Vol. 5 Num 317 Mon. April 18, 2005  

Only cornering police may not help

Police do not need to be friends of the people, they just should not be people's enemy" was the comment made by a former justice at a recent roundtable titled "Seeking effective remedies: Prevention of arbitrary arrests and freedom from torture and custodial violence". The comment has not raised any eyebrow nor has it evoked any response from the law enforcement personnel who seldom note the disparaging tone and tenor of such remarks. Any discerning observer, however, cannot overlook the adverse implications such dismissive remark may have on our governance scenario. The police as an institution will render itself irrelevant by remaining out of touch with the people. Therefore, comments like the above can help develop a ghetto mentality in our police because they may, with some justification, think that they are at best considered a necessary evil with which the society has to put up. This is definitely not desirable.

Citizen's worry and organisational climate
Experience of most people with the police is not satisfactory and that has to be appreciated to correctly understand the sarcasm behind the above-mentioned remark. The citizens need to know that despite so much of change in the nature of our society and the social philosophy that animates it, no concentrated effort has yet been made to link the police with social growth and development. In our situation, preference for development without the adequate needs of the order has adversely affected the dynamics of development and administration. The need for linking development with order and eliminating the artificial dichotomy between the two has become imperative in the present context. The police have to reconcile the Dilemma of preserving liberty and human rights of the individual on the one had and enforcing laws which aim at preservation of society from the operations of the anti-social elements on the other. The question is: Have we made sufficient arrangements to ensure that the police use their force and authority with utmost restraint and only in unavoidable circumstances? Are there concerted efforts to make the police organisation, a public service-oriented one, instead of an establishment protection agency?

In our situation, an invisible wall of separation is gradually built up around police officers. The police have too closed a mind and lead too isolated an existence to get the right sort of relationship with the public. However, the increasing rate of crime in our country as in other developing countries, has forced our police forces to recognise that they alone are incapable of controlling crime and that they must enlist the cooperation of the community which ultimately help in improving the image of police as a whole.

Changing police work need of the hour
The concept of police work in a democratic state not only includes social justice but also the idea of service to the people. This brings to the forefront of discussion the question of police-public relations. The expanding role of police has brought out the increasing need for public cooperation. The concepts of social legislation and social defense call not merely for enforcement but also for effective propaganda and persuasion. This presupposes the background of cordial relations between the police and the public.

The police under the Act of 1861 was organised as a force to serve the interests of alien rulers. Now they are required to act as agent of law and are viewed as 'citizens in uniform'. Hence, the police in the present context is supposed to be a service. This idea should be spelt out in the Act by suitable modification. The civilian character of the police should also be given statutory recognition. Prevention and detection of crime as detailed in the Act of 1861 should now constitute only a part of the work of police and not the whole of it. The police, apart from being the law enforcement agency should be conceptualised as a welfare institution for the achievement of social justice. Statutory recognition of police as an agency of social change would strengthen the capacity of the police to cope with emerging problems of rapid change reflected in the enactment of social legislation. This would help define and stabilise the service role of the police.

The detective and repressive role of the police has to yield a system of community service, completely changing the concept of penology with more emphasis on eliminating social evils and rehabilitating those forces which pose a danger to the peaceful existence of the society. The need to improve upon the public image of police is that in a democratic state police should be a purposeful regulative mechanism of the government for the purpose of maintaining a peaceful society with the cooperation and goodwill of the public and for upholding the rule of law to ensure security of the people.

The relations between the police and the public are generally far from cordial. A study of the problem shows that most of the important reasons for poor police-public interaction are identifiable and consequently remediable. In this task the police should take the initiative rather than to wait for attitudinal change in the people themselves. The objective should be to disseminate correct information, educate the people and gain their cooperation. There should be no restriction on press-police contact.

Contact should also be established with educational institutions and students' unions. This has to be followed up by humane policing characterised by the use of maximum restraint and minimum force.

