Dealing with police misconduct

Published : Feb 13, 2004 00:00 IST

Creating a credible mechanism to handle complaints of police misconduct is a challenging proposition, one that is especially difficult to implement in India.

The need to re-establish trust between minority ethnic communities and the police is paramount... seeking to achieve trust and confidence through a demonstration of fairness will not in itself be sufficient. It must be accompanied by a vigorous pursuit of openness and accountability.

- Macpherson Report (1999), United Kingdom.

THE whole argument against a totally autonomous police rests on the fear that, given freedom from controls, they will cut at the roots of the rule of law. In several of my columns I have sought to debunk this myth by stating that operational autonomy and accountability to law are not contradictory and can co-exist. However, I do not think I have succeeded in converting those large numbers who are stoutly opposed to granting even an iota of independence to the police, except what has already been grudgingly sanctioned by law.

This time, I am on a slightly different issue, something not totally unrelated to what I have been pleading for. Assuming that the police need to be closely monitored, how does one ensure that this is done without diluting their effectiveness? Also, is it wise to entrust external oversight of the police to any body that may be independent but lacks expertise in the intricacies of modern policing? These issues figured prominently during a round-table discussion organised by the Centre for Security Analysis (CSA) in Chennai this January. Incidentally, the CSA forum has added lustre to the intellectual life of the Tamil Nadu capital. Spearheaded mainly by the former Director of the Intelligence Bureau, M.K. Narayanan, it has done remarkably well in guiding debates on many vital security matters. Bodies like these reinforce our faith in a system that permits the placing of facts before the public in an unbiased manner so that it gets an opportunity to understand critical government decisions.

The occasion for the round-table discussion was the visit of Prof. Laurence Lustgarten of the School of Law, University of Southampton, U.K. He is one of the 17 full-time Commissioners appointed to the Independent Police Complaints Commission (IPCC) that will come into being in the U.K. on April 1. The IPCC will replace the existing Police Complaints Authority (PCA). Significantly, the IPCC is the outcome of a series of earlier experiments. The need for a watchdog body in the U.K. can hardly be exaggerated in the context of repeated criticism that sections of the police in the country continue to display unabashed racism that leads on to the use of unjustified physical violence on minorities, especially the blacks. Last October the British Broadcasting Corporation (BBC) aired a film The Secret Policeman, which showed the Greater Manchester Police (GMP) in a very poor light. The force was infiltrated by an undercover journalist, Mark Daly, who spent several months in the GMP until his cover was blown. His secret filming of happenings in a training centre and his experiences as a police constable on the beat revealed that while a majority of policemen were unprejudiced, a small minority believed that "Pakis" and "Niggers" were to be treated differently from the rest of the lot in the community. The film shown on BBC led to the suspension of at least seven officers, presumably because of the racist slur in their language at the workplace. Coupled with the Macpherson Report of 1999, the Daly episode has strengthened the movement that favours a close monitoring of police conduct.

Until 1976, complaints against the police in the U.K. were probed by the police service itself. The Chief Constable of any of the 43 forces in the U.K. or the Home Secretary could refer a complaint made against the member of one force to another for an investigation. At the end of this, the Deputy Chief Constable (DCC) would forward the investigator's report to the Director of Prosecutions (DPP), who would decide whether to press charges in a court of law or refer them to the internal disciplinary mechanism. It was however felt that this process lacked credibility because it did not carry an independent element.

Consequently, the 1976 Police Act created a Police Complaints Board (PCB), which scrutinised each decision of the DCC and satisfied itself that justice had in fact been done to the victim. Where it was not so satisfied, the PCB had the authority to direct the Chief Constable to initiate disciplinary proceedings against the delinquent policeman. This procedure became controversial because it amounted to double jeopardy against a policeman who had been earlier exonerated by the Director of Prosecutions. The Brixton riots of 1981, during which several allegations of racism were made against the police, and the Scarman Report that dealt with this and other issues connected with the riots paved the way for a PCA in 1985. The Police and Criminal Evidence Act (PACE), 1984, actually gave statutory recognition to the PCA. While complaints from the public, especially blacks, constituted the bulk of the work, the PCA also took up non-complaint investigations triggered by events such as deaths in police custody or firearm operations leading to the death of a citizen. While the PCA initially evoked positive responses from the community, in course of time, following several unfortunate incidents of police misbehaviour, public opinion demanded a more transparent and stringent machinery that would be totally free from influence by the police. It failed because the initial appointees to the Authority were those with little contact with sections of the population that were the most aggrieved over police behaviour. Also, the organisation was London-centric, because of which the 43 forces outside London were neglected by the dictates of sheer geography. Perhaps most important was the fact that the PCA did not have any investigative powers at all.

