On August 9, 2012, the murder of Pallavi Purkayastha, a young lawyer, at her flat in Wadala, shook up the city.
The Mumbai Crime Branch, which was investigating the case, quickly zeroed in on Sajjad Ahmed Pathan, a security guard at Ms. Purkayastha’s building, who went missing after his shift that day. Within 24 hours of the incident, Pathan was arrested at Mumbai Central Station just as he was about to flee to his home State, Jammu and Kashmir. The Crime Branch followed up the arrest with a thorough investigation, and built a watertight case. On October 30, 2012, it filed a 434-page charge-sheet citing 40 witnesses. The Sessions Court judge found Pathan guilty on June 30, 2014, and sentenced him to a life term for trespass, molestation and murder.
A few months ago, all this effort went down the drain.
The administration at Nashik Road jail, where Pathan was imprisoned, submitted papers for granting him parole, bypassing the Mumbai Crime Branch. This is not necessarily the fault of the jail administration; perhaps the rules for parole are equally to blame. Had there been a process in place, the Jail & Revenue administration would have consulted the investigating officer, particularly since the Maharashtra government’s appeal for enhancing Pathan’s punishment is pending with the High Court. The result: the accused, who should have been back in jail in May, has disappeared.
This was a case that got a lot of visibility, but it’s the story of most investigations in the city and the country today.
While the police have a major role to play in the justice delivery system — registering and investigating offences — their efforts are easily being negated by factors beyond their control: the prosecution machinery and prison system. Incompetent forensic analyses by government-run laboratories, which are not controlled by the police, could also hamper investigations. A 2013 report said rape cases, which are increasing every year, and where testing of genetic materials is crucial, are in danger of ending in acquittals due to the serious shortage of DNA experts in our forensic laboratories.
Too wide a charter
The Customs Department is charged only with detection and prevention of duty evasion and smuggling. The Enforcement Directorate is assigned only the duty of currency regulations. The Food & Drug administration only investigates breaches of health regulations in making or selling drugs. All these important functionaries do not have to perform other duties.
Compare this with the ever-widening charter of police duties.
Aside from investigating crimes, it must also prioritise maintaining law and order, which includes regulating traffic, collecting fines, issuing licences, locating missing persons, impounding stray cattle, killing stray dogs, disposing of unclaimed dead bodies, preventing “public nuisance”, committing wandering mentally ill patients to mental asylums, working as police orderlies, collecting political intelligence, protecting vital installations like offices, factories, bridges or water storage areas, escorting prisoners, undertaking counter-insurgency operations.
Add to that protecting important persons and VIPs, both those resident within their jurisdiction and visitors, and interface with citizens.
During our investigation into the 26/11 Mumbai terror attacks, the then Joint Commissioner (Law & Order) who was in charge of police stations in Mumbai, told us that out of 40,000-odd policepersons, over 16,000 were
made to report for ‘special duties’ like security, traffic, special branches and so on. This left only 24,000 to perform regular police station duties. And since they worked in two shifts, only 12,000 of them were available for crime and law-and-order duties. On any given day, nearly 2,000 men were on their weekly offs, had reported sick, or were on leave.
That left only about 100 policemen per police station to staff four mobile units, four motorcycles (Beat Marshals), and fixed-point duties after every major incident, besides public relations duties like monitoring mohalla committees and citizens’ groups. “Because of this,” he had said, “no worthwhile investigation work is done at police stations.”
Is it any wonder that sustained investigation is often a casualty?
Archaic laws and systems
Much of the way our police machinery functions today dates back to British rule, and little attempt has been made to change that.
The basic charter of the classical police system, as conceived by Sir Robert Peel in 1829, was the prevention and investigation of crime, and maintenance of order. However in India, both colonial rulers and princely states entrusted various other responsibilities to them, as they did not have any other enforcement machinery.
Under the 1861 Police Act, 22 municipal responsibilities were imposed on the police, including cattle impounding, killing of stray dogs and detection of street dirtying. Another 14 additional responsibilities were imposed by the Bombay Police Act 1951, which included tackling infectious diseases and offensive odours. As our democracy widened its reach, hundreds of new laws were passed to penalise activities detrimental to social equality, health or clean business practices.
A publication titled, Criminal Minor Acts (136 important Acts with comments), lists the Central laws under which the police have to render services in one form or another, ranging from the Actuaries Act to the Young Persons (Harmful Publications) Act. Similarly, the Bombay High Court website lists 453 laws in Maharashtra, from the Abolition of Whipping Act to Zilla Parishad and Panchayat Samities Act, under which most cases involve police intervention. Interestingly, the Bombay District Police Act, 1867, which is still on the High Court list, lays down regulations on several municipal functions including “removal of prickly pear or other nuisance” from wastelands.
