People & Their Problems
New Delhi, 19 March 2008
In Delhi Police
Republic
WALKING WITH ARMS
RAISED
By Ashok Kapur, IAS
(Retd)
We, the people of Delhi,
have had a narrow hair-breadth escape. The Delhi
police was on the verge of enforcing a fiat, which was a throw back to the Nazi
rule of fascist governance in Hitler’s Germany.
The proposed fiat would have required all the citizens of Delhi to carry or wear
identification badges at all times. Whether going to work or visiting the
neighbourhood grocer or out for a stroll.
The constabulary (who else?) were to be empowered to stop
and check any denizen of the Capital. If a hapless citizen were found to be
without the badge, it would have been a cognizable offence. In other words, powers
of arrest without warrant.
The very fact that such a Draconian fiat could even be
contemplated in the nation’s capital raises several disturbing questions about
the system of governance as it obtains today. But for a vigilant and an
assertive media, combined with pressure from people’s representatives, we would
have been left to the tender mercies of the constabulary, now increasingly
armed.
The basic questions thrown up must be addressed if the
nation is to continue to live under the rule of law. Delhi is under the Police Commissioner
‘system’, if at all it can be called one. In reality, the Delhi police are functioning without a
modicum of check or accountability. The fact that such a measure was publicly
announced reveals a serious malfunction in the system and the men who man it. Apparently,
the senior officers of the local police are innocent of the basic scheme of the
Constitution and the rule of law.
The Constitution explicitly guarantees the fundamental right
of all citizens to “freely move throughout the territory of India”.
A law whereby a constable is authorized to stop and check any citizen at any
time without suspicion or evidence is a violation of the spirit of the
Constitution, if not the letter. The law courts have consistently held that the
freedom of movement of a citizen could only be curtailed or subjected to
surveillance if there was a reasonable suspicion about his antecedents.
Indeed, unrestricted freedom of movement is a basic norm of
the rule of law in a civilized democracy. In the U.K.,
the highest legal authority, Lord Denning, former Chancellor has recently
explained: “A man’s liberty of movement is regarded so highly by the law of the
U.K.
that it is not to be hindered or prevented except on the surest ground.”
Such a law would have necessarily implied that a citizen
without identification papers would be liable to be arrested on the spot. In
other words, the police would have been armed with authority to arrest
straightaway, for the law to be effective. Such a mindset reveals a complete
divorce from the ground reality of the working of the police.
Eighty per cent of the arrests being made by the police
without warrant have been found to be “unnecessary”, all over India, according
to the report of the Constitutional Review Commission (2002) headed by the
distinguished former Chief Justice of India, Justice M.N. Venkatchalliah.
Evidently, the police are grossly misusing their powers of arrest without
warrant. This is resulting in avoidable congestion in courts and chaotic over
crowding in jails. Which, incidentally, is the least of the problems. Innocent
citizens are being subjected to harassment and worse. To contemplate a law to
arm the police with even wider powers of arrest without warrant, reveals a
contemptible disregard for the norms of the rule of law.
Another reported feature of the aborted law was the proposed
requirement of endorsement of driving licenses by the local police. All vehicle
owners coming from outside the Capital were to be subjected to it. In other
words, the police were to be additionally armed with the powers of licensing, a
purely executive function. The Law Commission that examined the separation of
the judiciary from the executive in India had reiterated that purely
executive functions like licensing etc should continue to vest with civil
magistracy.
This is the position today under criminal law in India. Under
the police commissioner ‘system’, however, licensing powers have already been
surrendered by the civil government to its police force, including powers to licence
places of entertainment etc.To arm the police with still wider executive
functions, would have been tantamount to arming the force with powers of
harassment if not extortion.
That the police in Delhi
are indulging in widespread extortion, particularly at the lower levels, is a
matter of common knowledge. Two recent sting operations carried out by the
brave-hearts of the local media have brought to light that large sections of
the force are regularly extorting money from the traders of liquor and licensed
bus operators.
The ordinary citizen is helpless. Complaints of police
harassment right upto the Prime Minister’s level are passed on to the vigilance
and anti-corruption branch manned by the local police themselves. Thus, the
accused is the investigator as well as the judge and the jury.
Recently, the head of the anti-corruption unit of the Delhi police was himself
caught with his hands deep in the till! He was found extorting money from an applicant
for a trading licence. In another local police station, on a surprise
inspection by the CBI, the police officers decamped, leaving behind unaccounted
cash and unlicensed weapons. The recovery was made from the drawer of the
officer-in-charge. Evidently, there is no system of inspections and checks in place.
Otherwise, the police officers would not have felt so emboldened as to stash
incriminating material so openly.
More than a quarter century after the police commissioner
‘system’ was introduced in the capital and the control of the magistracy removed,
the system is seriously malfunctioning. Recently, a national daily had carried
out a survey on the working of the capital’s police. Seventy per cent of the
respondents stated that they found it difficult even to register FIRs in cases
of criminal offences. Even after registration, through influence or money, more
than 70 per cent felt that the investigation by the police left much to be
desired, especially in serious offences.
Most of the problems faced by the ordinary citizens of Delhi stem from the fact
that the commissioner ‘system’ has no built-in mechanism for any accountability
whatsoever. The local police do not report to the elected government but
directly to the Union Home Ministry. As the latter is responsible for control
of the police forces of all the States and UTs, besides the central police
organizations, it has neither the time nor the resources to exercise any
effective check or accountability on the local police.
There is another distortion of the system, largely
unnoticed. Conceptually, the Ministry of Home is supposed to be manned by civil
servants who are all trained and experienced executive magistrates. Even today,
they exercise authority under more than 12 chapters of the Criminal Code of the
nation. The ministry is the last vestige of some magisterial check on the
police force. Even this vestige is being eroded, as the ministry is being
increasingly manned by police officers at the senior-most levels.
Yet again, Lord Denning analyzed the serious problem faced
by democracies where a fragile rule of law is in force. According to him,
whereas the procedures for enforcing fundamental rights are sufficient,
procedures for preventing the misuse of powers leave much to be desired. The
government should draw proper lessons from the aborted fiasco. The commissioner
‘system’ is, in essence, the negation of some of the basic norms of civilized
jurisprudence, and needs to be urgently reviewed. Otherwise, the denizens of Delhi will continue to be
vulnerable to the men is uniform.
It is just as well that the Constitution Review Commission
recently reminded the government that “control of police” was a basic
ingredient of the rule of law, now a basic feature of the Constitution.
Remember, Bacon? He brilliantly quipped once: “A bad law
(system) is the worst tyranny!” ---INFA
(Copyright,
India News and Feature Alliance)
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