The Broken System
Police reform in India is too important to neglect and too urgent to delay. This message, so important for a country that claims to be the biggest democracy in the world but has a highly colonial and repressive police force, was once again brought home recently by the publication of the Human Rights Watch’s report entitled “Broken System- Dysfunction, Abuse, and Impunity in the Indian Police” (August 2009). The report describes clearly and vividly the stark and ugly realities of policing in India that are well known to all who are interested in police reform issues in the country.
The study report is based on research done by the Human Rights Watch during two months (December 08 to January 09) in three states- HP, Karnataka and UP. The methodology included doing library research, interviewing victims and witnesses (60) of police misconduct, visits to police stations (19), interview with police officers (80) of different ranks and with lawyers and activists ( 65).
The methodology adopted for the study may not be impressive but it in no way vitiates its findings. The study documents human rights abuses, particularly in four fields- police failure to investigate crimes; arrest on false charges and illegal detention; torture and ill-treatment; and extrajudicial killings. It shows how the police fail to investigate crimes because they don’t register complaints, something that affects the poor and marginalised people more than the rich and influential citizens. Instead of acting professionally to carry out scientific investigations, they rely on threats, intimidation and coercions to extract confession and adopt short cuts. They arrest people on false charges and detain suspects and their family members illegally for prolonged periods, subject them to torture and ill treatment and indulge in fake encounter killings with impunity.
The police misconduct creates a climate of fear and insecurity not so much amongst criminals but amongst ordinary citizens who are reluctant to cooperate with the police. This is exactly what a former union Home Secretary Shri Kamal Pandey had once told the IPS probationers: while the law abiding public suspect the police, those who operate on the wrong side of the law do not fear them.
Part of the problem, according to the study, is the working and living conditions of lower ranks, particularly the constabulary. The organisation has a crumbling infrastructure. Police stations are not equipped not only with adequate strength or transport or communication, but even with basic civic facilities that can enable the police people to live a life of dignity. It is not only the living but also the service and working conditions that are degrading and inhuman. The police, particularly the lower ranks, work for long hours without a day’s break and continuously under pressure, resulting in demoralisation in ranks. In addition, political interference leading to partisan policing and protection of criminals have led to undermining the confidence of the public in police. These combined with lack of political will to introduce structural reforms in the police have led to “dysfunction, abuse and impunity” in the Indian Police.
There is nothing new in any of these findings. They have been made umpteen number of times by the expert committees and commissions appointed by the government to examine police problems, by the National and State Human Rights Commissions in their annual and special reports, by the media in its daily reportage and by courts in their judgments of police work. The fact that these get constantly repeated shows how utterly negligent and callous the governments in this country have been towards the important need for police reforms.
The country is going through a period when the security situation is really bad. The Prime Minister as well as the union Home Minister have repeatedly drawn the nation’s attention to the increasing terror and insurgency threats and called for greater alertness on the part of all. It is the danger emanating from terror or insurgent groups that has dominated and shaped the thinking of the government towards police reform issues. The steps taken so far have included the expansion of para military forces, establishment of a national investigating agency, the enactment of an anti terror law with stringent provisions, creation of regional NSG hubs, strengthening of intelligence network, setting up of counter insurgency and anti terrorism training schools and modernizing the equipment of the police forces.
This is as it should be; such steps are necessary. While all that is needed by the security forces to neutralise terror should be provided to them, it must be realised that a mere increase in number and equipment of the law and order machinery will not yield full results. 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. More than one hundred crore people of this country deserve much better day to day policing in normal situations than they are getting.
The Human Rights Watch’s report is a timely reminder to all concerned to wake up and introduce police reforms. This is necessary for the survival of our democratic structure, for speedy economic growth and to establish good governance in the country.
Saturday, November 14, 2009
Sunday, September 27, 2009
POLITICAL CONTROL OVER THE POLICE
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.
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.
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.
