(Online Course) Pub Ad for IAS Mains: Chapter: 13 (Law & Order) - ARC Summary (Public Order) (Paper -2)

ARC Summary (Public Order)

Maintenance of public order & rule of law is a key sovereign function of the state, as the possible collapse of public order & of the rule of law has the potential to destroy the faith of citizens in its govt. & erode its legitimacy. Large scale violence & disruption can threaten a country’s social fabric, endanger national unity & destroy prospects for economic growth & development.

Our colonial rulers recognized the importance of maintaining public tranquility through the use of an armed police force knowing that the tenuous grip of a few British over India’s teeming millions would not survive any large scale public upsurge. They therefore developed the police in India as an armed force, as an organization oriented not to the service of the people of India but principally to maintain the authority of Govern. It was a top heavy agency of oppression, used for protecting British interests & to sustain their empire. The relationship between the police & the public was one of the suspicions.

Public order implies a harmonius state of society in which all events conform to the established by law & is synonymous with peace, tranquility & rule of Law. (It is that state of tranquility which prevails among the members of a political society as a result of the internal regulation enforced by the government which they have established. Thus, it differs from society to society.)

It is largely a product of efficient general administration, effective policing & a robust criminal justice system.

‘Established order’ is not equivalent to ‘public order’. It may not always be as per the tenets of Rule of Law. Law enforcement agencies endorse status quo, for them public order means ‘Absence of any disturbance’ & ‘harmonious side of society’ any disturbance’. Other Laws & public policies aimed at desirable social change may sometime lead to disturbance on even violence & yet such laws need to be enforced firmly if the law values of the constitution & human rights due to be protected.

India is an over legislated country. The temptation to shout circuit the process of modernisation by law & use of force should be resisted except when local opinion & prevailing societal norms are grossly violative of the cone principles of constitution & democratic governance. eg. Caste discrimination/Animal sacrifices. The problem is where to draw the line there are two approaches:

The state should resist the temptation to over legislate except in crucial areas which constitute the essence of constitutional values on prevent significant public loss or promote vital public good. Persuasion, public education & social movements are the desirable routes to social change in such cases.

If such laws to exist, effective enforcement on case to case basis through the prosecution of offenders is a better route & not the thoughtless precipitation of public confrontation. If indeed a confrontation is called for there must be adequate preparation, sufficient deployment of security forces, massive public campaign & preventive action in order to avert major rioting & loss of life. Several public order problems have become chronic in nature because the root cause of violence – persistent misgovernance & failure to ensure a fair deal have not been addressed adequately.
Some Public Order Problems are:

1. Communal Fiets

General amity & the peaceful coexistence of various faiths in India have been the envy of the civilized would. Nonetheless given the diversity of our society & our complex historical baggage, we are often beset with communal tensions which occasionally erupt into violence. At times, either bigoted & fundamental leadership, or unscrupulous political operators with an eye on short term electoral advantage have deliberately & maliciously engineered communal passions, hatred & even violence to achieve sectarian polarisation.

(a) Systemic problems

• Conflict resolution mechanisms are ineffective.

• Intelligence gathered is not accurate, timely & actionable

• Bad personnel policies poor choices of officials & short tenure lead to inadequate gasp of local conditions

(b) Administrative shortcomings.

• The administration & police fail to anticipate & read indications which precipitated into violence earlier.

• Even after the appearance of 1st signals, the administration & police are slow to react.

• Field functionaries tend to seek & wait for instruction from superior thus underling local initiative.

• The administration & police act in a partisan manner.

• At times there is a failure of leadership.
  Post riot management Deficiencies
  Rehabilitation is often neglected, breeding resentment & residual anger.

• Officials are not held to account for their failures, thus perpetuating slackness & incompetence.

• Even now reprehensibly, often as a ‘compromise’ following communal riots, serious cases against the accused are sought to be withdrawn from courts on erroneous consideration.

2. Terrorism

It is defined as the illegal use of force or violence against people to create a wave of terror with intention of achieving certain political on sectarian objective.

Even when the proximate cause of action or the political objective of the terror group is limited to a part of the country, the existence of sleeper cells, the spread of modern communication”, an integrated economy & the increasing use of terror technology & tactics have made it easy for it to speed their tentacles all level the country. As a result, terrorism is not only a public order problem but emerged as a grave threat to national security as well.

Number of terrorist Incidences in J & K [4522 (2001) – 1667 (2005)].

Also, groups with initial political objectives so over or later degenerate into mercenary group.

• Extra – terrestrial sponsorship of terrorism, porous borders,, diplomatic complexities in dealing with safe havens across the border & the deficiencies in own even criminal justice system have made the task of countering terrorism extremely arduous.

