Why do we need to look at Police culture when we talk of Policing in India ? – Saptarshi Ghosh

The sharp increase in violent crimes against women in the recent times has swung the spotlight on policing along with issues in governance. There were at least three clear-cut instances of police apathy and/or brutality in the last month itself that were highlighted in the national media when it comes to police responses after incidents of rape. The first was the nature of police response to Nirbhaya, a 23-year paramedical student who was gangraped, beaten up and then brutalised in a moving bus in Delhi[1]. The second was the instance of a girl who committed suicide 44 days after facing further brutal questioning in a police station in Punjab where she had gone to lodge a FIR after being gang-raped[2]. The third was the instance of blatant refusal by the police to file a FIR where it involved the rape and murder of 21-year old woman in Noida[3].  The commonality in all three incidents across three different states was the indifferent and apathetic attitude, (if not brutal in one instance), of the police towards the victims and their families. More shocking nature and extent of such apathy of the police towards the victims and their families has been extensively documented more recently in a string of investigative reports done by Tehelka in the Delhi-NCR area over a two-week period before the latest string of incidents took place.[4]

Crimes against women have registered a sharp increase overall from 1,64.765 cases in 2006 to 2,12,585 cases in 2010.[5] Madhya Pradesh registered 22,172 incidents of rape alone in 2010.[6] The obvious question that arises is, why do the police choose to remain so apathetic and indifferent to gender crimes in general and the plight of victims of rape in particular, the very people they are supposed to protect at a juridical level? It is important in this context to look at issues of police culture on their own as a legacy of the colonial state. In doing so, this article looks at the issues of policing from a post-colonial perspective and posits that any argument for police reform within the wider social and economic development process needs to take into account the reformation of an anachronistic and oppressive colonial police culture along with it. Such historical interpretation becomes relevant in examining the present abuse of police powers and in locating the abuse to the broader framework of a colonial police culture.[7]

The police in India are governed by the Central Police Regulations Act, 1943, and local regulations framed under the Police Act, 1861 (this legislation was drafted in the aftermath of the Revolt of 1857). The internal regulations largely prescribe the internal procedures to be followed by each police force in every state. The public powers exercised by the police are located in the Criminal Procedure Code, 1973. The Code has remained mostly unchanged since it was drafted for purposes of colonial policing in the 19th century.

 

 

The Colonial Footprints in Policing Culture in India

The prevalent police culture in India derives from the primary colonial concepts of maintaining social control and maintenance of social order at any cost[8]. The colonial state was not created on the basis of a separation and sharing of constitutional powers between democratic institutions but on the back of a unified, centralised, authoritarian, institutional structure. Inherent in the idea of such centralized, authoritarian structure was that the colonial state was the only source of any juridical authority and all other agencies operating under it’s command merely existed to help fulfil the colonial objectives. The notion of rule of law was a matter of political expediency and the interests of the colonial state assumed primacy over that of it’s subjects. Societal organisation dictated by colonial considerations posited the idea of securing colonial interests in the form of raw materials and revenue based on the colonial notion of ownership of private property[9]. The collection of revenue in exchange for the granting of property rights to a select few was seen both in terms of a public good as well as a colonial necessity. The shift in British character from being a trading company to a colonial retainer of a vast country promptly excluded any Rawlsian notion of equality and rule of law when it came to development of policing in the colonial state[10]. Policing grew on the back of a presumption of the backwardness of the Indian social organisation and the ideological requirement of perpetuating a sense of cultural inferiority amongst the local population.[11] The Indian Penal Code was drafted alongside the Indian Contract Act not so much out of concern for upholding the rule of law than as a codified body of rules outlining the British penal structure for the protection of British/European economic interests and facilitate a European/British social order. The idea of a colonial penal structure was predicated on the defence of property rights of Europeans/British traders and to primarily serve the British/European ruling class.

