Three years after Section 66A of the Information Technology Act, 2000, was struck down by the Supreme Court, citizens continue to be “arrested” for allegedly committing offences under this non-existent provision of law. This is not the only provision of law which is grossly misused to arrest citizens for fairly innocuous things like criticising the government, officials or making memes.
Provisions of the Indian Penal Code (IPC) related to sedition (Section 124-A), promoting enmity between groups (153-B), blasphemy (295-A) and causing mischief (Section 505) are some of those favoured by the police to arrest and jail people for simply having a view that someone in a position of power did not like.
Of course, if someone in power really doesn’t like you, there’s always the National Security Act, 1980 which allows the police to detain a person for up to one year… just because.
Why Netas Don’t Want the Police Freed
If one is looking for the rule of law in India, the average police station might not be the place to find it. Why is this so?
Indian political parties have a wide range of views and practices on matters of society, politics, economics and institutions but the one thing they almost all agree on is this - the police should not be accountable to the public. Rather, there’s a cross-party consensus that the police forces are just the ruling party’s publicly funded militia in khaki, to be used to retain power – at all costs if need be.
The notion that the police should be accountable to laws, courts, or citizens is simply anathema to the union and the state governments if their firm opposition to the Supreme Court’s limited attempts at police reform are examined.
Indian police forces remain a colonial relic, designed more to protect the government and enforce the will of those in power, than protect the citizens and enforce the laws in force.
Have the courts done nothing on this front?
Guidelines exist, for sure. As far back as 1994, the Supreme Court laid down guidelines on custodial arrest to prevent torture and custodial deaths. Additional guidelines were laid down in 2014 threatening disciplinary and contempt action against police officers who did not follow the rules in making the arrest.
Have they made the least bit of difference?
Hardly.
It is for the simple reason that the same Supreme Court has taken little or no action on the blatant disregard that the police have shown towards these guidelines. Victims of police high-handedness have, in theory, legal remedy in the form of a civil suit for damages and potential criminal action under the IPC.
However, these remedies have remained just that – in theory. Consider the egregious case of Adambhai Sulemanbhai Ajmeri where the SC itself found that he had been sentenced to death on largely false evidence. Yet, when Ajmeri approached the court seeking compensation, the doors were slammed on his face.
Not all is bleak. The Supreme Court recently sentenced nine policemen to seven years in jail for a custodial death and has refused to back down from pursuing cases against those accused of encounter killings in Manipur.
If the court takes such human rights abuses seriously, it may send the right message down the line to the police. I can’t help but mention though that even these cases, consequences are arriving decades after the fact.
When Courts Fail
Yet, we should be wary of hoping for good outcomes from the court. It’s sympathies are not always with the weak and downtrodden in society – witness the court gutting Section 498-A.
IPC and the SC/ST Atrocities to protect savarna men from being treated like everyone else by the police. Though both these atrocious judgments have been overturned subsequently, it is a reminder that the court, composed as it is of a small, unrepresentative elite in Indian society cannot always be counted on when it comes to matters of human rights.
Measures making the police accountable to the people are not unheard of or impossible to implement. A police force comprises human beings who respond to incentives. As it stands, there is no real consequence for a cop who breaks the law. On the other hand, defying politicians could result in transfers, removal or worse. In any civilised society, it should be the other way around, but here we are in 2018 in India.
The crux of all police reform therefore simply boils down to this: The system should support a police officer who defies illegal instructions and punishes those who don’t. Until then we are all at the mercy of khaki.
(Alok Prasanna Kumar is an advocate based in Bengaluru. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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