Common Cause and Lokniti Programme of the Centre for the Study of Developing Societies (CSDS), launched India’s first Status of Policing in India Report (SPIR 2018) at the India Habitat Centre on May 9.Read More+
THE DISADVANTAGED SECTIONS AND THE POLICE
- Ajay K. Mehra*
...In discussing the demands of social justice today, the priority of critical reasoning cannot but be central. But how do we analyse these demands? In probing the idea of social justice, it is important, I would argue, to distinguish between an arrangement-focused view of justice, and a realisation-focused understanding of justice. Sometimes justice is conceptualised in terms of certain organisational arrangements (?) some institutions, some regulations, some behavioural rules (?) the active presence of which indicates that justice is being done. The question to ask here is whether the demands of justice must be only about getting the institutions and rules right?
Excerpted from Amartya Sen’s Hiren Mukherjee lecture in the Lok Sabha, organised by the Speaker, August 12, 2008.
I take the liberty to change the title from ‘Effective Policing for the Disadvantaged Sections’ to ‘The Disadvantaged Sections and the Police’, because ‘policing’ effective or ineffective could be exercised by a non-police body as well and the administrative technicalities and dominance structures of society could blur, if not erase, the line between policing ‘for’ and policing ‘of’. In fact, in several respects this has been happening in India. Further, police is an institution of the state entrusted with the responsibility of policing aimed at basic human security. Thus, the truism that police is an institution and policing its method of work deserves outlining in any discourse on policing in a democratic context. Naturally, the policing methods are expected to change, apart from other things, with the nature of state. Obviously, keeping in view the nature of the Indian state as stated and elaborated in the Constitution of India, the police – their role and functions – are institutionalised.
I am stating this because the objective inherent in this discussion would be achieved if we succeed in situating the police, its role and functions, in a diverse democratizing society and constitutionally ordained democratic polity. The disadvantages inherent in as well as generated by social, economic and political processes present another set of challenges for the structures of governance. The paradoxes intrinsic in the legal-constitutional structure and a traditional but modernizing social structure create a competitive political culture and environment that bring in frictions which spill over from the public order pail, bringing in police and policing in various roles. The police and state roles become contentious both politically and socially and raise valid and pertinent questions with regard to the legality of police action, and in a larger context, of the police role.
In his lecture quoted above, Amartya Sen, among the most noted public intellectual of recent times, questions the way the governments generally and in our country particularly deals with issues related to ‘social justice’. This is the issue we are problematizing and looking for a solution in this seminar. It is indeed pertinent to ask whether institutions (the police and judiciary in this case) and laws (we do not lack them) enough? If they are not, where does the crux of the problem lie and how do we find an effective and workable solution.
In this brief analysis, I shall broadly define the disadvantaged sections of society, look at the legal protection provided to them and critique the role of the police and their policing methods. My basic premise is drawn from by now overstated fact that the Indian police and their policing methods rest on outdated and creaking structure, which deserves immediate overhaul. The dated institutional structure and their obsolete methods interact with and react to traditional values, producing aberrations.
Sections Advantaged and Disadvantaged
While defining disadvantaged sections in a society, we implicitly admit that the society has an advantaged section too. This is critical in analysing as well as determining the police role in providing security to the disadvantaged in society. For, we are looking at police role that caters to two divergent sections of the society, which is structurally partisan and tilted for and against the society’s socio-economic divide. Obviously, this tilt is not constitutionally, and therefore legally, ordained. Without debating the question of police tilt in favour of the advantaged, and thus attempting to define the advantaged, I will attempt to list the disadvantaged and then attempt to see police role.
Since independence, democratization and republicanization of India with an avid aim of welfarism with a socialist incline followed centuries of feudalism and two centuries of colonialismfeudalism, leaving a legacy of engrained structure of socio-economic inequality not witnessed anywhere in the world. This inequality operating through the caste system was worse than inequity based on economic criteria due to persistence of the biases. Indeed, though the poor generally would be classified as the disadvantaged, the dalits or the Scheduled Castes, having suffered the indignity of untouchability and social exclusion, would constitute the bulk of the disadvantaged in our society.
The adivasis or the Scheduled Tribes, despite their diverse universe across the country, constitute the other major group that has suffered social exclusion and would therefore fall in the category of the disadvantaged.
Religion being the defining criteria for the arithmetic of nationhood, nearly 20 percent of the minorities of the country is unequally distributed on the socio-economic scale. However, the largest minority Muslims, constituting 13.4 percent (2001 census) of the total population, have had to bear a peculiar kind of social exclusion since independence. The Sachar Committee report has revealed that in certain respects and in certain places they are worse than the dalits. Obviously, they too would have to be considered amongst the disadvantaged not only economically, but also in terms of social attitudes and political motivations that continuously dub them as the permanent ‘other’.