 

Brutality as an Operative Norm in Colonial Policing

 

Brutality became an important element in colonial policing and was encouraged both as an operative norm and an instrument of widespread repression by the colonial state[12]. The colonial state placed reliance on an elaborate network of informers along with strong-handed policing to pre-empt and/or quell any kind of protests originating from the occupied class as well as elicit total subservience to it’s authority. The British relied heavily on stereotyping the local population on factors like ‘dependability’ and ‘reliability’ to meet general police recruitment.[13] The business of policing at the ground level was left to the ‘dependable’ races while Europeans exercised supervision at the top. Indians were usually expected to use torture against fellow Indians for even cases of civil frauds and simple forgeries. The methods employed to maintain social order varied between a set of differential attitudes that could be attributed to the shared ideologies of the people recruited at various levels.[14] The notion of advancing the colonial cause of appropriation conveniently obfuscated any requirement to develop a policing approach reliant on the rule of law, legality, accountability and rationality[15]. In fact, policing under the colonial state became so problematic that a Police Commission reported in 1902-03 that the colonial police had become not only highly indisciplined and extremely repressive but also venally corrupt and completely unaccountable for their actions.[16]

 

The Use of Sovereignty in Policing by the Colonial State

The notion of sovereignty in policing, ironically, was something that was conveniently used by the colonial state to limit liability. The actions of the police, when it came to maintenance of law and order were divided into those that were ‘sovereign’ and those that were ‘non-sovereign’, by the colonial state. The condition of ‘no-liability’ in the exercise of the sovereign powers by the police gave blanket immunity to the police for any act of brutality or repression that was perpetrated within the broader paradigm of maintenance of law and order by the colonial state. The use of sovereignty to justify brutality became so endemic and all-pervasive in the period between 1857 and 1900 that that even the colonial state felt it necessary to reign in the police at the turn of the 20th century. The police were heavily criticised in two reports, a report of the Government of Bengal in 1901 and then by the Police Commission Report in 1902-03. However, the notion of sovereignty used so successfully to escape any liability by the colonial state gradually evolved into a legal doctrine under the Government of India Act, 1935, and the colonial state continued to absolve itself of all liability for all acts of brutality and repression by the police all throughout the first half of the 20th century.  The notion of sovereign action is a significant contributory factor to the widespread incidences and institutionalisation of police brutality.

 

Modern Policing as a Development Challenge

The development challenge in India, at one level, squares with the need to mitigate a colonial police culture that believes in ritualising brutalisation and apathy as a mode of legitimation of public power.[17] Development as explained by Gandhi and Ambedkar represents a process of planned social change through the equitable exercise of public powers by the agencies of the state.[18] The police are the first agency that is called into a scene of crime and has direct interface with the rape victim and the victim’s family in specific. The sheer apathy and indifference of the police in the instance of protection of rights of the citizenry in general and rape in particular in this day and age presents serious challenges to the concept of building a modern Indian state based on the dialectic relationship between development and legal rationality.[19] It posits the question of the legitimacy of maintaining such a huge police force in India and raises various questions as to the evolution of Indian policing norms and approaches in the context of the larger development process. The police response to Nirbhaya and the other victims not only does little to enhance the legitimacy of the police in the eyes of the public but also brings out issues of unaccountability as regards the exercise of public power by the police within the larger criminal justice framework.[20]

 

The Attempts at Police Reforms

The lack of equitable discharge of public powers by the police exposed a large section of the people to torture and brutality in the period leading upto Emergency in 1975 and the period after it. The Indian state also faced various forms of insurgencies where police brutality was seen as an acceptable mode of state response.[21] That period led to attempts at modernising the police by introducing policing reforms. Various reports were drafted after the ending of Emergency but they have all been lying in cold storage since then.[22] The National Police Commission was tasked to look at issues of police reforms and draft Reports to that effect. There were eight comprehensive reports that were drafted by the National Police Commission along with a model police act in the period, i.e., 1979-1981. A further two reports were written and submitted to the Union Government by the Rebeiro Committee in 1998 and 1999, and, then another report was submitted by the Padmanabhaiah Committee in 2000. That makes it a sum total of 11 reports on police reforms alone in the 21 years. I.e. in the period 1979-2000!! The efforts of the draftsmen and various committees did not end there. There was a second Model Police Act submitted by Soli Sorabjee to the Union Govt in 2006.

