Tuesday, 11 August 2020

The Indian Police Act About To Turn 151

Updated: January 21, 2012 2:40 pm

The modern Indian Police completed 150 years of its existence on 22 March 2011; 150 years ago on this day the Indian Police Act (IPA) was passed by the British Parliament. The Act has been in the eye of storm since the National Police Commission report submitted its report in 1980. Yet, its 150th anniversary passed without a notice, or discussion. Indeed, ever since the discourse on police reforms entered public fora in the country, more particularly in the aftermath of Indira Gandhi’s national emergency (June 1975-March 1977) that witnessed a highpoint of political misuse of the police, the Act has been held as the villain of the piece for all the ills of the Indian police. On the positive side, the IPA 1860 has kept the much condemned and reviled Indian police going and providing a semblance of order in the country. Obviously, the Act deserves a fair critique and introspection at this juncture, more particularly since there is no sign of its being replaced sooner despite a draft prepared by the Soli Sorabjee Committee in 2006.

The Context

The coming of this Act in 1861 can be seen from the perspective of the colonial power looking for a non-military civil force to keep the Raj intact. Though the British attempted to ‘modernize’, ‘change’ and ‘reform’ policing and police in India in accordance with their needs since they got diwani of the Bengal in 1765, these efforts were generally improvements in the existing policing systems in different parts of the country. That obviously underlines that there were indigenous police systems across the country being run by the local rulers before the British began adapting them to their colonial needs; thus the people were seldom factored in as the systems transcended from feudal to colonial.

Charles Napier’s attempt in Sind to model the police on the Royal Irish Constabulary (RIC) after he conquered the province in 1843 heralded the first colonial modernisation of the police system in British India. The RIC was organised in Ireland in 1822 on the model of European Gendarmerie and lasted for a century. The Gendarmerie was designed to carry the writ of the state to the rural areas. It spread to continental Europe from France in the wake of the Revolutionary and Napoleonic armies. Obviously, at the time of the British conquest the situation in Sind demanded measures similar to France and continental Europe. In the Indian case it was obviously the first organised effort to raise a police force.

The revolt of 1857 not only resulted in Queen-in-Parliament taking over the reigns from the East India Company, but also one of the first major changes in administration by bringing in the Indian Police Act in 1861 on the recommendations of the Indian Police Commission 1860. The RIC model was retained as a regimented semi-military organisational model. Obviously, the Army would be kept free from day-to-day maintenance of ‘order’, even from minor rebellion, which was handed over to the police. The IPA was supplemented a year later with Criminal Procedure Code (Cr.PC) and a decade later with Indian Evidence Act (IEA) 1872. The designing of the Criminal Justice System was thus complete. A century and a half hence, the police in India continue to be modeled on the RIC and governed through the same criminal justice system, the Cr.PC was amended in 1973 though.

Prior to the Act

Lord Cornwallis introduced systemic police reforms in Bengal so that ‘the people will feel confident of obtaining justice’ (India, 1970:1). However, the Cornwallis system was not introduced in Madras for the prevailing system of policing through the landlords (zamindars) was found to be better and the Police Committee set up by Bentinck in 1805 had opined that a Thanadari Police would subject the Government to enormous expenditure. Various permutations and combinations of the thanadari system as well as of the collector, magistrate and superintendence of police attempted in presidencies in the first half of the nineteenth century also were attempts at police reforms, of course, as Marquess of Hastings reasoned in 1815 for declining to comply with the Court of Directors of the East India Company’s orders to change the thanadari system because it was too expensive, ‘to give weight to the authority of Government and its officers’.

When the East India Company adopted the RIC model in Sind on the initiative of Charles Napier, it aimed at introducing policing where none existed. In recommending ‘a close constant, and vigorous control’ over the police the Lt. Governor of Bengal reiterated that ‘Police reforms in India at least, is a word of large signification and extends to our criminal judicatories as well as to the magistracy and the constabulary organization. At present our criminal judicatories stand in need of much amendments….’ Obviously, during this period, and perhaps later too, the British attempted their own balance by creating and reforming police structures to secure the Company against the rebellion by the ‘natives’, assert its authority and maintain public order for trouble free conduct of the company’s business, rather than safety of the people at large. The IPA 1861 was an extension of this model.