Monday, August 10, 2009
USE OF FIREARMS BY THE POLICE
USE OF FIREARMS BY THE POLICE
On July 4, 2009, a young man called Ranbir Singh was killed by the police in Dehradun The CBI has now found the police encounter to be fake. In another incident that occurred in Imphal in Manipur on July 23, a young man, suspected to be a former insurgent, and a pregnant lady were killed in a police encounter. According to the Tehelka’s expose of this shoot out,the encounter was fake.
The incidence of police use of firearms to deal with violence, individual or mob, or during encounters, fake or genuine, is quite high. According to government statistics, the police in this country during the first 8 years of the present decade (2000 to 2007) used firearms in all its operations in as many as 9746 incidents, killing 4123 civilians and injuring another 4032 persons.
The use of firearms by the police to quell violence has a number of implications, the most important of which relates to the image of the police in a democratic society. Irrespective of the level of violence prevailing in society, every bullet fired by the police leaves a long trail of blood and bitterness. And when the encounters in which firearms are used are found to be false, the damage caused to the police image is irreversible. It projects them as a bunch of people who are brutal and trigger happy.
It is believed that the police derive their powers to use firearms from the law of the land. These powers are somewhat indirect as there is no law in the country that regulates the acquisition, possession and use of firearms by the police. The police represents the state which by definition has a monopoly over the legitimate use of force. As an agency of the state, they get the authority to use force. The problem, however, is that there is no uniform standard, legal or otherwise, to decide when the use of force is legitimate and when it becomes illegitimate. The only principle that is supposed to guide the police is the principle of minimum use of force
The law that guides the police on use of force is the Criminal Procedure Code. However, this Code has no provision about the use of firearms by the police, though it does talk of use of ‘armed forces’ for dispersing unlawful assemblies. The Cr P C authorises the police to use force only in two situations: to arrest a person and to disperse an unlawful assembly. Section 46 authorises the police to arrest. If the person resists arrest or attempts to evade the arrest, the police officer “may use all means necessary to effect the arrest” but it does not give a right to the police “to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.” There is a third situation in which the police can use force, even to the extent of killing somebody, and that is in self defence. This right, in fact, is available to everyone in law. It is this provision that is invariably used by the police to explain or justify the death of a person in encounter. This provision comes to their rescue not only in fake but also in genuine encounters, where they are required to explain as to why they chose to cause death instead of arresting the accused, thereby violating the principle of minimum use of force.
Neither the Cr P C nor any other Indian law spells out clearly the details of what the principle of use of minimum force should mean. In respect of arrest, it allows the police to “actually touch or confine the body of the person to be arrested” and with regard to dispersing the unlawful assembly, it requires the armed forces to “use as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly…” There are however, instructions in police rules and regulations that prescribe how this important principle should be interpreted, particularly while dispersing riotous mobs. It suggests that firearms should be used only in the end when all other means to bring the situation under control have failed. Additionally, irrespective of means used, the quantum of force employed must be the minimum required to control the situation. However, these instructions are of little help to the police in dealing with individuals known or suspected to be criminals. The police have enormous discretion in such cases, which they occasionally misuse.
This underlines the need to frame a comprehensive policy regarding the use of firearms by the police in dealing with the civilian population. The sole purpose of such a policy must be to ensure that firearms are not used by the police indiscriminately and where used the damage to life is minimum. It must include guidelines about the issue and use of firearms; type of firearms to be used in different situations; the regular and in-service training to be provided to different ranks in the operational use of firearms; the type of non lethal weaponry and self protective equipment that should be available with the police; situations which call for independent inquires; action to be taken in case of wrongful use of firearms; tactical options and strategies to be used in different situations that would reduce the need to use firearms etc.
The policy must be based on a study of data about the use of firearms by the police in different operations. Presently, no such data is available.. The only data that is available is published by the National Crime Records Bureau in their annual publication called Crime in India. NCRB merely gives statistics about the number of occasions in which the police use firearms against riotous crowds, extremists, dacoits and ‘others’ This data is sketchy and scanty and always outdated. It is necessary to make arrangements to collect and document all necessary details about every incident of police firing. These details must include the circumstances in which the police used firearms in different situations, extent of damage caused; inquiries done, if any, and their findings; action taken against officers found guilty of using excessive force; police units or officers found prone to use firearms etc.