 

The reports have all looked into the issues of control of police by the executive and consequent problems related to abuse arising from such control.[23] The Second Police Commission Report had actually recommended the setting up of a Criminal Justice Commission and a State Security Commission to be set up in each state. The third Report recommended a key change in Section 155 CrPC to stop mistreatment of complainants by the police particularly in cases of non-cognisable offences, the fourth Report recommended an amendment to Section 154 CrPC to ensure that police stations could not turn away complainants on the basis of jurisdiction and mandated filing of FIRs on a compulsory basis, the fifth Report in 1980 was mostly about initiating changes in police recruitment and training, and, making the police more accountable and liable for their actions. The sixth Report looked at the role of the police during riots and communal violence and the need to separate the investigation wing from the law and order enforcement wing.[24]  The seventh focused on the issues of superintendence over investigation of cognisable and non-cognisable offences and the establishment of a Central Police Committee. And, the eighth looked specifically at issues of accountability of each police force across the country. The Rebeiro Committee and the Padmanabhaiah reiterated the same recommendations largely about fifteen years later.

Conclusion

While it is difficult to postulate how the shape and approach of policing in India would have evolved had all the Reports been implemented, it is of relevance to understand that piecemeal steps would not help in modernising the police. The issue of reforming police culture in the context of a colonial legacy of policing has to be seen as part of a broader development process, as a social whole rather than the sum of all the parts. The lack of police reforms will hinder any development process for the simple reason that any unequal distribution of justice within society would lead to an unequal distribution of individual rights and privileges, which, in turn, would amount to a constraint in the meaning of life and liberty under Article 21 of our Constitution. It is imperative that the present situational reality of police indifference and apathy is redressed promptly and sincerely so that the women of the country feel that the state can protect their fundamental rights as promised in the Constitution. The state, in the exercise of public powers, splits into two, a juridical one and the real one, and, it is such constant contradiction that manifests itself in the locus of rapes and violent crimes against women.



[1] http://www.indianexpress.com/news/male-friend-of-gangrape-victim-slams-police-public-apathy/1054681/

[2] http://news.outlookindia.com/items.aspx?artid=785034

[3] http://www.ndtv.com/article/cities/noida-rape-murder-two-arrested-four-policemen-suspended-for-inaction-313898

[4] ‘The Rapes Will Go On’ http://tehelka.com/the-rapes-will-go-on/

[5] Referenced from the statistics of the National Crime Records Bureau

[6] Referenced from the statistics of the National Crime Records Bureau

[7] Stanley Heginbotham, ‘Cultures in Conflict: the Four Faces of Indian Bureaucracy’, New York, 1975

[8] D.Bayley, ‘The Police and Political Development in India’, Princeton University Press, 1969

[9] D. Washbrook, ‘Law, State and Agrarian Society in Colonial India’, Modern Asian Studies, Vol 15 (3), 1981.

[10] Michael H. Fisher, ‘Indirect Rule in India: Residents and the Residency System, 1764-1858’, Delhi, 1991

[11] David Arnold, ‘Police Power and Colonial Rule: Madras, 1859-1947’, Oxford University Press, Delhi, 1986

[12] Ibid

[13] David Arnold, ‘Police Power and Colonial Rule: Madras, 1859-1947’, Oxford University Press, Delhi, 1986

[14] C. Jeffries, ‘The Colonial Police’, M. Parrish, London, 1952

[15] Peter Robb, ‘The ordering of rural India: the policing of nineteenth-century Bengal and Bihar’, in D. Anderson, and, D. Killingray, ‘Policing the Empire: Government, Authority and Control, 1830-1940’, Manchester University Press, 1991

[16] Report of the Indian Police Commission, 1902-03

[17] Report to the United Nations Commission on Human Rights in April 2001 by the Special Rapporteur on Torture in India, Sir Nigel Rodney

[18] Upendra Baxi and Bhiku Parekh, ‘Crisis and Change in Contemporary India’, New Delhi, 1995

[19] D. Trubeck, ‘Max Weber’s tragic modernism and the study of law and society’, Law and Society Review, 1986

[20] http://blogs.timesofindia.indiatimes.com/TheSiegeWithin/entry/should-we-call-the-police

[21] Rajni Kothari, ‘State against Democracy: in Search of Humane Governance’, New Delhi 1988

[22] http://www.thehindu.com/opinion/op-ed/for-a-peoples-police-from-a-delhi-tailwind/article4256353.ece?fb_action_ids=10151232084848429&fb_action_types=og.likes&fb_source=aggregation&fb_aggregation_id=288381481237582

[23] For a summary of the reports, please refer to, http://www.humanrightsinitiative.org/publications/police/npc_recommendations.pdf

[24] This separation within the police was later mandated by the Supreme Court in 2007.

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