Criminal Law - History of Police in India

History of police in India

Police in India and its origin can be traced back to Vedic period but there is no specific rule or regulations, which can be attributed to it. The kings in this age had the police force mainly for defense and for the collecting of taxes, which can be compared, to the present police system. Organization main purpose was to keep watch and ward and bringing evildoers to justice in existence one form or other differed according to the development of society. The functions of the police and their duties were limited in scope in early times, which by the winds of time have increased with population and means of communication. Police as independent unit in the State administration. The most important feature of the administration of criminal justice must be the prevention and detention of crimes[1] and the apprehension of criminals, for which every government requires an efficient and honest police system. History of Indian police on modern lines dates back to the dawn of the 19th century. But before the British came to India, and indeed for a considerable period after the commencement of British rule, the idea of separate regular police force, charged solely with the above functions had never been thought of, it was only in1774 that Warren Hastings introduced, for the first time under the company’s rule, several measures of police reform. These were the first of the reforms culminating in Act V of 1861, which gave the police of Bengal a modern shape and structure the need for a common pattern of police organization and properly trained and disciplined body of men exclusively devoted to the prevention and detection of crime police system on a provisional basis were employed Inspector General as the head of the provincial police administration provinces were divided into districts who were controlled by the Superintendents of Police who heads of the police administration under the control of Magistrates. Further improvements, recommendations of the Police Commission of 1902-03 enhanced their scope. Indian Police Service took time to acquire the designation 1890s and later known as the Imperial branch of the colonial police service - officers of the Imperial service wore shoulder badges of their Provinces: e.g., "P.P." for Punjab, "B.P" for Bengal. In the year1907 the Secretary of State in London directed officers to wear the "I.P." epaulettes to distinguish from the Deputy Superintendents of Police new rank, which could be stated as the starting point for Indian Police Service after a span of another 10 years they officially came to be known as the Indian Police Service. Referred for the first time based on designation in the year 1917 Islington Commission Report. Further enhanced their powers. 1932  ‘Service’ dropped from designation as demanded by the Indian Police Association and simpler designation  "Indian Police" - again officially adopted - till independence. After independence Sardar Vallabhbhai Patel the first Union Home Minister stated that no democratic government effectiveness would be ensured without a proper, well-organized, well-educated, well-disciplined, well-paid and independent civil service to carry out its will and to advice it on how to give its policies concrete and practical shape - saw the importance of organizing the civil services on all-India basis.  On October 10, 1949 Constituent Assembly wherein Sardar Patel emphasized the importance of having a ring of services to help the country remain intact under a Federal Constitution - "… the Union will go, you will not have a united India, if you have not a good All India Service, which has the independence to speak out its mind…” And after that the Indian Police Service had born as an All India Service, which can be stated as the successor service to the I.P.

East India Company controlled police activities in areas under its charge through Village Police Regulations. Post-sepoy mutiny saw enactment of laws to streamline police organizations at provincial levels. Enactment of the Police Act, 1861 as Central Act V in 1861 is a major step in streamlining police organizations and their activities at the central level. The Act, which calls itself as “ An Act for the regulation of police” recognizes at its Preamble that…”it is expedient to reorganize the police and to make it a more efficient instrument for the prevention and detection of crime”. The Act seeks to establish one police force under a State Government and its Preamble declares prevention and detection of crime as the objective of the force.

POLICE UNDER BRITISH CROWN

Period’s sinsyne saw ascensive use of the police force for suppressing freedom struggle and maintaining law and order au rests prevention and detection of crime. Indian police metamorphosed to a law and order outfit in the next nine decades au contraire to the proclamations of the Preamble of the Police Act, 1861. British Raj ruled India on the strength of police force during the turbulent periods of the independent struggle. In the process, law and order functions came to cent restage in the charter of priorities of the police duties at the cost of the objectives of prevention and detection of crimes.

After 1860 recruitment of senior police officers were done in two ways

1. Appointing officers from the British Army and
2. Nomination from among younger sons of landed gentry in UK.

In 1893 nomination system was abolished Army source was discontinued   recruitment of officers through a combined competitive examination held in London for the Indian Police Service candidates toping the merit list were appointed as Assistant Superintendents of Police over Provincial Governments and permitted to recruit some officers directly through common examination which were conducted separately for domiciled Europeans only and superior police service were exclusively reserved for European service. Later as in other civil services recruitment to the IPS allowed for the Indians. Today recruitment made through the Combined Civil Services Examination conducted annually by the Union Public Service Commission. All India Service of the Union Article 312 of the Constitution of India. Probationers recruited undergo very tough basic training course in all aspects of physical/academic/arms/other activities  

Policing in democratic societies is governed by the rule of law and is indeed a difficult and challenging task. Given the fact that the Indian police force was trained in the past to serve the objectives of colonial rule and has not yet been granted the autonomy, resources and training for professionalisation in a democratic milieu, its performance has not been entirely disappointing. Compared with many other departments of the government, the police by and large have served the public good even in adverse circumstances. What is disconcerting today is the steady deterioration of standards of policing, the increasing lawlessness amongst the policemen themselves and the attitude of complacency and complicity amongst the leadership in police organizations. Given the prevailing attitudes and approaches in the police force, there is not much hope that the people will get better services from the police in the immediate future. Since the purity and efficiency of the criminal justice system is largely dependent on the police who feed the system, the future seems bleak for criminal justice in general.

A MAJOR TURNING POINT

Indian independence marks a major turning point in the history of its police. The event marks the transition of India police from a colonial heritage to a democratic character. The change has momentous impact on the spirit, character and objectives of the organization. The basic interests of a colonial police are the perpetuation of the colonial rule wherein matters ectogeneous to the interests are treated secondary. In a democratic police, the foremost objective is upholding the interests of the country, its people, its democratic heritage and the sanctity of the constitution. This is a formidable responsibility. Maintenance of order, rule of law, security of the people, safety of the national properties and interests, prevention of offences and investigation of crimes sit squarely on the sturdy shoulders of a democratic police. Its allegiance shifts from the rulers in a colonial rule to the people, the interests of the country and its constitution in a democracy. The shift is basic to the character, job culture, functional values and the organizational gestalt of the police force.

WORLDWIDE TRENDS

The cardinal question is how far Indian police in the democratic ambience worked –out its adaptations to the new situation and zeitgeist. Half a century should suffice for a fair and complete assessment. The developments Indian police underwent in this period can either be due to the worldwide developments in the field of policing and police system as a continuing process or due to the adaptation of Indian police from the colonial heritage to the democratic vintage. The evolution in worldwide policing practices and police system in the latter half of the 20th century itself is portentous. National security activities gained primacy neck and shoulder above the crime and law and order functions. With it came the gray areas of clandestine operations across the countries. Police shed their uniforms and threw laws and morals to the wind in pursuit of national security policy. They became international players, hopping from country to country in disguise, committing murders, overthrowing governments, forging passports, shipping weapons, training rebels, spreading, disaffections, organizing violent protests etc in the interests of their own countries.

NATIONAL SYSTEMS OF CRIMINAL JUSTICE ACROSS THE WORLD

There are major variations among the criminal justice systems of the nations of the world. These national systems, moreover, have undergone important transformations over the course of history. Research has focused attention on such broad comparisons across the world and over time.

Important differences exist between Western systems of criminal justice and their non-Western counterparts (see Adler, 1983; Ebbe, 1996; Fennell, 1995; Fields and Moore, 1996). Within Western nations, there are variations in the conceptions and goals of criminal justice, but they largely represent variations on a similar theme, especially when compared with other criminal justice systems in non-Western settings. For example, research has analyzed the roots of the United States system in Anglo-Saxon legal culture and explored the differences that have come to exist between contemporary systems that evolved in that tradition, such as in Canada and England. In a comparative analysis of pretrial prejudice in the Canadian and U.S. judicial systems, for instance, Vidmar (1996) notes that the Canadian legal system, unlike the American system, stresses the right to a fair trial over the rights of a free press, manifested in the judge’s right to ban the public and the press from the courtroom if it is deemed to be in the best interest of public morality or necessary to maintain order.

Similarly, McKenzie (1994) brings out differences within Anglo-Saxon systems, emphasizing the different legal ideologies of criminal justice in the United States and the United Kingdom. McKenzie found that the U.S. system relies on a due process model that emphasizes the rights of the defendant, while the United Kingdom’s crime control model stresses the function of criminal justice to punish the guilty. In a similar vein, Hirschel and Wakefield (1995) note some marked differences between courtroom procedures in England and the U.S., setting England’s structured system of barristers and solicitors apart from the informal, sometimes televised proceedings in the United States.

Comparing different but related systems of criminal justice, researchers often suggest how one system can learn from the other. Thus, comparing the U.S. and French criminal justice systems, Frase (1990) suggests that the United States might adopt from the French system a variety of features such as: more careful selection and supervision of police, prosecutors and judges; more effective regulation of prosecutorial charging discretion; and increased use of alternatives to plea bargaining.

More important than such suggestions —which may remain without real consequences— are the various trends of convergence between criminal justice systems across different countries, which researchers have found to have been taking place in recent decades. For example, describing differences between the U.S. and U.K. systems, McKenzie (1994) notes that the United Kingdom has shifted towards adopting a due process model, while the U.S. increasingly employs crime control strategies.

Likewise, Zedner (1995a) discusses shifts in criminal justice ideology in Britain and Germany and notes that the once more liberal penal ideology of Britain has moved to a harsher approach, as manifested, for instance, by adopting tougher noncustodial sentences and longer custodial sentences. In contrast, Germany’s traditional harsh system of penology has recently shifted towards adopting more lenient strategies, which are manifested in a lessening of prison time and an easement of sentences.

In similar vein, research from Harding and associates (1995) found that the British and Dutch systems of criminal justice have also converged inasmuch as the criminal justice procedures in the two countries are being harmonized as part of a broader plan of so-called Europeanization, i.e. a harmonization of criminal justice in the countries of the European Union. The authors note that transnational efforts such as reform practices based on an international human rights discourse have facilitated this assimilation trend, even though the legal systems of these nations are based on distinct ideologies.

Beyond the differences among criminal justice models that are applied in the Western world, there are important variations between Western and non-Western systems. Allen (1993) applies a convenient model that distinguishes between four systems of criminal justice: Common, Civil, Islamic and Socialist systems. Common law systems, for example, in the U.S. and U.K., are adversarial-based, involving two opposing sides of a lawyer representing the defendant and a prosecutor representing the people. The common law system typically relies on prior court decisions as precedents to be used in later court cases. The civil law or continental system —which is applied, for example, in Sweden, Japan and Germany— is an inquisitorial model that typically grants less rights to the accused and that operates on the premise that pre-trial inquiry and application of written law should guide society’s quest for justice. Islamic law, which is prevalent in Arabic countries, is rooted in religious values and derives its premises from the Koran. Saudi Arabia, for example, has a criminal justice system that is completely integrated with Muslim religious culture (Adler 1983). Socialist systems, finally, reflect a Marxist-Leninist ideology that views the criminal justice system as a means of training a nation’s people to fulfill the responsibilities the state has proclaimed to be ideal.