On July 4, 2009, a young man called Ranbir Singh was killed by the police in Dehradun The CBI has now found the police encounter to be fake. In another incident that occurred in Imphal in Manipur on July 23, a young man, suspected to be a former insurgent, and a pregnant lady were killed in a police encounter. According to the Tehelka’s expose of this shoot out,the encounter was fake.
The incidence of police use of firearms to deal with violence, individual or mob, or during encounters, fake or genuine, is quite high. According to government statistics, the police in this country during the first 8 years of the present decade (2000 to 2007) used firearms in all its operations in as many as 9746 incidents, killing 4123 civilians and injuring another 4032 persons.
The use of firearms by the police to quell violence has a number of implications, the most important of which relates to the image of the police in a democratic society. Irrespective of the level of violence prevailing in society, every bullet fired by the police leaves a long trail of blood and bitterness. And when the encounters in which firearms are used are found to be false, the damage caused to the police image is irreversible. It projects them as a bunch of people who are brutal and trigger happy.
It is believed that the police derive their powers to use firearms from the law of the land. These powers are somewhat indirect as there is no law in the country that regulates the acquisition, possession and use of firearms by the police. The police represents the state which by definition has a monopoly over the legitimate use of force. As an agency of the state, they get the authority to use force. The problem, however, is that there is no uniform standard, legal or otherwise, to decide when the use of force is legitimate and when it becomes illegitimate. The only principle that is supposed to guide the police is the principle of minimum use of force
The law that guides the police on use of force is the Criminal Procedure Code. However, this Code has no provision about the use of firearms by the police, though it does talk of use of ‘armed forces’ for dispersing unlawful assemblies. The Cr P C authorises the police to use force only in two situations: to arrest a person and to disperse an unlawful assembly. Section 46 authorises the police to arrest. If the person resists arrest or attempts to evade the arrest, the police officer “may use all means necessary to effect the arrest” but it does not give a right to the police “to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.” There is a third situation in which the police can use force, even to the extent of killing somebody, and that is in self defence. This right, in fact, is available to everyone in law. It is this provision that is invariably used by the police to explain or justify the death of a person in encounter. This provision comes to their rescue not only in fake but also in genuine encounters, where they are required to explain as to why they chose to cause death instead of arresting the accused, thereby violating the principle of minimum use of force.
Neither the Cr P C nor any other Indian law spells out clearly the details of what the principle of use of minimum force should mean. In respect of arrest, it allows the police to “actually touch or confine the body of the person to be arrested” and with regard to dispersing the unlawful assembly, it requires the armed forces to “use as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly…” There are however, instructions in police rules and regulations that prescribe how this important principle should be interpreted, particularly while dispersing riotous mobs. It suggests that firearms should be used only in the end when all other means to bring the situation under control have failed. Additionally, irrespective of means used, the quantum of force employed must be the minimum required to control the situation. However, these instructions are of little help to the police in dealing with individuals known or suspected to be criminals. The police have enormous discretion in such cases, which they occasionally misuse.
This underlines the need to frame a comprehensive policy regarding the use of firearms by the police in dealing with the civilian population. The sole purpose of such a policy must be to ensure that firearms are not used by the police indiscriminately and where used the damage to life is minimum. It must include guidelines about the issue and use of firearms; type of firearms to be used in different situations; the regular and in-service training to be provided to different ranks in the operational use of firearms; the type of non lethal weaponry and self protective equipment that should be available with the police; situations which call for independent inquires; action to be taken in case of wrongful use of firearms; tactical options and strategies to be used in different situations that would reduce the need to use firearms etc.
The policy must be based on a study of data about the use of firearms by the police in different operations. Presently, no such data is available.. The only data that is available is published by the National Crime Records Bureau in their annual publication called Crime in India. NCRB merely gives statistics about the number of occasions in which the police use firearms against riotous crowds, extremists, dacoits and ‘others’ This data is sketchy and scanty and always outdated. It is necessary to make arrangements to collect and document all necessary details about every incident of police firing. These details must include the circumstances in which the police used firearms in different situations, extent of damage caused; inquiries done, if any, and their findings; action taken against officers found guilty of using excessive force; police units or officers found prone to use firearms etc.
