Elusive Police Reforms

Can the newly enacted penal codes -Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita, and the Bharatiya Sakshya Sanhita - change the criminal justice system in India?

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Yogesh Vajpeyi
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Amit Shah

With jails flooded by undertrials and courts clogged with undisposed cases, a revamp in the administration of criminal justice in India has been long overdue.

The government would like us to believe that the enactment of the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita, and the Bharatiya Sakshya Sanhita to replace the British-era Indian Penal Code, Criminal Procedure Code and the Indian Evidence Act is the beginning of the process. 

According to it, new criminal laws free the citizen from the colonial mindset and its symbols, which had a certain logic of control and power.

The jury is still out on how the new criminal laws alone can help achieve this proclaimed objective. Especially when the system of policing remains the same.  Enacted after what they dubbed as ‘sepoy mutiny’, the Indian Penal Code of 1960 and the Indian Police Act of 1961 were used as instruments to subdue Indians.

CAN NEW LAWS HELP?

A bare reading of the new laws reveals that they have expanded the coercive powers of the State. The maximum limit of police custody under general criminal law, for instance, has been extended from 15 days to either 60 days or 90 days (depending on the nature of the offence).

Even if the intent is not doubted, it raises questions about effective and fair implementation of the new laws. The police is one of the main pillars of the administrative structure and criminal justice system that served the British Raj after well until India’s independence.

Even after the adoption of the Indian Constitution, the police force retains its colonial character, carrying the will of its new political masters. The only difference is that the control has shifted from New Delhi to state capitals.

The police forces are still structured or regulated by the Indian Police Act of 1861 or state statutes that are modelled after it. While these laws clearly articulate the powers the police forces enjoy, they are less clear, indeed silent, on the processes that can be taken against police misconduct by the aggrieved citizenry.

How grossly can the system be abused has been chronicled by the 1978 report of the Shah Commission into excesses during the 1975 ‘Emergency’. It found that the police had obediently and brutally carried out instructions of its political masters, cowing the country into submission.

The National Police Commission set up to review India’s system of policing has produced eight reports, including a Model Police Act, between 1979 and 1981.

Governments have come and gone since 1981. But except for implementing some peripheral recommendations, they have ignored substantive ones that relate to accountability and autonomy.

This led to two former Director Generals of Police filing a Public Interest Litigation (PIL) in the Supreme Court asking the Court to direct governments to implement the NPC recommendations in 1996.

The Supreme Court formed several committees— the Ribeiro Committee in 1998, the Padmanabhaiah Committee in 2000 and the Soli Sorabjee Committee that drafted a Model Police Act in 2006.

During all this while, very little was ever done on the ground to improve policing or implement the recommendations of these panels.

THE PRAKASH SINGH CASE

Finally, in a landmark intervention in what is popularly referred to as the Prakash Singh case, the Supreme Court in 2006 ordered that reform must take place. States and union territories were directed to comply with seven binding directives that would kick start the process.

The compliance of these directives has been tardy to say the least. In its 2010 report, the monitoring committee set up under a former Supremes court judge to oversee the implementation of the directives in the Prakash Singh case observed that “practically no State has fully complied with those Directives so far, in letter and spirit”.

HAS ANYTHING CHANGED?

That not much has changed on the ground till date is freely acknowledged by the ‘Status Note on Police Reforms,’ available on the website of the Ministry of Home Affairs.

The website notes that “the basic framework for policing in India was made way back in 1861, with little changes thereafter.” Still, it shifts the responsibility to state governments on the plea that “Police” is a state subject in the seventh schedule to the Constitution.

IS CONCURRENT LIST A SOLUTION?

Perhaps the time has come to shift “police” and “law and order” from the state list to the concurrent list of the schedule, to expedite police reforms. 

The Centre has repeatedly talked of “borderless” crimes and urged all the states to come on board its efforts in dealing with internal security challenges.  However, mere platitudinous appeals to the state governments have not led us anywhere.

The states have been playing havoc with the law enforcement machinery. The Supreme Court’s directions mean nothing to them.

There would be furore in the states against any such move. However, the Centre must have a say in an area where the states cannot function on their own even in a minor crisis. 

The modernisation of police is a case in point. The Centre is sharing the expenditure under this head 60-40 with the states without much to show off.

Bringing police under the concurrent list would only amount to giving de jure status to what contains de facto on the ground. There is precedence of Forests and Education being transferred in the past from the state to the concurrent list with beneficial results.