Comparative criminal justice research has also devoted attention to the variations that exist between nations because of their different backgrounds in terms of cultural values and political ideas. For instance, the specific characteristics of the criminal justice systems of socialist countries have also been investigated. Epstein and Wong (1996), for example, have analyzed the implications of the concept of dangerousness in the People’s Republic of China. The authors suggest that in the Chinese systems those perceived as dangerous-to-society receive harsher punishments, especially when they engage in so-called counter-revolutionary political actions or have knowledge of state secrets. Other socialist countries have similarly been found to apply harsher forms of punishment than exist in democratic nations (Arthur 1996).

To round off this review of national systems, a word needs to be said about systems of criminal justice in Africa. Arguably the one continent of the world that has experienced the most radical changes since the past century, Africa has criminal justice systems facing special circumstances because of the dual heritage of colonialism and traditionalism. Colonialism refers to the time when many countries in Africa where occupied by Western countries such as England and France. Traditionalism relates to the conventional values and ideas that have historically prevailed in the continent. During colonial rule, Western powers introduced values and criminal justice systems that had not evolved spontaneously in the African context, leading to tensions and conflicts within the system. Traditional African values are similarly in tension with more modern notions that may have emerged, especially among the younger generations. These problematic conditions lead to a condition of inconsistency in the criminal justice system. In a study of criminal justice in Sierra Leone, for instance, Thompson and Potter (1997) note conflicts that exist between traditional or customary law and English-imported law. Similarly, Adler (1983) discusses the case of Algeria where a French-imported system of law is attempted to be combined with Socialist principles and Islamic culture.

These and other transformations indicate that it is crucial to look at national systems of criminal justice not only in terms of broad comparisons across regions of the world, but also in historical terms as being subject to transformations over time. Particularly in recent decades, criminal justice research has therefore centered on patterns of change, increasing interdependency between national systems, and lasting problems of multiple traditions of criminal justice. In the next section, more specific forms of these transformations are discussed in terms of recent political and economic changes.
 

II. COMPARATIVE CRIMINAL JUSTICE AND GLOBAL SOCIAL CHANGE

The patterns of social change that have recently affected and are at present still affecting criminal justice systems across the world are clearly among the central developments of contemporary comparative criminal justice research. Broadly speaking, these processes of change involve developments centering around civilization and modernization, and, more particularly, they include the impact of certain economic developments and political changes. This section explains what these changes are and what their implications are for criminal justice.

A. Civilization and Modernization

Heiland, Shelley, and Katoh (1992) have usefully introduced the concepts of civilization and modernization to analyze long-term changes in criminal justice. The authors posit that a process of civilization is shown in a transformation of criminal justice institutions towards decriminalization, greater tolerance, a reduction of lengthy periods of imprisonment and an expansion of prison alternatives. Societies undergoing civilization processes also incorporate a relatively broad range of crime control strategies, including punitive as well as rehabilitative and preventive measures.

Processes of modernization revolve around the impact of particular demographic, economic, and technological changes that require adaptations by the criminal justice system. These adaptations are, unlike civilization trends, not planned on the basis of certain ideologies of criminal justice, but are made in consequence of certain changes in social conditions. For example, advances in computer technologies such as Internet services and on-line banking have introduced new criminal opportunities. Responses to such developments of modernization typically involve the introduction of new and improved efforts to better control an expected increase in crime.

Applying the concepts of civilization and modernization to a range of developed societies (for example, the U.S.A., Japan and Western Europe), developing societies (for example, Jamaica, India and Nigeria), and socialist nations (for example, Hungary and China), Heiland, Shelley, and Katoh (1992) found a trend toward civilization in some countries. In Germany and Sweden, for instance, there has increasingly been greater tolerance toward criminals and an increase in the use of non-custodial sentences, which offer alternatives to prison. In the United States, on the other hand, the authors discovered a recent trend away from civilization, with the reintroduction of capital punishment and an increase of prison sentencing.

According to Heiland, Shelley, and Katoh (1992), the criminal justice systems in the developing societies are characterized by a relatively low degree of civilization. These countries typically have harsher penalties and face many corrupt influences on the criminal justice system. However, the decreased use of the death penalty within some developing countries is an indication that these countries are undergoing trends towards civilization. Moreover, since the fall of the Berlin Wall and the collapse of communism in Eastern Europe, a trend towards civilization has also shaped criminal justice in former socialist countries.

B. The Impact of Economic Modernization

Modernization trends have taken place at various times in the history of criminal justice systems. Most spectacular in recent years has been the transition to a free market economy that has occurred in many countries of the world. Where once certain countries, especially the communist countries of Eastern Europe, had an economy that was planned by central governments, their economic markets are now opened up to enable free trade and enterprise. These economic changes have created new opportunities, but have also led to an increase in crime, particularly in matters of drug trafficking and money laundering.

In recent years, the criminal justice response to the trade in illegal drugs has been influenced by developments in the production of drugs, on the one hand, and the internationalization of the U.S.-instigated war on drugs, on the other. In terms of the changing structures of the illegal drug economy, research has revealed important geographical shifts in the production and distribution of drugs (Mora 1996; Dobinson 1993). The Far East has traditionally been a focus of concern because it was generally seen as the production center of heroin. Yet more attention has recently gone to Middle and South America and other nations that have a cocaine-producing industry. Furthermore, because of heightened anti-drug control in some countries, particularly Columbia, Bolivia and Peru, a shift has occurred in the concentration of the drug industry to other nations, such as Brazil and the Southern Cone of Latin America. In these countries, enhanced policy actions have resulted in an increasing number of arrests of drug traffickers and destructions of drug-producing laboratories and drug-transporting airstrips. Yet these actions have not managed to end the production of drugs but rather seem to have moved its centers into other regions.

Research has furthermore discussed the implications of the U.S. war on drugs for criminal justice systems in other nations. Ethan Nadelmann’s (1993) excellent study has shown the influences of U.S. drug police agents on their counterparts in Europe and Southern America. This dominance of the United States in the policing of drugs has led to increasing controls over the enforcement strategies and criminal justice policies of drugs in other countries besides the United States. As a result, the internationalization of the war on drugs has taken on truly global proportions (Vaughn, et al. 1995; Friman, 1994). In the 1980s, the Japanese government, for instance, launched a war on drugs as a direct result of U.S. pressure to adopt harsher measures.

Changes in the global drug situation are also affected by modernization processes that have taken place in some countries (Sillaste, 1996; Gaylord and Levine, 1997). For example, since communism was abolished in the former Soviet Union (now known as Russia and the Commonwealth of Independent States or CIS), these countries have been experiencing a growing drug problem. In China, likewise, the transition from a socialist to a capitalist economy has created new opportunities for crime and corruption.

Among the most spectacular effects of recent developments in the drug economy are the increasing number of money laundering schemes associated with the drug trade. Money laundering affects many countries in the world. As Taylor (1991) notes, money laundering activities blur the boundaries between illegal and legitimate business, especially when and because they are often associated with legal and respectable financial institutions. For instance, in the 1980s it was discovered that the Bank of Credit and Commerce International (BCCI) had been playing an important role in international criminal activities. The case is now widely known as the BCCI scandal. It was revealed that the bank was connected to drug trafficking, money laundering, smuggling, arms trades, and terrorism (Passas, 1993).

C. The Global Move Towards Democratization

Among the countries that in recent years have been reformed as democracies, the former Soviet Union and South Africa have received the most attention in criminal justice research (Savelsberg, 1995; Louw, 1997). In Russia and the other countries of the Commonwealth of Independent States that used to form the Soviet Union, the criminal justice system is in a state of disarray, particularly because it is unclear what the direction is of the new system of criminal justice that will replace the old communist system (Allen, 1993). In Russia, for example, the public still views the courts and other criminal justice agencies as instruments of repression. Furthermore, it is uncertain whether Russia will adopt a continental criminal justice system that stresses crime reduction, or a common law ideology that emphasizes due process requirements. Based on research done by Sanders and Hamilton (1992), Russian residents appear to favor a model that guarantees individual rights, but actual developments remain undecided.

In South-Africa, there has also been a breakdown of the criminal justice system since the abolition of a politics of Apartheid, the political system in which the white minority had all power and controlled the black majority of the population (Steytler, 1991; Louw, 1997). The South-African organization of criminal justice remains poorly developed, with inadequately trained and under-equipped personnel, inefficient information technologies, low wages, and a hopelessly out-dated incarceration system. Given the long history of the country in mistreating the black population, the popular perceptions that view South-African criminal justice systems as a means of oppression are difficult to eradicate. Such perceptions pose serious obstacles to the fulfillment of democratic reforms.
 

III. LAW ENFORCEMENT IN GLOBAL PERSPECTIVE

Research on policing has traditionally been and today continues to be among the richest areas of cross-cultural criminal justice research. There are particularly two directions in the broad area of police research from a comparative perspective: one, certain research is devoted to comparisons of the various styles of policing across the world; and, two, other investigations focus on international developments of police across the borders of countries.

A. Comparative Police Research

Comparative research of law enforcement organizations investigates a variety of issues, including the function and organization of police in different parts of the world (e.g., Brodeur, 1995; Bayley, 1985), police practices in different countries (e.g., Chevigny, 1995), and the cross-cultural use of selected police strategies (e.g., Fijnaut and Marx, 1995). This type of research has revealed important similarities and differences that exist between national and regional police systems across the globe. But paralleling our earlier observations on national systems of criminal justice in general, police research has also observed certain patterns of convergence across nations. For example, research reported in the book Undercover: Police Surveillance in Comparative Perspective (Fijnaut and Marx, 1995) found that police of Western nations have adopted techniques and strategies of covert surveillance quite similar to one another. Chevigny’s (1995) insightful research on police violence, similarly, reveals that there are even similarities between police institutions resorting to violence in the United States and in several countries in Southern America.

The systems of law enforcement that exist across the world, especially in the industrialized nations of the West, have generally been well-researched (e.g., Bayley 1985; Deflem, 1994; Jiao, 1995; Mawby 1990). Police scholars have revealed that an important distinction exists between the Continental European system, which typically has a centralized military-like police force, and the British system of policing that is decentralized and operates closer to the community. The British system has also been most influential in shaping the organization of law enforcement in the United States. The police model that exists in the U.S., therefore, favors a particularly strong tradition of local policing.

Japan traditionally has been among the most researched non-Western nations in police studies, because the level of crime in Japan is comparably very low (Bayley 1991; Steinhoff, 1993; Westermann and Burfeind, 1991). The low incidence of crime in Japan is explained by the fact that there is a very high degree of citizen involvement in the Japanese criminal justice system (Ferdinand, 1994). The country therefore relies on an extraordinarily high correspondence between the values of its citizens and the prescriptions of its legal system (Schneider, 1992). However, most recently research has uncovered that the Japanese government has found it increasingly necessary to enhance police powers (Aldous and Leishman, 1997). In a contemporary study of police practices, Miyazawa (1992), for example, found that Japanese police detectives constantly struggle to do their investigative work as efficiently as possible, while making sure that they, at least technically, do not infringe upon the rights of the accused.