Sunday, August 2, 2009
CBI AND POLITICIANS
THE CBI AND THE POLITICIANS
The CBI arrests Buta Singh’s son and father’s immediate reaction is: "this is a conspiracy to malign my political and personal life." Whenever a politician or his close relation is arrested in a criminal case, it invariably becomes a false case. Two other incidents from the recent past immediately come to mind. When the CBI charge-sheeted the CPI-M leader Pinarayi Vijayan in a graft case, the CPI-M General Secretary Prakash Karat said his party was united in its stand that the corruption case against former minister was "politically-motivated” The other is the murder case in which the CBI arrested the NCP MP Padam Singh Patil for his alleged involvement in the crime Once again, we heard similar comments. The MP said he had been framed and it was a "malicious political campaign to malign my image." Such allegations have been made by other politicians too in the past.
Every police officer knows that no accused in criminal cases ordinarily admits to his or her involvement in crime. They all claim to be innocent. But the politicians do not merely proclaim their innocence; they impute motives. The idea is to convince the public that they are blameless, but even then they are being harassed for political reasons. How do the politicians dare to do so and hope to get away with tarnishing the image of the premier investigating agency of the country?
The problem is that over a period of time, the CBI’s image has been very badly dented. The public of course do not hold the politicians in this country in high esteem; but their image of the police is equally poor. There is a general public perception that the CBI, like other police forces in the country, is influenced in its work by political considerations. The crooked politicians take advantage of this public perception. Even where action taken against them is perfectly legitimate and is as per the law, they invariably pose as victims of political vendetta and witch hunting.
The purpose of this briefing is to highlight the need to make the CBI a highly professional organization and not to plead for the politicians. For this purpose, facts must be recognised.
Regrettably, the public perception about the CBI becoming highly politicized is based on facts. In some cases against ruling party politicians, the CBI has shown either reluctance to take up investigation or when forced to do so, adopted dilatory tactics. It has also shown considerably uncharacteristic zeal in pursuing cases against politicians in opposition and has sometimes been shamelessly brazen in shifting its stand depending on the accused’s equation with the party in power.
It is not only the politicians who have questioned the functioning of the CBI; even the judiciary has often lambasted it for its inept investigations, particularly its biased handling of cases involving politicians in power. In the Havala case, the Supreme Court pulled up the CBI for showing “inertia” to investigate offences involving influential persons. More recently, the apex Court slammed the organisation for its complete turn around from its earlier stance in the disproportionate assets case against the former Uttar Pradesh chief minister Mulayam Singh. The CBI’s u-turn in the Quattrocchi’s case too earned it considerable criticism. Earlier, the Delhi High Court while acquitting Hinduja brothers in the Bofors case, called the trial a waste of public money (2.5 billion rupees) and time (14 years) and a "disaster" for accused persons. Mr V.P.Singh, the former Prime Minister, observed at that time that the CBI had never been successful in any high profile corruption case and demanded a JPC probe into CBI’s lapses.
The CBI, like all police forces, in the country is always open to undesirable illegitimate influences from its political masters. The Supreme Court’s judgement in the Havala case failed to provide it the type of insulation it required. Till now, the central government has been able to shirk its responsibility to insulate the police forces from illegitimate pressures by passing on the buck to the state governments on the ground the Police is a state subject. The CBI is a central police organisation and it is the central government’s responsibility to make it professionally strong and impartial. Lamentably enough, it has taken no steps in this direction.
The CBI was established on 1.4.1963 but till date no law has been enacted to govern its functioning. It is still being governed by an outdated Act of Second World War vintage, called the Delhi Police Establishment Act, which was enacted in 1946 to regulate the functioning of the Special Police Establishment set up in 1941 On occasions, the central government has, in fact, issued orders scuttling the powers of the CBI, making it dependent on the government even in conducting its operations. The Single Directive issued during Rajeev Gandhi’s days, prohibiting the CBI to inquire into cases against officers of the rank of Joint Secretary and above without departmental permission, is one such order. In the Havala case, the Supreme Court struck down the Directive as illegal, but the Government of India brought it back by including it in the Central Vigilance Commission Act of 2003. What was earlier a set of executive instructions has now become a part of law.