In most other countries, these municipal or social reform and social protection functions (or ‘Minor Acts’) have special enforcement machineries set up under different departments. But in India, all these functions are entrusted to the State police for enforcement, on the grounds that investigations should be done by them.
The character of investigation too has changed over the years. Earlier, only Indian Penal Code cases were given importance. By the end of the 20th century, more importance was given to special and State laws on social protection issues like prevention of caste bias, ensuring gender justice, dowry prevention, senior citizens’ welfare, children’s welfare and protection of minors against exploitation. These are much more important to the media or even common citizens than robbery or even murder, which directly affect relatively fewer people, so the police have to spend more hours on such cases. Things have reached such a state that the police, under pressure from the media, social reformists, or business lobbies, have started prioritising these matters over basic criminal investigation. Terrorism, of course, has added to their burden.
Supreme Court intervention
In 1996, two retired senior police officers moved the Supreme Court (in the Prakash Singh case) to direct States to give professional autonomy to the police. In 2006, the court issued directives to the States and the Centre, which were to have been complied with by 2007.
However, seeing the tardy compliance by State governments, the Supreme Court set up a three-member monitoring committee, under Justice K.T. Thomas in 2008, to report the States’ progress towards reforms. Based on their report, the Supreme Court issued notices on November 8, 2010, to the errant States of Maharashtra, Uttar Pradesh, West Bengal and Karnataka, asking their Chief Secretaries to state why the directives were not implemented. A Supreme Court Bench, which assessed the progress, ordered on July 16, 2014, that crime investigation and law and order (L&O) should be separated and that the High Courts would monitor the progress.
The remedies
Fixing the police system to improve investigation is not easy. It needs the cooperation of all 29 States. But Maharashtra, and thus Mumbai, can begin the process in these areas.
Separate crime investigation & L&O
The only States that have attempted this are Kerala and Punjab. In March 2015, Punjab claimed to have become the first state to totally separate investigation functions from L&O by creating a State-level Bureau of Investigation.
Create a municipal police
On May 21, 2013, the Ministry of Home Affairs suggested that the States set up municipal police forces in cities with a population of more than 1 million, as recommended by the Second Administrative Reforms Commission. These forces would implement all municipal laws, including traffic management. A separate municipal police with legal powers would be able to perform all municipal enforcement functions, leaving the police to concentrate on crime investigation.
Similarly, the Sales Tax Commissioner, Food & Drugs Commissioner, State Lok Ayukta, and other such authorities who are expected to do enforcement and vigilance work, should be provided with investigating and prosecuting staff so the local police are not burdened with such cases.
Re-assign social protection
As is practiced in other countries, certain special welfare laws should be entrusted to special police officers who are specifically designated under regulatory organisations like the Minorities Commission, Women’s Commission, Children’s Commission and Senior Citizens’ Commission. As of now, some of these commissions in India have civil court status; they should be empowered to hear criminal cases too, and have their own investigating agencies.
Stop escorting prisoners to court
This is a waste of scarce police strength. In Singapore, prisoner escort is done by the Auxiliary Police, who are empowered under their Police Force Act 2004. In India, too, this should be the responsibility of legally empowered, trained and armed prison guards.
Let others guard ministers’ bungalows and VIPs
This should be taken over by the trained personnel of the Maharashtra Security Force, which was created after 26/11. This will set hundreds of policemen free for policing duties.
Empower the Railway Protection Force
The policing of 9,000 trains, which carry 3 crore passengers every day on 65,000 km of tracks around India, is currently the legal responsibility of all 29 States, because of the Constitution’s Seventh Schedule on the Centre-State distribution of subjects. As a result of this outlandish provision, passengers are tossed around between police stations of different States when they want to lodge complaints.
Contrast this with what other countries do. The British Transport Police has sole responsibility for policing 16,093 km of railway tracks and 3,000 stations, besides investigating all railway crimes, except in Northern Ireland. China, which has the third-biggest railway network in the world, has a Ministry of Railway Police for the entire network; unlike in India, this has facilitated passenger convenience. Similarly, Pakistan has merged their state-based railway police with their Railway Police Force, creating the Pakistan Railway Police under the Ministry of Railways for the protection of all their railway tracks. This is working well.
About the author
The writer is former Special Secretary, Cabinet Secretariat, and Member of a High-Level Committee to enquire into the police response during the 26/11 terror attacks. An IPS officer of the 1959 Maharashtra cadre, he was deputed to the Cabinet Secretariat in 1976. In 1987, he headed a committee of Government of India officials, at the request of the President, to study and recommend reorganisation of the country’s security. In 1993 and 1994, Mr. Balachandran led Indian interagency groups at an annual dialogue with U.S. agencies on terrorism. He is also the author of National Security and Intelligence Management — A New Paradigm.
For the complete list of stories in the Fixing Mumbai series, > click here
