Defeating the objective of an independent India

The functions of the police today consist mainly of management of public order and political intelligence collection, while crime investigation, prevention and detection have lesser priority. The problem is not just with the Indian Penal Code (IPC) but the entire criminal justice system created by the British and uncritically adopted into independent India. There is a fundamental contradiction between the imperatives of the Constitution and the criminal laws, as observed by the great E M S Namboodiripad who said in India, we have “democracy at the top and bureaucracy at the bottom”. All of these criminal laws must be revised in the light of the imperatives of our Constitution.

The main objective of the British in India was to maintain their rule and crime control was an additional objective to be achieved by inducing fear of the police. The Irish Colonial Paramilitary Police Organisation was specifically designed to inflict state violence. The penal and procedural codes enacted in the early 1860s make it clear that suppression of the people was the primary British goal after 1857.

The Code of Civil Procedure (CPC) was enacted in 1859, the Indian Penal Code in 1860 and the Code of Criminal Procedure (CrPC) came in 1861. The Police Commission of 1860 led to the Police Act of 1861, which is still in force despite piecemeal social engineering from time to time. The Police Act, 1861, delineates the structure and duties of the Indian police, including the execution of lawful orders and warrants issued by the competent authority; collection and communication of intelligence affecting public order; prevention of crime and public nuisance; bringing offenders to justice and arresting persons liable to be arrested; independent performance of duties without the need for any clearance from above; and liability for departmental action and punishment for any remissness. The prevention and detection of crime found a place in the duties of the police only in section 23. The Act further provided for punitive policing at the cost of local residents and the appointment of private persons as “special police officers”. 

The CrPC, amended in 1973, provides powers to arrest without warrant for 11 categories of persons on suspicion; use of force in effecting arrests in case of resistance; search without warrant; use of force in the dispersal of unlawful assemblies; preventive arrests; arrests on suspicion of commission of cognisable offences or injury to public property. Safeguards are provided in the Police Act, CrPC, IPC and in the Constitution. The CrPC prioritised “security for keeping the peace” and “maintenance of public order,” including use of force by the police and the military. Police officers were vested with vast powers and the lowest of them could arrest and detain people for at least 24 hours.

Inclusion of sedition in 1860
The description of criminal offences in the IPC begins with chapters of criminal conspiracy and offences against the state. Unlike other countries which prioritised offences against person and property, the IPC mentions these only from Chapter XVI, Section 299 onwards. The offence of “sedition” was included in its provisions as early as in 1860. 
 
In 1877, elaborate machinery was put in place for the collection and dissemination of political intelligence. During 1899-1905, the Intelligence Bureau and provincial “Special Branches” were set up. These were expanded and used by the government in dealing with terrorism and the freedom struggle. The methods adopted to quell terrorism brutalised the police force, for the British Raj, crime and politics were inseparable.

The IPC begins with chapters on criminal conspiracy and “offences against the state,” as against the common preoccupation of the police everywhere with the prevention and detection of offences against the person and property. These find a place in the IPC only from Chapter XVI and Section 299.  The code did not repeal obnoxious regulations of earlier times such as the Bengal Regulation III 1818, used freely to deport leaders of the freedom struggle.

According to an eminent authority, the charge of sedition has become a “plaything in the hands of officialdom”. The British-created IPC has listed offences such as conspiracy, waging war, causing group enmity, hurting religious sentiments etc. All these are ingredients of a regular police state, which must be dismantled.

Charles Napier’s police model for India had the following features in 1947 which has continued till date albeit with some modifications. They are: Strict subordination to the civilian administration; strengthening of ties between state police and the Central government as intelligence work expanded and established an independent line of communication that ran through the inspector general; the secrecy and political significance of the intelligence wing; unaccountability to the public and their elected representatives; coercive strength and disposition with frequent use of high levels of state violence; limited understanding of the causes of industrial and agrarian unrest; institutionalisation of a paramilitary wing within the police with quasi-military arms, training and discipline and close identification with propertied interests. 

A number of reform exercises have been undertaken but they have not addressed the problems briefly identified above. The Indian political class has only been too faithful to their colonial masters on the issue of reform, and not just a section or two of the Police Act here and there, but the whole corpus of criminal laws must be revised. There should be only one law: The Human Rights of Law of India of which these several laws could be a part after comprehensive revision.

(The writer, a retired IPS officer, is a human rights activist and author of Political Violence and the Police in India)