POLICE REFORM- NEED OF THE HOUR

POLICE REFORM- NEED OF THE HOUR

The recent attack on the army base in Uri has caused widespread public rage.  While the army and the NIA will be investigating the failures that allowed the terrorists  to infiltrate into the camp, it is important to reflect on our vulnerabilities that make it possible for such incidents to occur again and again.  It is obvious that we do not learn from our weaknesses and fail to take corrective measures in time.

The main responsibility of controlling terrorism in the country is of the police force and it is here that our failures are so strikingly noticeable.  We did inherit a bad system of policing from the British, but over a period of time, we have made it worse.

The need for police reform has been realised in many countries. In some, important police reform initiatives have been born either out of conflict situations, like those that occurred in South Africa, Northern Ireland, Eastern Timor,  or out of major corruption scandals, like the appointment of the Royal Commission on Policing in the UK, Fitzerald Commission in Queensland in Australia and Knapp Commission in the USA.  Even an incident of murder, like that of Stephen Lawrence in London in April 1993, gave a big jolt to the collective conscience of people in the United Kingdom, leading to major reforms in the laws,  structure  and  functioning of the police in that country.. 

In this background, it is remarkable that a major event like the violent terrorist attack on  Mumbai in 2008 did not give rise to major police reforms.  No other incident in post independent India exposed the glaring deficiencies in the functioning of police in this country as this incident.  It created furore inside and outside Parliament.  About eight years have passed, but there has been no perceptible improvement in terror fighting capability of the police force.  Since the Mumbai incident, numerous terror related incidents in different parts of the country have taken place and the police forces’ response has been as good or as bad as it was during the Mumbai terror attack.  

After the Mumbai massacre, steps taken by the central government included the setting up of a new agency like the NIA, establishing new hubs of NSG, making the provisions of anti terror law more stringent and setting up of counter insurgency and anti terrorism training schools. However, the central and state governments forgot that there was a huge existing police force waiting to be reformed. It was not realised it would not be possible for the police forces to deal with such incidents in future unless the police were depoliticised and professionalised and their requirements met without delay. In 2002, the Department related Parliamentary Standing Committee of Home Affairs in its Eighty Eight Report on The Demand for Grants  of the Ministry of Home Affairs advised the government to “make earnest efforts to depoliticise the institution of police before it becomes too late to retrieve it from the morass of degeneration.  It must be ensured that the police remain accountable only to the law of the land.” The advice fell on deaf ears of the government of the day and of the subsequent governments.

Preventing and fighting terrorism requires a police force that is foundationally strong to function in an efficient and effective but also unbiased manner. What will really win the war against terror is public faith and confidence in the efficiency and integrity of the police agencies- a faith that leads to increasing inflow of intelligence and a willing cooperation being provided to the security forces. The police therefore have to make a conscious effort to win the hearts and minds of the citizens of all communities. This can happen only when they start doing their basic job in a professionally efficient, honest and impartial manner and the government provides the police the environment and the enabling capacity to do so.   

We are about to complete the ten years of the Supreme Court’s verdict on police reforms on September 22.   It was on this day in 2006 that the Supreme Court delivered its long pending judgment in Prakash Singh’s case.  The judgement directed the state governments to comply with a set of six directives to kick-start police reform.   Most state governments have not shown any inclination to implement the judgement  They have found numerous methods to thwart its implementation. One can understand the unwillingness of the governments not to implement the directives that impinge on their powers to control the police, but even some innocuous directives have not been acted upon.

Adding salt to police wounds, the central government in the last budget decided to reduce the funds for the modernisation of the police forces. The Police Modernisation Scheme has been in existence for more than four and a half decades now.  It has definitely succeeded in improving the mobility, communication and other facilities available to the police, but it has yet to succeed in giving a comprehensive modern look to the police forces. This is the time the government must take all steps to enhance the capability of the police to deal with the problem of terrorism in a professional manner.  The Police Modernisation Scheme can play an important role in augmenting the police ability to handle the problem of terrorism effectively.

The country cannot afford to keep on neglecting the police.  On this anniversary of the Supreme Court’s judgment, the governments need to be reminded that the need for police reform in the country is too important to neglect and too urgent to delay.

