160 years of policing, and distrust

From police diaries to most recently, CCTVs cameras in police stations, we have tried a number of measures to shadow our neighbourhood cop and keep him in check. Yet, as the trust of the common man continues to elude the average policeman, it may be overly wishful to hope that technology alone can fill the void between police-community relations.

The Supreme Court on December 2, 2020 passed a number of allied directions while making the installation of CCTV cameras mandatory in police stations across the country. The Court, had by way of an earlier order on the July 16 this year, issued notice to the Ministry of Home Affairs on the question of audio-video recordings of statements made under Section 161 of the Code of Criminal Procedure (CrPC), as well as the larger question as to the installation of CCTV cameras in police stations generally.

You might fairly wonder why I chose to write about this now after considerable delay. It was the underlying issue that caught my fancy i.e. the acknowledgment of the very common notion that your ‘friendly’ neighbourhood cop can indeed be ‘trusted’ to act unlawfully or at the very least, unfairly when he thinks no one is looking. That issue has been a constant for the last 160 years (from the time of the first Police Commission in 1860), and some lethargy on my part wasn’t going to change anything.

For me, the pronouncement served as a stark reminder – of just how, from the humble native of colonial India to the citizen of independent India, the common man’s trust has uninterruptedly eluded the average policeman. This distrust is not without reason and of course, we could go on about this, but to be more recent: they have attacked and lathi-charged us in our universities, and in the streets, they have beaten and tortured us while in their custody, and of course, they haven’t resisted the urge to touch their own person inappropriately when in our presence.

But excesses and brutality aside, having all engaged with the police in some form or the other, do agree that the reason we are not all dead is quite simply because one cannot die of having to put up with a bad attitude. In some societies all this would be enough to let you have it with both barrels, but thankfully, we are one governed by the law. So, instead of blaming the individual policeman, let's take a look at the origins of our troubles with law enforcement and the behavioural issues that are undeniably involved.

Purposively speaking, the imperial police force of the past was a consequence of the revolts of 1857 against the British Raj. This saw the Police Commission of 1860 being set up, with one of its stated directives being “though the duties of the police should be entirely civil, not military, the organization and discipline of the police should be similar to those of a military body.” Quickly, thereafter the Indian Police Act, 1861 was also enacted. Mind you, the paramilitary character of the police has been a consistent feature to this day and commentators argue that this was on account of the colonialist’s need to establish a relationship of control, coercion and surveillance over the subjugated population. Nonetheless, this is quite terribly unsuited to an independent India.

Also, if the odd FIR against the independent journalist, in an otherwise obviously non-cognizable case leaves you bothered and bewildered, you should learn to contain that shock. After all, innocence does have its limits as a virtue, particularly since we know that the Imperial Indian Police was meant to be a force to stifle speech, dissent and nationalist fervor. It did so with an iron hand. And that colonial vintage and attitude is something more than 70 years of independence has proved insufficient to shake off.

Experiments with policing had started with the British taking over the administration of criminal justice and law enforcement during the time of Lord Cornwallis in 1792-93. The fact that these early trials were nothing to write home about (literally, so) is clear from a letter dated September 24, 1856 of the Court of Directors in London where they are known to have acknowledged, “That the police in India” had “lamentably failed in accomplishing the ends for which it was established” and that it was “all but useless for the prevention, and sadly inefficient for the detection of crime”. Furthermore, that it was, “with rare exceptions, unscrupulous as to its mode of wielding the authority” and to top it all, had a “very general character of corruption and oppression.”

The obvious solution to these problems (if you commoners would for once be selfless and stop it with all this about your own persons and property) was the subsequent enactment of the Indian Penal Code, 1860. Here the substantive offences begin with a healthy chapter on ‘OF OFFENCES AGAINST THE STATE’, thus ensuring that the average policeman remained gainfully preoccupied with serving the ends of his political master rather than with the ‘prevention and detection’ of the crimes that we actually fear.

But also, from here commenced the insatiable urge to keep a watchful eye on the law enforcer himself. And at a time when the tools for surveillance were a bit more primitive, much was left to the humble police diary i.e. something, that the practitioner of criminal law is reasonably familiar with. This usually contains a variety of depositions, notes and memoranda of witnesses of the roughest kind. While, ostensibly these were to be a record of what witnesses say, yet ironically enough, it had another purpose – in the words of HEH James of the Council of the Governor General of India - “They are meant to be a check on our police…”.

In March, 1898 while discussing amendments to Section 162 of the old Code of Criminal Procedure, James said that while the “the bulk of the police” consisted of “simple and honest individuals,” he had expressed his rather confident belief that the average policeman could most certainly be “tempted to be otherwise”. In a most illustrative generalization, he alleged:

“When a Native policeman goes to investigate a crime that has been reported, we make him keep a diary in which he records all his proceedings from day to day – (otherwise he might stay at home and send up perfectly fictitious accounts) …”.

Now I don’t mean to break a dead man’s heart, but if he had really meant it, James would be distraught to learn that the coveted diary has utterly failed to serve as a “check on our police…”. The fact is, the ability of the investigating officer to write creatively (unlike us lawyers), is matched only by the imagination of a 11-year-old that owns her first diary. But that he didn’t mean it, is quite clear from his acknowledgment that while such depositions are often representative of “a very large substratum of truth”, one had to necessarily make “allowance for the policeman’s own illiterateness and for the exaggerations and inaccuracies and lies of the witnesses themselves.” As good a reminder as any why police depositions continue to be of limited evidentiary value to this day.

Don’t get me wrong, I wouldn’t want to suggest that it will be the same with CCTV cameras. If implemented well (you know the operative word here), there are obvious benefits. To begin with, the Court has clarified that the Human Rights Commission/Courts would be at liberty to summon CCTV camera footage in relation to incidents of police excess resulting in serious injury and/or custodial deaths. So, if this can introduce the fear of God and make us feel better about entering the local ‘thana’, I am all for it. But all the means and methods of shadowing our local cop and keeping an eye on him may not solve the larger issue i.e. the lack of public trust. This requires structural changes and possibly, revisiting the laws that govern the subject of policing.

Recently, the Indian Police Foundation, a multidisciplinary think-tank, had expressed the sentiment that neither the Centre nor the states had shown an interest in police reforms despite the Supreme Court pronouncement in Prakash Singh in 2006. Do you really wonder why?

True, the root of the problem is the very nature of this largely unreformed law enforcement agency – it is receptive exclusively to the State, and not to its people; and it leans to the directive of its political master, not to the rights and liberties of the common citizen. In a modern democratic State, building community-police relations should be the starting point, and this should ultimately culminate in policing by consent and trust. That would be the professional police force that we deserve.

But it’s just been 160 years, and that is much too early in the day to put issues such as structural changes and professionalism on the agenda, particularly since there is an ample alternative in the interim, what with the watchful check of the police diary and all. And now, all you really have to do before you enter your local thana next is, cross your fingers, say a little prayer and hope that that CCTV camera is rolling!

The author is an Advocate-on-Record at the Supreme Court of India and is currently a Partner in the dispute resolution practice at L&L Partners, Law Offices, New Delhi. Views are strictly personal.