Autopsy of the rule of law
By BIJO FRANCIS Published: January 22, 2008
HONG KONG, China: About 12 people were hospitalized with symptoms of poisoning on Dec. 26 in Thrissur district of India's Kerala state. One person died, and the rest were treated in utmost secrecy.
The reason for the poisoning was exposed in the media after the death of one of the patients. The news revealed that the deceased and his friends were police officers and that they had become ill after consuming illicit alcohol served during a dinner party organized by one of their colleagues, to celebrate his wedding.
A case was registered against the police officer who served the illicit brew. Instead of proceeding with his marriage, the groom absconded. A search at the hotel where the incident happened revealed that not only illicit locally made brew was served at the party, but also dozens of bottles of imported foreign liquor were also served to the guests. None of this imported liquor had been brought into the country after paying the customs duty.
If you think the police officer who threw the party was a high-ranking officer, you are wrong. The officer was just a constable that had been recruited as a driver to the state police service, though the list of invitees to his party included some of the high-ranking police officers in the district, of which many took treatment in secret.
Where does a police constable earn the money to throw such a party with imported liquor? The incident reveals the nexus between the illicit liquor mafia and the local police. The police criminal nexus is nothing new in India. It is common knowledge that police officers, irrespective of their rank, are close associates of criminals. This nexus is open and in full public view.
Organized crimes ranging from human trafficking to narcotic drug sales are carried out with the complete knowledge of the local police. Irrespective of the state or region the close connection between law enforcement agencies and criminals is so intricate that the police and the criminals are closely paired up. Their illegal bond is evident from the underground narcotic drug manufacturing unit to the ordinary drug peddler who sells to a wide-ranging clientele on the street corner.
A few years ago a senior police officer in Kerala was accused of stealing petrol from railway bogies at the shunting yard. The officer was then serving as the chief of the Railway Protection Force, and, it was alleged and reasonably proved before the public eye that the officer had carried out his "business" with the help of petty criminals. The same officer was later accused of importing musical equipment without paying the customs duty to equip his wife's sound recording studio. The officer, who is a close associate of several leading politicians in the country, is still in active service.
The police in India cannot continue with their illegal deeds without the blessings of the politicians in power. Policing in India comes under the state list. This means the local police is fully under the control of the state government. As of now there are no effective mechanisms in India that can 'police the police'. During the past several years there was not a single attempt to address this problem. When adverse public opinion mounts pressure upon the government, the government constitutes commissions to study and suggest changes. These commissions are halfhearted attempts to ward off public attention from the apparent problem.
India's National Police Commission was set up on Nov. 15, 1979. Soon after its constitution, the commission was closed down in May 1981. In between, the commission published several reports, but most of its recommendations are yet to be implemented. Most important were recommendations to sever the unwarranted political and bureaucratic control over the police through direct and indirect means and to set up an independent police complaints authority. These recommendations still exist only on paper.
The commission is not the only body to make these recommendations to the government. Organizations ranging from the National Human Rights Commission to the Supreme Court have repeatedly asked the government to address the independence and discipline of the police service. None of these has been considered by the state or central government thus far.
The governments often express concern regarding increasing crime rates and the failure of the police to control crime. This is a duty that every government in India has religiously discharged. It consists of the shedding of tears and expressions of shock when a high profile case goes for a sham trial where the accused is acquitted or discharged due to pitfalls in the investigation.
Frequent acquittals and mistrials have generated a completely different discourse. The current debate on the criminal justice system disregards the state of policing. The earnestness shown by the government in drafting laws, often draconian ones like the various special security enactments, is not reflected in addressing the root concern of the failure of the criminal justice system, which is policing.
India is now gearing up to introduce changes to its criminal procedure law. Proposed amendments like fastening irrevocability to the statements given to police at the time of an investigation are not only contrary to common-law practice in India, but also give more opportunity to the police to get away with ill-intentioned deeds at the expense of the innocent person.
Such amendments will require additional resources and increase the work load of the already stalled courts, where the final disposal of a case can take decades. Legislative changes of this nature will kill the rule of law in India, which currently exists at least in theory.
Such amendments are based on the wrong premise that acquittals in criminal cases are due to the failure of the witness and ignoring the fundamental fact that the acquittal is often due to the failure in policing. This does not mean that all the suggested amendments are bad. Some changes, such as introducing a witness protection mechanism, are good. But what good is a protection mechanism in a system that cannot prevent crimes, and what trust can a witness have in a law enforcement agency that is in league with organized criminals?
India's legislators are once again about to take a completely wrong step due to concerns about crime and the justice system. What the legislators and gurus of the legal system do not want to touch is the failure of the police system.
What needs to be addressed is the fact that a local policeman can treat his friends and senior colleagues with illicit alcohol and the case is not investigated. What needs to be changed is the resistance of politicians and bureaucrats in severing their unwarranted control over the state police. What needs to be corrected is the lack of discipline in the police force and the absence of an independent police complaints authority.
Without addressing these issues, the crime rate in India will not decrease, but the complaints against crimes might. If one dares to complain about a crime committed against him, the chances are the complainant might end up in prison, not the criminal or corrupt police officer who fails to investigate the crime properly. Soon, Indians will have a bigger party, not sponsored by a police constable, but by the entire police department, where everything illegal might be served to the guests. In preparation for this, Indians could consider preparing for an autopsy of the rule of law that used to exist, at least in theory.
(Bijo Francis is a human rights lawyer currently working with the Asian Legal Resource Center in Hong Kong. He is responsible for the South Asia desk at the center. Mr. Francis has practiced law for more than a decade and holds an advanced master's degree in human rights law.)