Reforming the police
In a democracy the police have to be part of civil society and accountable to it. Essential to the principle of accountability is the existence of a machinery for redress of grievances against the police.
THE POLICE force in India has still not woken up to the fact that it is a civilian force which is part of civil society. It is created by society, paid for by society and is required to deliver the mandate given to it by society through laws. It cannot be antagonistic to society, nor can it look upon society as its prey which it can exploit and feed upon at will. The police do have coercive powers, but they cannot be used against law abiding citizens, neither by design nor by accident. The army, when dealing with an enemy, has a field of fire and anything which intervenes in that field is liable to destruction by use of maximum force. The police force has no such field of fire. Under the Anglo-Saxon system of jurisprudence that we have adopted, every citizen is deemed to be innocent till a case is proved against him and he is convicted by a court of law. The police, therefore, have no authority to treat even an alleged criminal as anything but a citizen against whom, by investigation, they have to establish a prima facie case which can be prosecuted before a court.
The police cannot cause injury to a citizen, except under three circumstances: (i) while dispersing an unlawful assembly, (ii) when making an arrest, though here too section 46 Cr.P.C. states that when using force against a person resisting arrest the police cannot cause the death of the person unless he is accused of an offence punishable with death or imprisonment for life. Section 49 Cr.P.C. directs that an arrested person shall not be subjected to more restraint than necessary to prevent his escape, and (iii) in exercise of the right of private defence, which right is available to every citizen and is covered by sections 96 to 106 IPC. Other than these three circumstances no situation permits the police to cause any harm or injury and certainly it does not permit the police to use torture, third degree or any other form of physical or psychological brutality against a citizen, especially one in its custody.
A notorious fact
The provisions of law notwithstanding, it is a notorious fact that the police often act in violation of law. Under section 57 Cr.P.C. a person arrested may not be detained for more than 24 hours except on a remand order of a competent magistrate. Despite this it is common practice to detain a person accused of having committed an offence, not record his detention as an arrest and to produce such a person before a magistrate only several days after the commencement of detention, but with the record showing an arrest less than 24 hours before such production. Partially to obviate this practice section 58 Cr.P.C. provides for the Station Officer to report every case of arrest without warrant to the District Magistrate or the Sub-Divisional Magistrate, the idea being that such magistrate can intervene in case of an illegal arrest. This provision of law is practised more in the breach than in the observance. In Punjab the provisions of sections 57 and 58 Cr.P.C. were treated as if they did not exist, which is one reason why the National Human Rights Commission, years after the event, has been forced to step in and direct action against hundreds of police officers.
What is the present grievance redress machinery available to a citizen aggrieved by police action? He can complain to superior police officers in the district and at higher level. By and large the tendency is for the police to protect their own people, which means that the chances are weighted against the possibility of a complainant receiving justice. Therefore, a citizen is more likely to go to the District Magistrate with his complaint, who, because he has the power of direction and control, can either request the Superintendent of Police to enquire into the matter, or have an Executive Magistrate hold such an enquiry. Such administrative enquiries are generally swift and, therefore, there is some hope of redress of grievance. Conversely an aggrieved party can go to a court, provided a criminal case can be made out against the errant police officer. He then runs into twin blank walls, the first being the immunity given to the police against prosecution by section 197 Cr.P.C. and the second being the coercive power of the police which can dissuade the witnesses from deposing against a policeman. The judicial process is slow in India and even if an aggrieved person is able to garner evidence, the likelihood is that the case would drag on for years.
Under the Protection of Human Rights Act we have the National and State Human Rights Commissions. Certainly an aggrieved person can approach the NHRC or SHRC. However, these august commissions are located in Delhi and at State headquarters and one would be very surprised if a villager living under the jurisdiction of a remote police station has either the knowledge of these commissions or capacity to approach them. The outreach of these commissions is very limited.
The National Police Commission (which was set up in 1977 and headed by Dharam Vira) had proposed that the District Magistrate should have no supervisory role to play and may only coordinate the actions of the police in an emergency situation. The M. P. Police Bill, 2001, aims at altogether eliminating the Executive Magistracy and making the police accountable to no one but itself. That would remove even that officer, the District Magistrate, to whom the people could look for some protection against wrongful police action.
In a democracy the police have to be part of civil society, constituted by it and accountable to it. Essential to the principle of accountability is the existence of a machinery for redress of grievances against the police. First we need to delete section 197 from the Cr.P.C., which gives them immunity from prosecution without the sanction of the government and section 80 CPC, which mandates a two months' notice period before a civil suit can be brought against the government or an official on duty. This means that the police must be liable to legal action as any ordinary citizen and neither the guise of duty nor the excuse of orders from above should provide any protection.
Viable redress machinery
We also need to set up a viable redress machinery which can hold a swift enquiry and has adequate authority to remedy a wrong doing. Both at the State and district level there should be a Police Complaints Authority similar to the one in Britain. At the level of the State it could be headed by the chairman, State Human Rights Commission and at the district level by the Collector and District Magistrate. The State level authority should look into complaints against officers of and above the rank of SP, whereas the district level authority into all other cases. No person who is a serving or retired police officer should be a member of either authority. The Complaints Authority could entertain complaints made by citizens, suo motu take cognisance of complaints which come to its notice by other means or could entertain complaints forwarded to it by the head of the police. The Authority could have its own investigating agency, or it could direct the police to hold an enquiry and submit a report. It could also order a magisterial enquiry. On the basis of its findings it may either recommend suitable action or, where its recommendations are ignored, have the statutory power to direct either departmental action or a prosecution. It would be mandatory to obey such directions. Such a grievance redress machinery would have credibility because it is independent of the police, has the power of investigation and is authorised to direct action, which the police would be bound to obey. This is the least that is expected of a police force in a democratic society.
M. N. BUCH
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