Indeed, the political discourse on Hindutva has dubbed the Christians (2.3 percent of the country’s population in 2001 census) too as the ‘other’ and exclusion of and violence against dalit and adivasi Christians in various parts of the country on the pretext of conversion has risen in the past decade or so. Obviously, those at the bottom of the socio-economic order are suffering multiple disadvantages – of being poor, dalit, adivasi and against the proselytization process through which they sought emancipation from social debility.
Bonded labour, child labour being one of its ugliest manifestations, has been part of India’s dominance structure for ages and has not been eradicated even after six decades of independence. Poverty and social structure put children too among the disadvantaged section of society. In fact, recognising this, the Constitution of India too makes special provision for their protection against exploitation.
Last, but not the least, given the propensity and frequency of crime against women and increasing statutory protection for women in political representation, workplaces and home, they could also counted as the disadvantaged.
In the foregoing analysis, I have listed the identifiable sections of society that are disadvantaged in a variety of ways. Their status is constitutionally appreciated and requisite provisions have been inserted to ameliorate their condition as well as to provide them with security. I have not listed persons and communities with economic disadvantages either in rural or urban India for two reasons. First, in the rural context, caste and class coincide. In the urban context, there is some coinciding, but it has a larger dimension too. However, that is a subject of a full length paper, but we must underline the problem in our quest for a solution.
Broadly I have identified two sets of disadvantaged groups with special security needs. First, those with structural disadvantages, viz, the SC, the ST, the minorities, children and women. Second, those who suffer from economic disadvantages – we have noted the blurring line between the two in certain cases, yet economic weaker sections without structural disadvantages have opportunities to break the barriers.
The Constitution of India provides for two kinds of framework for protection of citizens against such injustices. First, under the general framework of justice, liberty, equality and fraternity. The provisions in Part III under Fundamental Rights, particularly Articles 15, 16, 17, 19 and 20. Second, particular provisions and clauses that take into account historic injustices and seek to ameliorate them, e.g., some of the clauses under the Fundamental Rights, e.g., Articles 15(4), 16(4), 17, 20 and other significant provisions under Articles 341 and 342 as well as 243(D), 243(T), 330 and 332. Articles 338 (creating the National Commission for the SC) and 338A (creating the National Commission for the ST) too are significant constitutional initiatives. In Part IV relating to Directive Principles of State Policy, Articles 38, 39, 39(A), 41, 42, 43(A), 45, 46, 47 make the Indian state’s commitment to welfare in general and to welfare and safety of the vulnerable sections in particular quite explicit. For child and gender related provisions Articles 23-24 deserve underlining. For an analysis it would also be useful to add the provisions in Articles 21 and 22 under both the frameworks I am referring to here. I would particularly recommend a reading of the Constituent Assembly debates on these two Articles.
Aside from these constitutional provisions The Protection of Civil Rights Act, 1955 (PCRA), The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (PAA) and The Protection of Civil Rights Act (1955), which is an amended (in 1977) version of the Untouchability (Offences) Act, 1955.
These are supplemented by the IPC and the SLL.
Police and Policing
Obviously, in terms of the constitutional and legal framework, the police as an institution of criminal justice system are not lacking to take care of the disadvantaged sections, howsoever they are defined. However, the question raised by Amartya Sen becomes pertinent here – are the institutions and legal framework enough?
Prime Minister Dr. Manmohan Singh devoted the 10th meeting of the Inter-State Council on December 9, 2006 to specifically to discuss issues relating to atrocities committed on the Scheduled Castes and Scheduled Tribes. Addressing the Council the Prime Minister said: In the recent past, we have witnessed disturbing incidents and reports of atrocities against SCs and STs in some places…. There are also shocking reports at times of apathy and a lack of sensitivity in handling the aftermath of such incidents. The figures of atrocities should be a matter of grave national concern for all of us. A disconcerting feature is that some states account for a majority of the incidents of such atrocities.
Mahatma Gandhi had emphasized the removal of untouchability…. He had stressed on the necessity to assimilate the underprivileged in the mainstream as part of the task of building the edifice of swaraj…. Incidents of atrocities immediately negate any positive results of growth…. It should be our endeavour to ensure that the members of the Scheduled Castes and Scheduled Tribes are equal stakeholders in processes of economic and social development and that they are able to deal with atrocities and the curbing of their civil, social, economic and political rights…. Continuing atrocities against the weaker sections are a matter of national disgrace in a civilized society.
I am told, however, that the implementation of this act and its provisions has not been as effective as it could have been. Cases continue to be registered under weaker provisions of the IPC rather than the stronger provisions of the POA Act. More often than not, the distinction between regular crimes and those covered by the POA Act has not percolated down. Both the afflicted and those in charge of implementing this Act need therefore to be sensitized on these differences.
