New Delhi: In 2006, the Supreme Court set out guidelines to address the susceptibility of the Indian police to political pressures, which weakened their command structure and discipline and left them particularly susceptible to excesses and corruption.
The Court ruling, known as the Prakash Singh Case, ordered states to set up Police Establishment Boards (PEBs), comprising the director general of police (DGP) and four senior officers, for transfers, postings, promotions and service matters, such as reinstatements of officers up to the rank of deputy superintendents of police. State governments were allowed to interfere with the decisions only in “exceptional cases” and after duly recording reasons.
If Maharashtra had followed the law, as laid down by the Supreme Court, it would not have been able to reinstate in 2020 assistant police inspector Sachin Vaze, a controversial “encounter specialist”—shorthand for officers who specialise in extrajudicial killings or firefights—at the centre of the most recent showcase of criminal police excess.
Another 2006 Supreme Court guideline, if it were to be followed, would ensure greater police autonomy. The Court ordered the establishment of State Security Commissions (SSCs), comprising the leader of the opposition, judges and independent members, to ensure autonomy and operational independence.
Only 13 states have SSCs, with loopholes; five states do not include the leader of the opposition and four states do not have an independent member. Only two states (Kerala and Himachal Pradesh) make the recommendations of the SSC binding on the government, according to the Status of Policing in India Report 2018 (SPIR) by Common Cause and the Centre for the Study of Developing Societies (CSDS), an advocacy group and a think tank respectively.
A recent study monitoring state compliance of the court order, the Commonwealth Human Rights Initiative (CHRI Assessment 2020), shows that Maharashtra follows very few of the Supreme Court’s guidelines in letter and spirit.
All states of India are guilty of contempt of court in violating the Supreme Court’s rulings on police reforms. The Court itself appears helpless in enforcing its rulings, while the lack of police autonomy translates into the lack of professionalism and corruption.
It is not by chance that the police in India are regarded among the most corrupt in the world; 42% of people who had any contact with the police had to pay a bribe, according to Transparency International’s Asia 2020 report. The SPIR 2018 showed that minorities, other backward castes and the poor are most likely to have paid bribes to the police.
The Fire In Mumbai
Every time the police in India violate their constitutional and professional limits, it is time to reflect on a particular national pastime; a decades-old talkfest around police reforms.
The violation this time is an alleged extortion racket and a murder, involving Mumbai’s police commissioner, Maharashtra’s home minister, and Vaze, arrested in the same case that he was investigating.
The officer’s order was to extort Rs 100 crore per month on behalf of the Minister, if we are to believe the Commissioner, who spoke up only after his marching orders were issued. The minister was heading a police force that was investigating the case against him, until he had to resign when the Bombay High Court handed it over to the Central Bureau of Investigation (CBI).
Parallel probes have been assigned to the National Intelligence Agency (NIA), Maharashtra’s Anti-Terrorism Squad, the CBI, and a retired High Court judge.
At least one agency, the NIA, entered by “subterfuge” to pressurise the state government, to quote Julio Ribeiro, a former Mumbai police commissioner, former Punjab DGP, former ambassador and one of India’s most respected police officers.
The Unanswered Questions
But the inquiries are unlikely to answer some of the most vital questions: Can extrajudicial murders be the state policy? Does the system nurture rogue officers? Who should be held accountable for questionable postings, transfers, and reinstatements? Can police forces work as private armies and extortion gangs of politicians in power?
Before we analyse the systemic issues, let us recap the rough sequence of Mumbai’s events. An SUV was found parked near industrialist Mukesh Ambani’s mansion with explosives and a threat letter. The owner, Mansukh Hiran, once loaned the SUV to the officer, assistant inspector Sachin Vaze (reinstated in 2020 after a 16-year suspension), but it was stolen, for which an FIR was filed with Vaze’s help.
Six days later, the Mumbai police announced that an officer of the rank of an assistant commissioner of police (ACP) of the Crime Branch would head the investigation in the matter of the recovery of explosives. The case, for some reason, was assigned to Vaze, an assistant inspector three ranks below ACP.
In a few days, Hiran’s body was found floating in a creek and the police initially registered a case of accidental death. It was later converted into a case of murder on the complaint of Hiran’s wife, Vimla. In an FIR filed by the Maharashtra ATS, Vimla accused Vaze of killing her husband. Vaze was later arrested when he was suspected to have been in another vehicle, caught on CCTV cameras following the SUV.
