Rise in lynching and rape: India’s criminal justice system needs fixing

Eleven years ago, the distinguished former director-general of police (DGP) Prakash Singh wrung a landmark order from the Supreme Court on sweeping police reforms. The SC order, issued in September 2006, followed Singh's petition aimed at reforming India's corrupt and dysfunctional police which lies at the heart of virtually every law and order problem.

Incidents of violence involving gau rakshaks and the spate of lynchings, rapes and political murders can be traced back at least partially to ineffective policing. The law and order machinery across states is often corrupt and complicit, allowing criminals free rein. Most soon get bail. Their cases linger on for years. Fear of punishment is absent. The judicial system remains fatally clogged.

Shockingly but not surprisingly, the Supreme Court's seven-point directive on police reforms has been subverted by every government - the Congress-led UPA from 2006, when the order was issued, to 2014, the BJP-led NDA from 2014-17 and most state governments.

Law and order is a state subject, point out central ministers, passing the buck. The Supreme Court has been content to let the matter drag on for over a decade. In 2013 it hauled up four state governments (Maharashtra, Uttar Pradesh, Andhra Pradesh and Tamil Nadu) for contempt of court. Chief secretaries of the states were summoned and warned they could be jailed if the SC's 2006 seven-point directive was not implemented.

Predictably, nothing of the sort happened.

This vicious cycle of bad policing and a broken criminal justice system are closely interlinked. Singh's petition sought to attack the root of the problem. The Supreme Court delivered one of its most enlightened orders but then failed in its duty to enforce that order.

Here's what its seven-point judgment ordered:

1) Constitute a State Security Commission (SSC) to:

(i) Ensure that the state government does not exercise unwarranted influence or pressure on the police; (ii) Lay down broad policy guidelines and; (iii) Evaluate the performance of the state police.

2) Ensure that the DGP is appointed through a merit-based transparent process and has a secured minimum tenure of two years. 3) Ensure that other police officers on operational duties (including superintendents of police in-charge of a district and station house officers in-charge of a police station) are also provided a minimum tenure of two years.

4) Separate the investigation and law and order functions of the police.

5) Set up a Police Establishment Board (PEB) to decide transfers, postings, promotions and other service related matters of police officers of and below the rank of deputy superintendent of police and make recommendations on postings and transfers above the rank of deputy superintendent of police.

6) Set up a Police Complaints Authority (PCA) at state level to inquire into public complaints against police officers of and above the rank of deputy superintendent of police in cases of serious misconduct, including custodial death, grievous hurt, or rape in police custody and at district levels to inquire into public complaints against police personnel below the rank of deputy superintendent of police in cases of serious misconduct.

7. Set up a National Security Commission (NSC) at the union level to prepare a panel for selection and placement of Chiefs of the Central Police Organisations (CPO) with a minimum tenure of two years.

Had these seven Supreme Court directives been implemented, criminal violence would not have disappeared but it would certainly have been mitigated. When the police conspire with - or are seen to conspire with - criminals, public faith in the law and order machinery is rapidly eroded.

Cow vigilantes exploit this to bully, beat and murder. Political parties in states like Kerala and West Bengal use police laxity or complicity to kill political opponents. Common criminals are emboldened to rape, knowing fully well that the dysfunctional criminal justice system will shield, not punish, them.

Courts and government share blame

For this sorry state of affairs, the courts and the government must share the blame. An especially shocking outcome of their lethargy is jails that are overcrowded with undertrials. Many prisoners have already spent more time in jail than the maximum sentences they would have served had they been convicted.

The shoddy work of the CBI, ED and EOW, all staffed by IPS officers, has allowed several high-profile absconders accused of financial fraud to escape punishment. Investors and employees of the companies they have defrauded have little recourse in a clogged judicial system.

Senior lawyers, some of whom charge over Rs. 10 lakh for a single hearing even if it is adjourned, have colluded to make India's criminal justice system among the world's slowest and most corrupt.

Judicial reforms should clearly now form the Narendra Modi government's top priority along with economic reforms. The judiciary is the third pillar on which democracy rests. But without first implementing a pre-existing Supreme Court order on police reforms, unclogging the judiciary will remain utopian.

Governments use the police to guard their interests, not the public's. As Maja Daruwala, director of the Commonwealth Human Rights Initiative, observed: "States have chosen four approaches: Actively resist the Supreme Court's order; lie doggo and do nothing; do something but do it wrong; and finally, get out from under the Supreme Court's orders by passing laws which not only do not conform to the court's orders but actually give statutory sanction to bad practices.

For instance, in the majority of the 17 Police Acts passed since 2006, state governments have given themselves the sole discretion to appoint police chiefs instead of choosing from a panel recommended by the UPSC. In many of the nine operational Police Complaints Authorities currently in place, their design has been subverted by appointing serving police officers as judges in their own cause. Elsewhere, their functioning has been hobbled by the lack of independent investigators."

The Supreme Court has been quick to haul up minor offenders for contempt. It must now hold state governments and the Centre to the same standard for being in contempt of one of the most important reforms in Indian governance.

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