Why the police fail, and what needs to be done to change the situation nationally.
ACCORDING to a press report, the Ministry of Home Affairs (MHA) has sent out a circular from Delhi to State governments declaring categorically that it will be the District Magistrate (D.M.) - called District Collector in some States, especially in the South, except in Karnataka where he/she is known as Deputy Commissioner - and the District Superintendent of Police (S.P.) who will be accountable for controlling communal riots. This, however, is not a new fiat as some may believe it to be. It is only a reiteration of earlier instructions, according to which, where these two principal district officials are found to be slack, negligent or biased in allowing a situation to grow and not taking swift action to nip it, they will have to face the penalty of disciplinary action. The present MHA circular is said to be a sequel to a review of the existing 'Guidelines to Promote Communal Harmony', undertaken after the Gujarat riots.
The National Integration Council and the National Foundation for Communal Harmony, both of which function under the MHA, are believed to have received a suggestion from many quarters that the political leadership should also be made equally accountable whenever there is an instance of a communal situation going out of control. This was not agreed to by the MHA. Any criticism, however, that the Ministry's circular is reticent on this is meaningless because it is the civil servant who has the authority under law to deal with a riot, and not the average politician, especially if the latter does not hold public office. It is an entirely different matter if the Collector or the S.P. buckles under pressure and is led by the nose by the political authority, following a riot, to do things which are questionable both from the moral and legal points of view. In any case, the ordinary law of the land such as the Indian Penal Code is available to take care of the misdemeanours of those in the political firmament and who are not subject to the Conduct Rules which apply to the organised civil service. The politician needs enlightenment not to stoke the embers of inter-religious conflagration, and such finesse cannot be brought about through matter-of-fact MHA circulars. There needs to be a resolve not to exploit a situation solely to derive political gains. Right now, in the present ambience in our country, this is asking for the moon. A more pragmatic approach will be to focus on the civil service and examine how best to make it more responsive and accountable so as to serve notice on extraneous elements that their shenanigans will not be entertained.
WE in India are not unfamiliar with the brazen display of communal passions and attendant violence. We had enough evidence of this even under the British. One of the first major riots was in August 1893 in Bombay in which about a hundred people were killed and 800 injured. The period between 1921 and 1940 marked a particularly difficult phase. The 1926 Muharram celebrations in Calcutta were for example marred by a clash that led to 28 deaths. India's history since 1947 has also been pock-marked by several bloody riots between Hindus and Muslims. The riots in Gujarat in 1969, Jamshedpur and Aligarh in 1979 and Moradabad in 1980 are a few to quote for their virulence. Inquiry commission after inquiry commission has indicted the State administration, especially the police, for their gross lack of appreciation of signs of communal unrest and partisan responses after a riot breaks out. The most shameful chapter of this kind was possibly written this year in Gujarat.
However much some elements in the polity would like us to believe that the media had played up the incidents in Gujarat, there is the unmistakable impression that some of the IAS and IPS officers in the State, who were directly in charge of the areas affected, were found extremely lackadaisical, with a few actually responding tendentiously. There is the feeling that in many cases tremendous pressure was brought on them by the political executive not to act when law demanded that they should.
I must thank the National Human Rights Commission (NHRC) here for drawing public attention to two judgments of the Madras High Court in the 1880s which lend support to what the MHA has now put down in its circular. In Muthialu Chetti vs Bapun Sahib (1880ILR 2 Mad. 142), the court said:
For the preservation of the public peace he (the Magistrate) has a special authority.... If he apprehends that the lawful exercise of a right may lead to civil tumult... regard for the public welfare is allowed to override temporarily the private right, and the Magistrate is authorised to interdict its exercise.
In another judgment, Sundaram Chetti and Others vs The Queen (1883 ILR 6 Mad.203 (F.B), the Madras High Court said:
If the Magistrate is satisfied that the exercise of a right is likely to create a riot, he can hardly be ignorant of the persons from whom disturbance is to be apprehended, and it is his duty to take from them security to keep the peace.
It is against this backdrop that we should evaluate the MHA circular pinning down the responsibility of district officials.
It is not surprising that the NHRC came down heavily on the State administration in Gujarat. Since what the NHRC said while reviewing the Gujarat events is relevant here, I thought I should quote the Commission in some parts. In its Proceedings of May 31, 2002 the Commission observed:
...there was a major failure of intelligence...accompanied by a failure to take appropriate anticipatory and subsequent action to prevent the spread and continuation of violence. (Our) Preliminary Comments (April 1) had observed that while some communally-prone districts had succeeded in controlling the violence, other districts - sometimes less communally prone - had succumbed to it. The Commission had therefore pointed to "local factors and players" overwhelming the district officers... reports had also implied that public servants who had sought to perform their duties diligently and to deal firmly with those responsible for the violence had been transferred at short notice to other posts without consulting the DGP and, indeed over his protests.
