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#India – When law-enforcers tread the unlawful path


It’s a dangerous scenario when those meant to uphold the law choose illegal methods to control crime or punish its perpetrators. At risk are innocent victims who stand no chance against such organised brutality, the argument of serving a national ‘cause’ notwithstanding.
Rohit Choudhary

THE filing of chargesheet by the CBI in the Ishrat case, implicating several police officers, brings to focus the issue of extrajudicial killings by the . A recent UN report on extrajudicial, summary or arbitrary executions claimed that 109 civilian deaths occurred in due to police firing in 2011. Most of such deaths occurred when the security forces took up “riot control, anti-extremism and anti-terrorist activities”.

Proxy war

In policing, a serious role conflict always exists — as one between the ideals of crime control versus the ideals of due process. There are many limitations in our criminal justice system which hampers the efficient and effective functioning of the Indian police.

The Ishrat Jahan case has brought back into focus the issue of extrajudicial killings
The Ishrat Jahan case has brought back into focus the issue of extrajudicial killings.

Besides, there prevails an attitude in society, which primarily judges the effectiveness of policing on the achievement of goals, and there is a performance culture judged on its outcomes. To add to the complexity of the situation is the new dimension of “across the border” sponsored terrorism fought with the commitment of jihad, backed by the ISI of Pakistan. This proxy war has to be fought by the security forces in India with their hands tied back, following police rules and criminal procedures meant primarily to deal with general crime.

This gives rise to what is now termed as the “noble cause corruption” in the police. It is defined as corruption committed in the name of good ends to benefit society at large, in order to get the bad guys off the streets. It is the corruption of police power, when officers do bad things because they believe the outcomes will be good.

They rationalise that such behaviour is part of the job description, in a utilitarian sense, to get the criminals off the streets, regardless of the means. Examples of noble cause corruption are extrajudicial killings, planting or fabricating evidence, lying on reports or in court, and generally abusing police authority to make a charge stick. This subcultural value system rationalises constitutional rights violations and often leads the police to resort to extrajudicial methods.

Fragile public support

While the whole concept of justification of the use of extrajudicial methods is based on what is being perceived as good for the largest number, the role and support of public opinion is a very important pillar here. But public support in itself is very elusive and difficult to quantify. It may be there today, but not tomorrow — there is also no explicit contract or demand. Any activity that may have legal implications must not be indulged in, with only public opinion to support. It would not be judicious to tread such a path which may land the practitioners into serious trouble in their career.

The public is also awakening to the fact that the difference between a totalitarian state and a democratic one upholding principles of personal liberty does not lie in the laws, but in the manner in which these are applied. Fake encounters, illegal detentions, fabrication of evidence, planting of false cases and withholding from the suspects the right of the due process of law is bringing considerable criticism to the police from the courts and public alike. For a police officer, an equally important duty (besides ensuring that the guilty are punished) is the duty to see that the persons suspected of the crimes are not deprived of their constitutional rights.

In their enthusiasm to secure the conviction of a suspect, very often police officers forget the importance of their obligations as guardians of personal liberty.

Though their intentions may be bona fide, for a cause like national security, they may find themselves being prosecuted for their acts. As on October 12, 2006, 462 police officers were facing criminal writs, trials and investigations for allegations of acts of omission or commission during terrorism in Punjab. Writs faced by officers included two ADGPs, three IGs, two DIGs and 12 SPs. Court trials were under way in CBI cases against 20 SPs, 21 DSPs, 57 Inspectors, 52 Sub-Inspectors, 53 ASIs, 42 Head Constables and 51 constables for this period.

