Is the Indian Police Equipped to Deal with Complicated Crimes and Law and Order Challenges? 

Over the years, the domain of policing has expanded as crime patterns change and new challenges emerge in law and order administration. NEBIL NIZAR asks if we are ready for the challenges with the existing police system.

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The arrest of Republic TV anchor and Editor in Chief Arnab Goswami by Mumbai Police in connection with a 2018 abetment to suicide case has brought out the deep divide within the civil society. The News Broadcasters Association (NBA) said that it did not agree with Goswami's 'type of journalism', but denounced the 'retaliatory action' by authorities. Union Ministers and BJP leaders termed the arrest 'an attack on freedom of the press'. However, Congress lashed out at the BJP for its 'selective outrage'.

The arrest of Goswami reminisced the arrest of late Karunanidhi,  former chief minister of Tamil Nadu from his house on June 30 2001 in a 01:30 am raid. The manner of his arrest was condemned by all including the then Prime Minister Atal Behari Vajpayee. Despite the prescription of only the minimum necessary force while arresting a person, the former chief minister was dragged out of his bed in Chennai and arrested.

Article 9 of the International Covenant on Civil and Political Rights provides that, "Everyone has the right to liberty and security and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law."

Though the Code of Criminal Procedure omits to define the term, arrest, it however prescribes guidelines for arrest.

Section 46 (1) of the Code of Criminal Procedure provides that a police officer or other person making the arrest shall touch or confine the body of the arrestee unless there be a submission to the custody by word or action. Section 46 (2) however authorises the police to use all means necessary to effect force if the arrestee forcibly resists the arrest or attempts to evade arrest.

The Supreme Court of India in Arnesh Singh v. State of Bihar held: 'We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is another'

The National Police Commission in its Third Report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2 % expenditure of jails.

The arrest of Goswami by the Maharashtra government against whom Goswami is critical is seen by some sections as a case of political vendetta, so is the nearly two decades back arrest of Karunanidhi by his bitter rival J. Jayalalitha.

The Delhi Police, the law enforcement authority for the National Capital, came under heavy criticism from residents and political leaders after the force was seen to be ineffective in the handling of communal violence in February, this year. Justice K.M. Joseph of Supreme Court went to the extent of calling Delhi Police, "unprofessional".

The Supreme Court, after citing American and British Police as best examples of professionalism, slammed state governments for non-implementation of its earlier landmark Prakash Singh guidelines.

It is important to understand the history of policing in India in order to understand where things went wrong. The colonial British wanted a system to assert its authority over the less fortunate natives and found the Royal Irish Constabulary Model, successful which was first introduced in Sindh Province that is now in Pakistan. It was later adopted in other parts of India.

In the aftermath of the first war of Indian Independence in 1857, which was brutally crushed by the British, the Police Act of 1861 was brought into force.

The colonial-era Police Act still continues in almost all states of India. Constitutional policing's understanding the concept of Right to Life and Personal Liberty is urgently needed.

The Supreme Court in 2006 delivered the landmark Judgement, popularly known as the Prakash Singh case, requiring the governments to urgently kick start police reforms. The Supreme Court directive starts with the establishment of a State Security Commission to evaluate the performance of the State Police and also to ensure that the state government does not exercise unwarranted influence or pressure on the Police.

Sir Robert Peel, former British Home Secretary, who is often referred to as the Father of Modern Police, wanted to give legitimacy to his pet initiative- London Metropolitan Police. One of the principles he adopted for the same was that the Police must be under government control.

This principle was adopted in Independent India also. Over the years, it has led to a political-police nexus where it became a common practice that the police leadership would be changed whenever there was a change in political leadership.

The Supreme Court of India reiterating the minimum security of tenure prescribed in Prakash Singh case, reinstated the Director General of Police of Kerala in Dr. T.P. Senkumar v. Union of India.

The Prakash Singh ruling also directs that District Police chiefs and Station House Officers shall also have minimum security of tenure. The other Directive in the Judgement was the setting up of a Police Establishment Board to decide transfers, postings,  and promotions of officers of and below the rank of Deputy Superintendents of Police. But, it was not implemented.

In India, it is an open secret that police officers at cutting edge levels are appointed by the leaders of the ruling political party and these officers enjoy their political patronage.

The Malimath Committee on Judicial Reforms says, 'The state discharges the obligation to protect life, liberty, and property of the citizens by taking suitable preventive and punitive measures which also serve the object of preventing private retribution so essential for the maintenance of peace'.

In order to make sure that the criminal justice system does not fail and subsequently lead to private retribution, we have to fix the flaws. The main flaw in the working of police is due to the clubbing of Law & Order with Investigations.

The officer in charge of a police station in India, with his limited manpower, is expected to undertake- crime investigation, crime prevention, crime patrol, traffic control, collection of intelligence, riot control, bandobast duties, VIP security, passport verification, aiding other departments including court, revenue and civil supplies. How can one expect the policeman at the station level to perform any better? It is often seen that an ongoing investigation is stalled during a pressing law and order situation or when a new crime takes place. The end result is a lack of devotion to both duties. Finally, residents start losing hope.

The Supreme Court says, 'The Investigation police shall be separated from the Law and Order Police to ensure speedier investigation, better expertise and improved rapport with the police. It must, however, be ensured that there is full coordination between the two wings.'

In Kerala, Station House Officers in 464 out of total 471 Police Stations were of the rank of Police Sub Inspectors. The department spent crores of rupees on vehicles, gadgets and other infrastructure for Circle Inspectors, who sat at Police Circle Offices and supervised multiple police stations under their 'Circle'.

In 2017, the Government of Kerala got rid of the Circle system. It re-designated Circle Inspectors as Police Inspectors and entrusted all the 471 police stations under the command of a Police Inspector. Today, the separate physical infrastructure built for offices of police inspectors are lying obsolete.

In Kerala, as per the new reforms in 2017, every police station will be headed by an Inspector ranking Station House Officer and will be assisted by two distinct divisions, one looking after Law & Order and the other after Crime Investigation, each headed by a Sub Inspector.

Para 21 of Order No. S1/122785/2016/PHQ issued by Director General of Police dated 30.12.2017 says, '… The members of the Crime Division in normal circumstances shall not be engaged in any other Police Station duty. However, the rotation duties like Sentry Duty, GD in-charge and Night patrolling can be given to them'.

Para 22 says that 'The Inspector SHO is vested with the discretion to entrust their part/whole of the investigation to any of the competent subordinate officers in exceptional circumstances'.  The absence of strict compartmentalisation of Law & Order and Crime Investigation inside a police station and the general authorisation issued in favour of the Inspector SHO  is often leading to the use of Crime Sub Inspector for Law & Order duties.

The Punjab Police created history by implementing the separation of Law & Order from Investigations by creating a separate Bureau of Investigations (BOI) which will be responsible for Investigation work from police station level to state headquarters.

History should not hold those officers who err while discharging duties in good faith, as culprits.

Our system failed them.

The domain of policing has expanded. Crime patterns are changing. New challenges are emerging every day. Are we capable enough to face these new challenges with the existing police system?

Tailpiece: The Royal Irish Constabulary from which India derived its policing system was disbanded when Irish Free State was created in 1922. 

(Nebil Nizar is a practicing lawyer at High Court of Kerala and NCLT Kochi. Views are personal.)