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)