• The security forces have to win the confidence & support of local people. High handed action by security forces, especially. violation of human rights tend to alienate the local people.

• The multi pronged approach is needed. Socio-economic development needs to be taken up on a priority basis so that local people do not fall into the trap of terrorists; the Administarion & service delivery mechanism need to be geared up so that the legitimate & long standing governance of the people are redressed promptly & therefore can’t be exploited by terrorist groups.

• Strong measures are required to deal with criminals but with respect for human rights.

3. Militancy in the NE Region

The NE region has more than 200 ethnically diverse groups with distinct languages, dialects & socio-cultural identities.

A few movements seek outright secession from the Indian union, some aspire for separate statehood while others demand greater autonomy within the existing state. Apart from causing huge loss of human lives, militancy has hampered economic development of region. Foreign intelligence agencies, porous borders, corruption, economic deprivation & unemployment are driving segment of youth into the fold of militant organisations.

Another intractable problem has been created by migration from Bangladesh. The fear among the local population is that this local immigrant population would reduce them to a minority, as his intact happened in some regions.

Some of these are:

Assam – ULFA & NDFB

Manipur – PLA, UNLF, Peoples Rendutionary partly of kanglipak (PREPAK)

Meghalaya – Achik National Volunteer Council (ANVC)

Tripura – NLFT, All Tripura Tiger Force (ATTF)

Nagaland – NSCN (IM), NSCN (K-khaplang)

- The whole of Manipur (except Imphal Municipality), Nagaland & Assam, Trap & changing of AP and some parts of Tripura have been declared ‘Disturbed Areas’ under AFSPA.

• The GOI is engaging some of the militant groups in negotiations while providing financial assistance to the stage govts for upgrading their police for countering violence. It is also holding talks with neighbouring countries for effective border management.
  Some of the Initiatives are:

• NE Council was establishing in 1972 through an Act of parliament for receiving balanced development of NE Region & Inter-state co-ordination.

• Dept. of Development of NER was setup in 2001 & became a full fledged ministry in 2004.

• All union Ministeries/Departments Earmark at least 10% of their budget for specific programme of development in NER.

• Fair reconciliation of the conflicting interests in the region, adequate local empowerment with accountability, infrastructure development, economic growth, greater economic linkages with neighbouring regions & better governance & democratic legitimacy must together form the foundation of durable peace & prosperity in the region. In the short term, security agencies need to be strengthened, ebdvetions must be stopped, militancy should be curbed & accountability should be institutionalized in order to protect human rights.

4. Left-wing Extremism

Naxalism is the name given to radical, violent left wing extremism. Naxalities adopted a policy of annihilation of their ‘class enemies’. It has spread to 9 states. Apart from indulging in violence, naxalities continue to hold Jan-Adalats, a mechanism to dispense crude & instant justice.

• The problems of poverty & alienation, the demand of territorial rights & displacement from traditional forest habitats have aggravated the problem. Besides unequal shoring of benefits of exploitation of resources has created a fertile breeding ground for growth of this menace.

• In 2004, two of the main left wing extremist groups in the country came together under the single banner of CPI (Moist). They have a command structure with provincial & regional committees & local platoons of weapon wilding ‘solders’. They are backed by a chain of ‘Couriers‘ & sympathizers & civil society organization. The knowledge of terrorism offers a great advantage.

• GOI has adopted a multi-pronged strategy to contain this serious throat. Apart from countering violence, it is addressing the political issues involved, attending to the development needs of the affected areas & managing public perception. 60 districts identified & specific schemes for them, IAP (Integrated Action Plan).

• Strengthening of intelligence structures, financial assistance to the affected states, modernization of state police, long-term deployment of CRPF, improved co-ordination mechanism, Backward Districts Initiatives (KBK), BRGF are some of the concrete measures taken by GOI. These initiatives need to be closely monitored to ensure that their impact is demonstrated on the ground & accountability mechanism for this used to be created.

5. Broad types of Causes of Violence.

• Social : Caste, ‘hierarchy’

• Communal

• Economic

• Administrative: Slackness in delivery of services, lethargy in enforcement of laws. Corrupt & self seeking behavior of some officials compound the problem.

Political: Political leadership tries to use the admin for furthering its own political agenda.

The lack of accountability has been one of the main reasons for the tardy response of govt. machinery.

• Firm action is eschewed as incentives are often skewed in favours of not dealing with a situation firmly even when the situation so demands. Using force to restore order even when justified, runs the risk of future inquiries whereas soft pedaling may be a safer option.

