Thursday, October 13, 2011

Police in India (part II)

Police is a state subject in India, thought, interestingly the penal code (IPC), the code of criminal procedure (CrPC), and the the various acts which mandate police action are under the purview of the Parliament. What this, in effect, means is that the though the laws which the police is supposed to enforce are drafted in London (the IPC dates back to 1860 AD) or in Delhi, the rank and file of police is controlled by state level politicians and bureaucrats.

What this also means is that if you are well connected with your local politicians, you need not fear the police. If there is a truly horrendous crime, since it is commonly understood that the police will not prosecute a state big-wig, the central police (CBI) is involved. The matter doesn't end there. CBI is influenced and controlled by the central government. So, if you wish to proceed against someone who is directly or indirectly in power at the Centre, you have to petition the Supreme Court to form a "Special Investigative Team", which reports directly to the court. God help you if you want to prosecute an officer of the court. Prosecuting a judge is impossible, but try prosecuting a lawyer and see how far you go.

In India, lawyers and the police make a pretense of arguing against each other in the court, but they make love to each other in the chambers and in the police stations. Both of these are mafias, whose members gleefully rub their palms whenever a harassed person comes to them for help. The more people suffer, the more money these people make. A decent policeman or a decent lawyer is rarer than a thousand rupee note lying uncollected on a public street.

Since, in criminal trials in India, fair and impartial investigation, prosecution and conviction are at least a few centuries away, what does the state do?

The trend is: it washes its hands off the investigation, and asks the accused to prove they are innocent. With an increasing failure of police and the criminal justice system to punish the guilty, protection of the innocent (which is a higher duty of the law) is being accorded lower and lower priority.

The Malimath Committee report of 1994, which otherwise contains some valuable suggestions, irresponsibly suggests that proving a crime "beyond reasonable doubt" is an unreasonable expectation in India. It recommends instead that, given the (lack of) investigative environment in India, the principle of conviction must be adjusted to be more lax.

More and more laws are being drafted where presumption of innocence is being done away with.

The Dowry Prohibition Act says:

"Where any person is prosecuted for taking or abetting the taking of any dowry under Sec. 3, or the demanding of dowry under Sec.4, the burden of proving that he had not committed an offence under those sections shall be on him."

A news item on the proposed law on honour killings says:

"When a death of a member of a family occurs and a person or a group of persons is accused of acts falling within the fifth clause of section 300 of IPC, then, the burden of proving that case does not fall within that section shall be upon such person or persons."

If the state is helpless to investigate and prosecute properly, then the state of affairs is nothing but anarchy.

It is not that the state is somehow inept while the rest of India is gloriously efficient. The state is an amplified version of the Indian ethos, and of an underdeveloped intellect which abhors clear definitions and processes.

(to be continued)

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