Back to barracks

There is great danger in allowing policemen to decide what are the situations where they would resort to the use of illegal methods. The police force that has taken to the path of extrajudicial methods of functioning would find it difficult to confine the use of such methods in only justifiable and limited cases. The control of the superior supervisory officers becomes weak when they start overlooking the transgressions. The ill-effects of police brutality and use of other illegal methods in policing do not remain limited. The Mollen Commission, set up to investigate corruption in New York in the 1990s, argues that the use of excessive force may be a rite of passage into the police subculture and the beginning of “the slippery slope” that leads toward other forms of police misconduct. Once the line is crossed without consequences, it is easier to abuse their authority in other ways, including corruption. This happened with some officers of the Mumbai police, who were hailed as “encounter specialists”, but were later arrested and suspended from service for being in cahoots with the underworld they had pledged to eliminate, and for amassing huge wealth.

Miscarriage of justice

Policemen may form a premature opinion in a case and investigation carried out with a predetermined mind is likely to ignore many evidences that may prove the innocence of the accused. And when there is little evidence to conclusively prove the guilt, other set of consequential illegal actions follow, such as the use of to get confession, planting of evidence and illegal confinement. Many times, miscarriage of justice has resulted in these kind of investigations. In September 2000, the CBI filled a chargesheet in the Pathribal “fake” encounter case against five Army officers, including a Brigadier and a Colonel. They were accused of acts punishable under Sections 120(b), 364, 307, 302 and 201, IPC, after the slain were conclusively proved innocent civilians.

Getting to the truth

The drafting committee of the National Criminal Justice System Policy, headed by Prof NR Madhavanan, has recommended various measures for effective management of not only the traditional forensic science requirements, but also to overhaul science and technology needs of the criminal justice system to raise the levels of capability and sophistication.

Narco analysis during the past was only used by psychiatrists to find out psychological truth. The revelations made during the analysis were found to be very useful in cracking sensational cases like the Mumbai train blasts, and blasts in Delhi and Malegoan.

The narco analysis technique has thus not only revolutionised the causes of crime investigation, but also has led various courts to redefine the very scope of the constitutional provisions vest under clause 3 of Article 20 (3)10 to 16 and Article 21.

Brain-mapping technology scientifically detects the record of crime stored in the brain and the test represents a new paradigm in law enforcement. Increased understanding of neurosciences will contribute significantly towards piecing together the crime pattern stored in the brain. The recent amendments [2005] made to Section 53 of the CrPC, apart from others, is positive and proactive towards the recognition of the importance of scientific tests, including narco analysis amd brain mapping.

The stakeholders

While in cases of extreme crime like terrorism, extrajudicial killings may appear to be an effective deterrent — especially considering the instances of retaliatory kidnappings and hijacking to secure the release of arrested terrorists, and in majority of cases where terrorists escape conviction due to lack of evidence and no witnesses — resorting to extrajudicial methods as a means to control crime has its pitfalls as it takes away the checks and balances in the system and also does not account for plausible mistakes. The system also becomes extremely vulnerable to unscrupulous elements within the law enforcement community, who can bring about untold damage to society.

Moreover, even in terrorist crimes, the use of extrajudicial methods delays the operation of appropriate channels and the debate to evolve new methods due to such ad hoc reactions providing temporary respite. In the end, in place of getting a legislation to tackle the problem at hand, more often it has been the enactment of restrictive legislation — at times, arrests of some committed, indiscreet and overzealous officers and the development of adverse public opinion for police. Therefore, no police action can be justified in the use of extrajudicial methods.

The real remedy lies in the amendment to laws, rules and procedures to bring them in sync with the times, as strongly recommended by the National Police Commission; and a dynamic national counter-terrorism policy framework to meet the challenge posed by terrorist strikes.

‘Noble’ corruption

In police circles, it is defined as corruption committed in the name of good ends to benefit society at large and get the bad guys off the streets.

It is the corruption of police power, when officers do bad things because they believe the outcomes will be good. They rationalise that such behaviour is part of the job description, in a utilitarian sense, to ensure criminals don’t escape the system, regardless of the means.

Examples of ‘noble cause corruption’ are extrajudicial killings, planting or fabricating evidence, lying on reports or in court, and abusing police authority to make a charge stick.

The pitfalls

This subcultural value system rationalises constitutional rights violations and often leads the police to resort to extrajudicial methods.

— The writer is an IG in Punjab. The article appeared in The Tribune

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