Baron de Montesquieu wrote his groundbreaking book, The Spirit of Laws, during the period of Enlightenment, in 1748. The book holds immense value even today as the theoretical basis of a democracy. In the book, Montesquieu focuses on a property that has been acclaimed as an unquestionable necessity in democracies so as to distinguish them from Fascist or other undemocratic states - the Doctrine of Separation of Powers. Separation of powers, refers to demarcation of functions among several organs of a state - each supreme in their own turf - so as to prevent concentration of political power in the hands of one individual or group. While the theory is traceable to Aristotle, its most comprehensive elaboration is provided by Montesquieu. In modern democracies, separation of power is seen in the three part division of powers between the Executive, Legislature and Judiciary – a system known as trias politica. In India, as in most democracies, the doctrine forms the ‘basic structure’ of the Constitution.
The idea behind separation of powers is to prevent concentration of powers in the hands of one person or a body of persons. This is then complemented by the principle Checks and Balances – embodied most perfectly in the US Constitution – which ensures that each organ zealously guards its turf by preventing encroachment of its powers by the other organs, or an arbitrary exercise of power by any of the organs. The two ideas ensure that there can never be any arbitrary usurpation of powers and a citizen aggrieved by the actions of one organ can seek remedy through another.
It has been almost 70 years since India adopted these principles but one issue that continues to plague Indian social and political life is the use of force by law enforcement authorities – both in terms of proportionality as well as neutrality. More often than not, the rhetoric suggests that police violence tends to be politically motivated.
A previous article in this publication covered the political nature of India’s Police Forces (See Police Accountability in India). The following essay, is a continuum on the same and discusses the importance of a police force, their envisaged role in society (in light of Prakash Singh v Union of India), the legality of their actions and the reality of political dynamics.
India has a Parliamentary form of government where, popular elections yield members of the Lok Sabha (House of People) and the largest grouping therein forms the Executive. As in the United Kingdom, of the 543 members in India’s lower house (650 in UK), a select few form the Council of Ministers with a Prime Minister at the head. A subset of the Council of Ministers is the Cabinet – an informal term used for senior ministers, usually those closest to the Prime Minister. The entire Council of Minister form the Executive branch of the Indian state. Unlike the United States - where Legislature and Executive are independently elected - under the Indian, rather, the British system, the Executive is directly responsible to the Legislature, and members of the Executive must necessarily be members of atleast one of the Houses of the Parliament. In such a system, the separation is not as complete as in the American model. This was also observed by the Supreme Court in the landmark case of Ram Jawya Kapur v. State of Punjab. However, as the court had also noted, this did not abrogate the Doctrine of Separation of Powers under the Indian Constitution. Thus the Legislature is not bound to the will of the Executive, it is infact, the other way around.
The Executive can be further differentiated into two different forms:
The Political or Temporary Executive - elected every few years; and,
The Permanent Executive – comprising of all bureaucrats and other officials who are not elected, and therefore not subject to popular replacement.
The executive has numerous means of coercing obedience to the law. Chief among them are law enforcement agencies such as the Police. The role of the Police in a democracy is primarily to,
1. Maintain law and order through,
a) Preventive action against crimes or other violations of the law, and,
b) Establishment of a rigorous investigative and first response machinery to aid citizens when violations do occur;
2. Aid in relief and rescue efforts in times of emergency.
It would also be necessary to mention that liberal democratic states advocate the civilian control over the police force, i.e., that the police officials remain accountable to the people for their actions through an intricate system of layered executive and legislative oversight.
While constitutionally, law and order – and therefore the police – is placed under the jurisdiction of states, a British era legislation - Police Act of 1861 stands at the summit of police powers in the India. In force even today, the Police Act was formulated after the Mutiny of 1857 to ensure the revolt was never repeat – and it never was. There was no large scale revolt happened in the British controlled forces until 1946, close on the heels of British withdrawal from India. This was because the police was made governed through a hierarchy that culminated in the Home Ministry, absolutely delinked from the Legislature – and only answerable to the minister concerned. These hierarchies are essentially patronage systems - do the minister’s bidding and reap the benefits of promotion or lucrative postings, refuse to do so and prepare for a transfer to the most remote location in the state (sacking civil servants is exceptionally difficult in India as the Constitutional protections are exceptionally strong, but transfers are largely the sole preserve of the Executive).
