(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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