Comparative police research has recently focused investigations on those nations in the world that are implementing democratic systems of politics and criminal justice. Research on democratic styles of policing has particularly been done in the former Soviet Union (e.g., Shelley, 1996) and in South Africa (e.g., Brogden and Shearing, 1993). The findings of this research parallel the earlier discussed observations on democratization of the criminal justice system in general: the new democratic ideals of policing are admirable, but their practical implementation faces many technical challenges and forces of resistance.

For example, in Russia, officials recognize that the new civil police cannot be as political as it used to be during communism and, instead, must now focus on violations of criminal law in such a way that the rights of the suspects are guaranteed. However, Russian police also face tremendous difficulties in putting these democratic ideas to practice, because the police forces are underequipped and understaffed (Allen, 1993). Russian police also lack the necessary resources to deal with new and more sophisticated forms of criminal behavior, such as money laundering and drug trafficking.

Similar to the problems that exist in Russia, police in South Africa are still associated, particularly by the black population, with the repressive force that existed during the Apartheid regime. These popular perceptions that view the police as a force of oppression impede changes that are implemented in police organizations in order to create a civilian force involved with order maintenance and crime control in a democratic way (Brogden and Shearing, 1993).

B. Policing Across National Borders

In recent years, police research has been concerned, more than ever before, with dimensions of law enforcement that traverse the borders of national-legal jurisdictions (e.g., Deflem, 1996, 1997; Sheptycki, 1995, 1996; Marx, 1997; McDonald, 1997a). This research has revealed that police officials often operate outside the borders of their countries, although police institutions are by definition sanctioned by the governments to fight crime and maintain order within the borders of their country (Deflem, 1996; Huggins, 1998; Nadelmann, 1993).

International police research has been applied in a variety of contexts. Thus, research has been devoted to recent developments in the control of national borders (for instance, at the U.S.-Mexican border), the international activities of national and local police organizations (for example, the work done by the FBI in foreign countries), and the formation of international networks of police (for instance, Interpol) (see Anderson, 1989; Deflem, in press).

Research has revealed that police agents working abroad are less guided by judicial control and political supervision and more likely to do whatever tasks they see fit given the circumstances. Police abroad may as such be less guided by concerns related to civil rights and democratic procedure. This democratic deficit of international policing is seen as an important social problem, because it can lead to abuses by police. James Sheptycki (1996), for instance, has raised concerns over the lack of accountability that arise from police agents investigating suspects in foreign countries without the limitations that are placed on police organizations in their own country. Particularly in the fight against drugs and drug trafficking, Sheptycki notes that police agencies rely on interpersonal networks that can be effective, but difficult to monitor, thus undermining the ideal of democratic oversight.

Also related to democratization in the new global order are the efforts by police from established democratic regimes to assist with the re-organization of law enforcement in the newly formed and evolving democracies of the world. Comparative police expert David Bayley (1995) has argued that police institutions are central in the democratization process, because law enforcement agencies are such a visible instrument of power with which many citizens are confronted. Bayley suggests that U.S. authorities can assist foreign governments with democratizing their police, if at least some conditions are fulfilled. For example, Bayley argues, foreign police should be assisted by U.S. agents only if the larger political system of the foreign country is genuinely democratic and if efforts are made by foreign police to eliminate all forms of corruption.
 

IV. THE WORLD OF CORRECTIONS AND PUNISHMENT

As rich as the tradition of comparative police research is, corrections and punishment appear to have received much less attention in comparative research. This may be a result of the fact that punishment is the final stage in the system of criminal justice and that punishment is therefore seen as determined by prior stages in the criminal justice process. Such a conception, however, seems to underestimate the impact of the dynamics of punishment. There has, fortunately, been some research that has separately focused on criminal sanctions from a comparative viewpoint.

Closely related to the issues addressed in the first part of this chapter, key differences in punishment and prison culture relate to the varying roots and traditions of national criminal justice systems as a whole (Vagg, 1994). Thus, for instance, important differences exist between systems of criminal justice that have methods of corporal punishment in effect versus those that typically resort to a deprivation of liberty as the ultimate criminal sanction.

Furthermore, nations differ in their correctional policies. For example, Hirschel and Wakefield (1995) found that the United States has much more than the United Kingdom been engaged in building modern prisons to combat the problems of prison overcrowding, under-funding, and under-staffing. Yet, the authors argue, the British option of providing alternatives to imprisonment and giving shorter sentences could be effectively transplanted to the United States. The authors also suggest trends of convergence between the two countries, which is especially clear from an increased use of community alternatives such as probation and electronic monitoring in both the U.S. and U.K.

Patterns of global change, moreover, are central in those countries where major shifts in political and ideological organization will also imply radical changes in corrections policy. Most radical, of course, are changing circumstances in rapidly transforming countries such as South Africa and the former communist nations. Examining prison conditions in the former communist countries of Eastern Europe, King (1996), for example, observed a sudden drop in the prison population following the fall of the communist regimes and the implementation of provisions to ensure more humane conditions in the prisons.

Certain forms of punishment have been the topic of separate investigations in comparative research, especially investigations on the death penalty and on electronic home monitoring. This is remarkable, because it means that special attention has gone to one of the oldest and most radical forms of punishment, the taking of a person’s life, and to a very modern and sophisticated tool of control relying on the latest technologies. Discussing both sanctions, Immarigeon (1997) observes that electronic home monitoring has seen a very spectacular rise in implementation in many (mostly Western) countries in recent decades. This development is a function of an increasing quest for efficiency and cost-reduction in punishment. In terms of the death penalty, there are considerable cross-national variations. The political changes in Russia and South Africa, for example, have resulted in an abolition of capital punishment for many offenses. And in other nations, there has also been a shift away from capital punishment as a result of greater concerns for human rights. This supports the civilization trend noted earlier, although it cannot be denied that there has also been a return of capital punishment in some contexts (for instance, in the United States).

 

V. THE CROSS-CULTURAL SIGNIFICANCE OF ETHNICITY, AGE, AND
 GENDER IN CRIMINAL JUSTICE

This section focuses on issues surrounding ethnicity, age, and gender in comparative criminal justice research. The special treatment of these issues is warranted because they are, and have been for a long time, at the heart of many discussions in criminal justice research, particularly because they are often related to important inequalities. Indeed, research has consistently revealed that ethnic minorities, juveniles, and men are over-represented in the criminal justice systems within nations. This section reviews how these issues have been investigated in comparative research.

A. Immigrants and Ethnic Minorities

An extremely rich tradition exists in comparative criminal justice research that devotes attention to the treatment of immigrants and ethnic minorities in criminal justice systems across the world. Michael Tonry (1997) has usefully summarized the findings of comparative research on ethnic minorities and immigrants, finding that in every country that has been studied crime and incarceration rates of the members of most minority groups greatly exceed those of the majority population. Also, the minority groups that have a high crime and/or imprisonment rate typically belong to socially and economically disadvantaged social classes. And, furthermore, in addition to overrepresentation of ethnic minorities and immigrants in criminal activity, there is also found to be discriminatory bias in pretrial confinement decisions and sentencing procedures towards these groups.

Turning to some of the more specific findings of criminal justice research on minority and immigrant groups, Tonry’s observations appear to find corroboration in many countries (see Albrecht, 1997; Killias, 1997; McDonald, 1997b; Roberts and Doob, 1997; Tsuda, 1997; Vagg, 1993). In the United States, the discriminatory treatment of ethnic minorities (especially African-Americans and Hispanics) at all stages of the criminal justice system has been well-documented for many years (Sampson and Lauritsen 1997).

In more recent years, U.S. criminal justice agencies have been found to have increased control efforts against a new under-class of illegal immigrants, mostly from Mexico and Southern America. Likewise, William McDonald (1997b) has documented that since the passing of the Violent Crime Control and Law Enforcement Act of 1994, the Immigration and Naturalization Service (INS) has received an unprecedented amount of funding for stepping up efforts to reduce illegal immigration by hardening border control and deterring the employment of illegal aliens.

The increase in the implementation of new law enforcement activities more exclusively directed towards immigrants and minorities has occurred in the United States as well as in Europe. Ineke Haen Marshall (1997), for instance, reports that research in Europe and the United States shows that police interactions with immigrants and/or minorities are strained and marked by verbal and physical abuse, distrust, prejudice and occasionally violence. The author states that discrimination against minorities occurs indirectly as a result of poor legal representation, language problems, high incidences of specific offenses (such as drug-related and immigration violations) and low level of employment status.

Research in European nations has found similar results of discrimination and overrepresentation of minorities and immigrants at each stage of the criminal justice process. For example, Pierre Tournier (1997) conducted research in France and found that foreigners are overrepresented among suspected offenders and arrestees because a large proportion of the offenses are specifically immigration-related. Similarly, in research in Germany, Albrecht (1997) found that foreign minorities face several problems at the entry-level of the criminal justice system (for instance, they have a higher chance of pre-trial detention), which may lead to a systematic discrimination of foreign nationals. Foreign offenders, also, were found to be more likely to receive prison sentences rather than suspended sentences or probation. Additional evidence suggests that foreign minorities experience differential treatment in prison. Richards and associates (1995) similarly note that in England the prison experience is particularly harsh for foreign nationals because of language difficulties and cultural isolation.

B. Juvenile Justice and Gender Discrepancies

It is striking that age and gender, two issues that are central to criminal justice research within nations, have hardly managed to influence comparative investigations. The information available on cross-cultural comparisons of juvenile delinquency and the proportion of men and women in the criminal justice system is very sparse indeed (e.g., Curran and Cook, 1993). Yet, what limited attention has been given to these area of research has proved insightful.

In terms of juveniles, Dobash and associates (1990) undertook a comparative study of the treatment of young people in the criminal justice systems of Scotland and Germany. The authors argue that in Scotland the specialized juvenile courts, the so-called Children’s Hearings Panels, operate as a separate system of criminal justice that is mostly inspired by a therapeutic and paternalistic ideology which puts emphasis on a rehabilitative and caring approach. But the Scottish juvenile justice system also imposes prison sentences in correctional facilities that emphasize work, military drill and physical training. In Germany, cases involving juveniles are also heard in special courts, on the basis of a separate system of Youth Law. In the German system, however, the focus is on education rather than punishment, with limited incarceration options and generally shorter sentences.