Needless to say, this has come under intense scrutiny in recent times with demands for rights taking Centre stage. It has been observed that the Act has provided a framework for post-independence legislations as well, such as the Bombay Police Act of 1952. It asserts that the police force has authority above the rest without dealing specifically with accountability, and it fails to, talk about performance standards for force, or ascertain the legitimacy of power being used by officers. Section 23 of the Police Act, 1861 says,
“It shall be the duty of every police officer promptly to obey and execute all orders and warrants lawfully issued to him by any competent authority...”
In order to cater to the changing social, economic and political conditions, the National Police Commission was set up in 1977 in the aftermath of the Emergency of 1975. The committee gave numerous suggestions on curtailing arbitrary action taken by police personnel but none of the State Governments implemented any recommendations. Numerous other committees have since made recommendations, including the National Human Rights Commission, and the Law Commission, among others. The Soli Sorabjee Committee recommended the establishment of a State Bureau of Criminal Investigation under the charge of a Director responsible to the Director General of Police.
In 1998 case, the Supreme Court recommended urgent implementation of the reforms. Later in 2006, in the landmark case of Prakash Singh v Union of India, the SC issued a directive to Central and State Government to implement, among other things, the following:
Constitute a State Security Commission;
Codify the selection process and minimum tenure of the Director General of Police;
Minimum tenure of Inspector General of police and several other officers;
Separation of investigative and law and order functions;
Police Complaints Authority.
In recent times, there have been numerous instances of police violence erupting in different parts of the country. One of the most heinous incident was the Hashimpura Massacre of 1987 in Meerut, UP during the Hindu-Muslim riots. Nineteen armed members of the Provincial Armed Constabulary (PAC) allegedly rounded up 42 Muslim youths and shot them. In his famous paper known as the Institutionalized Riot System (IRS), Paul Brass, a political scientist, talks about how most riots occur are “produced” as part of politically motivated stunts and not mere coincidences. He studied the Hashimpura case in detail and highlighted how the police had a role to play in the happenings – on behalf of their political masters.
In 2018, the question resurfaced in light of various instances, such as the Kathua rape case and the Toothukudi Massacre. In Kathua, a city in Jammu and Kashmir, two out of the 8 accused of protecting the accused were allegedly, policemen. More recently, May 2018, police have been accused of attacking protestors with lethal weapons. The protest were against Sulphur dioxide emissions from a copper plant in the state of Tamil Nadu.
As the protestors were prevented from marching to a local government office, they “toppled vehicles, set dozens of vehicles on fire, hurled stones at the police and vandalized the district collector's office”. As a ‘reaction’, the policemen began to shoot at them mercilessly and killed 10 of them.
Under Section 144 of the Code of Criminal Procedure (CrPC), only a few senior members of the local administration can authorize use of any force on protestors, that too after warnings to the protestors. The principle of proportionality of force is also to be strictly applied. In this case, it was the deputy Tahsildar that had issued this warning – a low level officer not in the list mentioned in CrPC. The legitimacy of the action has thus been questioned and The Madras High Court went on to say that the police often tends to act on their own accord as the administration (executive) protects them.
More worrisome is the fact that there tends to be very little or no proof recorded of any of the actions taken in a step-by-step fashion and so the entire process remains ambiguous.
But there is another side of the story – the plight of police officers, men and women who are working, often in danger and with exceptionally dismal resources and training. They are often treated badly by superiors and receive little or no admiration from the public either – the oblivious attitude makes it difficult to implement meaningful reforms that would improve citizen-police interface, as well as their working conditions. An officer who chose to speak out in the state of Karnataka faced humiliation at the hands of the then Chief Minister, Mr. Siddaramaiah and was subsequently dismissed. With no security of tenure, poor pay, a corrupt bureaucratic system and intrusive Executive, the force cannot be held solely responsible for their actions.
Going back to Montesquieu’s words, it dangerous to let something of this sort dwell in our democracy. It is important to ensure that the police act as a separate entity – not beholden to the most powerful. The dangers of inaction are severe to a democratic system.
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About The Author
Kamya Vishwanath is extremely passionate about her political opinions and reads extensively about the subject. A strong advocate of mental health and combating stigma around the same, she has interned with the Spastics Society of Karnataka and the Center for Law and Policy Research and continues to write passionately about mental illness.