POLICE POWERS TO ARREST

POLICE POWERS TO ARREST

Recently, the CBI arrested Mr. B. K. Bansal, Director General in the Ministry of Corporate Affairs for allegedly accepting bribe money from a pharmaceutical company.  A day after the arrest, his wife and daughter committed suicide because they were not able to bear the ignominy resulting from the incident.

The court, while granting bail to Bansal, raised a very important question.  Was it necessary to arrest him in the case?

The CBI has explained that the arrest of Mr. Bansal was according to law.  Of course, it was according to law.  The CBI has powers under the law to arrest the accused in such cases.  But power to arrest is one thing; justification to do so is another.

An answer to the question raised by the court is necessary not because two innocent lives were unnecessarily lost, but because it raises some important concerns. The discussion on this issue needs to go beyond Mr Bansal’s case to include an analysis of police powers of arrest and the indiscriminate way these powers are used.

The police arrest a large number of people in their day-to-day work.  According to the Crime In India, they arrested 85, 95,194 persons under the Indian Penal Code and the local and special laws during 2014.

To what extent are the arrests made by the police justified? This issue has been examined on various occasions. For example, the National Police Commission in its Third Report (January 1980) observed that a large number of arrests made by the police were not only unnecessary from the point of view of controlling crime, but needlessly imposed avoidable burden on the state exchequer in the form of expenditure on harbouring and maintaining the arrested persons in jails. The Commission estimated that 43.2% of the jail expenditure was incurred on prisoners who “need not have been arrested at all.”

A study conducted by the Law Commission of India on the basis of empirical data collected from different states in India confirmed these findings.  It showed that the number of preventive arrests and arrests for petty offences was substantially large; the percentage of under trial prisoners was unusually high and most of them were there because they were not able to post bail or furnish sureties. The Law Commission recommended that the police should not be allowed to arrest people involved in certain categories of offences.

The Supreme Court of India in its judgment of Arnesh Kumar vs. State of Bihar and Others Laid down the principles for making arrest and detention under the Code of Criminal Procedure.  It held that no arrest should be made in a routine, casual and high-handed manner  
 Both the National Police Commission and the Supreme Court in its judgments have prescribed the circumstances in which an arrest may be justified.  Broadly, the list says that an arrest may be justified :
•in a heinous crime like murder, robbery, rape etc where it is necessary to restraint the movement of the accused to “infuse confidence among the terror stricken victims;” or
•to prevent the accused from absconding and evading the processes of law; or
•to prevent destruction of or tampering with evidence by the accused; or
•to prevent such person from committing any further offence; or
•to ensure presence of the accused in the court; or
•where arrest  is necessary for proper investigation of the case.

Most of the above circumstances mentioned cannot be applied convincingly to Mr. Bansal’s case. The offence allegedly committed by Mr Bansal falls in the category of white collar crime where the evidence to be collected by the investigating agency is mostly documentary in nature.  In such cases, the investigating officers can carry out their investigation without  arresting the offenders.

While the CBI Manual wants the investigating officers to be cautious in arresting accused, the Manual suggests extra care to be taken while affecting the arrest of a public servant.  Paragraph 12.4 of the chapter 12 of the Manual says: “Public servants should be placed under arrest only when it becomes necessary to do so in the interest of investigation or to satisfy the requirements of law or to prevent the accused from absconding or after a decision has been taken to launch a prosecution and necessary sanction for it has been obtained.”.   None of the eventualities mentioned in this paragraph seemed to have arisen in the case of Mr Bansal. He was a public servant with a high position in the government service and could not have been expected to run away.

The arrest of Mr Bansal becomes particularly unnecessary in view of the amended law of arrest as embodied in Section 41 A of the Cr PC.  According to this Section of law, in cases where an arrest is not considered necessary, the police officer can require the accused person to appear for investigation by issuing a notice to him.  It is mandatory for the accused to comply with the terms of the notice. In case of failure to comply, it is lawful for the police officer to arrest him.  Mr. Bansal’s examination could have been done by summoning him, whenever needed.

In Mr. Bansal’s case, the court asked the CBI to “rethink” if the arrest was necessary.  Actually, all police forces should rethink before making arrests.