The government must realise the need to depoliticise the CBI and other police forces in the country. A professionally strong and impartial functioning of the police forces is important from the internal security point of view. A politicised police force ultimately becomes cowardly and selfish in its approach, corrupt and brutal in its dealings and ineffective in its operations.
The CBI arrests Buta Singh’s son and father’s immediate reaction is: "this is a conspiracy to malign my political and personal life." Whenever a politician or his close relation is arrested in a criminal case, it invariably becomes a false case. Two other incidents from the recent past immediately come to mind. When the CBI charge-sheeted the CPI-M leader Pinarayi Vijayan in a graft case, the CPI-M General Secretary Prakash Karat said his party was united in its stand that the corruption case against former minister was "politically-motivated” The other is the murder case in which the CBI arrested the NCP MP Padam Singh Patil for his alleged involvement in the crime Once again, we heard similar comments. The MP said he had been framed and it was a "malicious political campaign to malign my image." Such allegations have been made by other politicians too in the past.
Every police officer knows that no accused in criminal cases ordinarily admits to his or her involvement in crime. They all claim to be innocent. But the politicians do not merely proclaim their innocence; they impute motives. The idea is to convince the public that they are blameless, but even then they are being harassed for political reasons. How do the politicians dare to do so and hope to get away with tarnishing the image of the premier investigating agency of the country?
The problem is that over a period of time, the CBI’s image has been very badly dented. The public of course do not hold the politicians in this country in high esteem; but their image of the police is equally poor. There is a general public perception that the CBI, like other police forces in the country, is influenced in its work by political considerations. The crooked politicians take advantage of this public perception. Even where action taken against them is perfectly legitimate and is as per the law, they invariably pose as victims of political vendetta and witch hunting.
The purpose of this briefing is to highlight the need to make the CBI a highly professional organization and not to plead for the politicians. For this purpose, facts must be recognised.
Regrettably, the public perception about the CBI becoming highly politicized is based on facts. In some cases against ruling party politicians, the CBI has shown either reluctance to take up investigation or when forced to do so, adopted dilatory tactics. It has also shown considerably uncharacteristic zeal in pursuing cases against politicians in opposition and has sometimes been shamelessly brazen in shifting its stand depending on the accused’s equation with the party in power.
It is not only the politicians who have questioned the functioning of the CBI; even the judiciary has often lambasted it for its inept investigations, particularly its biased handling of cases involving politicians in power. In the Havala case, the Supreme Court pulled up the CBI for showing “inertia” to investigate offences involving influential persons. More recently, the apex Court slammed the organisation for its complete turn around from its earlier stance in the disproportionate assets case against the former Uttar Pradesh chief minister Mulayam Singh. The CBI’s u-turn in the Quattrocchi’s case too earned it considerable criticism. Earlier, the Delhi High Court while acquitting Hinduja brothers in the Bofors case, called the trial a waste of public money (2.5 billion rupees) and time (14 years) and a "disaster" for accused persons. Mr V.P.Singh, the former Prime Minister, observed at that time that the CBI had never been successful in any high profile corruption case and demanded a JPC probe into CBI’s lapses.
The CBI, like all police forces, in the country is always open to undesirable illegitimate influences from its political masters. The Supreme Court’s judgement in the Havala case failed to provide it the type of insulation it required. Till now, the central government has been able to shirk its responsibility to insulate the police forces from illegitimate pressures by passing on the buck to the state governments on the ground the Police is a state subject. The CBI is a central police organisation and it is the central government’s responsibility to make it professionally strong and impartial. Lamentably enough, it has taken no steps in this direction.
