Saturday, December 29, 2012

How they fool us, the outraged

As long as we engender a society that allow law enforcers to get away with their own crimes, law breakers will only be emboldened. We must make Police Complaints Authorities around the country meaningful.

Outrage is a good thing, when it is against injustice. It shows that society does have a line it does not want crossed. It also puts pressure on the system to respond. Here's the problem with it though, it tends to ignore what is already unclear. No new clarity emerges from either the outrage or the response. Media coverage of outrage does not help with clarity either, unless the media is looking deeper.

So it will be with the entire rape debate in India. In fact even before public fury over the Delhi gang-rape has quietened, as it inevitably will, media has already started breaking more rape stories from around the country. More accountability will be demanded, as will the death penalty.

Yet, if there is one government authority that is laughing all the way to the bank, it's India's police. Here is why.

The Delhi HC has reportedly asked the local police to show it the chargesheet before initiating proceedings in the gang-rape. Why would a High Court do that? Chalk it up to experience. For years the accused in rape cases have not been sincerely prosecuted, and people have been let go with lesser charges or sentencing than was to fit the crime. The Delhi Police has a particularly soiled reputation already, and responding to this week's outrage as it were, the High Court stepped up the ante.

If a High Court in the capital territory of the nation does not trust the police's due process, what does that tell you? Let me come back to this question in a different way.

Each day in India, in buses, trains and crowed public places, women are groped, fondled, teased and made the subject of lewd remarks. Eve teasing is so common, women have simply resigned themselves to it. Women just try to avoid being in situations where they will be groped. They do not hope for much else. They do not bother going to the police. Such is the reputation our police have in handing their cases.

The police need to first accept complaints from women. Instead, as is widespread in India, they dilute complaints, humiliate the victims, and eject them from the stations. Their starting point is a judgement of the victim. And much of the problem lies here. When it comes to women, most policemen are part of the original problem. Sexual harassment of any kind - the most violent kind or a lesser kind - is about the power that one sex wants to show it can wield over the other. Usually it's men over women.

Still, the outrage in the nation is missing what the police and the governments are hoping will not come up.

Police Complaints Authorities
In 2006, the Supreme Court ordered the state governments to create one PCA per district in every state and a PCA at the state level headed by a retired judge. Human Rights groups called it landmark order. The apex court of the nation wanted PCAs to look into complaints citizens had against police misconduct or abuse of power. It could be everything from custodial torture or death or rape to not accepting FIRs to falsifying evidence.

The SC had wanted policemen to be penalised for not doing their job. It also wanted to reduce government-interference in police transfers. It wanted PCAs to act against errant officers after hearings and investigations.

Imagine this: The Supreme Court of this nation believes, that unless there was an authority to check the police, India's police would not serve its taxpayers. It would continue to operate to 'control' and 'keep order', for its political masters at state and centre, the way the British had setup the system.

Just from the woman's point of view, here is how PCAs with teeth, had they come into force, would have made an impact in bringing down rape and crimes of lesser nature. Women today would be able to file complaints against police officials with the PCA when they do not act in fairness with them at a police station. They would able to walk into police stations with dignity after a crime to get protection, not further abuse.

If errant officers were penalised quickly, police would not themselves not behave with the kind of impunity they do now.
Yet, the majority of India's states have ignored the SC's order. Only six states setup so-called "PCAs" and mostly toothless ones, and with shady appointments that violated the principle of independence the SC wanted. Delhi set up its public grievance commission as its PCA, precisely what the SC did not order. India Together reported on all this in August 2012, as a review on whether states had complied with the SC's order. In the few states with PCAs, police officers ignore hearings and go about their business as usual. State governments themselves do not follow their own PCA verdicts to act against abusive officials. Television media have mostly let this story go.

Have you even once heard of action against police official for not investigating a complaint by a woman? Are the police who mangle charge sheets, FIRs,and file false charges every prosecuted? 

In the meantime, thousands of men freely roam around the country to grope and molest women at will in public places. It takes a lot of force and pressure to get a complaint registered, even with witnesses. It is no one's case that PCAs will fix all our problems. There is much else in our society's attitude to women itself that needs attention.

But if police do not act on the most basic violations, it is a free ride for men. It sends a message of what the real social rules in the country are, not the ones on the books. The culprits feel that it is a natural order for them to be able to do what they want and get away with it. And if PCAs with teeth kept a watch on the police, it would send out the opposite message that as a society we will uphold the dignity of our women.

I do not buy the death penalty argument. From outrage to revenge is a short hop. You can sentence as many losers as you can to the gallows. More will appear, especially from amongst those who have little to lose, with a very low sense of self-worth and self-esteem.

As long as we engender a society that allow law enforcers to get away with their own crimes, law breakers will only be emboldened. This is why corruption is such a problem in this country. Like our other authorities, our police system does not have an integrity of its own to justify doing the right thing, or to remedy a wrong done to restore public faith. The PCAs will not fix all the problems but they would have sent a message to outraged women that someone would listen to them and dispense justice. That is one course-correction our society needs.