…. However, such legislations alone are not sufficient. In dealing with social violence there must be compassion for the victim and a firm resolve to deal with the perpetrator of these crimes….1 Obviously, the commitments made in the Constitution of India in 1950, further relating amendments as well as the laws enacted since the 1950s have not secured equity, justice and security to the disadvantaged, in whatever terms we define them, even as India continued its march in the 21st century and a new millennium.
Indeed, the Prime Minister did not talk of other disadvantaged such as the minorities in this meeting. But the Sachar Committee Report lays bare the plight of the Muslims and much discussion has taken place on this. Report of each of the Commissions of Inquiry on communal riots between the Hindus and the Muslims since independence has indicted the police for bias against the Muslims. The surge of the political Hindutva since the mid-1980s has queered the pitch against the Muslims and justified the police bias. ‘Segregated lives’, wrote Ramesh Thakur, a Distinguished Fellow at the Waterloo (Canada) based Centre for International Governance Innovations, in 2002, ‘lead to ghastly violence’. This is what the Sachar Committee Report too confirmed and underlined. The gender bias and inefficiency on protection of child rights are also areas in which the police have been severely indicted despite existence of constitutional and legal framework. Vasudha Dhagamwar in her studies has pointed out that the current situation in India does not favour indigent defendants and other disadvantaged groups including women and children.2 Where do we look for solution in such a case. One solution that has generally been suggested is adequate representation in the police of the disadvantaged sections – Muslims and the minorities, SCs and STs and women. That these sections of society are not proportionately (taking the proportional principle as an indicator of adequacy) represented is well-known and has been over the years extensive discussed. Would that be effective? That is not an easy question to answer. The data on Muslim representation in the police is available. The NCRB data indicates that Andhra Pradesh is the only state that has more Muslims in the police than their percentage in the state’s population. Most states, including the Muslim majority Jammu and Kashmir lack in this (See Table below).
Muslims and the Police (in per cent)
States Muslims in Total Population Muslims inPolice Force
Andhra Pradesh 9.17 13.25
Assam 30.92 10.55
Bihar 16.53 5.94
Gujarat 9.06 5.94
Jammu & Kashmir 66.97 56.36
Karnataka 12.23 6.71
Kerala 24.70 12.96
Maharashtra 10.60 4.71
Tamil Nadu 5.56 0.11
Tripura 7.95 2.01
Uttar Pradesh 18.50 4.24
West Bengal 25.25 7.32
Delhi 11.72 2.26
Source: National Crime Records Bureau. 2004, Census 2001
However, if we go beyond the data, there is no evidence to suggest that police forces necessarily advocate the interests of their co-religionists. The largely Sikh Punjab Police put down Khalistan terrorism in Punjab with ferocity. Contrary to popular myth, the Muslim-majority Jammu and Kashmir Police has long been at the cutting-edge of counter-terrorist operations in the state. Interestingly, while Muslims are significantly over-represented in the Tamil Nadu prison population, the state’s record is better than several states which have better representation for the community among their police forces, such as Maharashtra, Delhi and Gujarat. Two of the states with the best record of containing communal violence in the post-Independence period – West Bengal and Kerala – have a poor representation of Muslims in the police. While a little over a quarter of the population of West Bengal is Muslim, the third highest figure after Jammu and Kashmir and Assam, just over 7 per cent of its police force is drawn from the Muslim community. Despite almost 13 per cent in the police force from Muslims, Kerala does somewhat better, but this figure still falls well short of proportional representation. By way of contrast, Andhra Pradesh has succeeded in ensuring more-than-adequate representation for Muslims in the police, but not in containing communal violence or bias. Yet, the city of Hyderabad has seen some of the worst and most sustained urban communal violence in India, and the police in Andhra Pradesh is no better or worse on alleged bias. Similar insights can be drawn from the case of Assam. While almost a third of the State’s population is Muslim, only a little over 10 per cent of its police force is drawn from the community. At first glance, this would seem to validate the representation-riots connection, since Assam has witnessed communal violence and Hindu-Muslim antagonisms are endemic to the state’s political life. But the data do not support the premise that the nonrepresentative Assam Police acts in a partisan manner.
This brings to the crux of the problem. Where does the solution lie? The advocates of best practices would emphasize better policing methods. I certainly would not argue against better policing methods, but the best tools in the hands of an inefficient worker ends up giving contrary results. There is not substitute to good and sound institution. That is what we need to convert our police into and police reforms being discoursed for the past decade and a half are imperative and must be undertaken immediately. While sound laws are important, the criminal justices system has to emerge out of self-imposed chaos.
None of this would still work if social biases continue. The representational dimension discussed above brings this out quite clearly. A society gets a police it deserves. We must ask ourselves – ‘do we deserve a better police under the prevailing social circumstances?’
2 Vasudha Dhagamwar, Law, Power and Justice , New Delhi: Sage, 1992 and Criminal Justice or Chaos , New Delhi: Har Anand, 1997
* Mr. Ajay K Mehra is Director (Honorary), Centre for Public Affairs