The shackles of 1861 need to go

Though much has changed, attention needs to be paid to lingering issues in India’s police agency

August 16, 2022 12:15 am | Updated 05:23 pm IST

Policemen at Kallakurichi in Tamil Nadu.

Policemen at Kallakurichi in Tamil Nadu. | Photo Credit: Special Arrangement

As India is celebrating 75 years of Independence, the police continue to be in the public gaze, most often for antagonistic reasons. Criminal laws and procedures, though modified, and the shadows of India’s colonial legacy do not appear to leave the police agency any time soon.

Changes to the IPC

India’s parliamentarians rose to the occasion and passed The Probation of Offenders Act, 1958, with an objective more to reform, rather than punish, offenders. Realising the urgent need to check the social evil of dowry, the Dowry Prohibition Act was passed in 1961. More revolutionary changes were made in the Indian Penal Code (IPC) in 1983 and 1986 and by introducing Sections 498A (cruelty by husband and his relatives) and 304B (dowry death) along with certain amendments in the Evidence Act. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, was enacted in 1989.

The definition of rape has been widened and offences related to sexual assault made tougher. Comprehensive laws such as the Protection of Children from Sexual Offences Act, 2012, and the Juvenile Justice (Care and Protection of Children) Act, 2015, have been enacted. Electronic documents and signatures have been given legal sanctity to facilitate online transactions and check cybercrime under the Information Technology Act of 2000. The National Investigation Agency was constituted in 2008 (after the deadly 26/11 terror attacks in Mumbai) to investigate and prosecute offences affecting national security. All these statutes have added a progressive and more humane chapter to the history of our criminal justice system.

The constitutional courts have also made far-reaching contributions. By reading down Section 377 of the IPC, the Supreme Court granted relief to the LGBTQ+ community. Custodial torture and sexual harassment of women have been held to be violations of fundamental rights. The jurisprudence of providing compensation to victims of crime has evolved over time. The right to privacy has been recognised as a fundamental right. The demon of ‘sedition’ (Section 124A), which was brought into the IPC in 1870 to suppress the national movement, has recently been caged by the Supreme Court so that its constitutionality can be decided and its alleged misuse be curbed.

Attempts have been made to blend some elements of the inquisitorial system into the (prevalent) adversarial system by making judicial inquiry into custodial death and custodial rape mandatory and dig out the truth to punish the guilty. However, the police continue to be haunted by allegations of being a brute force. The trust deficit does not appear to have bridged despite the power to arrest having been curtailed, the use of handcuffs restrained, the presence of a lawyer permitted during interrogation, CCTV cameras installed in the police stations, and human rights bodies allowed to keep a constant eye. Lawmakers are still reluctant and the judiciary apprehensive about making voluntary confessions before a police officer admissible.

Many committees have been constituted and recommendations made to reform the criminal justice system in general and the police in particular, but to no avail. The latest in focus is the Supreme Court order in Prakash Singh v. Union of India (2006). The poor and tardy compliance with the directives has been explained in the book, The Struggle for Police Reforms in India: Ruler’s Police to People’s Police. This public interest litigation was filed with an objective of transforming ‘a ruler’s police into a people’s police’. The writer, Prakash Singh, has said that even the directive of separating investigation from law and order, which only required a sanction of a few more posts, was not implemented by States and Union Territories in the true spirit. Despite ‘Police’ being a State subject, no State government has given due attention to police reforms so far. Though the Police Act of 1861 was made applicable to all provinces after the 1902-03 Commission’s recommendations, no State or UT has adopted the Model Police Act drafted by Soli J. Sorabjee.

Though there was no connection between the magistrates and the police in the system established in England from 1829 onwards, the mutiny made this arrangement possible for the purpose of utilising the police primarily for the maintenance of British rule in India. All such provisions, despite having outlived their purpose long ago, still continue to exist not only in the States’ Police Acts but also in the criminal codes. It is no wonder then that the District Superintendent of Police is unable to transfer his Station House Officers without the approval of the District Magistrate in U.P.; the performance appraisal report of a Superintendent of Police is still written by the District Magistrate in some States (including Chhattisgarh) despite the Supreme Court’s directions to the contrary; and the introduction of the police commissionerate system in metropolitan areas (as per the provisions of the Criminal Procedure Code) is always resisted tooth and nail.

Years of significance

The year 1861 was a turning point for the police in India. Though the process of drafting the IPC had begun much earlier in 1834, the revolt of 1857 gave a fillip to the drafting of the Police Act and laid the foundation for an organised police force, albeit a weak one. The main objective then was to use the police as a weapon of repression and strengthen the hold the British had over India. The prevention (and detection) of crime was never their priority. Most of the constabulary was illiterate and not paid even a ‘living wage’. It was therefore not surprising that Andrew H.L. Fraser, who headed the Police Commission (1902-03), concluded that the “police force is far from efficient; it is defective in training and organisation … it is generally regarded as corrupt and oppressive; and it has utterly failed to secure the confidence and cordial co-operation of people”.

Though the Commission felt the urgent need of introducing radical reforms, the recommendations made were not revolutionary in character. Except for the introduction of the post of direct sub-inspectors (for police stations) and the rank of deputy superintendent of police for natives, not much was accepted and implemented by the Secretary of State on account of financial constraints. The Commission’s recommendation of providing quarters to sub-inspectors and officers of lower rank in each province was accepted. The status of inspectors was on a par with Tehsildars. The Commission was against the application of statistical tests to judge the work of police officers. Most importantly, its report was discussed in detail, agreed upon major issues in principle, and accepted partially due to economic factors.

Since much water has flown under the bridge since 1861, serious attention is needed to address impending issues. While some police reforms may require additional funding, much of the trust deficit can be bridged by improving soft skills and ensuring investigation in an impartial manner. Unwanted and mechanical arrests need to be stopped. More offences can be made bailable and more brought under the ambit of compounding to lighten the burden on jails. Most of it can be achieved through proper training. The use of technology and forensic techniques must be encouraged to enhance the quality of evidence. Specialised wings need to be established to deal with newer types of crime. The police should be accountable only for their constitutional goal of establishing the rule of law. The shackles of 1861 must go.

R.K. Vij is a former Special Director General of Police of Chhattisgarh. Views are personal

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