The Delhi gang-rape case is also chance for the media to get its act right. For all the coverage that rape cases get (read: ratings), very little coverage if any has been given to how state governments everywhere from Delhi to Tamilnadu have said 'we don't care' to the Supreme Court.

It is easy to drive up fury. The illumination really needed is on what the governments and police do not want you to know, and therefore not demanded. The demand for death penalties in fact is a lovely distraction for our babus and cops. 

Complaints? Who's listening? 
Six years ago the Supreme Court issued a detailed order listing the steps needed to insulate police work from politics, and to make it more accountable. But the progress since then has been slow. 

Last November, the Bangalore city police booked a case against three citizens, charging them for assaulting a traffic police officer. The main accused was Amulya Somashekhar, a volunteer of the civil society movement India Against Corruption (IAC). Amulya, her mother and friend were charged. Amulya, in turn, said that the officer had assaulted her for refusing to pay a bribe.

The local IAC volunteers asked for an independent inquiry, only to realise that there was no independent body which accepts complaints against the police. The police, instead, were preparing to conduct their own internal inquiry into the matter.

It was in 2006 that Supreme Court ordered that every state and district should have an independent authority to handle citizens' complaints against the police. This body, named Police Complaints Authority (PCA), is to be headed by a retired judge and can hold hearings on allegations of police misconduct and atrocities. Its final order would be binding on state governments. Karnataka still does not have a functioning PCA; although the government has - under pressure to comply with the SC order - appointed a head of the Authority, it does'nt have any staff or office yet!

Other than setting up PCAs, the SC ordered six key measures for police reform, in its 2006 judgment in Prakash Singh Vs Union of India. The reforms include establishing minimum tenure for senior officers and a procedure for appointing DGPs, setting up a body to make policy decisions on policing, and another to decide on promotions etc., so that political interference decreases in routine police work. Since police is a State subject in the Constitution, the states were supposed to bring these reforms.

Around the same time as the SC order, the central government-appointed Soli Sorabjee Committee prescribed a Model Police Act for states to follow. This committee was among the many that successive governments had set up since 1977 to recommend police reforms. Most states were following the archaic Police Act of 1861. The new state Police Acts were to have provisions for PCAs as well.

Only a few states have Police Acts now; those that have PCAs are even fewer. Six years after the SC order, only six states have PCAs - these are Assam, Haryana, Tripura, Uttarakhand, Goa and Kerala. Of this, only Kerala has district-level PCAs, in addition to a state-level PCA. Meanwhile, cases of illegal detention and custodial torture by police continue to be reported across the country.

Five Union Territories - Pondicherry, Chandigarh, Delhi, Daman and Diu, Dadra and Nagar Haveli - also have PCAs. Of these, Chandigarh's has been the only well-functioning PCA. Pondicherry's PCA has been defunct since its Chairman's retirement in June 2011. Delhi does not have a separate PCA; instead its existing Public Grievance Commission (PGC) - an independent body that accepts complaints on all government agencies - was given additional responsibility as a PCA. A single PCA has been set up for both Daman and Diu, and Dadra and Nagar Haveli.

Existing PCAs ineffective
State governments have done much to tweak the composition and powers of PCAs. The court order had clearly prescribed how PCA members should be selected, and how investigations should be carried out in response to complaints.

Each PCA is to be headed by a retired High Court/Supreme Court judge, selected by the state government from a panel suggested by the serving HC/SC Chief Justice. Other members should be similarly selected from among members recommended by the State Human Rights Commission, State Public Service Commission, or Lokayukta. Appointments should never be done directly by the state government.

But so far, all state governments have made only direct appointments, which are perceived as political appointments. The directions on the composition of the PCA have been blatantly ignored, like in the case of Haryana, where the PCA has only a single member, the Chairman, who is a retired IAS officer.

PCAs are supposed to have only one retired IAS and IPS member each, and no serving officers are allowed. But Kerala state PCA has two serving officers - Principal Secretary and Additional DGP - as members. Its district PCAs have the Collector and district SP as members. Having serving officers, especially from the police, defeats the purpose of an independent, approachable public authority. It also violates the court's order that all members should work full-time for PCAs.

In the case of Kerala and Haryana, the violation of the court order is written to the state laws itself. Their state Police Acts prescribe the current composition. Tripura Police Act has followed the SC order in principle, but violated it in practice. Tripura has two retired police officers in its PCA, as opposed to one such officer allowed as per the Act. Goa is yet to its Police Act; the PCA in that state was set up based on a Government Order.

The SC order also prescribed that at least one member in the PCAs should be a woman. But only four PCAs - Uttarakhand, Pondicherry, Tripura and Chandigarh - have women members. This is as per the NGO CHRI (Commonwealth Human Rights Initiative), which was an intervener in the Prakash Singh case, and has been following up on the SC order implementation.

Another problem that makes PCAs ineffective, is the investigation process. Only Assam has its own independent investigators, as mandated by the court order. All other PCAs forward complaints to the police department, asking it to investigate its own officers. Most complaints  are on illegal detention, refusal to file FIRs, custodial torture, filing of false cases, and extortion. The CHRI report says that many complainants reported being threatened by police, on filing the complaints.