The Act

Constituted under extraordinary circumstances, the Police Commission of 1860 was given the responsibility to create a civil constabulary under the civil executive government and keep an eye on economy and efficiency. Obviously, while the government did not want the cost to rise, it expected an efficient police administration, which was unarmed and sufficiently demilitarized. The Commission, thus, created ‘… a Civil Constabulary so organized as to preserve internal tranquility in the country under all ordinary circumstances, to keep the peace, to protect life and property, to prevent and detect crime….’ They also ‘arranged for this force being in all respects subordinate in the hands of the Magistrate for the prevention and detection of crime, and under his control for the criminal administration of the District.’ The revolt of 1857 had thus enjoined the British to bring police reforms from three perspectives: a) creation of a civil police force (quite distinct from the Military Force and capable of discharging all Civil duties whatever, with vigour and effect, and requiring no aid whatever from any Military or semi-Military body), fully under the civilian control – in their covering letter the Police Commission said, ‘From paras. 4 to 7, inclusive, of Her Majesty’s Government Despatch, we clearly gather that the civil element in the Police should at least predominate. It is evident indeed that this condition is regarded by Her Majesty’s Government as essential.’; b) to be put at the disposal of the Magistrates; and c) economy. The fear of another military revolt in case the military is used for civilian law and order duties which increase their interaction with the public is very clear in the proposals. The Commission said, ‘Indeed, the effectual separation of Military from Civil duties is a matter which the authorities, both Civil and Military, concur with considering as one of primary importances; and which we have laid down as the basis of our Propositions.’.

However, the ambivalence of the British government was clearly visible on two counts. First, they may have felt compelled to design an unarmed civil constabulary after the events of 1857, but regimentation will continued to be the distinguishing characteristics of the new police. The Superintendents of Police to be appointed in districts were recruited from an inferior class of persons as compared to the covenanted class which constituted revenue and judicial services. Of course, economy was a prime consideration still, but equally important was that military officials could be drawn to create better command structure in the police. Obviously, the police were to have a semi-military structure. Second, despite inconclusive debate on combining revenue, executive and judicial functions in one office, this was a mandate to the Police Commission and the police in district was made subordinate to the Collector-District Magistrate. As J. F. Stephen, a legal expert commented in 1871, ‘… the object in view… is to obtain as good a system for the administration of justice as is consistent with the maintenance of the British power in India….’

In 1902 the second Police Commission headed by Sir Andrew Fraser, which also had two Indian members, was appointed; apparently to review the police system as the Raj consolidated by the turn of the century. It opined that the 1860 system had failed to meet the expectations of the Government and the people alike because it had underestimated the importance of police work in India and organisational anomalies and inadequacies had continued. It said: There can be no doubt that the police force throughout the country is in a most unsatisfactory condition, that abuses are common everywhere, that this involves great injury to the people and discredit to the Government, and radical reforms are urgently necessary. These reforms will cost much; because the department has hitherto been starved; but they must be effected.

Corruption, brutality, inadequacy of training to the thana-level officials, sorry state of the constabulary, weak supervision and above all inadequacy of funding were identified by the Commission as the weaknesses characterising the Indian police. But the Fraser Commission offered suggestions only on the operative part of the police organisation. It did not say anything on the Act. Only controversial aspect in institutional terms was magisterial control over the police. Though it was not in the TOR of the Commission, it endorsed it. Since this continues to be a bone of contention in administrative relations, it is a good point of departure. Though not stated in the Act, the socio-economic composition of the police and the reluctance of the British government to enhance their budget for policing, this appeared to be a good legal check on the police.

The IPA 1860 had put the responsibility of police on Provinces, presumably under the notion that in a vast country such as India it was not possible to have one centralised police force. At the same time, the leadership of the police was given to an all-India cadre of the Imperial Police (IP) officers. Though allotted to states, they brought a sense of uniformity. This administrative principle has been adopted in independent India too. The Constitution of India has put the police as state subject and a new rationale was discovered for the all-India services after independence.

Indeed, framed 150 years ago under a colonial regime, the IPA does contain elements that could be termed colonial. The most obvious lacuna was pointed out by the Dharma Vira Commission. It said:

This position is very clearly reflected in the manner in which police role, duties, powers and responsibilities have been spelt out in the Police Act of 1861. According to Section 23 of that Act, police are required to—

(1)  prevent the commission of offences and public nuisances;

(1)  detect and bring offenders to justice;

(2)  apprehend all persons whom the police are legally authorised to apprehend;

(3)  collect and communicate intelligence affecting the public peace ;

(4)  obey and execute all orders and warrants lawfully issued to them by any competent authority;

(5)  take charge of unclaimed property and furnish an inventory thereof to the Magistrate of the District, and be guided by his orders regarding their disposal;

(6)  keep order on the public roads, thoroughfares, ghats, landing places and at all other places of public resort; and

(7)  prevent obstructions on the occasions of assemblies and processions on the public roads.

Clearly, as the National Police Commission 1980 pointed out, subservience was to the Executive, not to the law; a police person was to blindly follow the executive order without checking on the law. This indeed is against democratic principles and deserves to be changed.

Yet, if we look at the Indian police today, many of the anomalies are not due to the IPA 1861. Many of them could have attended without changing the Act.

By Ajay K Mehra

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