With respect to gender, Harvey and associates (1992) have undertaken an interesting comparative analysis of gender differences using data from the Second and Third United Nations Crime Surveys. The authors found that, in all countries surveyed between 1975 and 1985, men always substantially outnumber women at all stages of the criminal justice process, from suspicion to apprehension, prosecution, conviction, and imprisonment. In some of the countries surveyed between 1975 and 1980 and in most countries surveyed between 1980 and 1985, women were disproportionately removed at the deeper stages of the criminal justice process; that is, women were gradually released more often than men in the various stages from arrest over adjudication in the courts to punishment. A final observation parallels findings made within countries, namely that since the 1980s more women are present in the criminal justice system than ever before, although the number remains low compared to male representation.

 

VI. THE STATE AND FUTURE OF COMPARATIVE CRIMINAL JUSTICE

It is undeniable that comparative research on criminal justice is a rich tradition which has made important progress over the years. The benefits of a comparative focus may be especially felt in the current era of globalization, which has brought countries of the world more closely together. A comparative outlook, moreover, has been fruitful for research as well as teaching, as is shown by the many educational texts that are now available (see Dammer and Reichel, 1997; Deflem, 1998; Fairchild 1993; Reichel, 1999; Terrill, 1997). Providing clarity in approach and presentation, comparative criminal justice research can also hope to be useful for the policy questions that confront countries in matters of crime.

A variety of styles and perspectives can be followed in comparative criminal justice research, focusing on one or more components of the system, on two or more countries, in more or less recent times. Based on a model suggested by John Vagg (1993), at least four interesting goals of comparative criminal justice research can be distinguished (Vagg, 1993). First, it can make efforts to link crime trends to social, economic, or political denominators in different countries. Second, it can make direct comparisons between countries in terms of a particular question related to one or more aspects of criminal justice. Third, it can strive to produce broad generalizations and generate policy recommendations. And, fourth, it can detail a wide range of consequences and problems that flow from a particular regional development.

Clearly specifying the goals of research is a first and necessary step towards the development of any sound strategy of criminal justice research, but some issues are specific to research of a comparative nature (Meyer, 1972; Zvekic, 1996). Arguably the most important consideration in comparative criminal justice research is to recognize the possibly country-specific impact of cultural, social, economic, and political contexts on the researched criminal justice systems and, by implication, on the research findings. In other words, what works in one country may not necessarily work in another. The variable influences of the wider societal context of criminal justice systems should therefore remain of primary interest, especially when suggestions are made to transpose or somehow learn from criminal justice policies abroad.

Furthermore, as Hirschel and Wakefield (1995) remark in their study of English and U.S. criminal justice systems, both similarities and differences have to be documented and weighed over and against one another. Moreover, as John Vagg (1993) points out, social, economic and political conditions will influence how the data on criminal justice in various countries are to be treated and utilized. The variable conditions, therefore, have to be carefully specified in order to properly contextualize research data.

Additionally, researchers should be clear about the relevant variables to be considered and should be aware that certain issues may not have an impact in one particular jurisdiction but may have relevance in other settings (e.g., Pampel and Gartner 1995). Also methodologically relevant are concerns of measurement error in countries with less autonomous research traditions, cross-national disparities in legal and research definitions, failure to operationally define relevant dimensions of inquiry, disparity in data collection procedures and availability of data, and linguistic problems (Meyer, 1972; Vagg, 1993; Zedner 1995b).

Providing one remains sensitive to these important methodological issues, it can be possible, as comparative criminologist Freda Adler (1996) recently argued, for comparative criminal justice research to respond adequately to current conditions that have transformed and will continue to transform the world from a mere collection of separate nations into an interconnected and interdependent global system. Under those circumstances, a comparative approach to criminal justice may also hope to usefully contribute to offer solutions to the dilemmas and challenges that face criminal justice systems across the globe.

SECURITY CONSCIOUSNESS

Indian police could not lag behind. Moving pari passu with the world trend is basic for survival. The consequence was the rising prominence of security activities at the cost of both the prevention and detection of crimes and the law and order functions. A craze for VIP and VVIP securityis the Indian manifestation of the new security consciousness. World-wide rise in terrorism gave way for specalisation in anti-terrorist operations all over the world. Crack-forces became the spine of the security police. Anti-hijack squads were organized as an elite force of the police. Advances in science and technology made national security a high-tech field. Satellites, modern communication systems, high resolution photographics, laser beams , night vision systems, computer technology etc made national security highly advanced and comlex operations. The international developments only marginally touched Indian police for lack of will to be a major player in international clandestine warfares. The only real concern of Indian police more suo in the last half century was VIP and VIPs security. Here too, performance did not match the concern as many of its important leaders including those occupied top positions of Prime Minister and Chief Minister fell prey to assassins. Indulgence of Indian police in form in lieu of substance, in number in place of efficiency and in display where subtle moves were en regle led to the grave failures. The popular axiom of Indian police to this day is that larger the number, better the security. Motto is countering security threats with counter threats; or better, meeting security gauntlets with the show of muscle power. The approach is the antithesis of modern perceptions and theories of security policing. In Indian ambience, VIP security has become a fanfaronade; a procession of sound, light and motions; a festive assemblage. Tragically, it is happening at the cost of law and order functions and more so, at the cost of prevention and detection of crimes.

MUSICAL CHAIR

The situation is tardier in law and order functions. Obvious powers and tremendous avenues for illgotten money make law and order jobs hotly sought after posts. Politicians and people in power are the bestowers of these jobs on favourite few. Result is the desperate concours of police officials of all ranks to aggrace politicians and people in power to corner right spots in the musical chair. The ragmatical situation leads to law and order functions losing the edge of fairness and objectivity in efforts to keep right people in right side. This is how law and order police become law for themsleves or for their political masters against the raison d’etre of a law and order machinery. The situation breeds corruption and encourages partisan policing. Law and order duties being closely interlinked with the everyday life of the people, police on the duties come in contact with them everyday and present the image of the entire police force. The hors la loi image, corruption, inefficiency, meekness before the mighty, insensitivity, arrogance and immanity to the hoi polloi, these are the cornerstones of the epinosic image, the law and order police spawned for the benefit of the Indian police.

LOSS OF CREDIBILITY

Fences itself grazing the field in law and order policing led to the debasement of moral values in public life. Money power became the effective counterpeise against the arms of the law and the state power. Making money by any means became the secret of success. Frauds and corruption became lucrative business. Governance was commercialised and State power became a venal commodity. Administration process became a scelerate and police lost credibility. People were forced to pursue illegal and unwholesome means in their dealings with the State and the police for survival. Laws as means of the state power became loathsome objects for the commonman. This spread unrest and protests and violent agitations became the order of the day. The people and the police found themselves pitted against each to break the other. Violent protests led to violent suppressions by the police. Hatred spawned hatred and violence begot violence. This is where India stands today. Violence by dalits, attacks by Naxalites, terrorism in Punjab and Kashmir, gangawars in Bombay and Bangalore, lawlessness in Bihar and UP or enlevements by ULF activists speak of the symptoms of the same malady namely lawlessness in the law and order police that divellicate from its raison d’etre.

CHARTER OF PRIORITIES

The pressure of law and order functions and importance of VIP security sidelined prevention and detection of crimes to a minor responsibility in the charter of priorities of the Indian police. Preventive techniques saw no updating from the mechanical motions of the pre-independent vintage. Prevention is forgotten in the pressure of other works. Indian police come to picture only after a crime is committed for detection. Here again, investigations are hijacked by political and money muscles.

CRIMINAL JUSTICE SYSTEM

Too many cases under investigation with investigators is a serious misease of Indian crime investigation field. Work-pressure leads to cursory investigation. Third degree methods are adopted for easy results. The malfeasance itself is a black-mark on Indian criminal justice system. Corruption and political pressures lead to miscarriage of justice. Cases are taken up for investigation, investigated and chargesheeted according to political conveniences. Bails, arrests, searches, pace of investigation and timings of the chargesheet or final report are subject to the equation between the head of the investigating team and the head of the government. This is the situation at all levels including the premier investigating agency of the country. Case diaries were tampered at highest levels before sent to courts. Intentions of chargesheeting political heavyweights were declared to media before legal compulsions of such a sensitive act was met. Cases of political significance were chargesheeted on filmsy grounds and later equitted by the court. Inaction in some cases in part of the apex investigating agency of the country led courts to monitor investigation of the cases and warn of contempt proceedings for noncompliances. The apex court of the country observed about the conduct of the heads of the premier investigating agency of the country that “there appears to be too many officers bitten by the publicity bug…Inefficiency appears writ larger than performance.” When the head of the agency was removed from his position for misdemeanour, the media of the country fished in the troubled water to sensationalise the issue; the apex court was constrained in the matter to observe that his removal should have come earlier. This is the egarement to which Indian police condemned its criminal justice system.

INDIFFERENT POLICE ADMINISTRATION

There should be a single root for the general fall of standards in Indian police. It is insensitive and indifferent police administration, lacking in all branches of administration, be it planning, organization, cooridnation, direction, execution, control or research and development mechanism. The cause of atrophy lies more in negative schemings than in lack of a positive face. Haphazard organizational growth as responses to the time to time pressures sans elements of foresight and detailed planning, corruption in selection and recruitment procedures, sham training practices, non-existent inter-branch coordination, apocryphal infrastructure, directionless directions, self-serving decisions, deviant control mechanisms, perverted assessments and farcical research and modernisation programmes have all added to the poor standards of Indian police today. Huge budget allocations made for police are want-only frittered away without accountability. Precious human resources are wasted away with frivolous and mischievous games in career planning programmes sans thought or seriousness. The culprits of these shoddy affairs vary from the top-brass of the police to the fonctionnaire in the government to the so called professional outfit, the egregious Union Public Service Commission. Incompetence is writ large in their approach to police administration. Their failures and mischiefs in managing human resources seriously affect the interests of an organization based on human resources like the police.

GLIMMER OF HOPE

Not that all is bad. Occasional good works are there. The role of Indian secret police in liberation of Bangladesh is the tour de force of Indian clandestine operations. So to lesser extents are the successes in containing activities of LTTE cadres and Sikh and Kashmiri militants. India showed considerable presence of mind in Afghanistan front also. The fear of law and a semblance f order, the law and order machinery could infuse in a country of India’s size itself is a matter of credit and pride to Indian police. The unshaken trust of the plebeian on the criminal justice system of the country nonobstante the extant maelstrom in the field per se is its apogee and speaks volumes about the utility of police investigation in controlling crime.

What is distressing is that what is done is far short of what is expected from Indian police. No country can afford to have an apollyon in its midst in the shape of a corrupt, inefficient and disorganised police force. Right leadership at the top can be the lever de rideau to bring the system to its professional senses. Such a leadership in police should rise ab intra from the very womb of the degenerate system by rupturing the womb. The walls of the womb are hard and thick in police. That is why the apotropaic process takes a long time. Till then, Indian police must boil in the broth of its own ignominy.

Causes for popular dissatisfaction with the police

What are the causes for popular dissatisfaction with the police and who is responsible for it? What follows are examples of popular discontent against the police. The issue is not whether all of these are absolutely true or not but whether they exist in the public mind and whether there is any justification for them.

