the incident. Who ordered the inquiry and release such a sensitive report to the public when a petition on the issue was sub- judice is not clear.
Every time an encounter death occurs, the police supported by the state government show it as the result of police acting in self-defence, which in many cases is wrong. The Cr P C authorises the police to use force to the extent of killing a person only in two situations- to disperse unlawful assembly when there is imminent danger to life and property and the assembly can not be otherwise dispersed and to arrest a person who is resisting arrest and is involved in the commission of an offence punishable with death or imprisonment for life. Since these circumstances can not be cited in defending the killing of alleged criminals or terrorists during encounters, the only way is to project the police as using such force in self defence.
Why do such killings take place. There are various reasons. One is the support that the culture of encounters receives from different quarters.
It is supported by the politicians when it suits them. When controlling crime or dealing with law and order problems effectively becomes highly important from political point of view, fake encounters get state encouragement and protection, with complete assurance of impunity granted in advance. Mostly, such assurance is implicit; but occasionally even clear directions are also given. An example of this is the address given on April 30, 1998 by the then Chief Minister of UP Mr. Kalyan Singh. The Chief Minister while addressing the state police officers at a law and order review meeting in Lucknow said: "I want performance, results. I want you to take a vow that you will create a dhamaka (explosion) in the state. If noted criminals can be liquidated in encounters, do it. If you take the life of one person who has taken the lives of 10 others, then people will praise you. And I am here to protect you." Fake encounters of terrorists in Punjab were common and the central government when the state was under President’s rule knew about it.
Fake encounters are sometimes supported by the public too, particularly when crime and violence increase in society. Police deviance is bound to increase whenever the fear of crime whips up the rhetoric of war against crime, criminals and terrorists. The danger of the public turning a blind eye towards the use of custodial or illegal violence by the police is particularly manifest in areas where the terrorists or insurgents belong to minority communities and their crimes of violence are targeted against security personnel or members of other communities. The public in such cases may not take serious notice of violence committed by police personnel against people suspected to be terrorists or their supporters.
The policy of fake encounters is wrong not only because it is contrary to law, but because it generally proves counter productive. It does not solve the crime problem. You do not kill crime by killing criminals illegally. What is worse is that this policy has the effect of criminalizing the police force to an extent that they develop nexus with gangs and brutalising them to an extent that they do not hesitate to kill even innocent persons to get awards and promotions.
To deal with the problem of fake encounters, there must be zero tolerance towards it from all quarters, particularly from the government and the police department. Don’t let the guilty men escape. Find out the truth and set up accountability mechanisms to punish them. Prompt disciplinary action should be followed by prosecution where it is required. And no out of turn promotion or gallantry awards should be given in undeserving cases. NHRC’s guidelines, particularly with regard to registration and investigation of such cases, must be scrupulously followed.
Ishrat Jahan’s killing is another one in the long list of fake encounter cases that occur frequently in different parts of this country. According to information given by the Ministry of Home Affairs to the Parliament on August 4, 2009, as many as 346 fake encounter cases were registered by the NHRC during the three year period (2006 to July 09). Incidentally, it was not Gujarat but UP that topped the list, with more than half the cases i.e. 182 reported from that state.
No government or state can really claim to have a clean record. As long as the incident remains hidden, neither the government nor the police department shows concern. The hue and cry is raised only when the entire story comes out in public.
It is the public scandal that offends; to sin in secret is no sin at all, so said the French playwright Moliere. Unfortunately for the Gujarat Police, who, like other state police forces, have been sinning for considerable time, the Ahmedabad Metropolitan magistrate S P Tamang’s report has created a public scandal.
As usual, and this is another reason for our failure to take serious note of the problem and find solutions, the incident has been politicised. The Congress Party has called Narendra Modi’s a ‘rogue’ government- a ‘man eater.’ The CPI (M) has demanded the resignation of Chief Minister Modi. These parties forget that the record of their governments is equally bad, if not worse.
Since the publication of the report has been banned by the Gujarat High Court, the public do not know the full facts of the case. The question that remains unanswered for many is- who directed the magistrate to conduct the probe and when?
There are two versions. One, the inquiry was done under Section 176 Cr PC. If this is so, why should the report come out more than five years after the incident occurred? An inquest inquiry under Section 176 Cr P C is mandatory and is done immediately after the custodial death occurs. The other version is that the magistrate was asked to conduct inquiry on August 13, 2009, the day when the Gujarat High Court had already set up a committee to investigate the incident. Who ordered the inquiry and release such a sensitive report to the public when a petition on the issue was sub- judice is not clear.
Every time an encounter death occurs, the police supported by the state government show it as the result of police acting in self-defence, which in many cases is wrong. The Cr P C authorises the police to use force to the extent of killing a person only in two situations- to disperse unlawful assembly when there is imminent danger to life and property and the assembly can not be otherwise dispersed and to arrest a person who is resisting arrest and is involved in the commission of an offence punishable with death or imprisonment for life. Since these circumstances can not be cited in defending the killing of alleged criminals or terrorists during encounters, the only way is to project the police as using such force in self defence.
Why do such killings take place. There are various reasons. One is the support that the culture of encounters receives from different quarters.
It is supported by the politicians when it suits them. When controlling crime or dealing with law and order problems effectively becomes highly important from political point of view, fake encounters get state encouragement and protection, with complete assurance of impunity granted in advance. Mostly, such assurance is implicit; but occasionally even clear directions are also given. An example of this is the address given on April 30, 1998 by the then Chief Minister of UP Mr. Kalyan Singh. The Chief Minister while addressing the state police officers at a law and order review meeting in Lucknow said: "I want performance, results. I want you to take a vow that you will create a dhamaka (explosion) in the state. If noted criminals can be liquidated in encounters, do it. If you take the life of one person who has taken the lives of 10 others, then people will praise you. And I am here to protect you." Fake encounters of terrorists in Punjab were common and the central government when the state was under President’s rule knew about it.
Fake encounters are sometimes supported by the public too, particularly when crime and violence increase in society. Police deviance is bound to increase whenever the fear of crime whips up the rhetoric of war against crime, criminals and terrorists. The danger of the public turning a blind eye towards the use of custodial or illegal violence by the police is particularly manifest in areas where the terrorists or insurgents belong to minority communities and their crimes of violence are targeted against security personnel or members of other communities. The public in such cases may not take serious notice of violence committed by police personnel against people suspected to be terrorists or their supporters.
The policy of fake encounters is wrong not only because it is contrary to law, but because it generally proves counter productive. It does not solve the crime problem. You do not kill crime by killing criminals illegally. What is worse is that this policy has the effect of criminalizing the police force to an extent that they develop nexus with gangs and brutalising them to an extent that they do not hesitate to kill even innocent persons to get awards and promotions.
To deal with the problem of fake encounters, there must be zero tolerance towards it from all quarters, particularly from the government and the police department. Don’t let the guilty men escape. Find out the truth and set up accountability mechanisms to punish them. Prompt disciplinary action should be followed by prosecution where it is required. And no out of turn promotion or gallantry awards should be given in undeserving cases. NHRC’s guidelines, particularly with regard to registration and investigation of such cases, must be scrupulously followed.
Subscribe to:
Posts (Atom)