Police performance and security commission
We may consider setting up security commission to control the police force and to give broad policy directions. In such a commission we may include public men, jurists, administrators, academicians and social scientists. The Inspector General may act as member-secretary of the commission which will not be connected with administration and postings. Such a model exists in Japan and some other democratic countries where the police forces operate directly under the security commission comprising experienced administrators, academicians and social scientists. In our country where criminalisation of politics is rampant, it is necessary to take safety measures against the police who nurture a close nexus between themselves and the politicians in power. To remove this evil we may think of setting up the aforementioned commission to keep close watch on the performance of police and judge their performance and make it public whenever any wrongful performance is observed.

Remedies to arbitrary arrest, torture, custodial violence
In addition to existing legal and departmental remedies, our courts can enforce the right to monetary compensation by way of awarding exemplary costs when arbitrary arrests, torture and custodial violence are proved. In appropriate cases the courts have the jurisdiction to compensate the victim by awarding suitable monetary compensation. The appropriate cases may be those where the infringement is patent and incontrovertible, the violation is gross and glaring and magnitude is such as to shock the Court. The Court normally holds the government as vicariously liable to pay compensation but it may additionally, in order to create a deterrent effect, direct for recovery of the compensation awarded to the victim directly from the delinquent police officers.

Persons on whom atrocities are perpetrated by the police in the sanctum sanctorum of the police station are usually left without any evidence to prove who the offenders are. In such a situation, the law as to the burden of proof in such cases may be re-examined by the legislature so that custodians of law do not use their authority and opportunities for oppressing the innocent citizens who look to them for protection. The medical officer must also correctly pronounce on the nature of injuries to differentiate the deliberate from the accidental. The social control in the form of approval or disapproval of police action can also motivate the police to become just, fair and law abiding. If society firmly refuses to condone policemen's unfair and illegal methods, such transgressions would gradually decrease.

Since most of the torture for extorting a confession takes place after getting the accused on police remand, it may be discussed whether it would be desirable to do away with the present practice of remanding the accused to the custody of the investigating officer under section 167 cr.pc after his initial production in Court. Abolition of remand may hamper investigation of cases or stand in the way of bringing offenders to book. In cases where the accused has already furnished some clues which call for further interrogation of the accused or which require further clarification by him, a denial of police remand would mean a denial of opportunity to complete the investigation. However, by a suitable amendment of the law the magistrate could be empowered to grant the investigating officer a further opportunity to examine the accused in jail custody. As a result of such further examination the accused may make statements which may be recorded judicially. At the same time, it should be considered whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be callously allowed to escape.

The prescription
Many of our civic problems cannot be adequately solved by concerned authorities but that should not lead us to sever all communication with such authorities. In the same vein it may be said that the physicians cannot be advised to sit tight because the bodily afflictions of many could not be treated satisfactorily or that the judiciary should not activate itself because all the litigant public have not received proper justice. Similarly, asking police to refrain from making friendly gesture would not be a healthy piece of advice in greater public interest. We must not be unaware of the accusing finger pointed towards the corrective institutions of our society for their failure to rise to the occasion. There is perhaps an urgent need to monitor the role of all agencies within the criminal justice system, including the judiciary, by an appropriate authority under the constitution so that no agency can claim any immunity from accountability.

Finally, it is time the police forces got what is deservedly theirs. Keeping them equated with unskilled labour is untenable, if not ludicrous. Their pay should commensurate with the phenomenal workload that they are enjoined to grapple with. The dehumanisation process of police cannot be substantially halted if police modernisation schemes remain an area of low priority. While misdeeds of the police should be duly exposed, the 'Pavlovian reflex' to malign the police at the slightest chance should be scrupulously avoided. Any attempt in our context to push 'human rights' to an extreme will only amount to granting a carte blanche to criminal and anti-social elements who will then use it to bring preemptive pressure on the police to evade interrogation and arrest. It is only when policing and police are elevated to a pedestal of well-deserved priority in our national planning and necessary training and orientation is imparted to the rank and file that aberrations in police behaviour can be progressively lessened.

Muhammad Nurul Huda is Former Inspector General of Police and Secretary to the Government.