Ø  Police are the principal violators of the law and they get away with impunity.

Ø  Some sections of the police are in league with anti-social elements. Consequently they indulge in selective enforcement of the law.

Ø  Police exhibit rude behaviour, abusive language and contempt towards courts and human rights; they indulge in all forms of corruption.

Ø  Depending on the socio-cultural status, economic power and political influences of people who approach them, police adopt differential attitudes, violating equality and human dignity.

Ø  Police are either ignorant of the precepts of human rights or they deliberately disregard them in the matters of arrest, interrogation, searching, detention and preventive policing.

Ø  Given the dismal record of prevention and successful investigation of crimes, the police lack accountability in protection of life and property.

Ø  While crimes are getting sophisticated, the police are becoming less professional. There is no evidence of a collective desire within the police organization to redeem its public image.

Ø  The police are insensitive towards victims of violent crimes. They sometimes behave rudely with victims, as if they are responsible for their fate.

Ø  At least a section of policemen think of human rights as antithetical to effective law enforcement. They blame the law, lawyers and courts for their own inefficiency.

Ø  Of late, some policemen have publicly shown leniency towards fundamentalists and terrorists, manifesting a dangerous threat to security and constitutional governance.

No honest person within or outside the police could totally deny the charges. Of course, they can give alibis and explanations that may or may not be acceptable to the public. Well thinking persons should acknowledge the existence of such perceptions in a wide spectrum of the citizenry and must work out strategies to remove them progressively in the interests of public service and professionalism. Those who do not want the situation to change will continue to provide excuses and explanations accusing others in society or in the criminal justice system for the malady. The tragedy is that unlike other departments of the government, if policing tends to become lawless, the very foundations of democracy are in jeopardy, development subverted and the country’s integrity compromised. Hence the urgency to reform the police and their style of functioning.

It is a sad fact, that even after 138 years of legal existence (since 1861), Police in India are neither able to give satisfactory service to the people, nor able to win public approbation. Compared to other wings of Public Administration, Police have a very poor image. Not withstanding the fact, that since Independence, Police have stood as a bulwark against the Forces of disintegration and faced successfully the threats to National integrity and Sovereignty and thousands of Policemen have sacrificed their lives in the process, in public minds, the `dark and dirty' image of Police remains.[2]

It is a truism that the quality of life in a Democracy is directly related to the quality of Police Service it has. An ethical, lawful and people-friendly Police service is the hallmark of a liberal Democracy. Judged from this standard, India has miles to go before she can proudly proclaim herself as a liberal Democracy.

Volumes have been written about the constraints that prevent Police from meeting the needs and aspirations of people. Legal infirmities like the Constitutional provisions which makes the Police a State subject: Police Act of 1861: Defects in Procedural and Evidence Acts and so on and a non-cooperative Executive Magistracy and Judiciary: Lack of Functional Autonomy and Resources are being cited as reasons for poor performance. There is lot of truth in all these, Statistics prove that Police have increased in numbers in a great deal and allocation of resources has also been abundant. Yet, we find Police have not been able to achieve their goals and objectives. In all humility, it is suggested that even if all these impediments were to disappear overnight, Police will still fail to perform. Reasons are lack of clarity in goals and objectives and infirmities in Police Administration.

Mission of the Police

In a Democracy, the Mission of the Police should be to serve the People, unfortunately, in India, the Police have adopted a contrary Mission namely `Establishment Protection'. Considerable resources of the Police organization are being spent not on Public Order and Prevention and Detection of Crime, but for protecting and perpetuating the ruling elite. In the process, democratic dissent is stifled and Human Rights of people are trampled upon. Therefore, in the first place the Police organization should define its Mission as `Service to the People'.

 Change the Ethos

The Ethos of Police organization should be changed from `Enforcement' to `Enablement'. This will make the Police service a proactive social service organization. Instead of being on the look out for violators, Police should look for victims and take steps to remove the causes for their victimisation.

Means and Ends

The Philosophy of the Police organization should change from achieving their ends using all dubious and illegal means to achievement through ethical and lawful policing. To a large extent the mistrust of the Police by the public and the Judiciary is due to the fact that the Police do not apply ethical standards to the means adopted by them.

Human Rights and Dignity

Police can not succeed in enlisting the cooperation of the people and make them Police-friendly, without respecting the dignity and Human Rights of the people. Not every one, who comes in contact with the Police, is a criminal. People approach Police only when they are in distress and in need of official help. One can compare a Police station to a good Hospital. People expect from these places, sympathy, empathy and compassion. Unless Policemen learn to acquire and nurture these basic human qualities, people will neither trust them nor respect them nor give them willing cooperation.

Goals and Objectives

Needs of the People for Order Maintenance, Prevention and Detection of Crime etc. vary from place to place, making policing essentially a localised function. Police organization at present sets its goals and objectives without any consultation with the people. Consequently, since their needs are not reflected in Police activities, people generally ignore the Police. Only where their legal involvement becomes necessary, people approach the Police. The growing Private Security Industry is standing testimony to the lack of confidence of the people in the capacity of the Police to protect their lives and property. Instead of behaving as a self-perpetuating bureaucracy, Police organization should decentralise decision making and provide functional autonomy to local units to enable them to set goals and objectives to meet the local needs. After all, it should be realised, the law speaks only of the Officer-in-charge of a Police station as the decision-maker to launch the Criminal Justice Process. Instead of being an `inverted pyramid' the Police organization should become `broad based'. The supervisory levels should be drastically cut down and more Officers of appropriate rank capable of taking decisions on the spot, should be available in the field to serve the public.

 Demilitarisation of Police

Instead of being a `Civil Service' Police organization in India resembles a Military Formation. We certainly need Armed Police Forces organized and structured on the lines of Military to fight terrorism and anti-national elements. But these are to be confined to Para Military Forces, Special Armed Police Battalions, District Armed Reserves, etc. This type of organization has no place in Civil Police. As a corollary, Civil Police should shed the mentality of stressing on `Quantity'. More Policemen do not assure good service to the Society. For example, people hardly get any worth while service from a Police station, which has 50 personnel, and only 2 Officers of the rank of Sub-Inspector. Constabulary is not authorised by Law to do any original work concerning investigation etc. For prompt attention to Public grievances, more Officers of the rank of Sub-Inspectors and above are required in Police Stations.

`Teeth to Tail' Ratio

Today, for every hundred Police personnel sanctioned and on the rolls, less than 25 are available for public service. Most of the personnel are deployed on `Fetch and Carry' jobs which do not required a trained Police Officer. Civilisation, Computerisation, and Multi skilled Personnel would reduce the number of people presently deployed on the non-field jobs. In Civil Police Stations it is not necessary to do all the jobs by the uniformed Police Officers. For the same reason, there is no need to `Combatise' civilian jobs in Para Military Forces. Plenty of scope exists for `Privatisation' and `Farming Out' of jobs in Civil Police. Such a rational deployment will make trained manpower available for duties that give satisfaction to the public.

Human Rights of Personnel and Police Welfare

While people demand Human Rights from Police, paradoxically, Human Rights are denied to the Police Personnel themselves. Similarly, no sincere efforts are being made to attend to the welfare related problems of the Police Personnel. Only a contented and happy Police Force can give the People `Service with a Smile'. Police leadership should pay serious attention to these areas.

As we march into the next Century, there is need to introduce the reforms in Police Administration on the lines indicated here. What has been suggested is only illustrative and not exhaustive. We are aware, experienced Police leaders can identify many more problem areas for attention. Till this is done Police, will remain anathema to the public at large.

The subject of police reforms is vast and covers many issues and concerns that go beyond strengthening and improving the administrative and structural aspects of the organization to include changing the culture and ethos of policing.

Police Reforms- Rationale and Resistance

Enormous changes have occurred in this country since Independence, which cast a paramount obligation and duty on the police to function according to the requirements of the Constitution, law and democratic aspirations of the people. They require the police to be professional, service-oriented, free from extraneous influences and above all be accountable to the rule of law.

This has, however, not happened because those who control and run the system have abused it beyond repair and are responsible for the large number of ills that presently threaten to destroy the system.

More than fifty percent of complaints received by the National Human Rights Commission (NHRC) of India every year are against police personnel.

Public complaints against police personnel indicate that:

Ø  They are brutal and lawless;

Ø  they are highly corrupt;

Ø  they are partisan and politicised; and

Ø  they lack professional competence

A media scan done by the Commonwealth Human Rights Initiative (CHRI), a non-governmental organization fighting against human rights violations in India, reveals that over the last few years, there has been increasing involvement of police personnel in committing crime. Official statistics also indicate increasing deviance amongst police personnel.

The ignoble functioning of the police is to some extent a part of the large problem of Criminalisation of politics. A large number of criminals have entered the corridors of power. An illegitimate nexus has developed between the police, bureaucrat, politician and the criminal. The worst victim of this system of mafia politics and politicised policing is the common man, who really wants efficient and reliable policing but is not being heard.

The need for police reforms is self-evident and urgent. It is, in fact, essential for the very survival of our democratic structure, establishment of good governance, protection of human rights and achievement of economic progress.

About twenty years ago, the National Police Commission (NPC) made a series of recommendations for police reforms, some aimed at insulating the police from illegitimate outside control, pressure and interference (a summary of a few major recommendations is given below.)

The NPC's recommendations have remained unimplemented. There is a deep-seated and strong resistance to the idea of police reforms. Politicians and bureaucrats have developed a great vested interest in retaining control and superintendence over the police organization. The lack of response from several states in India to the letter written in April 1997 by the then Union Minister for Home Indrajit Gupta was indicative of the deeply entrenched resistance to police reform. The letter directed Chief Ministers of all States to rise above narrow partisan or political considerations and introduce police reforms on the lines recommended by the NPC failed to produce even a single response.

Within the police establishment also, there are those who are content to retain the status quo. Closely associated with powerful interests, they acquiesce in and allow the system to continue.

The existing system is unacceptable. It has resulted in subverting the rule of law and in obstructing the growth of a healthy and professional system of policing. It must change.

Recent Initiatives

Recently, there have been some positive and significant developments aimed at breaking the government's resistance to introduce police reforms.

Civil Writ Petition No. 316 of 1996 and the Ribeiro Committee on Police Reforms

In 1996, a civil writ petition was filed in the Supreme Court by two retired IPS officers, praying for issue of orders to the Government to implement the recommendations of the NPC .

In pursuance of the directions issued by the Court in the above case, the Central Government set up in July 1998 a Committee on Police Reforms under the chairmanship of Mr J.F.Rebeiro, former Director General of Police, Punjab.

Besides visiting States and interacting with government officials, the Ribeiro Committee collected the views of different persons and organizations through a questionnaire.

The Rebeiro Committee finalised its report regarding the establishment of the State Security Commission besides setting up of proper procedures to select the Chiefs of Police Forces and providing a minimum secure tenure to them. It also urged for insulating the investigating wing of the police rather than overburdening the police force with duties related to law and order functions in October, 1998.

