Download PDF VersionMerely enacting laws, however well-intentioned, to overcome social evils in a society will fail if these laws are not implemented. Two instances are legislation relating to prenatal diagnostics and the prevention of atrocities against Dalits. The failure in implementation can be attributed to the police forces lacking the capability to be modern law enforcement agencies. Wide-ranging and in-depth police reforms are therefore necessary to ensure that laws are actually implemented and effective.
When a social problem of some sort is brought to the public eye in an effort to address it, one of the first cries in response is to seek to criminalise it, to outlaw on pain of criminal prosecution. These are not cries in the wilderness. In the history of social reform legislation in India—starting with outlawing of Sati under Company Rule,1 all the way to the Criminal Law (Amendment) Act, 2013 enacted consequent on the Report of the Committee on Amendments to Criminal Law, headed by Justice J S Verma—when a certain social evil is sought to be put an end to, criminal law has been used as a response to it.
The response has been either to make such activity punishable as an offence or, if it is already punishable, to enhance the punishment and make it more stringent. We see one of these approaches in a wide variety of laws such as the Dowry Prohibition Act, 1961, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (henceforth, atrocities act), and even the Narcotic Drugs and Psychotropic Substances Act, 1985. Such legislative responses have been seen at the state level as well with respect to superstitious practices,2 witch-hunting,3 etc. The thinking seems to be that using criminal law and the threat of prosecution of the perpetrators by the state acts as some sort of deterrent against the commission of these social evils.
What has happened after such laws were passed is an altogether different matter. Almost uniformly the effects of these laws on tackling the social evil in question have been marginal at best. They have had no impact on addressing the social evil they were supposed to counter, and, in some instances (notably Section 498A of the Indian Penal Code, 1860), such laws have proved to be counterproductive, becoming a handy tool for extortion through abuse of the process of law.
The poster child for laws that have completely failed at the implementation stage has to be the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, intended to impose harsh punishments on pre-natal diagnostics usually used to abort female foetuses. India’s perilous child sex-ratio is a testament to the widespread failure of this legislation.4 With only about 600 cases being registered and only 20 persons being prosecuted in the first decade of its operation, it is perhaps not surprising that one study found that even knowledge of the law and its penalties did not deter women and their families from seeking abortions of female foetuses (Kumar et al 2014).
While the atrocities act was passed to provide for enhanced criminal punishment for offences against members of Scheduled Castes and Scheduled Tribes, a study of cases under the atrocities act conducted a few years ago, found that in three southern states of India, the conviction rate for offences under the atrocities act was as little as 5% with the bulk of acquittals being a result of witnesses turning hostile (CSCCL 2011). This, at a time when the number of atrocities against Dalits in the country has been on the increase, the large number of acquittals suggests that the law has failed in its deterrent role and allowed perpetrators to act with near impunity. Even though the atrocities act provides for criminal penalties against police officers who fail to carry out their duties properly in respect of atrocities that they are supposed to investigate and prosecute, it has clearly not had the intended effect in ensuring proper investigation and prosecution.
Although only two instances have been cited above, any number of laws can be pointed to as an example of the common malaise of weak and ineffective enforcement. This commonality is attributable to the state of the police forces at the state level, each dysfunctional in its own manner. Inherited from the colonial state, police forces in India have not been updated and professionalised to become modern law enforcement agencies. Rather, they still seem to see their primary task as one of maintaining order among a colonised populace, rather than enforcing laws in a modern, liberal democracy (Shahane 2015).
‘Belling the Cat’
The issue of police reforms is one which suffers from the “belling the cat” problem—everyone wants it to be done, but no one is willing to do so on their own. “Public order” and “police” being within the lawmaking power of the state governments as mandated under the Constitution, the primary responsibility for carrying out any police reform would lie with the state governments. However, despite multiple commissions and reports suggesting such reforms, no serious movement towards any police reform was seen for a long time. The Supreme Court of India stepped into the picture in 2006 with its order in a public interest litigation filed by retired Indian Police Services officer, Prakash Singh (Prakash Singh and Others v Union of India and Others 2006). Drawing upon various report and studies by commissions set up to suggest police reforms in India, the Supreme Court distilled these into seven binding directions to state governments as measures to be undertaken to reform the police at the state level. These directions relate to:
(i) Creation of a State Security Commission that would reduce the influence of the state government on the police;
(ii) Minimum tenure of two years for the director general of police, inspector general and the other senior ranked officers, to keep their tenure free from government interference;
(iii) Separation of investigating police from those tasked with maintaining law and order;
(iv) Creation of a Police Establishment Board, which will take decisions on all service issues, such as for policemen;
(v) Creation of a police complaints authority to look into complaints against police officers.
While these reforms are basic and just about scratch the surface in addressing the problems plaguing the police forces in India, these have not been implemented at all. Ten years after these directions were issued by the Supreme Court, most state governments have not implemented them, seeking, on the other hand, modifications to these to suit their needs. With contempt petitions and modification applications currently pending in the Supreme Court, the enforcement of even these limited directions looks like a long and hard slog ahead.
Long-term Changes
What the directions in the Prakash Singh case do not address are the long term, institutional changes that are needed to make the police in India professional, responsible, and accountable to the public at large. Reforms have to start from the kind of training given to police officers at all levels in India, sensitising them to the need to respond to the concerns of citizens and uphold laws.
In addition, the composition of police forces, along the lines of caste, religion and gender, needs to be seriously examined. A police force that does not adequately understand or empathise with the concerns of the weaker sections of society and carries prejudiced notions will, far from addressing the oppression faced by these sections, only add to them. What is needed perhaps is an all-round restructuring of the manner of recruitment in the police forces at all levels to see if they can be made more inclusive and representative of the general population of that state. These reforms will take a generation to undertake and implement fully, but a start has to be made now for any real effects to be felt in the near future. The aim of all these reforms should be to reorient the police towards becoming a body that takes “upholding law” as seriously as it takes “maintaining order” as its primary task.
Given the costs and procedure involved, passing a law outlawing or enhancing criminal penalties for social evils and practices may actually be the easier part of addressing a social problem. The difficult part rests in the implementation of the law in a large and diverse country such as India. In enacting laws there is little, if any, attention paid to the existing institutions that have been tasked with the implementation of the law. There is no systematic study of the capabilities and capacity of existing law enforcement mechanisms, such as the police or the courts, to handle new obligations under a new law. In the hurry to be “seen to be doing something” it is quite likely that taking the easy legislative route, far from addressing existing problems, only adds new ones, even exacerbating the existing problems.
