Extension of policing powers to BSF: comparable international experiences

Northern Ireland's Royal Ulster Constabulary experience offers a lesson to Indian lawmakers: the militarised policing of a local population by a centrally-controlled force that has been awarded extraordinary powers without accountability measures will likely result in human rights violation, explains RAVI NAIR.

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MOST modern democracies adhere to the policy of separation between the military and the police. Many nations have made limited exceptions for certain paramilitary forces.

Nevertheless, as Northern Ireland's experience illustrates, the mixing of forces with inherently different mandates (armed combat versus law enforcement) and targets (enemy versus local citizen) is likely to do more harm than good.

Paramilitary forces in United States of America

The traditional separation of military and police forces in the United States dates back to the Posse Comitatus Act of 1878. Section 15 of the Act states: "[I]t shall not be lawful to employ any part of the Army of the United States as a posse comitatus, or otherwise, for the purpose of executing the laws except in such cases and under such circumstances as such employment of said force may be expressly authorised by the Constitution or by Act of Congress."

The fear of civil war contributed to America's early desire to implement this separation of powers. Even "the U.S. Constitution and Bill of Rights," American professor Peter B. Kraska notes in the book Militarizing the American Criminal Justice System: The Changing Roles of the Armed Forces and the Police, "were formed in large part out of a fear of military power and rule."

In recent years, however, the US government has undermined the clarity of this separation of powers. In the 1980s, during the so-called 'War on Drugs', then-President Ronald Reagan unsuccessfully tried to repeal the Posse Comitatus Act. Even so, armed forces were increasingly employed to combat the drug problem, effectively "push[ing] the armed forces into institutionalized participation in law enforcement matters", as per Kraska. A series of amendments and official directives over the next 15 years weakened the Act, paving the way for the emergence of paramilitary forces with limited policing duties in the US.

The most notable example of an American paramilitary force is the National Guard, which derives its authority from the 'Militia Clauses' of the US Constitution. These clauses allow every state to constitute their own militia to enforce their laws subject to such a militia being called upon by the federal government in exceptional circumstances.

Such exceptional circumstances were limited to the quelling of insurgency, prevention of invasion and enforcement of federal laws, but Congress has since relaxed these restrictions.

The National Guard is divided into two wings. The Army National Guard (ANG) falls under the control of respective states and is not part of the US Army. The second wing, the Army National Guard of the United States, comes under federal control, comprises ANG members called up to federal duty and is considered part of the Army.

The recent experience of the US and its National Guard parallels that of India with state governments in both countries expressing concerns over the deployment of paramilitary forces for law enforcement.

The 2006 US federal government's invocation of the National Guard in Operation Jump Start, designed to increase security along the US-Mexico border, rankled state governments. Then-California governor Arnold Schwarzenegger, for instance, argued that the National Guard was already being overstretched by responding to natural disasters and through deployments to Iraq and that it should not be used for law enforcement functions.

Nevertheless, the case of the National Guard is distinct from India's allocation of law enforcement powers to the Central Paramilitary Forces (CPMF) because the former entails invocation by the federal government of state-based forces; the states, at least, in theory, retain some measure of control over the uses for which these forces are employed.

Also read: Shifting the borders inland: Policing powers of the Border Security Force

In India, the central government intervenes in state jurisdiction by deploying Union forces, precluding any input from state governments in the use of paramilitary forces for law enforcement within their territories.

This absence of a secondary level of governmental accountability or control in India renders the deployment of paramilitary forces for policing duties increasingly dangerous for Indian citizens who fall under CPMF jurisdiction.

European experience

Paramilitary forces play an increasingly key role in European nations, particularly when it comes to border security. However, like the US example, it is rare for paramilitary forces to be allocated policing powers as in India.

For instance, evidence points to the increasing use of military technology by European Union border forces, the adoption of military strategies by police forces in the United Kingdom, and the deployment of military forces in Austria to help police secure border areas.

Nevertheless, examples of policing powers being allocated to paramilitary forces are not unheard of. As per Maltese professor Derek Lutterbeck in his research paper 'Blurring the Dividing Line: The Convergence of Internal and External Security in Western Europe', military forces deployed on domestic security missions in Italy "may be assigned the status of 'agents of public security' (agenti di pubblica sicurezza), which gives them practically the same powers as police forces have".

Yet even this seems to be a provisional measure. This is in contrast to the default, permanent delegation of policing duties to border paramilitary forces in India.

Northern Ireland's Royal Ulster Constabulary

The Northern Ireland experience with the Royal Ulster Constabulary (RUC), an armed paramilitary policing force notorious for bias against Catholics, is strikingly similar to the current Indian situation.

Like border security forces in India, the RUC was managed by the London-based Home Office, lacked proper accountability mechanisms and was accorded 'emergency' policing powers. The conflicts that these factors triggered serve as a prescient warning of the dangers of haphazardly awarding policing duties to border forces in India.

Prior to the establishment of the RUC, in 1922, by the Protestant Unionist regime, Ireland was policed by a variety of paramilitary forces. According to American sociologist Ronald John Weitzer, writing in his book Policing Under Fire: Ethnic Conflict and Police-Community Relations in Northern Ireland, the Royal Irish Constabulary, which policed Ireland from 1836, was "[l]arge, centralised, militarised, and armed (with guns, baton, bayonets)" and "faced chronic legitimacy problems".

For a brief time, some areas of Ireland were permitted to maintain local police forces but the practice ended with the implementation of the Royal Irish Constabulary in the 1850s.

There were several problems with this mandate. Weitzer writes:

"The new Royal Ulster Constabulary (RUC) was insulated from British traditions of minimum force, 'policing by consent' of the public, and political independence. Reminiscent of the past, the RUC was from the beginning armed and militarised, and Northern Ireland continued to be policed more heavily per capita than the rest of the United Kingdom. The force was closely tied to the Ministry of Home Affairs, whose top officials were strident defenders of Protestant interests and whose policies with regard to law and order were sometimes purely political and biased against Catholics. Supporting the RUC was another paramilitary force, the Ulster Special Constabulary (USC), which was formed at the end of 1920 largely from the ranks of the outlawed Ulster Volunteer Force, a Protestant vigilante group dedicated to keeping Northern Ireland within the United Kingdom. The USC provided assistance to the RUC during public disturbances; it staffed checkpoints on various roads and it was involved in border patrols and other, more mundane tasks."

The deployment of the RUC to quash Catholic protests and the notable lack of accountability mechanisms further inflamed tensions in Northern Ireland. Nationalists demanded the disarmament of the RUC and the disbandment of its satellite paramilitary force, the USC, whereas Republicans argued for the disbandment of both forces. In response, the home department invoked the Irish Republican Army's armed attacks to justify the continued paramilitary presence.

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In a striking parallel to the notifications allocating policing powers to Indian border forces, the RUC was provided with extra powers via emergency legislation. For instance, Weitzer writes, the "1922 Civil Authorities (Special Powers) Act, later replaced by the 1973 Emergency Provisions Act, conferred wide powers of arrest, questioning and detention without trial" upon the RUC.

The RUC experience offers a lesson to Indian lawmakers: the militarised policing of a local population by a centrally-controlled force that has been awarded extraordinary powers without accountability measures will likely result in human rights violation. It may even exacerbate further conflict, obviating the very mandate of such forces in the first place.

(Ravi Nair is with the South Asia Human Rights Documentation Centre. The views expressed are personal.)