Writ Petitions (Criminal) Nos. 340-343 of 1996

Another initiative came in the form of Writ Petitions (Criminal) Nos. 340-343 of 1996 filed in what is commonly known as the Havala Case. The Supreme Court's judgement delivered in this case on December 18, 1997 raised issues of considerable significance. The most important of which was about the type of superintendence and control that should be exercised over an important organization, like the Central Bureau of Investigation (CBI), which is the premier investigating agency of the country and which must function efficiently and impartially to serve the rule of law.

The directions contained in this judgement included:

Giving a statutory status to the Central Vigilance Commission (CVC);

The CVC to exercise superintendence over the functioning of the CBI;

SELECTION FOR THE POST OF THE Central Vigilance Commissioner to be done by a Committee headed by the CVC and giving each one a minimum tenure of two years; and

Declaring Single Directive, which required the CBI to seek permission from the Government before undertaking any enquiry or investigation against senior civil servants of the rank of Joint Secretary and above, null and void.

The Supreme Court's judgement in the Havala Case itself was accepted with a pinch of salt in many quarters. It was felt that the judgement would not be able to provide the type of autonomy desired by the court and required by the CBI for an impartial and effective functioning. However, there was a good deal in the judgement that was highly welcome.

Even these partial attempts at improving the mechanisms of supervision and control over the police have been undone with some deliberation. To recapitulate, a few relevant facts are stated below:

The judgement in the Havala case was delivered by the Supreme Court on December 18, 1997. The Government of the day, which was on the way out, decided to do nothing. The present Government was installed in power on March 19, 1998. They sat over the judgement till August. There were two sessions of the Parliament during the five-month interregnum. But it was not considered necessary to introduce any legislation to give effect to the judgement of the apex Court. Suddenly in August 1998, the Government was in such a tearing hurry that, taking advantage of the absence of Parliament, they promulgated an ordinance called the Central Vigilance Ordinance, 1998.

The draft prepared by the Secretaries was pushed up to the Cabinet for approval and notified as an Ordinance in reference to the draft prepared by the Law Commission of India.

The Ordinance brought back the scandalous Single Directive, confined the selection panel for the posts of chairperson and members of the CVC to the serving and retired civil servants alone, made the Secretary Personnel an ex - officio member of the Commission and limited the role of the CVC to superintend the functioning of the Special Police Establishment Act relating to cases under the Prevention of Corruption Act, 1988 only.

Once again it required an intervention from the Court to undo the mischief, forcing the Government to revise the Ordinance and draft a Bill to replace it.

The Bill was passed by the Lok Sabha, but lapsed Because the Rajya Sabha did not take up the Bill for consideration in its last session. That it is not possible to find time to enact such an important piece of legislation indicates the priorities of our lawmakers.

The CVC Ordinance lapsed on April 5, 1999. The CVC thus has no statutory basis at present and the organization is functioning according to a Resolution of the Government of India. The above developments once again show how deep seated and strong has been the resistance to police reforms.

The battle for police reform is at present confined to a small number of informed and committed people, many of them retired persons from within the establishment, who know and understand the gravity of the situation and are willing to risk much to make changes happen. More and more people now need to be involved in this area of endeavour.

Building up an informed people opinion is the first step to successfully mount pressures on the government to force change.

Summary of a few major recommendations of the NPC

Police tasks are of three types- (i) investigative; (ii) preventive; and (iii) service-oriented. The investigative tasks of the police are beyond any kind of intervention by the executive or non-executive. In the performance of preventive and service-oriented functions, the police directions should be openly given and made known to the State Legislatures.

To help the State government discharge their superintending responsibility in an open manner under the framework a law, a State Security Commission should be established statutorily in each State. The Commission should have the Minister in Charge of Police as its chairman and six more members. Two of these should be from the State Legislature (one from the ruling and the other from the opposition party) and four should be appointed by the Chief Minister, subject to the approval of the State Legislature, from amongst retired judges of the High Court, retired senior government officers and eminent social scientists or academicians. The State security Commission should:

Lay down broad policy guidelines for the performance of preventive and service-oriented functions by the police;

Evaluate the performance of the State Police every year;

Function as a forum of appeal to dispose of representations from officers regarding their being subjected to illegal orders and regarding their promotion; And

Generally review the functioning of the State Police Force.

The Chief of Police should be assured of a fixed tenure of office. The tenure may be for four years or for a period extending up to the period of retirement, whichever is earlier. The removal of the Chief of Police from his post before the expiry of the tenure should require approval of the State Security Commission.

The Chief of the State Police Force should be selected from a panel of three IPS officers of that State. The panel should be prepared by a committee headed by the Chairman of the UPSC.

The Police Act of 1861 should be replaced by a new Police Act, which not only changes the system of superintendence and control over the police but also enlarges the role of the police to make it function as an agency which promotes the rule of law in the country and renders impartial service to the community.

What can be done and by whom?

The police, the government and society each have a role to play in improving the law enforcement situation and in developing human rights oriented police in the country. If the government had accepted the recommendations of the National Police Commission and set up state security commissions, the work of coordinating action among the three constituents could have been undertaken. In the absence of an independent state security commission, the initiative must come from the government as well as from the police department. The public naturally will be eager to respond adequately and give momentum to the reform process, which will be welcomed by everybody except the corrupt and criminal elements thriving on police inefficiency.

Reforms within the police

A lot can be achieved towards change in public perceptions and to improve the standards of policing if the leadership within the police organization is fully committed to reform. After all, every profession has the primary responsibility to discipline its members and maintain a code of ethical behaviour by internal mechanisms and by peer groups. The police are intrinsically disciplined and superiors command a lot of power and control over their subordinates. If this situation is to be put to good use, the superiors should be aboveboard and transparent in their dealings. It is essential that reforms in the organization start from above and clear signals of good behaviour are sent down to all the ranks.

Organizational behaviour is largely the outcome of training and continuing education. Police training is archaic in content and methods. The emphasis is still more on muscle than on the mind. Human rights, if at all, form an insignificant module in the training programme and there is hardly any emphasis on human rights in the training of constables, who form 85 percent of the force. A subculture inimical to democratic policing pervades the organization and is perpetrated due to indifference or connivance of seniors. Respect for human rights is not rewarded. If the leadership itself is doubtful about the imperatives of human rights in policing, and if they disregard its importance in the training of subordinate officers, it is pointless to expect change in the behaviour of ordinary sub-inspectors and constables.

Another reform that can be brought about by the police themselves is with respect to the adoption of fair, quick and responsible methods of redress for complaints against the police. The system has to be institutionalised and integrated with police roles and responsibilities. Why not hold regular "police adalats" at every police station to receive and respond to public grievances? Transparency brings efficiency and popular support. Without public participation, no police force, however well equipped and trained, can fight crime in any society. As such, the police have to take the initiative to build bridges with all sections of society and solicit their cooperation. It is possible for an inspector general to appoint honorary police officers from amongst respectable members of the public, in different areas who can augment police efforts in crime prevention and detection.

Reforms that the government has to undertake

No government can plead paucity of funds for its inability to protect the life and property of its citizens. Therefore, the reason for governmental neglect of police reforms is not lack of funds but its desire to misuse the force for narrow partisan ends. This is the character of every government irrespective of whichever party is in power. People have begun to comprehend the misuse of the police by the politicians to perpetuate sectarian interests and conceal their illegal actions. There is decreasing reliance on the state police and increasing dependence on private police, private detective agencies and protection from mafia gangs or self-help. "Senas" [private armies] are being trained and armed to defend particular interests, legitimate or otherwise, and the state is a silent spectator in the rise of such power centres attempting to control the lives of people in different areas. The rule of law is being undermined and people’s faith in the police has been eroded.

What the government needs to do vis-vis the police, if it wants to govern according to the Constitution, is spelt out in great detail in the National Police Commission reports and it is unnecessary to repeat them here. All that one can say is that the people have to be vigilant and demand lesser interference from their governments in the day to day functioning of the police and greater accountability on decisions concerning the police and the law and order situation in the states.

Reforms that people can initiate

According to an old adage, every society gets the police it deserves. After all, policemen come from the same society and reflect the attitudes and behaviour that are found in society. How respectful is the average citizen with regard to human rights of fellow citizens? In a society where doctors cheat their patients, lawyers exploit their clients, teachers indulge in politics instead of teaching and even the clergy is corrupt, one cannot expect any better from policemen. The evidence they collect is doubted and their status is worse than that of other comparable positions in government.

All sections of society, particularly the media, can help improve the status and efficiency of the police force. They can attempt not to disparage the police without justification. If they cooperate in law enforcement, there is bound to be a welcome response from the other side that eventually will result in greater social defense and better law and order situation. People and police ought not to maintain an adversarial relationship as it harms both of them. There are black sheep in every organization. To isolate and cultivate the talented is the challenge that has to be faced by the community, the media and the NGOs. Such a partnership guarantees human rights protection, the security of life and property and a credible system of criminal justice in the country.

It needs no emphasis to say that when the crime goes unpunished, the criminals are encouraged and the society suffers. The victim of crime or his kith and kin become frustrated and contempt for law develops. It was considering these aspecls that the Law Commission in its 113th Report recommended the insertion of Section 114B in the Indian Evidence Act. The Law Commission recommended in its 113th Report that in prosecution of a police officer for an alleged offence of having caused bodily injury to a person, if there was evidence that the injury was caused during the period when the person was in the custody of the police, the Court may presume that the injury was caused by the police officer having the custody of that person during that period. The Commission further recommended that the Court, while considering the question of presumption, should have regard to all relevant circumstances including the period of custody, statement made by the viciim, medical evidence and the evidence which the Magistrate may have recorded. Change of burden of proof was, thus, advocated. In Shyam Sunder Trivedi's case[3]  (supra) this Court also expressed the hope that the Government and the legislature would give serious thought to the recommendation of the Law Commission. Unfortunately, the suggested amendment, has not been incorporated in the statute so far. The need of amendment requires no emphasis -- sharp rise in custodial violence, torture and death in custody, justifies the urgency for the amendment and we invite Parliament's attention to it.

Police is, no doubt, under a legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation of an offence but it must be remembered that the law does not permit use of third degree methods or torture of accused in custody during interrogation and investigation with a view to solve the crime. End cannot justify the means. The interrogation and investigation into a crime should be in true sense purposeful to make the investigation effective. By torturing a person and using third degree methods, the police would be accomplishing behind the closed doors what the demands of our legal order forbid. No society can permit it.

How do we check the abuse of police power ? Transparency of action and accountability perhaps are two possible safeguards which this Court must insist upon. Attention is also required to be paid to properly develop work culture, training and orientation of the police force consistent with basic human values. Training methodology of the police needs restructuring. The force needs to be infused with basic human values and made sensitive to the constitutional ethos. Efforts must be made to change the attitude and approach of the police personnel handling investigations so that they do not sacrifice basic human values during interrogation and do not resort to questionable forms of interrogation. With a view to bring in transparency, the presence of the counsel of the arreslee at some point of time during the interrogation may deter the police from using third degrees methods during interrogation.

