Daily Times

No profession has been so time invariant and change resistant as that of the subcontinent’s police. The ethos of the police has a long dialectical history. Human liberty and a need for security went hand in hand, and this struggle ensured the application of torture.

During British rule, in the period of Clive, zamindars (landowners) were authorised to maintain peace, law and order at their expense. The appointed thanedars (wardens) oppressed and plundered people at will, while in league with dacoits. Then Hasting realised this and issued a proclamation for the dismissal and punishment of such police officers. Thanedars then purchased their appointments at most exorbitant rates at public sales and were subjected to annual exactions for their continuance in office. To indemnify themselves, they, in turn, realised large consideration from dacoits for screening them from justice.

Even today we notice the same pattern of behaviour. Cornwallis decided to take over the police directly and put it in the government’s own hands. He passed a regulation for this purpose on December 7, 1792. The preamble of the resolution was about the collusion that subsisted between robbers and police functionaries.

It was also found that the daroghas (police officers) used to furnish incorrect reports to magistrates. Manipulation of records, concoction of evidence, filing of incorrect statements, production of tutored witnesses and preparation of false documents are seen today. History shows that the malady has a long history in the subcontinent’s administration. Torture by police on the accused was rampant. On September 9, 1854, the Madras government appointed a torture commission to conduct an inquiry into the employment of torture by the police. The torture commission submitted its report on April 16, 1855 and found that torture in police custody in India had a long history. A second law commission was appointed on November 29, 1853, which observed that confessions are frequently extorted or fabricated. Lord Canning then set up a police commission in India and the Indian Police Act was promulgated in 1861.

In 1860, the Indian Penal Code came into existence. Certain penal clauses and safeguards were provided in the Act while having police excesses in mind. The production of the accused before a magistrate within 24 hours after arrest, inquiry against police and to book the wrongdoers in police uniform were some of the features of the Act.

However, under section 41 CrPC, in a cognizable offence the police was invested with the power to arrest anyone if it wanted to do so and they manipulated many cases. A simple hurt could be made an attempt to murder and wrongful confinement, etc, could be put in the FIR at the sweet discretion of the police authorities. In short, they could make a non-cognizable offence into a cognizable one or vice versa under the CrPC. To touch or confine the body of the person arrested was allowed only if the person did not submit himself to custody. The mean and mild both were maltreated at the time of arrest. If the provisions of the Police Act, Indian Penal Code and Criminal Procedure Code are viewed together, the conclusion is inarguable that the criminal administration was sought to be run with brute force and by instilling in the people a fear complex with regard to the police. Under the law every person has a right to be informed of the grounds of his arrest but no one has the courage to ask the police. Although no inducement or threat was to be exercised on the accused for making any disclosure, the investigative capacity of police functionaries was very weak. Hence they used force on people to extract confessions. The police were fairly successful in identifying, detecting and repressing ordinary crimes but were quite unsuccessful in dealing with organised crimes or with cases that were intricate in nature. The First War of Independence in 1857 forced the British to evolve and impose a modern but colonial system of policing. Hence, the first Police Commission of 1860 and the Police Act of 1861 created a semi-literate and brute force recruited from the native population but commanded by imperial officers, discharging the white man’s burden. In the 1920s, the Amritsar massacre and growing financial constraints forced some reconsideration of the role of the army in quelling civil disorder. An armed police reserve was deployed and it was during the Second World War that it was significantly expanded. The police were effectively able to jail or deport undesirables in normal times and they were successful in maintaining the peace in periods of disorder. Thus, whenever they wanted to clear the streets, for instance during the Royal visit of 1911, the police simply jailed those whom they believed were hooligans or of bad character.

Communal riots, political agitation, organisational weaknesses, financial and political constraints and the strategic and operational shortcomings of the police prompted them to use means of repression with growing readiness. If the army was to be used more sparingly, the obvious solution in the early 1920s was to strengthen the police and, in particular, its armed contingent. The prospect of expanding the armed police brought a whole range of problems in its wake. As a distinct police system was separated out from the army and institutionalised, the role that was delineated for it ensured that it never fully escaped its military origins.

There was also selective policing in British India and the colonial state was able to designate criminal tribes and castes. The criminality of criminal tribes and castes was represented as an inheritance and a profession, inextricably connected to their lineage and genealogy. David Arnold in his book Police Power and Colonial Rule rightly observed that the police have been portrayed as the main force of a colonial state, which was both hegemonic and vulnerable, characterised as coercive yet found to be ineffectual, motivated by racism yet restrained by an inherent metropolitan liberalism, allied closely with Indian propertied elites and the bludgeon of the ruling race.

Unfortunately, in the name of continuity and stability, this vaunted administrative ‘steel frame’ was retained by our rulers even after independence and adapted to suit partisan needs. Police torture on accused and citizens was flexed into extrajudicial killings and institutionalised unwittingly so that some day we all would be under the same umbrella of fear and insecurity. Police torture and encounters have become so common that they have ceased to horrify us. What ought to horrify us is that the people are so accustomed to it. Statistics show that the crime rate spiked in those areas where extrajudicial killings took place. The police have to abide by the letter of the law as the quality of governance can be measured by the prevailing standard of law enforcement.

Civil liberty, freedoms and rule of law are most cherished dreams and we would be in a bad way if we won the war against crime but lost our civil liberties. It is better to lose than to win by the sacrifice of an ideal. A fresh start has to be taken leading towards the goal. Abraham Lincoln once said, “I am a slow walker but I never walk backwards.”

The writer is a civil judge