The CBI was established on 1.4.1963 but till date no law has been enacted to govern its functioning. It is still being governed by an outdated Act of Second World War vintage, called the Delhi Police Establishment Act, which was enacted in 1946 to regulate the functioning of the Special Police Establishment set up in 1941 On occasions, the central government has, in fact, issued orders scuttling the powers of the CBI, making it dependent on the government even in conducting its operations. The Single Directive issued during Rajeev Gandhi’s days, prohibiting the CBI to inquire into cases against officers of the rank of Joint Secretary and above without departmental permission, is one such order. In the Havala case, the Supreme Court struck down the Directive as illegal, but the Government of India brought it back by including it in the Central Vigilance Commission Act of 2003. What was earlier a set of executive instructions has now become a part of law.
The government must realise the need to depoliticise the CBI and other police forces in the country. A professionally strong and impartial functioning of the police forces is important from the internal security point of view. A politicised police force ultimately becomes cowardly and selfish in its approach, corrupt and brutal in its dealings and ineffective in its operations.
Thursday, July 30, 2009
PRESIDENT OBAMA’s REMARKS ABOUT THE CAMBRIDGE POLICE
WHAT CAN THE INCIDENT TELL US?
President Obama’s statement calling the action of the white Cambridge police officer James Crowley in arresting the renowned black Harvard University professor Henry Louis Gates ‘stupid’ has raised considerable controversy, with clear racial overtones.
This is what happened. After returning from an overseas study tour, Professor Gates found that the front door of his house had jammed. He with the help of his driver was trying to force open the door when a woman, on seeing "two black males with backpacks" trying to break in the front door, called the police, mistaking it for a burglary attempt. Sergeant Colley of the Cambridge police responded to the call. There was an altercation between the sergeant and the professor. According to the police version, the professor yelled at Crowley after the police officer asked him to show identification to prove he was living in that house. The police say they had to arrest the professor for "exhibiting loud and tumultuous behavior." He was handcuffed and charged with disorderly conduct, a charge that was later dropped.
The professor’s version was different. He was clear that he was a victim of racial profiling by the police and demanded apology from them for wrongfully arresting him. During a televised news conference, this event came up for Obama’s comments. He responded by saying Gates was a friend and he did not have full facts of the case. Even then he thought it fair to make three points. One, “any of us would be pretty angry.” Two, the Cambridge police “acted stupidly” in arresting the man who was in his own home. Three, “there is a long history in this country of African-Americans and Latinos being stopped by law enforcement disproportionately, and that's just a fact."
The fact to which the president referred is supported by considerable evidence, including the police and prison statistics. But then racism is an over sensitive issue in all multicultural societies including the USA and President Obama’s remarks immediately raised a hornet’s nest. They drew considerable criticism from various quarters, including the police. Sergeant Crowley said that the president was “way off base” for two reasons. One, this was a local issue not deserving of president’s intervention and, two, he made his comments without knowing the facts.
The sergeant received full support from his commissioner and the police union. The Cambridge police commissioner Robert C. Haas said that his department was "deeply pained" by the president's comments. They were a professionally proud group and Sergeant Colley acted according to the prescribed operational and training standards. His actions were not racially motivated. In fact, the sergeant had a good record on racially sensitive issues. He was also an instructor in the police academy teaching cops on racial profiling - a job assigned to him by a former black police commissioner Ron Watson. The Police Union also stood by what the sergeant did. A multiracial group of officers said Obama was “dead wrong” in making the disparaging remarks about the sergeant and the department.
Obama realised early that his comments had unwittingly created an unnecessary racial controversy- the first one after he became the President. He came out with numerous statements trying to mollify opinions and cool tempers. In addition, he invited both Sergeant Crowley and Professor Gates to the White House to have beer with him.
Besides the existence of police bias in dealing with people of ethnic minorities, the above event and the way it was handled raises many interesting points for discussion in this country. If a similar event were to happen in this country, what would be the reactions of different parties? At least, three questions immediately come to mind. One, would a subordinate police officer in this country ever question the statement of the head of the state and say it was wide off the mark? Two, would the head of the police force in this country ever come to support his subordinate against the highest political executive? Three, would the head of the state ever invite a subordinate police officer to have a cup of tea with him or her? Forget the head of the state, would the chief of police in any state invite an officer of the rank of Inspector to come to his house and have tea with him? It is not necessary to respond to these questions, as answers are obvious.