Apart from the police, there are several other governmental authorities also like Directions of Revenue Intelligence, Directorate of Enforcement, Coastal Guard, Central Reserve Police Force (CRPF), Border Security Force (BSF), the Central Industrial Security Force (CISF), the State Armed Police, Intelligence Agencies like the Intelligence Bureau, R.A.W., Central Bureau of Investigation (CBI), CID, Traffic Police, Mounted Police and ITBP, which have the power to detain a person and to interrogate him in connection with the investigation of economic offences, offences under the Essential Commodities Act, Excise, and Customs Act, Foreign Exchange Regulation Act etc. There are instances of torture and death in custody of these authorities as well. In Re Death of Sawinder Singh Graver, [4](to which Kuldip Singh, J. was a party) this Court took suo motu notice of the death of Sawinder Singh Grover during his custody with the Directorate of Enforcement. After getting an enquiry conducted by the Additional District Judge, which disclosed a prima facie case for investigation and prosecution, this Court directed the CBI to lodge a FIR and initiate criminal proceed ings against all persons named in the report of the Additional District Judge and proceed against them. The Union of India/Direc-ioratc of Enforcement was also directed to pay a sum of Us. 2 lacs to the widow of the deceased by way of ex gratia payment at the interim stage. Amendment of the relevant provisions of law to protect the interest of arrested persons in such cases too is a genuine need.

There is one other aspect also which needs our consideration. We are conscious of the fact that the police in India have to perform a difficult and delicate task, particularly in view of the deteriorating law and order situation, communal riots, political turmoil, student unrest, terrorist activities, and among others the increasing number of underworld and armed gangs and criminals. Many hard core criminals like extremists, the terrorists, drug peddlers, smugglers who have organized, gangs, have taken strong roots in the society. It is being said in certain quarters that with more and more liberalisation and enforcement of fundamental rights, it would lead to difficulties in the detection of crimes committed by such categories of hardened criminals by soft peddling interrogation, it is felt in those quarters that if we lay too much of emphasis on protection of their fundamental rights and human rights, such criminals may go scot-free without exposing any element or iota of criminality with the result, the crime would go unpunished and in the ultimate analysis the society would suffer. The concern is genuine and the problem is real. To deal with such a situation, a balanced approach is needed to meet the ends of justice. This is all the more so. in view of the expectation of the society that police must deal with the criminals in an efficient and effective manner and bring to book those who arc involved in the crime. The cure cannot, however, be worst than the disease itself.

The response of the American Supreme Court to such an issue in Miranda v. Ari/ona,[5] is instructive. The Court said :

"A recurrent argument, made in these cases is that society's need for interrogation cut-weighs the privilege. This argument is not unfamiliar to this Court. See. e.g.. Chambers v. Florida, (1940) 309 US 227, 240-41, 84 Law Ed 716, 724, 60 SCt 472. The whole thrust of our foregoing discussion demonstrates that the Constitution has prescribed the rights of the individuals when confronted with the power of Government when it provided in the Fifth Amendment that an individual cannot be compelled to be a witness against himself. That right cannot be abridged."

There can be no gain saying that freedom of an individual must yield to be security of the State. The right of preventive detention of individuals in the interest of security of the State in various situations prescribed under different statutes has been upheld by the Courts. The right to interrogate the detenus, culprits or arrestees in the interest of the nation, must take precedence over an individual's right to personal liberty. The latin maxim salus populi est suprema lex (the safety of the people is the supreme law)and salus republicae est suprema lex (safety of the State is the Supreme law) co-exist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be "right, just and fair". Using any form of torture for extracting any kind of information would neither be 'right nor just nor fair' and, therefore, would be impermissible, being offensive to Article 21. Such a crime-suspect must be interrogated -- indeed subjected to sustained and scientific interrogation -- determined in accordance with the provisions of law. He cannot, however, be tortured or subjected to third degree methods or dominated with a view to elicit information, extract confession or drive knowledge about his accomplices, weapons etc. His Constitutional right cannot be abridged except in the manner permitted by law, though in the very nature of things there would be qualitative difference in the method of interrogation of such a person as compared to an ordinary criminal. Challenge of terrorism must be met with innovative ideas and approach. Slate terrorism is no answer to combat terrorism. State terrorism would only provide legitimacy to 'terrorism'. That would be bad for the State, the community and above all for the Rule of Law. The State must, therefore, ensure that various agencies deployed by it for combating terrorism act within the bounds of law and not become law unto themselves. That the terrorist has violated human rights of innocent citizens may render him liable for punishment but it cannot justify the violation of his human rights except in the manner permitted by law. Need, therefore, is to develop scientific methods of investigation and train the investigators properly to interrogate to meet the challenge.

In addition to the statutory and constitutional requirements to which we have made a reference, we are of the view that it would be useful and effective to structure appropriate machinery for contemporaneous recording and notification of all cases of arrest and detention to bring in transparency and accountability. It is desirable that the officer arresting a person should prepare a memo of his arrest at the time of arrest in the presence of at least one witness who may be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. The date and time of arrest shall be recorded in the memo, which must also be counter signed by the arrestee.

the following requirements to be followed in all cases of arrest or detention (illegal provisions are made in that behalf as preventive measures :

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest al the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made, it shall also he countersigned by the arrestee and shall contain the time and dale of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed; of the arrest and the names and particulars of the! Police officials in whose custody the arrestee is,

(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor-injuries, if any, present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer affecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the: officer causing the arrest, within 12 hours of effecting the arrest and al the police control room it should be displayed on a conspicuous police, board.

Failure to comply with the requirements hercinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of Court and the proceedings for contempt of Court may be instituted in any High Court of the country, having territorial jurisdic-tion over the matter.

The requirements, referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies, also to which a reference has been made earlier.

These requirements are in addition to the constitutional and statutory safeguards and do noi detract from various other directions given by the Courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee.

The requirements mentioned above shall be forwarded to the Director General of Police and the Home Secretary' of every State/Union Territory and it shall be their obligation to circulate the same to every police station under their charge and get the same notified at every police station at a conspicuous place. It would also be useful and serve larger interest to broadcast the requirements on the All India Radio besides being shown on the National Network of Doordarshan and by publishing and distributing pamphlets in the local language containing these requirements for information of the general public. Creating awareness about the rights of the arrestee would in our opinion be a step in the right direction to combat the evil of custodial crime and bring in transparency and accountability. It is hoped that these requirements would help to curb, if not tolally eliminate, the use of questionable methods during interrogation and investigation leading to custodial commission of crimes.

PUNITIVE MEASURES:

. UBI JUS 1BI REMIDIUM -- There is no wrong without a remedy. The law wills that in every case where a man is wronged and undamaged he must have a remedy. A mere declaration of invalidity of an action or finding of custodial violence or death in lock-up, does not by itself provide any meaningful remedy to a person whose fundamental right to life has been infringed. Much more needs to be done.

Some punitive provisions are contained in the Indian Penal Code which seek to punish violation of right to life. Section 220 provides for punishment to an officer or authority who detains or keeps a person in confinement with a corrupt or malicious motive. Sections 330 and 331, provide for punishment of those who inflict injury or grievous hurt on a person to extort confession or information in regard to commission of an offence. Illustrations (a) and (b) to Section 330 make a police officer guilty of torturing a person in order to induce him to confess the commission of a crime or to induce him to point out places where stolen property is deposited. Section 330, therefore, directly makes torture during interrogation and investigation punishable under the Indian Penal Code. These staturory provisions arc, however, inadequale to repair the wrong done to the citizen. Prosecution of the offender is an obligation of the State in case of every crime but) the victim of crime needs to be compensated monetarily also. The Court, where the infringement of the fundamental right is established, therefore, cannot stop by giving a mere declara-tion. It must proceed further and give compensatory relief, not by way of damages as in a civil action but by way of compensation under the public law jurisdiction for the wrong done, due to breach of public duty by the State of nol prelecting the fundamental right to life of the citi/.en. To repair the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience.

Article 9(5) of the International Covenant on Civil and Polilical Rights, 1966 (ICCPR) provides that "anyone who has been the victim of unlawful arrest or detention shall have enforceable right to compensation". Of course, the Government of India at the time of its ratification (of ICCPR) in 1979 had made a specific reservation to the effect that the Indian legal system does nol recognise a right to compensation for victims of unlawful arrcsf or detention and thus did not become a parly to the Covenant. That reservation, however, has now lost its relevance in view of the law laid down by this Court in a number of cases awarding compensation for the infringement of the fundamental right to life of acitizen. (See with advantage Rudal Shah v. State of Bihar,[6]; Sebastian M. Hongrey v. Union of India; Rajendra Singh v. Smt. Usha Rani,[7]; ) Saheli v. Commissioner of Police, Delhi,[8] There is indeed no express provision in the Constitution of India for grant of compensation for violation of a fundamental right to life, nonetheless, this Court has judicially evolved a right to compensation in eases of established unconstitutional deprivation of personal liberty or life, (See : Neelabati Behera v. Slate [9]

Till about two decades ago the liability of the Government for toritous act of its public servants was generally limited and the person affected could enforce his right in tort by filing a civil suit and there again the defense of sovereign immunity was allowed to have its play. For the violation of the fundamental right to life or the basic human rights, however, this Court has taken the view that the defence of sovereign immunity is not available to the State for the tortious acts of the public servants and for the established violation of the rights guaranteed by Article 21 of the Constitution of the India. In Nilabati Behera v. State[10]  the decision of this Court in Kasluri Lal Ralia Ram Jain v. State of U.P., [11], wherein the plea of sovereign immunity had been upheld in a case of vicarious liability of the State for the tort committed by its employees was explained thus (at p. 2376 of AIR SCW) :

The Justice Malimath Committee, to counter the lack of efficiency, proposes a shift from the adversarial to the inquisitorial criminal justice system (Recommendation 1-7). The “quest for truth” should be at the centre of the criminal justice system, as an instrument to assign wide investigation powers to the magistrate. The rationale underlying the recommendations seems to be that a system which gives investigation powers to courts leads to “more effectiveness”, in other words a higher rate of conviction. Thus Recommendation No 1 proposes a new preamble for the Code of Criminal Procedure, which reads “(…) it is expedient to constitute a criminal justice system for punishing the guilty and protecting the innocent” without mentioning the protection of the accused.

The Justice Malimath Committee’s assumption that a shift from the adversarial to the inquisitorial systems will lead to an improvement of the situation of the criminal justice system in India must, however, be critically assessed in the light of public international law.

1. The role of magistrates in the inquisitorial system

Safeguards for the accused in the inquisitorial criminal justice system. The first assumption is that the adversarial system is at the root of the malfunctioning and distrust. However, not only is it very doubtful whether the conviction rate is in any way linked to 10 the inquisitorial system, but above all, it is not the rationale of the inquisitorial system to convict the greatest possible number of accused. Rather, the role of the magistrate in this system is not to be above all “effective”, but mainly to conduct a fair trial, to examine allevidence for and against the accused,[12] and to protect the accused from arbitrariness.

