Guarding the guardians

Colin Gonsalves

Not a day passes without a report in the press regarding abuse of power by the police, the recent controversy over fake encounters in Gujarat being the latest instance.

Torture is widespread. Corruption is routine. Hobnobbing with politicians is more important than police work. Anti-women, anti-Dalit, anti-Muslim and anti-poor attitudes dominate. All this we know. The Nithari killings, the refusal to register FIRs, the scolding of the relatives and the protection of the accused by the police only brought into focus once again the need for radical police reform.

There is an attempt to do police reform in this country but it is led by the police and this alone should make the public wary. Besides the reports submitted to the government of India by the National Police Commission from 1977 onwards, reports have also been made by the National Human Rights Commission, the Law Commission, the Ribeiro Committee, the Padmanabhaiah Committee and the Malimath Committee. The last three committees were dominated by policemen and officials from the Home Ministry.

The debate has been so slanted in favour of the police that torture hardly figures anywhere. Police reform has the limited scope of removing political control over the force. The Supreme Court too, since it relies almost exclusively on these reports, has in its order dated September 22, 2006 wrongly said that it was “the popular perception all over the country that many of the deficiencies in the functioning of the police had arisen largely due to an overdose of political interference” and concluded that it was important “to insulate the police from political interference”. In respect of police misconduct the Supreme Court held that there ought to be a Public Complaints Authority, selected on the basis of recommendations made by the State Human Rights Commission, the Lok Ayuktas and the State Public Service Commissions.

Insulating the police force from political control is one thing, establishing independent civilian control is quite another. In a country where the poor face torture by the police on a day-to-day basis, it is imperative that civilian control be clear, independent and a threat to police misconduct everywhere. To place faith in the State Human Rights Commissions which are toothless tigers often subservient to the government and which have been recently criticised by the Chief Justice himself, is to miss the point completely.

The police force in India was modelled and continues to this day along the lines of the British Paramilitary Forces that policed the colonies by terror. After the breakup of the empire the British Police were reformed but the police forces in the colonies raised corruption and torture to an art form. India probably has one of the most debauched forces in the world. Torture is its principal forensic tool for the investigation of crimes. For such a criminal force to be freed from political control without first setting up and testing civilian control structures and procedures, is to take the citizen from the proverbial frying pan into the fire. Freed from political control and supervised only by formal ineffective structures this criminal force will come to rule society.

In the UK, pursuant to the Police Reform Act 2002, an Independent Police Complaints Commission has been formed. With its own team of mainly civilian investigators to investigate cases against the police, these investigators have all the powers of the police during investigation and have access to documents and a right of entry into police premises. Independent non-police persons preside over hearing panels looking into serious cases. The Commission can also present cases on behalf of complainants at police disciplinary hearings. 

In Australia, there is a New South Wales Ombudsman for less serious complaints and the Police Integrity Commissioner for serious crimes. In New Zealand there are strident calls for an independent Police Complaints Authority to be merged with an independent Police Inspectorate.

In India too, the Supreme Court therefore ought to broaden its horizon from its present reliance on police reports and thereby establish effective civilian control over the police with independent machinery for investigation into police misconduct. Only that will inspire public confidence in the police system.

The writer is a senior advocate in the Supreme Court.