• Reconciliation of the imperatives of public order with a citizens liberty & dignity as a vital requirement in a liberal society, Training, Equipments, Procedures, & attitudes need to be affirmed to the citizen’s human rights.

Need for comprehensive Reforms

• Administration decisions are being guided by political expediency.

• Inadequate involvement of civil society, NGOs, & social workers in public order management.

• Lack of empowerment of Junior ranks at the cutting edge levels of administration to effectively deal with problems at the Nascent stage.

• Lack of appropriate training for functionaries of civil admin & the police on public order issues.

• Lack of cohesive all India policy & legal framework to deal with problems of public order.

• Ineffective performance monitoring systems and lack of accountability.

• Visible policing is an extremely effective instrument to prevent crimes in society.

The Existing Police System

‘Public order’ & ‘Police’ figure as entry 1 & 2 respectively, in list II (State list) in the 7th schedule of over constitution, thereby making state govts. primarily responsible for maintaining public order.
Article 355 of the constitution enjoys upon the union to protect every state against external aggression & internal disturbance & thereby to ensure that the govt. is carried on in accordance with the provisions of the constitution.

The Police Act, 1861 is still the basic instrument governing the functioning of the Indian Police. Under the Act, the IG of Police (DGP) is the head of a state police. Besides, other laws like the IPC of 1862, the Indian Evidence ACT (IEA) of 1872 & the crpc of 1937 also govern the functioning of police.

Some facts:

• India’s police/people ratio : 1 :694 (1 : 125 prescribed by UN)

• People under a police station vary from more than a lakh in Delhi, Gujarat to 15, 191 in Arunanchal.

• Only 6 (states + UT) have a strength more than or equal to the sanctioned strength.

In the perception of people, the egregious features of police are politically oriented partisan performance of duties, partiality, corruption & inefficiency, degrees of which vary from place to place & person to person.

According to a Tranpelancas international survey

80% respondents had paid a bribe, out of 11 public service agencies police were to be believed to be most corrupt & 74% of the respondents were dissatisfied with the service.

• The conviction rate has declined from 64.8% in 1961 to 42.4% in 2005 even thought the no. of charge sheets have increased from 53.6% to 80.7%.

• The number of custodial deaths have also increased from 207 in 1995 to 1340 in 2002-2003.

• There is a propensity to report to physical violence & coercion even during investigation rather than taking recourse to scientific & seplisticated methods together evidence. The emphasis therefore is an oral evidence or confession rather than on forensic evidence.
  Other factors responsible for failure of criminal justice system

Problems related to general administration

• Lack of co-ordination between various agencies.

Problems unrelated to police

• Organisation, infrastructure & environment: Political Interference, poor career prospects & hierarchical shackles, lack of modern technologies & empowerment of cutting edge functionaries.

• Problems of organization behaviours: Inadequate training & entrenched attitudes of arrogance, insensitivity & patronage.

• Problems of stress due to over burdening: Multiplication of functions, shortage of personnel & long working hrs.

• Problems related to ethical functioning: Corruption, collusion, Insensitivity to human rights & absence of transparent recruitment policies.

Problems related to prosecution:

• Best talent not attracted as public prosecutors.
  • Lack of co-ordination between the investigation & the prosecution agencies.
  • Mistrust of police in admitting evidence.

Problems related to judicial process:

• Large pendency of cases

• Low conviction rate

• No emphasis on ascertaining truth

• Absence of victims perspective & rights.

Core Principles of Police reform

Responsibility of the elected government : Though the police functioning should be autonomous but any reform proposal must recognize this requirement of democratic accountability & the responsibility of Political executive & elected legislature. (There should be responsible political direction which would also lead to depoliticisation of the police.)

Authority, autonomy & accountability: Each wing should have the functional & professional autonomy commensurate with its requirements. Any reform will yield dividends only when the efficacy of the system is enhanced while ensuring that propensity for abuse of authority is curbed.
The police apart from being accountable to law, should also be accountable to public & public institutions created by law.

Disaggregation & deconcentration: The traditional approach has been to club a variety of disparate functions in a single police force & concentrating all authority at one level. Aggregation is dysfunctional for the four reasons.

(i) Core functions are neglected.
(ii) Accountability is greatly diluted when duties cannot be clearly mentioned & stated and performance cannot be measured & monitored.
(iii) Skills & resource required for each function are unique & a combination often undermines both morale & professional competence.
(iv) Each & function requires a different system of control & level of accountability.
By horizontal fusion of disparate functions, the executive central necessary for law & order often spills over to the domain of crime investigation. (crime investigation, law & order, local Policing)

Independence of Crime Investigation

• Perjury
• Lack of forensic evidence
• Criminalization of politics
Yet, Broad guidelines must be given.

