Excerpts from SPIR 20-21 (Volume II) Keynote Address: Justice Deepak Gupta
About Common Cause founder
I’m extremely grateful to Common Cause and CSDS for giving me this opportunity to share my views. Speaking today brings back memories of my interactions with the founder of Common Cause, Mr H D Shourie. As a young lawyer, I used to follow him avidly as I was involved in a few public interest litigations in Himachal Pradesh. Coincidentally, my in laws and Mr Shourie were very close friends as well. He would walk down from his residence in West End to my residence in Vasant Vihar and we would exchange notes, especially when I was there during vacations from Shimla courts. I also assisted him in drafting a few petitions in the 80s and 90s.
On Trust in the Police
You would normally imagine that the image of the policeman evokes trust. But in India, unfortunately, that is not the case. The first feeling is that of suspicion, not only experienced by the poor, but everybody. Even if you are the complainant, you are sceptical about going to the police station. You want to settle the matter outside the police station, without the involvement of the police. This is because of perception. This report says that the underprivileged, Muslims or minorities were targeted more, or they bore the brunt of police brutality. I think if Common Cause does an analysis on police behaviour during pre-pandemic or post-pandemic times, the figures may not be very different. This is because of our archaic criminal justice system. The Police Act of 1861 and the old criminal procedure are all geared to favour the rich and powerful. In my farewell speech in the Supreme Court, I said that our
I don’t think the police try to find out whether you are an SC, ST or OBC before taking any
entire system is partial towards the rich. If a rich man, charged with an offence, does not get bail, he will move heaven and earth and the Supreme Court will order his trial to be expedited. If he does get bail, then he will move heaven and earth, challenge every order and go to the Supreme Court. He can get the best lawyers and the trial will never come to an end. Whereas the poor person never has the equality promised to him under Article 14 of the Constitution.
On Targeting of Minorities
With regard to the targeting of Muslims in the context of the Covid-19 pandemic, the responsibility lies not with the police, but the media and the general public. After the Nizamuddin Markaz incident, it was as if it’s the people attending the Tablighi Jamaat congregation who brought in Covid-19 to the country. It was as if they started a war against the country. The police are also human beings and get affected by these daily narratives. I think it was an aberration and should have been corrected at the earliest. It took almost a year for the High Courts to quash the FIRs, but we can’t
deny that they were targeted.
A lot of pilgrims from the Nanded gurudwara also brought in Covid-19 to Punjab, but there was no adverse reaction then. Even during Kumbh Mela in Haridwar, there was no targeting of any community.
On Police Reforms
The sad part is that since 1902, when the first police reforms process started, followed by the Ribeiro Committee, Padmanabhaiah Committee and the seven directions given by the Supreme Court in Mr Prakash Singh’s case, (which I also handled at one time with Justice Madan Lokur), the ruling has still not been implemented. The Model Police Act framed by the Soli Sorabjee Committee has been buried in the ice box, I suppose. For me, separating the investigation and the lawand-order wings of the police, as directed by the Supreme Court is very important. I also personally feel that providing security to the so-called VIPs is not the job of the police. I can imagine providing security to the Prime Minister, President and a few other people, but today everybody wants x y z security. The job of providing security should be outsourced. Also, the way the so-called police security officers are treated by the people provided security needs to be seen. I was recently in Leh, and all I saw was these police constables lugging shopping bags for the “Mem Sahib.” When
you don’t give respect to the constabulary, how do you expect them to treat you differently? It’s very easy to vilify the police but let us first look within ourselves. Do we give the police the respect they deserve? The police constabulary represents the law and we profess to believe in the rule of law. Hence, the police constable must be given the respect due to him.
But that does not happen. Even though a policeman waves and tells you to stop your car, you just rush past. I have been witness to another incident. A family of four in Shimla was requested by the policeman to wear masks. The policeman got them four masks and told them to wear the face coverings. They walked another 50 yards and threw away the masks. I had to tell the policeman to challenge them. In such a circumstance it is entirely possible for the police to become very harsh.
On Police Training
When we don’t respect the larger issues, do we respect the law? We also don’t respect the person who enforces the law. Every other day a police constable gets to hear the statement ‘Tu janta hai mera baap kaun hai’ (Do you know who my father is) from people he stops. The problem is that the ‘baap’ will come to the aid of the accused. Even though the police constable is discharging his duty, he is told not to take any action.
It was a sad state of affairs in Shimla a few days ago. There was a newspaper report that some tourists beat up police officials on the issue of wearing masks. Later the police withdrew the cases against the tourists. This incident shouldn’t have taken place. Therefore, we should focus on the training of the police, particularly the constabulary. We are training them in age old methods that have no relevance. They have no scientific methods of training. If lawyers and activists visit a police training school, they will see that brutal methods are used to train police officials, particularly the police constabulary, lately. Also, good IPS officers are never posted to police training schools. So, police constables do not have good training, or a scientific temper. They are not sensitised to deal with the public, or taught to adopt a more humane approach. Policemen are individually as good or bad as any human being. But they are different when they wield power. A social psychology study took place at Stanford University in 1971 where a psychologist assigned college students the roles of prisoners and guards in a mock prison environment. Even while role playing, the participants assigned the role of guards actually became aggressive. The study has been criticised many times, and the psychologist was accused of going too far with the experiment. But this is what happens when you give people power. When the police wear khaki and wield the lathi, they feel they can be harsh. Therefore, they need to be taught to be more humane in dealing with the society.
