Shock, grief and anger…even words will fall short to explain our expressions about the Hathras rape case in UP. As you must be already aware that the victim, a 19-year-old Dalit girl, was gang-raped in Uttar Pradesh’s Hathras allegedly by four men on 14 September. After her condition deteriorated, she was referred to Delhi’s Safdarjung hospital where she breathed her last on Tuesday.
The Uttar Pradesh Police’s seemingly bungled handling of the Hathras gangrape and murder has come under the scanner with many, both in the press and on social media, questioning why the body of the Dalit teen was hastily burned in the middle of the night and expressing skepticism on the police’s claim that there is “no evidence of rape”. Police’s role in this particular is not only condemnable, but it also shows how fragile the police administration system has become in the entire country. In this article, we shall discuss the condition of India’s police system and find out why it has degraded to lowest ever possible level.
How India’s police system is failing its citizens: Explained in 8 points
1. How do police turn into state weapon?
Police remain the most powerful instrument in the hands of any government. The power arm of the state, police are an instrument to maintain law and order, prevent crime, investigate crime and protect people in the exercise of their rights. But universally police are used as an instrument by the state to suppress the opposition and citizens who are not in agreement with policies and actions of the government. The government tends to give more and more powers to the police. Gradually the democratic set up turns into an authoritarian set up propped up by the police. Other institutions of the state are also then transformed and fall in line.
2. How is BJP treating police in India?
Ever since 2014, BJP’s approach to the police has been consistent. Police in every BJP ruled state has been given more and more power and a free hand to deal harshly not only with criminals and law breakers but also with dissenters and political opponents. Draconian laws like UAPA, Sedition laws and National Security Act have been modified to serve the purpose. As a result, a large number of intellectuals, writers, social activists and even lawyers and human rights defenders have been booked under UAPA and NSA. Bheema Koregaon case is a dreadful example of it.
3. Instances of police suppression are galore
Gujarat and Uttar Pradesh are the states where police suppression has been the worst. In UP, chief minister Yogi Adityanath gave a free hand to the police to bump off perceived criminals without any due process. The state police carried out over 5000 encounters, killing more than 100 people and injuring others. Not surprisingly, the highest number happened to be Muslims followed by Dalits and those from the most backward class. The Gujarat model of encounters carried out as state policy is being faithfully followed, sometimes surpassed, in Uttar Pradesh. A very large number of people have been detained under NSA. The number might surpass those detained during the Emergency.
“The Epidemic Diseases Act, 1897 too has been modified to suit the muscular state. This Act had only four sections. For violation of government orders under this Act, Section 3 provided for a maximum punishment of one moth’s jail and a fine of Rs. 200. But in March the Union govt. amended it to enhance the maximum punishment of imprisonment from three months to five years and increased the fine to be paid to a whopping Rs 50,000 to two lakhs for causing simple injury. For causing grievous hurt to Corona warriors, imprisonment from six months to seven years and a fine of Rs. One lakh to five lakhs have been prescribed.
In addition to it there is a provision for recovery of damages to the property at the double cost of loss. Such draconian provisions have been used to terrorise migrant labourers as well as anti-CAA/NRC protestors.
As a sign of the times, Delhi Police have made many of the victims of the Delhi riots in February the accused. Anti-CAA/NRC protestors have been booked as conspirators. Even leaders and activists of long-standing like Sitaram Yechury, Yogendra Yadav Harsh Mander and Prof Apoorvanand or filmmaker Rahul Roy have also been implicated. A large number of student and cultural activists of Jamia Milia and JNU have been incarcerated. Older laws are being made more stringent. Black laws like sedition, UAPA and NSA are being used more frequently.
Editors Guild of India condemns the manner in which the UP Police have prevented the Media persons from reporting #HathrasCase @IndEditorsGuild @myogiadityanath @Uppolice #Hathras #HathrasHorror pic.twitter.com/1dRlEWEnaD
— Live Law (@LiveLawIndia) October 4, 2020
4. How legal system fail us by backing police?
The judiciary which could have come to the rescue of the common man appears to be taking the state at face value, accepting even blatantly false statements and sealed covers. People and society seem equally unwilling, unprepared and ill-equipped to contain or counter the onslaught.The debate over police misconduct in the United States has captured the attention of people around the world. Surprisingly, this has failed to spark a debate about instances in India of police bias, unfair treatment and brutality, as well as selective persecution of particular communities.
5. A look at cop atrocities and custody deaths
Two incidents from this year stand out: the Palghar lynching to which the police were meek bystanders and violence by Uttar Pradesh police against people protesting the Citizenship Amendment Act, especially children. Other excesses have also come to the fore during the lockdown to prevent the spread of coronavirus, such as the indiscriminate use of lathis against people violating the restrictions as well as against providers of essential services.
The number of deaths of people in the custody of the Indian police are staggering. Between April 2017 and February 2018, India recorded a staggering 1,674 custodial deaths, a rate of five custodial deaths per day, according to statistics placed by the Home Ministry before the Rajya Sabha. Uttar Pradesh topped the list, with 374 deaths reported in this period of under a year.
The Status of Policing in India Report 2019 by Common Cause and the Centre for the Study of Developing Societies reveals disturbing trends on police prejudice. It indicates a significant bias against Muslim. Half of the police personnel surveyed reported that Muslims are more likely to be naturally prone to committing violence. Similar prejudices existed across certain states against Adivasis, Dalits, transgenders and migrants from other states. About two in five of the police personnel surveyed in Bihar, and one in five in six other states, had never received human rights training.