Self Esteem of Policemen:

• 87% constabulary; have become ‘machine’s lacking imitative; No vertical mobility/ Job enrichment.

• Incentives are feeble; several levels of recruitment have reduced promotion opportunities, lateral entry is also not feasible.

• Lack of empowerment of cutting edge functionaries.

Professionalisation, Expertise & Infrastructure:

• Forensic labs need to be established for every district or a group of districts.

Attendant criminal law reform:
Police reforms by themselves, though necessary, are not sufficient.

• Judge/Population ratio : 11: 1 million

• Developed Countries: 100 : 1 million

Police to be a ‘Service’
Bringing people closer to the police, involve citizens in policing & giving citizens some say in policing. Besides a total change in the mindset of the police as well as the citizenry would be required.

Police Reforms

The 1861 Police Act gives the power of control & superintendence of the police to the state govt. It has led to the obstruction of as perversion of justice by unduly influencing low enforcement agency. ‘Obstruction of Justice’ should also be defined as an offence.

Accountability in the content of governance means that public officials have an obligation to explain their decision & actions to the citizens. It is achieved through various mechanisms-political, legal & administrative.

Multiple system of accountability lead to the question of Sufficiency/ Excess. Excessive accountability may curb initiative & in a uniformed service like police it may demoralize the force. Balance has to be struck between control & initiative.

Police broadly has 3 functions:

1. Prevention

2. Investigation

3. Service provision

Crime investigation should be separated from ‘law & order’ (separation of functions)

Board of Investigation: [Eminent lawyer, rHCJ, DGP, Home secretary, IAS etc., Leader of opposition)

This board should supervise the forensic & presentation Department Chief of investigation to be appointed by state from the names proposed by Board.

Chief Investigating Agency should be entrusted with investigating crimes punishment for which is above a certain level (3 years) should have separate staff. Reduce the Burdernon CBI.

Maintenance of ‘Law & Order’ machinery requires close civilian oversight & co-ordination but this should not extend to operational control of police.

A state police performance & accountability Commission should be constituted. (HM, Leader of Opposition, Chief Secretary, DGP, 5 eminent citizens)

It should identify performance indicators & review & emanate organizational performance.

Postings: Police Establishment Committee (Chief Secretary, DGP, State Home Secretary). State if it does not agree with any of the recommendation must record the reason in writing.

Competent prosecution

A system should be evolved at the district level which ensures professional competence, fair trial & close coordination between investigation & prosecution. A district attorney must be appointed.
CrPc (Amendment) Act provides for the establishment of a Directorate of Prosecution to be headed by Director.

Local Police & Traffic Management

It is estimated that more than 70% of the case are under special lanes (SLL). Morevoer the conviction rate under the special law is 86% whereas under the IPC it is only 37%

A task force may be constituted to identify those laws whose implementation, including investigation of violations could be transferred to the implementing departments. Eg. Motor vehicles Act, State Excise, Forest Conservation act etc.

Though police manages traffic, there are multiple agencies involved like parking etc. Traffic management should therefore be entrusted to the local bodies.

All cities with a population above 1mn should have a metropolitan police authority. The authority should home powers to plan & oversee community policing, improving police-citizen interface, suggesting ways to improve quality of policing, approve annual police plans & to review the working of such plans.

Non Core functions like verification of antecedents & addresses, job verification etc. should be outsourced.

Empowering Cutting Edge Functionaries

As the constabulary is usually the 1st interface of the police with the public, any reform has to begin at this level to be meaningful. Teeth to Tail ratio = 1.15 to 1.7 {1 : 4}

Removal of the orderly system mould help the constabulary focus on their prime duty, policing.

700 graduate ASIs can be recruited against a vacancy of about 1000 constables, and that 100 without any financial burden. These ASIs could then be remoted upto the level of Dysps over a period of time.

This would itself serve as an effective motivating factor for such personnel to maintain high level of integrity, professionalism & personal behavior.

Recruitment of constable should continue in the armed police.

To inspire confidence in all sections of society it is imp that the composition of police force should reflect the composition of the society. Affirmative action should be taken to motivate persons from different sections of society to join the police.

Welfare Measures

Better working conditions, vertical mobility, Job enrichment can go a long way towards improving morale & performance. Priority has to be given to welfare measures such as better education for children, medical care, housing etc.

Adequate leave, at least for 1 month each year, should be provided.