IMPACT OF CRIMINALISED POLITICS ON POLICING

IMPACT OF CRIMINALISED POLITICS ON POLICING

A ruling party MLC's son allegedly shoots dead a young student in Gaya for overtaking his SUV. A senior journalist is shot dead in Siwan district by unknown assailants allegedly having connections with Lalu Prasad party’s general secretary.  According to BJP, these incidents indicate the existence of ‘Jungle Raj’ in Bihar. Such incidents have occurred in other states too.  What they definitely very emphatically highlight is to prove how badly politics in this country has been criminalised.

Though signs of criminal activities of politicians were seen in earlier years too, but the process of criminalisation of politics really started in the seventies. The first major event in this context was the proclamation of Emergency and the subsequent unbridled misuse of authority by persons in power for self-aggrandisement.  Since then, the process has grown uninterruptedly. The Election Commission, the Supreme Court and some expert committees drew our attention to this problem, but we kept on neglecting it. The National Commission  to Review the Working of the Constitution appointed by the Government of India in 2001 rightly commented:“…the criminalisation of politics and the persons known to have criminal past becoming legislators and ministers has not only become very common but is being openly  defended by the party leaders. A stage has now reached when the politicians openly boast of their criminal connections.”  

Increasing criminalisation of politics is both a cause and an effect of poor and politicised policing.  There are three ways in which it has impacted the image of police and quality of policing.  One, it has led to promoting organised crime and corruption in the country and reduced the police capability to control it.  Many years ago, the Vohra Committee on Corruption had observed:“All over India, crime syndicates have become a law unto themselves.. ..….The nexus between the criminal gangs, police, bureaucracy and politicians has come out clearly in various parts of the country.” The Vohra Committee report mentioned that the network of mafia was “virtually running a parallel government, pushing the state apparatus into irrelevance.”

Two, criminalisation of politics has led to gradually undermining the authority of the police to take action against those who indulge in criminal activities.  By being in politics, the criminals have succeeded frequently in influencing police work. It has created an environment within the organisation in which the authority of the police leadership to exercise command and control has got eroded and bred indiscipline in the force. It has promoted a climate in which impunity has flourished. In short, it has obstructed the growth of professional policing in the country. As an eminent police officer has rightly said: “The administration and the police are the first casualties of criminalisation of politics, resulting in a system of law that is neither fair nor impartial.”  In such an environment, crime becomes a “low risk, high profit business,” where price is paid by citizens, not only in terms of increase in victimisation, but also in terms of overall deterioration in the quality of life resulting from overpowering fear of crime.

Three, since criminalisation of politics is the cause as well as the result of bad policing, it has led to diminution of public confidence in the system, thereby depriving the police of public support and cooperation in the fight against crime and criminals.  It is a truism to say that the police cannot succeed in their work unless they get voluntary support and cooperation from the public.  The police should have realised long ago that winning public cooperation is essential not only to win the war against crime and criminals but also to weaken the vice like grip of the politicians over the organisation.  The police have failed to do so. An important factor responsible for this failure is the public perception that the police always side with people in positions of power even when these people are on the wrong side of law which they often are.  The process of criminalisation of politics that has occurred in this country on such a big scale has already shaken the faith of the public in politics and politicians.  The loss of public faith gets accentuated when the process of criminalisation engulfs the law enforcement officers too.

The citizens expected the Modi government to take action to deal with the problem of criminalisation of politics. After all, Modi had promised that he would put all MPs and MLAs facing criminal charges in jail once he came to power. He was not willing to spare even the candidates from his own party.  This is one of the most important promises that he completely disregarded after coming to power. Narendra Modi is often criticised by his rivals for his failure to implement the promises   made by him in 2014.   Some of the failed promises often cited by Rahul Gandhi and company include bringing back black money and depositing Rs 15 lakh in every Indian's bank account, providing 2 crore jobs every year, hiking minimum support prices for the farmer's produce etc. One expected the Congress leader, who had deprecated in public the controversial ordinance passed by his government to negate the Supreme Court verdict on convicted lawmakers, to denounce Modi’s failure on this account too. However, no political leader in the country has made an issue of Modi’s failure to implement this important promise.  It appears this is a subject where all political parties are on an equal footing and cannot adopt a holier than thou attitude.