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Monday, December 6, 2021

Rule of Law and Reform of Law-Enforcement Systems – Part 1

Along with other factors, the law-enforcement and justice systems determine a country’s liveability which in turn defines its status as a developed, developing, or underdeveloped nation. If these systems are efficient, there is rule of law.

Rule of law is not just an important aspect of quality of life but also an important aspect of the ease of doing business. Absence of rule of law can adversely affect foreign investments and thus economic growth. Bharat has recently risen 14 points in its ease of doing business ranking but still ranks at 63.

Bharat’s rule of law rank is a dismal 69 out of 128 countries and it has been lately showing a downward trend on many aspects of rule of law.

Recent events have shown how businesses suffered and law-abiding citizens underwent huge inconvenience when the government did not act against the unlawful Shaheen Bagh protests and later the protests by so-called farmers. Vikas cannot be bereft of rule of law. When speaking on the ‘farmers’ protests, even the erudite Harish Salve said that development is not just building roads and bridges but must  include rule of law.

Even before the ongoing ‘farmer’ protests had lost steam, the state of West-Bengal plunged into horrendous post-election violence which has been ongoing since May 2nd. The brutality in the state highlights the need for ensuring internal security using firm measures.

The West Bengal violence demonstrates that any part of the country can suddenly plunge into a spiral of lawlessness where ordinary citizens face the brunt. We must have measures in place to ensure that such a failure of the system in protecting the citizens’ right to safety and security of life and property is not repeated. This is a serious human rights issue and also one that will affect our economic future.

The ongoing failure to protect citizens in West Bengal calls for having a proper rule book and procedural manual–one that defines roles, authority, and duties. Controlling violence is an executive function and not one of the judiciary. And when the executive acts, the judiciary must control the impulse to play to the liberal galleries and encroach on executive’s turf. Clarity in separation of roles is essential. The manual should specify who the final authority is when events spin out of control as is the case currently in West Bengal. This is essential so that the federal structure argument does not prevent action to deal with any kind of law-and-order breakdown.

The Law-Enforcement System

Law-and-order breakdown issues will be dealt with in a later part of this series.  To begin with, reforming the law-enforcement system is vital. Rule of law requires both an effective law-enforcement system and an impartial, fair, unbiased, and timely justice system.

Both the law-enforcement and the justice systems in Bharat are in desperate need of improvement and reform. Both systems affect the lives of citizens but the performance of law-enforcement systems touches lives of citizens more immediately and directly as it is the first point of contact for citizens when crime takes place. Both systems complement each other but an effective law-enforcement system forms the foundation for rule of law and is perhaps a pre-requisite to addressing flaws in the judicial system.

Therefore, the law-enforcement (police) system needs to be streamlined as the first step for establishing rule of law. This calls for a major overhaul of the system and radical changes in structure and functioning.

Policing is a state subject in our Constitution as is Law and Order. Along with the states and Union Territories, the laws provide for the Centre to also have its set of own police forces to be deployed in certain circumstances. These include:

  • Border Security Force
  • Central Industrial Security Force
  • Central Reserve Police Force
  • Indo-Tibetan Border Police
  • National Security Guard
  • Sahastra Seema Bal
  • Special Protection Group

The Centre also oversees the work of the following specialized agencies engaged in training, research, investigation, and intelligence gathering:

  • Central Bureau of Investigation
  • Income Tax Department
  • Directorate of Revenue Intelligence
  • Central Economic Intelligence Bureau
  • National Investigation Agency
  • Narcotics Control Bureau
  • Bureau of Police Research and Development
  • National Crime Records Bureau

State police functions-The police force of each state undertakes the task of protecting citizens from crime and investigating criminal offences that occur. They are tasked with gathering evidence for the prosecution so that offenders are punished by the justice system.

Problems

Low police-to-citizen ratio-Owing to our high population, the number of police personnel per citizen is extremely low. For example, in the US, for every 1000 population there are 3.4 to 3.5 law-enforcement officers. In Bharat, we have 195 personnel per 100,000 population, or 0.195 personnel for every 1000 people. This is 17 times lower as compared to the US though it is less distant from the UN recommendation of 222 per 100,000 population. This creates an overburdened and overworked police force.

Political interference-Right from recruitment of police to all other matters like transfers, promotions, posting, and appointments, politicians hold sway over the system. Active cases are influenced and ‘going easy’ on some suspects or even convicted criminals is a regular practice. Since politicians control transfers, suspension, etc, police personnel end up becoming puppets of politicians that control the system.

Poor police infrastructure and underequipped police forces-Whether it is gear like weaponry and arms and ammunition, protective gear or infrastructure related issues like effective transport vehicles, well equipped offices, good communication and tracking systems, Bharat’s police forces have to make do with shortages and inadequate quality .

Outdated organizational structure-Our police operations are based on the Indian Police Act of 1861! The British had created this legislation after the 1857 mutiny in order to control the ‘unwashed natives’ of the land they had colonized.  There have been few changes in this Act. The Indian Penal Code (IPC) was created in 1860 and even the Criminal Procedure Code of 1973 is based on these archaic set of laws.

Impact of these factors

Low police accountability-Misuse of police authority is common. There seem to be no checks and balances in place which is why custodial deaths are also not too uncommon. Much of this is connected to the police-politician nexus so that cops often go unpunished if they have the right political mentors and contacts.

VIPs over ordinary citizens-Over the years, the function of police has become more VIP-centred and with far less focus on the safety and protection of ordinary citizens. Political control is responsible for this distortion.

Poor conviction rate for crimes-The 2019 figure for conviction rate for crimes under the IPC is 50.4%. This indicates that many culprits go scot free because collecting evidence is not done diligently.

Corruption and under-reporting of crimes-Political connections are known to guide filing or not filing of FIRs and coming up with charge sheets based on FIRs. On one hand is the under-reporting of crimes especially serious crimes, on the other, petty criminals receive severe treatment even for very paltry crimes. Most of the under-trials are petty criminals and even without being proved guilty, they end up remaining in prison for durations that are far more than what they would have to serve if proved guilty.

Poor perception about police by citizens-Owing to the police-politician nexus, the public finds it hard to trust and have confidence in the police. This weakens the effectiveness of the police. The Second Administrative Reforms Commission states that people consider the police as corrupt, incompetent, politically partisan, and unresponsive.

Handling issues based on political considerations-Typically, police report to their political masters in the state government and become tools of state government leaders. Based on electoral calculations, political leaders may make police not take adequate action against rioting mobs as has often been the case. Conversely, political leaders can also make police engage in excessive use of force.

Conclusion

Interestingly, after receiving the 69th rank on rule of law, apex court lawyer Ashwhini Upadhyay petitioned the Supreme Court to set up expert panels to improve this index. The Supreme Court refused to entertain the plea and asked the petitioner to approach the government for taking appropriate action. The court in June 2020 also asked the government to act on the plea within 6 months. Perhaps owing to the Corona situation, no action seems to have been taken so far.

The government must prioritize rule of law and the systematic way to go about this would be to start with reform of the police system.

Featured Image Source: ThePrint.in


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Anuradha
Writer, Editor, Researcher

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