Thursday, October 13, 2011

Police in India (part I)

In India, the basic rights of liberty, equality before law, and free speech do not exist. The state is the aggressor, by far, in violating these rights of common citizens.

Let me start with the absence of liberty in India.

The right to liberty is fundamentally this: The right to be free in one's person and property.

When the other side is the state, this means: no incarceration without conviction.

Since in India, trials take decades to complete, justice is frequently seen to have been served by pre-trial detentions and by the very process of making someone go through the tribulation of the trial. That is a mockery of justice. As much as I am appalled at the scale of the 2G scam, the state should have a right to imprison the accused only if it is able to prove its case in a court of law. We, as citizens of India, don't care about the human rights of the accused in the 2G case, just as we don't care about the human rights of millions of under-trial detainees in India. We are too busy watching television and gloating over these extra-judicial punishments.

Prosecutors oppose bail as a matter of course, citing vague concerns in every case that the accused may influence witnesses or destroy evidence. I have a simple question for the prosecutors: if the accused is powerful enough to influence witnesses, can't one of his acquaintances (or more usually, his lawyers) influence the witnesses while he himself languishes in jail? That is what usually happens anyway and therefore this excuse to keep somebody who is presumed innocent is an entirely lame one.

"Destroying evidence"? I am amazed the judges don't critically examine this phrase. The onus is on the police and the prosecution to collect evidence in an expeditious manner, and not put this burden of delay on the accused.

The only good reason to keep someone in pre-trial detention is the possibility that he or she may evade the jurisdiction of the court. That is why the concept of bail was invented to begin with, and that is what bail guarantors are for, in case you are wondering. Hence, once suitable guarantors are found, there is no further excuse to keep the person in jail.

The police routinely arrests Indian citizens accused of a crime. This is despite a landmark Supreme Court judgment (in 1994) that the power of arrest is not the same as the justification of arrest. Since the police openly spits at the highest court of the land, the state hurries to restrain this lawless arm of itself (the CrPC amendments limiting the power of arrest by police), but the lawyers who make money from bail cases oppose the change and the government, not unsurprisingly, backs down.

Since the police has the arbitrary discretion to arrest a common citizen, the privilege to lodge a complaint with the police is a rather powerful one. No points for guessing that this privilege is not available to common citizens. This is, once again, despite a clear judgment of the Supreme Court of India. Police in India does not register your complaint, unless it stands to gain either the favor of the bosses or unless some bribe is given. They are not your servants, they are your oppressors.

In fact, they are permitted by law to treat certain complaints (a very large category, as it turns out) as "non-cognizable". That is, they will ask you to prosecute the criminal yourself by engaging an advocate and filing a complaint in a court of law. The Malimath committee report, in 2004, advocated abolishing of this distinction between cognizable and non-cognizable crimes, but who listens?

There are many interesting consequences of this arbitrary power of the Indian police. Since the harassment starts right at the start, when the police registers someone's complaint, there must be a way the powerful can evade this harassment. One doesn't have to look far. There are hundreds of rules in place for powerful state functionaries not to be complained against, prosecuted or jailed without "approval" from the state itself.

A second interesting consequence is that it is the police which decides, on its discretion, what you should be accused of. Since the Indian Penal Code (IPC) is hopelessly vague, if you punch someone, you can be accused of anything from abetment to suicide all the way to attempt to murder. The decision of which "sections" (of IPC) to include when accusing someone is such an arbitrary and unpunished violation of human rights in India that the mind boggles. Frequently, a man who loves a woman and marries her without her family's consent, is hounded with active involvement of the police. He is accused of everything from rape of a minor, kidnapping, to criminal intimidation. Sometimes, even his family members are arrested (after all, how difficult is it to include them as co-conspirators?). No wonder lovers frequently commit suicide rather than face this harassment.

A third consequence is that since the police is acting on discretion, and not in the service of citizens, the citizens when they find a petty criminal, routinely thrash or lynch him/her. Nobody protests or complains against these acts of violence, since the petty criminal doesn't (or so the thought goes) have any right to expect decency.

People in government jobs have to be, by law, suspended from their duties if they are in police detention beyond 48 hours. Presumption of innocence? One must be kidding.

A fourth consequence, or cause, of this travesty is that investigation and prosecution are thoroughly shoddy affairs in a criminal trial in India. Since the accused is already being punished by the process itself, why bother with an actual judgment?

(to be continued)


Sridhar said...

All good points. Pretty much explains why people fear going to a police station, even more than the criminals that need to be brought to justice.

This is why the Jan Lokpal movement was so frustrating to me. Instead of a mass movement to demand targeted reforms of police and judiciary, the movement seeks to create a parallel structure.

Part of the problem is too much power residing with the state. But instead of seeking the de-centralisation of power, people are looking for alternate locations where more power can be vested. Hard to be optimistic sometimes.

With regard to the presumption of innocence, I agree, the concept itself seems to not be within the grasp of many. I'm sure most people don't realize that all the 2G scandal suspects in jail have been convicted of NOTHING, yet. But none of that matters, as in the media-spin courts, verdicts have been reached.

Ajar Vashisth said...

I think India is still a much more free country See the stats below compiled by BBC.

Although Statistics may or may not lie but they present an interesting

Country Prison population Population per 100,000 Jail occupancy level % Un-sentenced prisoners % Women prisoners %
US 2,193,798 737 107.6 21.2 8.9
CHINA 1,548,498 118 N/A N/A 4.6
RUSSIA 874,161 615 79.5 16.9 6.8
BRAZIL 371,482 193 150.9 33.1 5.4
INDIA 332,112 30 139 70.1 3.7
MEXICO 214,450 196 133.9 43.2 5
UKRAINE 162,602 350 101.3 19.5 6.1
SOUTH AFRICA 158,501 334 138.6 27.5 2.1
POLAND 89,546 235 124.4 16.8 3
ENGLAND/WALES 80,002 148 112.7 16.4 5.5
JAPAN 79,052 62 105.9 14.7 5.9
KENYA 47,036 130 284.3 45.6 42
TURKEY 65,458 91 77.4 47.7 3.3
NIGERIA 40,444 30 101.5 64.3 1.9
AUSTRALIA 25,790 125 105.9 21.6 7.1
SCOTLAND 6,872 134 107.5 21 4.4
N IRELAND 1,375 79 91.5 37.4 2.2