In most cases, the police report would say that the officer is not guilty, and PCA would dismiss the case. Retd Justice T A Wilson, Chairman of seven district PCAs in Kerala, says that 95-97% of cases get dismissed based on police reports. "It is only in remaining cases that any hearing happens."

"Police Acts/GOs have no provisions for independent investigators. So PCAs cannot demand these from the government," says Devika Prasad, Senior Programme Officer for police reforms at CHRI.

PCAs also have no power to take action against police officials who do not cooperate. Often police officers do not attend hearings, and cases may lag for years.

Hardly any police officers punished so far
The number of complaints to PCAs is high, but action against officers is rare. In many cases where PCAs ordered punitive action, the order was ignored by the government. PCAs can order either a departmental inquiry or filing of FIR against officers, and government is bound to follow this. Governments ignore the order using a provision in State Acts/GOs that allow them to 'disagree' with PCA orders. The Acts say that "recommendations are binding unless the state disagrees with the order."

Devika Prasad says that this loophole is often used. "Even if government disagrees with an order, a departmental inquiry should be held before closing the case. But cases are closed or neglected. There have been hardly any cases in which action was taken," she says.

Chandigarh PCA, one of the more active authorities, had recommended suspension of many officers. According to Chandigarh administration's official website, the PCA received 237 complaints from September 2010 (when it started) till June 2012. It disposed of 204 of these, recommending disciplinary action in 50 cases, against 90 policemen.

But no action was taken against these officers, and a PIL came up for hearing in the Punjab and Haryana High Court this June, saying that the PCA should be given more teeth. At the hearing, Chandigarh Administration clearly responded that PCA was already exceeding its jurisdiction by ordering suspensions and transfers. It said that PCA was only a recommending body, and that government could disagree with its recommendations.

Lack of government support also prompts PCAs to pass weak orders. It took Haryana PCA one-and-half years to pass its first order for punitive action. Most PCAs also choose to recommend departmental inquiry, rather than filing of FIR. Since departmental inquiries are easier to ignore, most have been lagging for years.

There is no clear data on what action was taken on PCA orders; most often PCAs themselves are not kept in the loop. Only Goa PCA has been proactively asking police to submit action-taken reports.

Justice Wilson says that he has recommended action in 10-15 cases since May 2010 (for all seven districts combined), but was not informed of action taken. "I only heard some rumours;  the concerned officials have not informed me. The problem is that government does not want to take action," he says. Even then, these district PCAs continue to get cases, some of them as much as 30-40 new cases per month.

The CHRI report quotes some complainants as saying that the PCAs'Â weak orders were not worth the risk of complaining against the police, and that such orders would work against them if they went to court later.

No funds, no rules
Many PCAs do not have well-equipped offices, staff or funds. Police Acts and GOs do not mention anything about funding of PCAs, and sometimes no allocation is made. For instance, Kerala's district PCAs still function from the offices of each Collector, who also gives them discretionary funds. There is no state government funding, and the Chairmen are not given vehicle allowance to travel across districts.

Also, the rules for daily functioning of PCAs have not been made, making it difficult for the public to understand or question them. The format for filing complaints, communication on hearings etc., are randomly prescribed. When a case is dismissed, the reason for dismissal is not clearly mentioned in the orders. PCAs themselves are supposed to make the rules and get them approved by government. Only Uttarakhand PCA has sent draft rules to state government so far. PCA sent the draft in 2008, but the government returned them without approval in 2011.

States like Assam and Haryana have laws that make it difficult to file compaints - in these states complainants have to file a sworn statement against the accused, along with a fee. If the complaint is judged frivolous, the complainant can be punished with a fee or penalty.

Other states stuck
According to CHRI, five states - Andhra Pradesh, Madhya Pradesh, Mizoram, Tamilnadu and Uttar Pradesh - have ignored the SC order completely. Others have drafted Police Acts, or passed notifications on PCAs, but will have PCAs with similar problems as the existing ones.

Gujarat PCA, for example, is to have serving police and government officers in state PCA; its district PCAs will have district SPs as Chairmen. Himachal Pradesh's Lokayukta will act as its state PCA.
The Supreme Court had set up a committee earlier to monitor implementation of its order. This committee, headed by retired SC Justice K T Thomas, submitted its final report in 2010. The report blamed states for their unwillingness to set up PCAs. The SC then sent notices to some states asking for explanation. Prasad says that there have been no hearings of late.

Existing PCAs too are facing more hurdles, while some are becoming more proactive. The Goa government now plans to dissolve its PCA through its new Police Bill. The Bill, yet to be passed, says that Lokayukta will act as the PCA. On the other hand, Assam and Tripura PCAs recently published their performance reports. The Tripura authority has outreach programmes now to create awareness. The Haryana PCA has a website and accepts complaints online.
The autonomy and routine functioning of these bodies, as envisaged in the Supreme Court order, remains a distant dream. 

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