Therefore, the statement by the Justice Malimath Committee, according to which “[t]he inquisitorial system is certainly efficient in the sense that the investigation is supervised by the judicial magistrate which results in a high rate of conviction”[13] is mistaken in that it overlooks the safeguards against abuses in the investigation process. Whereas it is selfevident that the main objective of a criminal law process is the search for truth, it is certainly not the only duty of the magistrate.

Also, the shift to an inquisitorial system carries with it an increase in the competences and powers of the court, which has the duty to order further investigations on its own motion if it is not satisfied with the result of the investigations. The Indian law-maker must be aware of the implications of such a shift towards a court-controlled system, and build into a new system the safeguards necessary to such a system. For example, the duty of the magistrate to search for truth means a high commitment of the magistrate to find the truth proprio motu. In this respect, the fourth paragraph of recommendation No 1 contains an unclear proposal, stating that it shall be the duty of “(…) everyone associated with it in the administration of justice, to actively pursue the quest for truth”. Does this also comprise the defence counsel?[14] Whereas the defence lawyer must be seen as part of the legal profession and thereby as having a duty to respect the rule of law, his main role is the defence of his client within the limits of the law, and he cannot be compelled to present evidence to the detriment of the accused. It is incumbent on the magistrate to shed light on all facts pertinent for the conviction.

A human rights- based criminal justice system. All systems, be they adversarial or inquisitorial, must comply with international human rights law. International human rights law is, in principle, indifferent to the internal criminal law system, as long as its features are compatible with international human rights. A country seeking a change in its criminal procedure system has to be aware that most systems have had to adapt gradually to international human rights standards. Indeed – and this is of particular relevance as the Justice Malimath Committee repeatedly refers to the European systems – the European Convention on Human Rights is a good example for this, as the European

Court of Human Rights made clear that each country, while free to adopt its own system of criminal justice, evidence, proceedings, etc., is nevertheless bound by the fair trial standard laid out in the Convention.[15] Thus, although there are a lot of differences between the adversarial and the inquisitorial system, “in the final analysis, they come very close together. The issue is more one of different instruments and safeguards rather than of basic goals and principles. Both systems strive for the same end: to convict the guilty and to discharge the non-guilty by seeking the truth by fair means.”[16] It is of utmost importance that any criminal justice system, be it adversarial or inquisitorial, be it based on a system of free proof or legal proof, or a combination of these systems, comply with international human rights standards. In particular, the rights of the accused must be at the centre of all proceedings, and the rights of the victim must be protected at all stages. Human rights must be the benchmark for any criminal justice system.

2. Systemic shortcomings of the criminal justice system in India

The assumption that the shift from an adversarial to an inquisitorial system will render criminal justice more efficient also fails to address the deeper-rooted causes of the shortcomings of the criminal justice system in India. As has been reported by numerous human rights organizations, the Indian criminal justice systems suffers from discrimination of certain sections of society, old-fashioned and inefficient institutions, lack of human and technical resources, lack of investigation expertise, a confesionoriented approach to interrogation, lack of punitive action against abusers of human rights, and a level of corruption.[17]

Lack of resources: the Indian criminal justice system suffers from serious under-funding and understaffing, and continues to be extremely slow. The population-judge ratio is extremely low. There is a need for training of all judicial personnel and courtadministrators.[18]

Torture: Torture is endemic in India and this is a fact acknowledged by the authorities and widely documented.[19] Police forces are poorly trained on investigation methods and on the absolute prohibition of torture and cruel, inhuman or degrading treatment. Most cases of torture by state officials occur in police custody, and it is widely acknowledged by governmental and non-governmental studies that the police operate in a system facilitating the use of torture and ill-treatment. Torture is systematically used in the criminal justice system as a method of investigation: the increasingly dysfunctional criminal justice system and torture in custody constitute a vicious circle of deficient interrogation, falsified investigation results and distrust of the criminal justice system. It appears that there exists a certain perception in India that torture is acceptable under extreme circumstances, and for “hardened criminals” and “terrorists”.[20] The overload within the criminal justice system also contributes to public tolerance towards violence as a means of justice. The consequence of this is a lack of investigation into allegations of torture, let alone of “mere beatings”, and impunity for the perpetrators. Corruption within the police equally provides a ground for the practice of extortion and threats. It is reported that members of the medical profession refuse to examine torture victims or document injuries, often because of fear and threats.[21] As a result, the number of custodial deaths is alarmingly high. The Supreme Court and High Courts of India as well as the National Human Rights Commission have handed down many recommendations to achieve a better prevention against torture and to provide for redress measures for victims, but it has not lead to an eradication of torture.

Discrimination: The other background to be taken into account is the persisting discrimination on state and society level in India.[22] Discrimination constitutes one of the very seeds for the systematisation of torture and an impediment to the fairness and functioning of the criminal justice system. Discrimination on the basis of gender, religion, caste, ethnicity, social, political and economic background is widespread throughout India and lays the foundations for endemic torture.[23] All torture involves the dehumanisation of the victim, the severing of the bonds of human sympathy between the torturer and the tortured. This process of dehumanisation is made easier if the victim is from what is considered a despised social, political, ethnic or religious group.”[24]

Although discrimination is outlawed in the Indian Constitution and progressive legislation and jurisprudence exists to prevent and sanction discrimination, and although India is a party to the major Conventions against discrimination of particular groups, the reality in India does not reflect these legal commitments, partly because they have not been accompanied by an adequate increase in resources.[25] The criminal justice system reproduces the discrimination existing in society against women, dalits and adivavis, and members of the scheduled castes and scheduled tribes.

Corruption. Lastly, there exist many accounts of corruption throughout the criminal justice system, and this contributes to a spreading of torture practices, to more discrimination, and to miscarriages of justice.[26]

Recommendations

• Any reform of the Indian criminal justice system must be based on respect for human rights, in particular the rights of the accused and the rights of victims.

• Whichever criminal justice system is adopted, it has to be in conformity with the international human rights obligations of India.

• Any reform of the criminal justice system must take into account and seek to eradicate the root causes of its malfunctioning, i.e. discrimination, lack of resources, corruption and the practice of torture.

Recommendations on police investigations

• All evidence in criminal cases must be obtained through professional methods of investigation and in full respect of human rights.

• Confessions extracted through torture or other cruel, inhuman and degrading treatment are unlawful and cannot be admitted as evidence under any circumstances.

• Confessions made to the police should not be admissible in criminal trials. Only confessions made to a magistrate should be used as evidence.

• All interrogations should be carried out in the presence of a lawyer throughout the interrogation; interrogated persons should be informed of their right to legal assistance; they should be given the opportunity to have recourse to a lawyer through legal aid.

• Any magistrate must conduct an investigation propriu motu into allegations of torture.

Recommendations on detention:

• The authority conducting the investigation should be separate and independent from the detention authority.

• The length of police custody should not be extended.

---

[1] The police act 1861 preamble

[2]  Dr P J Alexander, Editor, Policing India in the New Millennium (Allied Publishers, 2002)

[3] 1995 AIR SCW 2793

[4] 1995 Supp (4) SCC 450,

[5] (1966) 384 US436

[6] (1983) 4 SCC 141 : (AIR 1983 SC 1086)

[7] (1984) 3 SCC 339 : (AIR 1984 SC956),(I984)3SCC82:(A1R 1984 SC 1026)

[8] (1990) I SCC 422 : (AIR 1990 SC 513).

[9] (1993 AIR SCW 2366)

[10] supra

[11] (1965) 1 SCR 375 : (AIR 1965 SC 1039)

[12] See, in particular article 81 of the French Code of Criminal Procedure: “Le juge d’instruction procède, conformément à la loi, à tous actes d’informations qu’il juge utiles à la manifestation de la vérité. Il instruit à charge et à décharge”.

[13] Explanation before Recommendation No 1.

[14] This seems to be the implicit meaning by the Committee in its Report at p 57, para 3.54 and p 250, para

21.5.

[15] See, in this sense ECtHR, Salabiaku v France, Judgment of 7 October 1988, Series A No 141 A, para 27 11

[16] A. Eser, Collection and Evaluation of Evidence in Comparative Perspective, in: 31 Israel Law Review

(1997), 429.

[17] Amnesty International (op cit note 24), p 3.

[18]   National Human Rights Commission of India, Annual Report 2000-2001, paras 3.62 et seq (available at http://nhrc.nic.in/); Concluding observations of the Human Rights Committee: India, 4 August 1997, CCPR/C/79/Add.81, para 27; Amnesty International, Annual Report 2002 (India) and Annual Report 2003 (India).

[19] See the accounts in the Annual Reports of the National Human Rights Commission of India.

[20] Amnesty International (op cit note 24) p 5.

[21] See the reports by Amnesty International: India: Break the Cycle of Impunity in Punjab, AI INDEX: ASA 20/002/2003, 20 January 2003, p 35, India: Time to Stop Torture and Impunity in West Bengal, AI INDEX: ASA 20/033/2001, 10 August 2001, p 20, and India: The Battle against Fear and Discrimination: The Impact of Violence against Women in Uttar Pradesh and Rajasthan, AI INDEX: ASA 20/016/2001, 8 May 2001, p 28; see, on the role of the medical profession the Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by General Assembly  resolution 37/194 of 18 December 1982.

[22] National Human Rights Commission of India, Annual Report 2000-2001, p 135 (reports of violence against dalits, minorities, disabled and others); P.J. Alexander, Some recommendations from the Law Commission of India on a r r e s t and detention, p 1 (available at http://www.article2.org/mainfile.php/0102/27); Amnesty International (op cit note 24) p 3; Amnesty International Annual Report 2002 (India) and Annual Report 2003 (India); Human Rights Watch, World Report 2003 (India).

[23] See Law Commission of India, 152nd Report on Custodial Crime (1994), para 1.5; Concluding observations of the Committee on the Elimination of Discrimination against Women: India, 1 February 2000, A/55/38, para 68, 71.

[24] See Human Rights Watch, Broken People - Caste Violence Against India’s “Untouchables”, March 1999; Amnesty International (op cit note 24) p 5; Concluding Observations of the Committee on the Elimination of Racial Discrimination: India, 17 September 1996, CERD/C/304/Add.13; Concluding Observations of the Human Rights Committee: India, 4 August 1997, CCPR/C/79/Add.81, paras 5, 15

[25] Amnesty International (op cit note 24) p 7.

[26] Ibid, p 3; Responses by Basil Fernando to the questionnaire formulated by the Committee on Reforms of the Criminal Justice System (on Part B: Institutions); see also Justice K.N. Singh, The Obstacles to the Independence of the Judiciary, in: International Commission of Jurists, The Independence of the Judiciary in India (1990), p 23 et seq;.