Against this backdrop came the Macpherson Inquiry of 1999, which showed that the Metropolitan (Met) Police had been extremely insensitive to the feelings of the black community. (In this incident, a young black boy was done to death in 1993 in the heart of London by a group of white hoodlums, and the Met prosecution failed miserably in court. When the five accused were again taken to court through private initiatives, the case failed once more, leading to public criticism that the Met had initially bungled the case because of a lack of empathy with the black community. The Home Secretary thereafter asked former High Court Judge Sir William Macpherson to look into the whole episode.) (Frontline, May 23,2003)

One consequence of the Macpherson inquiry was the commissioning by the Home Office of a study by KPMG on the need for an independent system for investigating complaints against the police. The study led on to a phase of consultation with a cross-section of society and the police forces. The IPCC was conceived out of this elaborate process. The expectation is that the Commission will appease sections of the community that are exercised over continued unsatisfactory relations with the police and the latter's alleged indifference to the sensitivities of minorities.

The IPCC hopes to establish "increased accessibility, openness and independence" and bring about a "quicker resolution" of complaints. The most positive aspect of the new arrangement is that senior police officers will receive no special treatment as compared to their junior colleagues. With no past experience in policing, the 17 full-time Commissioners (chosen from about 600 applicants) are expected to bring an objective approach to handling complaints. Assisted by teams comprising both police and non-police officers, the IPCC will launch its own investigation suo motu or based on a complaint. Chief Constables of police forces are mandated to render all assistance, including making available all relevant records, to the Commission. Most important, the IPCC has an appellate role whereby citizens can make a representation to it whenever the police fail to take cognisance of a complaint of police misconduct or handle a complaint without care.

The arrival of the IPCC has aroused great expectations. Its performance will be watched closely by the public as well as the media. I have, however, a few reservations on whether it will mark a difference at all. A specialist body such as the IPCC will naturally attract a large volume of complaints, major and trivial. With a staff of just about 300, it is debatable whether it will be able to handle all the complaints that come its way. The backlog of work that it will accumulate is bound to invite criticism of tardiness. Secondly, packing the Commission with non-police members may do well to its image of an unbiased body. But then, what about the knowledge and skills required for the job? Having police officers in the investigating teams alone will not help. A few former police officers at the level of Commissioners, with an unblemished record for objectivity and integrity, could help make the IPCC a more focussed body that takes realistic and not dreamy decisions.

WHAT should interest us in India is whether the U.K. experiment will succeed here. There can be no two opinions at all on the question whether we need a transparent process to look into complaints against the police. It is well known that the majority of complaints against the police are swept under the carpet for a variety of reasons. It is not just lack of civility of the police that agitates the common man who approaches them. In fact, this is taken for granted and is easily forgiven for reasons of expediency. It is only outrageous acts such as extortion of a bribe or the use of illegal physical force that incense most complainants. The sheer magnitude of such complaints compels many senior police officers to soft-pedal them. Until an instance of police misconduct becomes a public scandal, not many supervisors are inclined to pay attention to it. This is an unfortunate situation that does not offer much hope of a reversal.

The National Police Commission (1977) was definitely exercised over the odium that attached to police misconduct and the scant attention given to it by superior officers of the police. A study conducted by it revealed that only in 7 per cent of the cases handled by the department itself was the complaint against policemen substantiated. The percentage was as high as 65 in respect of complaints referred to the judiciary. This is definitely an index of the looseness of domestic inquiries and points to the imperative need for an external agency to deal with the matter. Apart from suggesting the formation of a complaint cell in each district, to be headed by a Deputy Superintendent of Police, to take care of minor complaints, the NPC recommended a mandatory judiciary inquiry in the case of serious occurrences such as death/grievous injury or rape in police custody and police use of firearms in which two or more persons are killed. For this purpose, an Additional Sessions Judge in each district was to be designated as the District Inquiry Authority (DIA). Neither recommendation has been implemented in the manner suggested by the NPC, although some attention is given to grave happenings such as custodial death and rape. A judicial inquiry is ordered only at the whim and fancy of a government. It is no doubt a matter of satisfaction that the National Human Rights Commission and State Human Rights Commissions are reasonably vigilant and take action suo motu whenever they come across instances of grave police misconduct. Unfortunately, the sheer volume of complaints and occurrences in a vast country like India breeds delayed response and takes the sting out their initiatives.

The situation may not change for the better with the creation of more and more bodies like the IPCC. Only a transformation in the attitudes of senior police officers can bring about improvement. Many of them take the easier way out, ignoring complaints of misconduct so that they are popular with their subordinates. A few do not also have the moral stature to deal sternly with deviance because they themselves have skeletons that are likely to roll out of the closet even if well justified action is taken against a cantankerous subordinate. I can be accused here of downright cynicism. I am not for a moment condoning inaction or laxity. I am only describing the hard realities of the ground situation.

Finally, I am afraid I will have to come back to my oft-repeated demand for a police leadership that takes pride in integrity and firmness of purpose and action. If this does not come about soon, we may touch the bottom of the pit. This is what has happened in Maharashtra, a State that once boasted Himalayan standards of policing set by police officers who were as good as any in the rest of the world. I shall not be surprised if other States follow not long from now.

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