Police & Human Rights

NHRC was established on 12th October, 1993 as mandated by the protection of Human Rights Act, 1993.

More than 50% of the complaints received are from the police.

Community Policing

It is an area specific proactive process of working with the community for prevention & detection of crime, maintenance of public order & resolving local conflicts & with the objective of recommending a better quality of life & a sense of security.

The basic principle underlying community policing is that ‘a policeman is a citizen with uniform & a citizen is a policeman without uniform’. It involves close working between the two with police taking suggestions from people on one hand & using the citizens as 1st line of defence the other.

It has 4 elements:

• Community-based crime prevention,

• Patrol deployment for non emergency interaction with the public.

• Active solicitation of request for service not involving criminal matters.

• Creation of mechanisms for grass root feedback from the community.

The idea would be successful if it is people driven rather than police driven.

• Convergence with activities of other govt. depts. & organizations should be attempted.

• It should not merely be a public relation exercises

Accountability mechanisms

- DPCA – headed by District Judge/Eminent citizen (upto DSP)
- SPCA – headed by Supreme Court/High Court Judge (SP to DGP)

It should not look into issue coming under the function of lokayakta but should focus on other types of grievances such as non registering of complaints, general high headedness etc.

The procedure for lodging a complaint should be made simpler. It could be web enabled & Interactive voice Response could be used.

There should be an independent inspectorate of police in each state under the supervision of SPPAC.

Intelligence Gathering

- Police station & its functionaries should be the prime source for gathering intelligence. Rapid advancement in technology should be fully exploited for intelligence gathering. The beat police system should be levied strengthened.

Training

Focus is more on discipline & regimentation while attitudinal & behavioral improvements are relegated to the background.
Deputation to training institution must be made more attractive in terms of facilities & allowances so that best talent is drawn as instructors.
Each state should earmark a find percentage of the police Budget for training purposes.
Programmes should include a module on gender & human rights.

Gender issues in Policing

In spite of the constitutional, legal & institutional provisions, women continue to be victims of crime & oppressive practices throughout their life. The National Policy an Empowerment of women acknowledges that major garden gaps exist in key areas affecting women empowerment & well being e.g. – mortality rates, sex ratio, literacy.

Gender violence throughout life cycle.

Prebirth : Sex selective Abortion, female foeticide

Infancy : Female infanticide, emotional & physical abuse, differential access to food & healthcare.

Girlhood : Child marriage, sexual abuse, child prostitution.

Adolescence : Marriage below legal age, girl trafficking (1 every 77 mins)

Reproductive Age : Dowry abuse & murder, psychological abuse, sexual abuse at workplace, rape (1 every 53 mins)

Elderly : Discriminatory practices against widows.

Even more alarming are the lower rates of connection in case of offence against women. (1 every 15 mins)

Murdered – 34.6%, burglary – 35.8% molestation – 30%

Rape – 25.5%, Domestic violence – 19.2%
(1 every 29 mins) (1 every 9 mins)

Representation of women in police should be increased from current 2% to 33% though affirmative action.

Police at all levels need to be sensitized on gender issues through well structured training programs.

Citizen groups & NGOs should be encouraged to increase awareness about gender issue in society & help bring to light violence against women & assist police.

Crime Against Vulnerable Section

The protection of Civil Rights Act was enacted in year 1955

Providing for punishment of untouchability offence. The SC & ST (Prevention of Atrocities) Act was enacted in 1989.

1978 – SC & ST Commission

2004 – separate ST Commission.

Union govt. provides financial assistance for strengthening of the administration, enforcement & judicial machinery, awareness generation & relief & rehabilitation measures.
The state Govt. On their part have constituted ‘Civil Rights Enforcement cells’ for enforcement of these Acts.

However, the conviction rate under the SC/ST Act (30.5%) & protection of civil rights act (19.7%) is significantly lower than the same under special & local laws (86%) as well as IPC Crimes (40.6%)

Administration has to play a proactive role in detection & investigation of these crimes, particularly in remote rural areas where the awareness level are low & victims often do not come forward to lodge complaints.

These vilreterable groups often harbour a sense of insecurity such apprehensions can be allayed to a large extent if the local police have adequate representation from these committees.

The administration & police should be sensitized toward the special problems of SC/STs.

Administration should focus on rehabilitation of victims & provide all support including counseling by exports.

Union- State & Inter-state Co-operation

MoHA should proactively & in Consultation with the states, evolve formal institutions & protocols for effective co-ordination between the union & the state & among states. These protocols should cover issues like info/intelligence sharing, joint investigation, join operations, inter-state operations, regional co-operation mechanisms & the safeguard required.

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