6. Can police be punished as per Indian law?
Keeping the above in mind, it is imperative to understand the framework for pursuing grievances against police excesses. Remedies, including compensation, can be sought before the High Courts and the Supreme Court under the Constitution of India for violations of fundamental rights. However, these constitutional courts are not widely accessible and usually deal only with egregious cases where the burden of proof is high.
Relief can also be sought before the National and the State Human Rights Commissions set up under the Protection of Human Rights Act, 1993, but their recommendations are not binding on the respective governments. Additionally, as of December 2019, three states did not have State Human Rights Commissions. In two states, the commissions were completely dysfunctional, while in ten states, the post of chairperson of the commission was vacant. Criminal complaints can be filed against the concerned officers for offences under the Indian Penal Code, 1860, but there is no mechanism for an independent investigation. As a result, police personnel often refuse to register first information reports against their colleagues. The safeguard under Section 197 of the Criminal Procedure Code, 1973, is also often misused. This section requires prior sanction from the concerned government when a public servant, which includes a police officer, is accused of any offence committed in the discharge of official duty.
Will the CBI file cases under SC/ST act against local administration & police officials in Hathras who did not hand over the body of the victim to the parents? The act clearly defines what constitutes an atrocity. A case under 201, destruction of evidence, also needs to be filed.
— Rohini Singh (@rohini_sgh) October 4, 2020
Lastly, since police is a state subject under the Constitution, disciplinary proceedings and punishment for errant police officers such as suspension, removal or deduction of salary is provided under respective state enactments. However, these proceedings, too, are tainted by the lack of independent and impartial oversight. Moreover, most state enactments are based on the Police Act of 1861, a Victorian-era legislation under which disciplining the police was not a priority.
7. What does law say?
In view of the absence of an effective framework for accountability against police misconduct, the Supreme Court in 2006, in the case of Prakash Singh v Union of India, directed states to establish Police Complaints Authorities at the state and district levels. The recommendations of these authorities for departmental or criminal action against a delinquent police officer would be binding, as per the court. An independent appointment mechanism for the members deciding complaints was also provided.
The court noted that the National Police Commission had, in its first report in February 1979, dealt with the modalities for inquiries into complaints of police misconduct to be conducted in a manner that was credible, fair and impartial. Yet, these and various other recommendations made across eight reports of the National Police Commission were not implemented, forcing the Supreme Court’s hand to issue binding directions till appropriate legislations were passed by states.
8. Poor implementation of legal regulations
However, the directions of the Supreme Court have fallen on deaf ears. The Justice Thomas Committee appointed by the Supreme Court for monitoring compliance with the Prakash Singh judgement expressed dismay in its 2010 report over the total indifference exhibited by the states. In 2013, the Justice Verma Committee, constituted after the Nirbhaya gangrape, also noted such non-compliance in its report and urged all states to fully comply with the top court’s directives so as to tackle systemic problems in policing.
More recently, data as on August 01, 2016 in a NITI Aayog document on police reforms in India betrays that precious little has been done to comply with the binding directions contained in the Prakash Singh decision, nearly a decade after the top court’s judgement. Only 17 states had passed legislations to amend the police statutes; this had not been done in 11 states, all the Union Territories and Delhi. In some of the states where there was no legislation, Police Complaints Authorities were constituted by way of government notifications. However, their composition in almost all states was at variance with the decision of the Supreme Court.
Moreover, the recommendations of the Authorities were not binding in almost all states, contrary to the top court’s directive. The document also reveals that Bihar and Madhya Pradesh had not constituted state-level authorities, while Uttar Pradesh and Jammu and Kashmir had not done so either at the state or district levels. Odisha sought to vest the powers of the state authority in the Lokayukta and had failed to constitute the authority at the district level. This was also the case in various other states.
Keeping in mind that the numbers of custodial deaths in Uttar Pradesh were the highest in the country between April 2017 to February 2018, the continued failure to constitute these authorities in India’s most populous states is worrisome. Moreover, considering that the authority, as envisaged by the Supreme Court, was to be an independent one whose recommendations were binding, these deviations convert legal reforms into mere dead letters of the law.
The ground reality in states such as Maharashtra, where Police Complaints Authorities have been constituted, is also dismal. The authority was notified in 2013 but became functional only in February 2017. Its recommendations may not be followed. The Authority has not heard any cases since January. Out of six divisional Authorities, only two at Pune and Nashik are operational.
Thus, it is vital for states to implement the Supreme Court’s directions in letter and spirit. Additional instances of violations as well as lapses by the police – including unjustified recourse to lathis, dereliction of duty at times of mob lynching, parading of arrested persons in handcuffs, video recording public shaming of alleged violators by the police and circulation of such videos on social media – should also be included within the list of complaints that can be dealt with by the authorities.
On its part, the Centre must ensure that appropriate legislation is passed for the Union Territories. The creation of a central authority similar to the Police Complaints Authority to look into complaints against central police forces, such as the Central Reserve Police Force and Railway Protection Force, is also needed. It must be remembered that almost 80 migrants lost their lives on the Shramik Special trains between May 9 and May 27. Creating such an authority will enable the victims of similar incidents or their relatives to voice any of their grievances against the central police forces.
The United States’ experience shows that policing a public which has scant confidence in the police forces has deleterious effects. As Joshua Aston noted in his recent treatise, Torture Behind Bars, the conduct and duty of police officers “must conform to the law of the land, respect basic human freedom, and obey as well as maintain law and order in the country”. The carte blanche enjoyed by the police forces under colonial legislations must be urgently attenuated by modern reforms so that only the rule of law prevails, not the rule by force.
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