The shackles of 1861 need to go

Source: The post is based on an article “The shackles of 1861 need to go” published in The Hindu on 16^th August 2022.

Syllabus: GS 3 Various Security Forces and Agencies and their Mandate.

Relevance: Police Reforms

News: Recently, a book titled “The Struggle for Police Reforms in India: Ruler’s Police to People’s Police” authored by a former IPS officer, Prakash Singh was released.

History of the reforms in the criminal justice system (CJS) during 75 years of Independence

(A) Parliament’s Contributions

The Probation of Offenders Act, 1958 was passed to reform, rather than punish, offenders.

The Dowry Prohibition Act was passed in 1961 for realizing the urgent need to check the social evil of dowry.

The Indian Penal Code (IPC) was amended in 1983 and 1986 to introduce sections 498A for cruelty by husband and his relatives, and Section 304B for the dowry related death.

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, was enacted in 1989.

The definition of rape has been widened and offenses related to sexual assault made tougher.

The Protection of Children from Sexual Offences Act, 2012, and the Juvenile Justice (Care and Protection of Children) Act, 2015, have been enacted.

The Information Technology Act of 2000 has been amended to give legal sanctity to electronic documents and signatures to facilitate online transactions and check cybercrime.

The National Investigation Agency (NIA) was constituted in 2008 after the deadly 26/11 terror attacks in Mumbai, to investigate and prosecute offences affecting national security.

(B) The constitutional court’s contributions

The Supreme Court granted relief to the LGBTQ+ community by reading down Section 377 of the IPC.

Custodial torture and sexual harassment of women have been held to be violations of fundamental rights.

The SC has ruled that the right to privacy is one of the fundamental rights under the Constitution of India.

The Supreme Court has acknowledged the misuse of Section 124A and has, in fact, may decide on the constitutionality of the sedition.

Attempts have been made to blend some elements of the inquisitorial system into the (prevalent) adversarial system. For example, making judicial inquiry has been made mandatory into custodial death and custodial rape mandatory to punish the guilty.

(C) Other Reforms

Police power to arrest has been curtailed, the use of handcuffs restrained, the presence of a lawyer permitted during interrogation, CCTV cameras installed in the police stations, and human rights bodies allowed to keep a constant eye.

Problems in the functioning of the Indian Police forces

(1) There are allegations of using brute force and a large trust deficit between the public and police.

(2) No state governments has given due attention to police reforms suggested under SC’s directives in Prakash Singh v. Union of India (2006). For example, even the directive of separating investigation from law and order was not implemented by States and Union Territories in the true spirit.

(3) In fact, no State or UT has adopted the Model Police Act drafted by Soli J. Sorabjee.

(4) The State’s police acts continue to live with British time provisions which have outlived their purpose long ago, like the connection between the magistrates and the police in the system. For example, the District Superintendent of Police is unable to transfer his Station House Officers (SHOs) without the approval of the District Magistrate in U.P.; the performance appraisal report of a Superintendent of Police is still written by the District Magistrate in some States

(5) Introduction of the police Commissionerate system in metropolitan areas (as per the provisions of the Criminal Procedure Code) is always resisted.

(6) The Criminal system is governed by the 1861 Act, which laid the foundation for an organized police force. It’s Drafting of IPC was impacted by the revolt of 1857. The main objective was to use the police as a weapon of repression and strengthen the hold the British had over India. The prevention (and detection) of crime was never their priority.

What should be done?

There should be additional funding for police reforms. Further, there is a need for improvement in soft skills and ensuring investigation in an impartial manner in order to bridge the trust deficit.

More offences can be made bailable and more brought under the ambit of compounding to lighten the burden on jails.

The Police department can establish specialised wings to deal with newer types of crime.

Further, police must be encouraged to use technology and forensic techniques to enhance the quality of evidence.