Criminal Justice

ANYONE WHO HAS HAD TO DEAL with the police in India knows how exasperating the experience can be. Among the several ills that afflict the Indian police system, the biggest issue is the sheer lack of accountability for acts of omission and commission. Even in the case of the now notorious Delhi gang rape of a 23-year-old student and her subsequent death, despite the huge media scrutiny and public pressure, the names of policemen on duty in the area at the time of the crime were not revealed in two subsequent reports submitted to the court. It took a direct threat from the Delhi High Court for the police to reluctantly reveal the names.

Of the 61,765 complaints received in 2011 against the Indian police, only 913 were sent to trial or chargesheeted and only 47 police personnel were found guilty after trial. Even in these cases, a mere 0.07 percent of the total complaints, the punishments have been very light—reprimands and transfers—compared to the gravity of the police excesses, like death by police firing or rape in police custody.

A colonial British Raj had designed the Indian Police Act of 1861 just after the First War of Independence of 1857 to establish authority over subjects rather than to help citizens access justice. In fact, the Act was designed to excuse, cover up and justify police excesses rather than hold the police accountable. Tragically, 65 years after Independence, the Police Acts enacted by various state governments and the rules laid down in state Police Manuals continue to uphold the British Raj model and have little room for police accountablity.

Even today, the government needs to give prior sanction to prosecute any public servant, including police officials, for any act done in the discharge of their official duty as per Section 132 and 197 of the Code of Criminal Procedure. Cronyism, political interest and corruption all contribute to government officers not sanctioning requests for investigation against their own.  In 2001, the Prime Minister’s Office (PMO) reprimanded the Delhi Police for giving shoddy treatment to public complaints against police officers referred to it by the PMO, noting that “the field reports prepared at the district level are generally evasive, there is a lack of sensitivity, lapses of police are concealed and emphasis is mainly on statistical disposal.”

What is even more vexing is the fact that only a police department is allowed to conduct an inquiry against a police officer. The investigating officers often suppress incidents of misconduct by individual police officers because the revelation of the facts could damage the image of the organisation. Needless to say, the process of conducting a departmental inquiry is elaborate, cumbersome and time consuming. Even if the charges are proved, the delinquent police officer can, and generally does, go to court against the findings and the punishment imposed. In any case, the maximum numbers of police atrocities are committed in small towns and villages of India, where people are not even aware of these procedures; nor do they have the means to tenaciously fight a case against powerful police officials.

My own work as the founder of Apne Aap, an anti-human trafficking organisation, has shown me time and again the difficulties in challenging the police or trying to hold them responsible for crimes committed even against children. Over a period of 20 years, I have tried to get police officers patrolling the red-light districts of Mumbai, Delhi, Kolkata and Bihar to arrest traffickers and protect trafficked women and girls. And again and again they have done the opposite—they have protected the traffickers and arrested the women.

I have complained innumerable times against such officers, to no avail. They continue to take pay-offs from brothel managers, extort money or sex from impoverished prostituted women and avoid arresting traffickers. My latest attempt was a complaint I filed a year ago against a Superintendent of Police who locked up the 14-year-old daughter of an Apne Aap activist in Bihar, in an act of retaliation for exposing a trafficking ring. The complaint and numerous follow-ups have met with no responses from any of his superior officers. The lack of action has so emboldened the police officer that he has gone on to illegally arrest another one of my colleagues.

The only independent authority with the capacity to oversee or investigate police excesses is the National Human Rights Commission (NHRC). But it too can only advise the government to take action. It has no power to enforce its decisions. If any state government refuses to accept the NHRC’s advice, there is no provision in law that empowers the Commission to force the government to implement its advice. It can of course approach the higher courts and seek directions. The NHRC has issued four summons to the Director General of Police, Bihar, over the last eight months for the two wrongful arrests of my activists, only to be met with a wall of silence.

A number of commissions and committees—from the Padmanabhaiah Committee to the Soli Sorabjee Committee—have been set up to reform the colonial Police Act of 1861. The Justice Verma Committee in the aftermath of the Delhi gang rape case has been added to that long list, with a mandate to recommend reforms to the police and judicial system in cases of rape. Hopefully it will not meet the same fate as the others. Three things that would go a long way in addressing the issue of accountability are: establishing an independent authority composed of civil society members and senior police officials to enquire into complaints against police officials; compulsory training in human rights laws for all police officials to inculcate respect for human rights; and presumption of complicity of the superior officer if disciplinary action is not taken against a subordinate officer for violation of human rights.

The December 16 rape and murder has triggered a fresh demand from India’s youth and civil society for police reform. Such reform needs to include easier and more effective ways for citizens to hold the police accountable for their acts of commission and omission. More power for the police will not help—but more responsible use of the abundant power they already have will.