On the rule of law
One of the most important features of training, is rule of law. Although the rule of law applies to citizens, it applies with even greater force to the police force,
which enforces it. Illegal methods of surveillance are being used against the general public. This cannot be done. We cannot defend the police taking action not in accordance with the law. They need to be told to act in accordance with law as it would make the police force efficient. They need to be told that their efficiency lies in getting people convicted.
I’ve had different experiences in three states. Himachal Pradesh may not have the most efficient police force, but it is probably one of the least corrupt forces in the country. It is also fairly competent and very humane. When I went to Tripura in 2013, I found the police force there (to be) very honest but still corrupt,
because it was politicised. It had allegiance to a particular party. I went to Chhattisgarh thereafter. Corruption rules the roost there. So for me, training and counselling of the police force is very important.
On Mental Health of the Police
Take a look at the mental health of the police force. How do you expect the police to work 11 to 15 hours a day, and not get angry? If any one of us is made to work from morning to evening, our family will experience our anger late in the evening. The police are also humans like us. Many more policemen were infected with Covid-19 than the general population. The normal job of the police is just to maintain law and order and investigation of crimes. Now we’re asking them to go into a much wider domain of pandemic control, and of managing the public during the pandemic.
Also, most of the police excesses happened during the first month of the lockdown. I really don’t blame the policeman on the ground. He was not trained to deal with the sudden lockdown. The policeman did not have any procedure or training manual to follow but was simply sent on the job with the instruction of ‘Delhi se bahar nahi jane dena.’ (Don’t let them go outside Delhi). What is he supposed to do if 30,000 or 40,000 people gather at the Anand Vihar bus stop to leave the city? One has to imagine one policeman dealing with 50 or 100 poor migrant workers who want to leave the city.
On Migrant Workers
Everyone let the migrant workers down, including the government and courts. Sitting inside our comfortable homes, we can’t even imagine the brutal treatment meted out to the migrant workers by the police. But I will not totally blame the policemen on the ground. Instead, the larger system has to be blamed. The same policemen also came to the aid of the migrant workers. Policemen do
not possess a Jekyll and Hyde personality. But they behave in the way they have been instructed to when dealing with large numbers of people. The only thing they have been taught throughout their lives is ‘Jab aur kuch nahi toh bas danda hi chala do’ (when nothing works, use the stick). So, they used the danda against migrant workers. There were other aberrations I don’t agree with. I personally don’t like somebody being made to do sit-ups. That is not the job of the police. I’d rather that they fine them, than make an example of them, because the police cannot take the law into their own hands.
But we can’t hide that in some of our states the police are becoming highly politicised. They are going out of their way to help the party in power. If a lynching takes place, the police turn their face away, or don’t find witnesses. A few days ago, virulent slogans were raised in Delhi, against a particular community, and the police found it difficult to identify even some of them. When the shoe is on the other foot, the police get all the latest information, face and voice identification etc. Within days everybody
is arrested. Whether we talk about West Bengal or UP or any other state, the police are being politicised to support the ruling party. This is a very dangerous trend because the police must be fair investigators. Although I never practised much on the criminal side, my understanding of criminal law is that the investigation must be very fair.
On use of excessive force by the police
However, use of disproportionate force ails the police force everywhere. We have the George Floyd case in America and the father and son deaths in Tamil Nadu.
We somehow give power to people, and then they tend to misuse it. Research will also have to be done as to why policemen, otherwise very human, lose control once they get into such situations.
One question being raised was ‘who fears the police most?’ Clearly, the poor and underprivileged, minorities, as well as people from the disadvantaged sections of society fear the police. Whenever a change is brought about, it is not the rich and powerful who will suffer but the poor and marginalised. That is what happened to the migrant workers and tenants who were evicted during the lockdown.
I do not find a great shortage of police personnel. Probably the strength is 7% or 8% below the desired numbers. Rather, the training of police personnel must be modernised and updated. They must be sensitised to the needs of the poor, since the deprived are as much the citizens of our country as the rich and powerful. Their working conditions need to be improved a lot. You can’t expect them to work 12 to 15 hours a day, and not lose their patience. In addition, we ourselves need to have respect for the rule of law and the police force. When a police constable asks us to do something, we should not hesitate or question his authority. I’m not defending the police on occasions he is using excessive force or being brutal. I am giving the context of a normal interaction between the policeman and an ordinary middleclass citizen. We can’t simply vilify the police force, but it does need reforms, especially with respect to brutality.