Again, in its Proceedings of May 31, the NHRC lambasted the State government for its failure to identify the "local factors and players" and for seeking to take shelter, in its response to the Commission, under the fact that the matter was covered by the terms of reference of the Commission of Inquiry set up by it. The NHRC went on to say:
...this answer (is) evasive and lacking in transparency, not least because of the numerous eye witness and media reports...which identify and name specific persons as being involved in the carnage, sometimes within the view of police stations and personnel.
POLICE failures to deal effectively with communal tension arise mainly from their own inadequacies and partly from unabashed politics at the ward level. As stated in my previous columns, intelligence collection at the grassroots level is abominably poor. It is our experience that the most trivial of incidents conceal tinder but they are so often overlooked for their deadly potential. The mischief starts here and it swiftly engulfs a whole State. It is this inadequacy that is the bane of the Indian police.
There is no great advantage in building grandiose State Special Branches of Police unless one can construct right from the bottom. This is why I feel that holding the D.M. and the S.P. accountable is a cosmetic response to the communal virus. It is the Station House Officer and his constabulary who need more rigorous training. It is only after they have done their duty of picking up sensitive information and keeping the higher echelons informed that the buck passes up. Not earlier than this.
Many inquiry commissions have held that even where the police had acted, their initial softness had almost always proved to be an encouragement to anti-social elements. Hard-boiled policemen will tell you that the first few minutes of a riot are the most crucial. If you do not respond firmly, including by way of using firearms, you have lost the battle straightaway. They will also tell you that the opening of fire at a mob that indulges in arson and wanton destruction of public property is definitely meant to inflict casualties, which alone will act as a deterrent to the rest of the crowd. (Shooting in the air and shooting below the knees are discouraged in many State Police Manuals, although these are encouraged sometimes by political functionaries so as not to ruffle public sentiment.) It is here that the judiciary will have to be understanding, and any nit-picking during a subsequent inquiry can only demoralise a police force. Fortunately, many judges at all levels have been extremely sensitive to this need not to run down a dedicated and determined policeman who had used force not indiscriminately but sensibly and with purpose. The role of senior officers in training their junior colleagues in this important area cannot be overemphasised.
Many past riots and the most recent ones in Gujarat highlight the political overtones to the task of containing communal riots. The vicious tendency to play on caste and religion so as to make political gains cuts across party lines. This proclivity is analogous to the attitude towards corruption where there is hardly any difference of opinion! Unless the ward level politician shows a change of heart, the situation cannot change for the better. The NHRC clearly refers to the role of "local factors and local players" whom the State government is averse to identify or name. Obviously the NHRC has raised an inconvenient question. The response of reticence has been on predictable lines.
Why do the police succumb to illegal directions from lower political functionaries? It is because the latter have enormous clout with the State headquarters and can make the personal lives of policemen unstable through arbitrary transfers. As long as this power remains with the political executive, no policeman will act against the interests of a ruling party. The plea is not one for divesting the executive of this authority. It will be undemocratic to say that the executive should not have this. The demand is that such power should be exercised on the basis of acceptable guidelines. Look at the recent transfers, including that of the Director-General of Police (DGP), which have taken place in Uttar Pradesh. To cap them all, the Senior Superintendent of Police (SSP) of Lucknow was placed under suspension on questionable grounds. (I personally believe, from my knowledge of the States, that U.P. is about the most hazardous State an IPS officer can choose to serve. It is not for nothing that at least two of my distinguished colleagues serving in Delhi flatly refused to go back to Lucknow when they were offered the crown!) Can there be a rational explanation to justify such capricious decisions?
It is unfortunate that courts have refused, as a matter of policy, to intervene, on the ground that transfers of personnel are part of routine administrative decisions. Is this not a simplistic view of what in fact is a calculated exercise to intimidate the average straightforward civil servant? I am confident that at some point of time the judiciary will be persuaded to alter its stance. In Gujarat, such transfers were ordered over the head of the DGP. The NHRC is appalled. I am not, because this has become formalised in almost every State, with the DGP just receiving an intimation of orders - including orders posting Inspectors of Police - issued in the name of government. Seldom does he have a say in this important aspect of police administration that is vital to maintaining discipline within the force. The experience of the southern States is far happier than the rest of the country because of certain well established traditions. But should we permit such regional variations in an area of utmost concern to the law abiding citizen?
One final observation on a Gujarat-related matter. I understand that members of a team comprising Amnesty International who sought to visit Gujarat for an on-the-spot study have been denied visas. This does not come as a surprise if one reckons the Amnesty's past record of distorting facts. But in between I know that instead of ignoring it, the government started countering its disinformation tactics. I am not sure whether this actually led to permitting Amnesty teams to come into India. If the latest decision is one based on the assessment that an Amnesty field study could affect the fragile peace in the State, I have no quarrel with that. If, however, the refusal is on other grounds, there could be misgivings in international forums and an avoidable debate over government motives, that will adversely affect the image of India's undoubtedly transparent democracy.