The end of April 2022 saw three significant news items about justice delivery in the nation.
Attorney General K.K. Venugopal said that 4.8 crore cases are in the courts and it had become a hopeless situation since “… litigants’ fundamental right to speedy justice lay in tatters …”.
The Chief Justice of India, at the conference of chief ministers and Chief Justices, said that courts are burdened since the executive and the legislature are not doing their job.
Finally, Barpeta District Court Judge while granting bail to Gujarat MLA Jignesh Mevani castigated police functioning. He appealed to the high court to “prevent registration of false FIRs like the present one… Otherwise, our state will become a police state.” He suggested that policemen be required to wear body cameras and CCTV cameras be installed in police vehicles to prevent fake encounters and registration of false cases.
These three news items are interlinked. A large number of cases in the courts are a result of the lack of proper functioning of the executive, poorly drafted laws, and worse, their misuse. The Mevani case points to the registration of a false case. Anticipating that he may get bail, a false case was lodged in advance to arrest him as soon as he got bail.
Clearly, politics was at play which ended up wasting the time of the judiciary and the executive. The case was perhaps meant to send a signal to other opponents of the ruling dispensation, and as the judge noted, it weakens the “hard-earned democracy”.
Police in the news
Very often, the police are in the news for the wrong reasons. In recent cases of riots during religious processions, the police acted after the riots occurred. Properties and the livelihood of the poor were bulldozed under its protection and continued for several hours after the Supreme Court ordered stopping of the illegal demolitions.
Investigation into the JNU violence by outsiders a year back is at a standstill perhaps because it would point to police inaction while violence occurred in JNU. In the Jamia case a year earlier, police acted with alacrity and used undue force against students, even those in the library. When to act and when not to is apparently based on orders from political masters who now believe in the philosophy ‘thok do’.
In late 2019, the senior superintendent of police (SSP) of Noida was accused of a sex crime while he has alleged that these are morphed videos by senior police officers whom he had earlier accused of taking money for postings. The SSP was suspended for going public. Whether the seniors are correct or the SSP is, the episode points to illegality in the police.
In December 2019, four rapists in Hyderabad were executed. Before that, there were reports of the police not registering complaints of rape victims in Uttar Pradesh who were then set on fire by the accused. The list is long. ‘Encounter’ deaths, police brutality against the weak, custodial deaths and non-registration of complaints by those perceived to be weak in society are constant occurrences. This is not to argue that no honest police officers are left.
Illegality of the individual versus that of the justice system
How can the first rung of the justice system be so lawless? While individuals or groups may break the law, can the police be equally lawless in dealing with them using the ‘thok do’ mentality?
The police are given a monopoly of force in society to maintain law and order. It is supposed to be used judiciously, with a sense of justice, so that the public at large develops a faith in the justice system and its credibility is maintained. Accountability is crucial. When force is used arbitrarily and not as per the law, it creates a sense of injustice in the public and actions of police are seen as partisan and unjustified.
When the police act on behalf of those in power, what is the remedy for the citizens? They can languish in jail for years without having committed any illegality. Since justice is not seen to be done, the fairness of the state comes under question. The public disenchantment rises and often leads to people taking law into their own hands.
Genesis of police arbitrariness and brutality towards the citizens lies in the British Raj, when the police were ‘mai baap’ – an instrument to control the population. Will of the Raj had to be implemented and opposition of any kind suppressed. This ought to have changed after independence but the police seamlessly transformed into an instrument of control of the citizens by the rulers – the ruling political class and the moneyed. So, the police, on behalf of the ruling elite, continued to bend rules and commit illegality. If the rulers demand compliance with their illegal orders, they cannot demand police accountability to the citizens and illegality proliferates.
Rewards and punishment
Plum postings are rewards for complying with the wishes of the political masters. Whenever a new chief minister takes the reins of power in a state, the favourites are placed in key positions. The much-transferred officer, Ashok Khemka, had said, “Governance is no longer service, it is business.”
The police, knowing that it does not have to be accountable, make money by encouraging businesses to commit offences. The beat constable at the bottom rung, collects hafta from commercial establishments in his beat. He extracts money from the poor street vendors for allowing them to function. Transporters and eating places also pay hafta (protection money paid to gangsters).
A former home secretary told this writer in 1998 that every additional police station in Delhi means more crime since the beat constable has to collect hafta. He said that the post of the station house officer of the police station is auctioned and the money goes right to the top. Clearly, the more illegality, the more hafta collected.
The police know the local pick-pockets, car thieves and so on. Rather than stopping these illegalities, they collect hafta from the crooks. A journalist who lost her purse at the New Delhi Railway station at night, recovered it within a few hours of her complaining to high ups. The police knew which gang had snatched the purse and forced them to return it. Similarly, an MP’s residence in her constituency was burgled and the next morning when she went to her home in the constituency, the inspector general came with all her stolen stuff. The TV was not hers but by that evening her TV also arrived. The police knew which gang was involved.
Breakdown of the justice system
The widespread illegality that the policemen indulge in, whether to favour the rulers or to harass the weak and the opposition, hardens them. They also become indispensable to the ruling elite which wishes to maintain itself in power by controlling their challengers. Third degree methods, forced confessions, spoiling cases against the elite, illegal arrests and police encounters become routine.
This lack of professionalism also leads to cases piling up in courts. The victims have no option but to go to the courts. The rulers also go to the courts to harass the opponents. The functioning of the judiciary adds to delays. Cases that can be sorted out in a few months take years since delays are accepted. The issue is not shortage of judges or infrastructure but shortage of judgments.
In brief, the police encourage illegality and check it only when it is in the interest of the rulers.
While upholding the Constitution should be its only consideration, it seems to be secondary to the preservation of the rule of the elite. This impacts the judiciary as well. The result is growing illegal and arbitrary functioning of the police which leads to the further spread of illegality in the country and weakening of democracy, as the judge perceptively noted in the Mevani case.
This article was first published in The Wire as How Do We Make the Wheels of the Police and Criminal Justice System Run Faster?
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Arun Kumar, Malcolm S Adiseshiah Chair Professor, Institute of Social Sciences, New Delhi