We take pride in the fact that we are a democratic country, like the USA. In fact, the two countries are considered the largest democratic countries in the world, but there is a world of difference. More than the structure, it is the difference in values that underpin the functioning of the governing institutions that is vital. In India, we have given ourselves a democratic structure of governance, but our values are highly feudal. In fact, so far as the police are concerned, they are exceedingly colonial in their structure as well as values. It is for this reason that the police in this country have failed to develop self esteem and professional pride.
President Obama’s statement calling the action of the white Cambridge police officer James Crowley in arresting the renowned black Harvard University professor Henry Louis Gates ‘stupid’ has raised considerable controversy, with clear racial overtones.
This is what happened. After returning from an overseas study tour, Professor Gates found that the front door of his house had jammed. He with the help of his driver was trying to force open the door when a woman, on seeing "two black males with backpacks" trying to break in the front door, called the police, mistaking it for a burglary attempt. Sergeant Colley of the Cambridge police responded to the call. There was an altercation between the sergeant and the professor. According to the police version, the professor yelled at Crowley after the police officer asked him to show identification to prove he was living in that house. The police say they had to arrest the professor for "exhibiting loud and tumultuous behavior." He was handcuffed and charged with disorderly conduct, a charge that was later dropped.
The professor’s version was different. He was clear that he was a victim of racial profiling by the police and demanded apology from them for wrongfully arresting him. During a televised news conference, this event came up for Obama’s comments. He responded by saying Gates was a friend and he did not have full facts of the case. Even then he thought it fair to make three points. One, “any of us would be pretty angry.” Two, the Cambridge police “acted stupidly” in arresting the man who was in his own home. Three, “there is a long history in this country of African-Americans and Latinos being stopped by law enforcement disproportionately, and that's just a fact."
The fact to which the president referred is supported by considerable evidence, including the police and prison statistics. But then racism is an over sensitive issue in all multicultural societies including the USA and President Obama’s remarks immediately raised a hornet’s nest. They drew considerable criticism from various quarters, including the police. Sergeant Crowley said that the president was “way off base” for two reasons. One, this was a local issue not deserving of president’s intervention and, two, he made his comments without knowing the facts.
The sergeant received full support from his commissioner and the police union. The Cambridge police commissioner Robert C. Haas said that his department was "deeply pained" by the president's comments. They were a professionally proud group and Sergeant Colley acted according to the prescribed operational and training standards. His actions were not racially motivated. In fact, the sergeant had a good record on racially sensitive issues. He was also an instructor in the police academy teaching cops on racial profiling - a job assigned to him by a former black police commissioner Ron Watson. The Police Union also stood by what the sergeant did. A multiracial group of officers said Obama was “dead wrong” in making the disparaging remarks about the sergeant and the department.
Obama realised early that his comments had unwittingly created an unnecessary racial controversy- the first one after he became the President. He came out with numerous statements trying to mollify opinions and cool tempers. In addition, he invited both Sergeant Crowley and Professor Gates to the White House to have beer with him.
Besides the existence of police bias in dealing with people of ethnic minorities, the above event and the way it was handled raises many interesting points for discussion in this country. If a similar event were to happen in this country, what would be the reactions of different parties? At least, three questions immediately come to mind. One, would a subordinate police officer in this country ever question the statement of the head of the state and say it was wide off the mark? Two, would the head of the police force in this country ever come to support his subordinate against the highest political executive? Three, would the head of the state ever invite a subordinate police officer to have a cup of tea with him or her? Forget the head of the state, would the chief of police in any state invite an officer of the rank of Inspector to come to his house and have tea with him? It is not necessary to respond to these questions, as answers are obvious.
We take pride in the fact that we are a democratic country, like the USA. In fact, the two countries are considered the largest democratic countries in the world, but there is a world of difference. More than the structure, it is the difference in values that underpin the functioning of the governing institutions that is vital. In India, we have given ourselves a democratic structure of governance, but our values are highly feudal. In fact, so far as the police are concerned, they are exceedingly colonial in their structure as well as values. It is for this reason that the police in this country have failed to develop self esteem and professional pride.
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