In the middle of all this, Mumbai’s Police Commissioner Param Bir Singh was transferred to a less-significant post. He alleged that the home minister, Anil Deshmukh, ordered the police to extort Rs 100 crore per month from Mumbai’s businesses, including its nightclubs and dance bars.
Singh also accused Deshmukh of taking bribes for transfers and promotions in the police. The Bombay High Court later reproached Singh for not filing an FIR despite being aware of the offences.
It is certain that the matter will now be decided in the courts, most probably on technical grounds rather than on substantive issues.
The Latest In A List Of Police Excesses
The last time we reflected so exhaustively on police reforms was in June 2020 when in Thoothukudi, Tamil Nadu, a 59-year-old shopkeeper P Jayraj and his 31-year-old son J Bennicks were killed in custody.
The father was arrested for keeping his mobile accessory shop open beyond the Covid-19 lockdown hours, an offence which, if proven, would have got him a few weeks in jail. The son was allegedly tortured when he came to the police station to enquire after his father. Media reports say both of them were made to clean their own blood before they collapsed.
When the duo was finally produced before the local judicial magistrate (who resides in a first-floor flat) , he ordered remand from his balcony, without even seeing the two "accused”, who were held at the gate outside in blood-soaked clothes.
The magistrate, who had just joined judicial service, also wrote in his remand report that there were "no complaints" from the accused. It was made to appear that a medical certificate produced (or procured) from a local hospital certified that they were fit and had no medical complaints.
The Madras High Court (Madurai Bench) ordered, suo motu, a magisterial inquiry, thanks to a public outcry. A magisterial inquiry under section 176 (1A) of the Code of Criminal Procedure (CrPC) ended in a fiasco when the police, according to the magistrate, “adopted a threatening tone”. One constable even told the magistrate: "Unnaal onnum pudungamudiyaadu (you cannot do anything here).”
After a compensation of Rs 20 lakh from the state government, business appears to be back to normal in Tamil Nadu. Several police officials have been facing suspension and arrests in the case.
Two other incidents sparked outrage and discussions on police reforms in December 2019 and July 2020.
In the first case, the police in Hyderabad, Telangana, gunned down four suspects for the gang rape and murder of a young female vet. The officers involved were feted and garlanded, and the case is currently as good as closed.
In the other case, the Uttar Pradesh police shot a criminal when he was being shifted from MP after surrendering publicly. Five of his aides were also shot in similar actions, considered part of UP Chief Minister Yogi Adityanath’s policy to shoot down (thok-do) criminals. This prompted a statement on 59 fake encounters from the United Nation’s Human Rights High Commissioner, though the actual figure of encounter killings under Yogi is much higher.
Obviously, Maharashtra is not an exception to India’s encounter culture.
Torture, Execution As State Quasi-Policy
Extrajudicial killings are well-established as state quasi-policy defended by governments across the country (here and here).
While the Vaze drama unfolded in Mumbai, the Gujarat government refused sanction to prosecute three police officers involved in an alleged fake encounter case in 2004. The sanction was required to prosecute government servants under section 197 of the Code of Criminal Procedure, 1973.
The Court conceded that the encounters, once considered fake, were part of the officers’ duty. Nothing on record suggested that the victims were not terrorists, the judge observed, noting Intelligence Bureau inputs. No proof was considered obligatory to establish if the officers had acted in self-defence or if they had tried to arrest the suspects before shooting them down.
Many in the police have now come to believe it is their duty to torture or execute. The Status of Policing in India Report 2019 by Common Cause and CSDS shows that around one in five policemen and women support the idea that killing a dangerous criminal is better than a legal trial.
A vast majority of police (75%) believe it is justified for the police to be violent towards criminals and 83%, said there is nothing wrong with policemen beating (read torturing) criminals.
Custodial deaths are nothing but torture gone wrong. India has signed the UN Convention against Torture in 1997 but has not ratified it despite voicing repeated commitments (here and here).
At least a major part of Sachin Vaze’s activities must be seen as state-sponsored actions of an “encounter specialist.” He was a member of the famous “encounter” squad of Mumbai Police, whose job is to reduce serious crimes by short-circuiting the legal system.
Vaze was suspended in 2004 when a particular extrajudicial killing could not be hushed up. His own shooting score is, perhaps, modest compared to 56 executions in Bollywood blockbuster Ab Tak Chhappan (Up till now, 56), based on the real-life story of another encounter specialist.
A cult movie inspired many more films and a video game, Fatal Encounters, in which players chase and shoot gangsters. The video game is promoted by Times Internet, the digital arm of the Times Group, India’s largest and most profitable media company. A character in Rege, a 2014 Marathi film, is believed to have been named after Vaze.
Vaze was reinstated after 16 years, apparently with the blessings of Singh, the former police commissioner, with whom he has now fallen out, and the ruling party, the Shiv Sena, which he had once joined.
It did not matter to the government that Vaze, a junior officer, had a fleet of super-luxury cars and was seen operating out of suites in five-star hotels. Ribeiro described his reinstatement “against all norms of decency, morality and jurisprudence because he was expected to collect funds”.
The Link Between The Police And Politics
It is common for the police all over India, and not just in Maharashtra, to go out of the way to help in fund-collection drives of ruling parties or raid rivals.
An analysis of statements filed by Maharashtra’s ministers shows that 64% of them in chief minister Uddhav Thakeray’s cabinet face criminal charges and 43% of them serious ones, such as rapes, murders, kidnappings etc, according to this report on the antecedents of Maharashtra’s Cabinet from the Association for Democratic Reforms (ADR), an advocacy group.
Almost all (98%) of Thackeray’s ministers are crorepatis (billionaires). The role of money and muscle power is set to increase further, especially as the Supreme Court in 2011 refused to stop those with criminal records from fighting elections while disposing of a writ petition seeking to combat criminalisation of politics on the plea that the decision belongs to the legislative domain. In March 2021, the Supreme Court also refused to stay the sale of electoral bonds, ahead of assembly elections, a ruling that has undermined the integrity of Indian elections.
As for matters of everyday policing, we are debating issues that are already settled and part of the law.
Politicians Cannot Be Blamed For Every Excess
The Supreme Court’s guidelines, if followed, strengthen the hands of honest officers by providing buffers between the police and the elected leadership.
They work as safeguards against more meddling and the culture of bootlicking so common in India. The IPS officers in UP who showered flower petals on kanwaria pilgrims from a government helicopter in 2018 were wasting public money only to gratify an overtly religious chief minister, who has revealed every inclination to bypass or misuse the law.
Between 2018 and 2020, Yogi Adityanath’s district magistrates in 32 districts invoked the National Security Act (NSA), 1980, for completely unrelated crimes, such as alleged cow slaughter, got a setback when the Allahabad High Court quashed 94 such orders. Despite court censure, there is no evidence to suggest that the officers will not do it again.
While the political pressures are real, politicians cannot be blamed for all acts of extra-judicial and prejudicial policing.
Can one blame political pressure for criminal actions that include brutalising migrant workers and small traders or for hastily cremating the body of a rape victim against the wishes of her family, as we saw in UP’s Hathras district in October 2020?
In Vaze’s case, the murder of the SUV owner, just like many victims of his other encounters, may not be the result of political pressure. In all likelihood, the events of Mumbai will blow over, as similar events have.
These instances reveal how the police in India are, often, not just given to untrammelled brutality, but some have become little more than an organised force of criminals in uniform.
Efficient Police Require More Than Reform
Several commissions and reports (here, here and here) have suggested systemic steps to rein in their arbitrariness and abuse of authority.
The Indian Police Foundation, a think tank of former officers working closely with the establishment, has suggested a range of internal police reforms to set benchmarks for ethical conduct.
Indeed, an efficient and accountable police will require much more than discussions on police reforms. To begin with, India needs regular oversight, scientific training, sensitisation and a system of punishment to discourage violations of the law.
This will not be possible without public pressure and strong institutions, such as the judiciary, parliament and civil society. But policing will not improve by police reforms alone. India also needs electoral reforms, a strong Lokpal and a whistleblower-protection mechanism across all systems of governance, including the police.
(A former editor with Hindustan Times, Vipul Mudgal heads Common Cause and is a Trustee of the Association for Democratic Reforms.)