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27 October, 2007

Are courts and media substitutes for governance? AHRC poser

Can courts and media be substitutes for governance? The Asian Human Rights Commission raises this question in the context of the Kerala government's response to its communications regarding human rights violations in the State. Below is the text of the statement issued by the Commission on October 26, 2007:

ON OCTOBER 22, 2007 the Asian Human Rights Commission received a communication from the government of Kerala in India. The communication, in the form of a letter, dated September 9, 2007 prepared on behalf of the Additional Chief Secretary to the government informs the AHRC that if the AHRC is concerned about incidents of custodial deaths in Kerala, the AHRC must approach the human rights commissions in the country or the courts or the media and NOT the government or any of its departments, particularly the Home Department.

While the letter triggers a series of questions regarding governance, of particular interest is the role of the Home Department and the local police this department controls and allegedly govern. The Home Department is an important government agency that is primarily responsible for law and order within its jurisdiction. In the initial communication from the AHRC to the state government, written in October, 2006, the AHRC urged the government to take appropriate steps to address the issue of custodial violence committed by the local police. The AHRC also urged the government to initiate enquiries into reported cases of custodial deaths from the state.

The extent to which violence is used as part of crime control and case investigation is no news to anyone who is familiar with policing in India. Policing in Kerala is not different. The performance and temperament of the Kerala State Police is not different from the police elsewhere in India. In most cases, if a crime is registered, investigation begins with the arrest and detention of a suspect. What then follow are confessions leading to recovery and charge-sheeting. It would be naïve to believe that a large proportion of persons arrested of being accused of charges easily confess their crime. It would be equally naïve to agree that any person who dies in police custody died from cardiac arrest, since it is often the excuse the Kerala State Police poses when a person die in custody.

Custodial torture and violence are the brutal means often adopted by the police in India for investigating crimes and maintaining law and order. Fear and aversion are the two most common feelings the general public express about their police in India. Who is responsible for this? It would be unfair to blame the police in isolation.

Custodial violence is an external manifestation of a failing institution -- the police department. The lack of a clear political determination to rule out the possibilities of custodial violence perpetuates the use of uncontrolled violence by the law enforcement agencies. For instance, there is no specific law in India that prohibits custodial violence. Sceptics may tend to argue that with the provisions in the Indian Penal Code, 1860 and the procedures laid out in the Criminal Procedure Code, 1973 are adequate enough to prevent custodial violence in India. But what is missing in this argument is the gravity of the offence.

A crime committed by a police officer upon a person under his custody is more serious than a crime committed by a local criminal. This is why the crime of torture as of today has the status of ius cogens in international law. Unfortunately in India custodial violence is just another crime, which takes the regular course of investigation and trial. In most cases these trials result in an acquittal.

The Home Ministry of the state is directly accountable for the law and order in the state in addition to the police force. Law and order and rule of law are directly related. Proper maintenance of law and order is one of the foundation stones for establishing rule of law in a country. Rule of law in simple terms means that no one is above the law. Catalysts like trade and commerce has resulted in evolving new sequencings for establishing rule of law. Yet, what Samuel Rutherford said in Lex Rex in 1644 and a century later Montesquieu in Spirit of Laws in 1748, the fundamental principle of what rule of law is has not changed.

What was said centuries ago are now sought to be perfected by several states across the globe. In fact rule of law has become the backbone of economies in some countries. One example is Hong Kong. Even though there is great scope for improvement like the concept of full democratic governance as a separate entity within China, the administration in Hong Kong has achieved enough to be proud to advertise the territory's potential for investment by showcasing its rather impeccable record of rule of law. A postal stamp released earlier this year says exactly this. The stamp displays a caricature of the Hong Kong skyline with 'Rule of Law' printed on the skirting.

The AHRC wonders how many other Asian countries can be honest and bold enough to advertise their country, pitching rule of law as one of the key factors to attract business. Unfortunately most Asian countries cannot, since they are institutional wastelands as far as rule of law is concerned.

What the governments in India have failed repeatedly is to establish the minimum guarantee of rule of law, while the country is allegedly marching towards economic progress. An economy without the basic guarantees of rule of law can never be stable. In this context it is imperative to look into what is lacking in India. The country has one of the best constitutions in the world, is home to some of the best jurists and legal professionals and also has a governance mechanism. But this all in theory. In reality India is a far cry from what it ought to be. Somehow the democratic institutions in India have failed to make their 'real' contact with the people. Casting a vote once in a while and having some courts and other similar semi-functional institutions is not what democracy or rule of law really means.

In this context, policing has a major role to play in India. Courts, human rights commissions and the media are not substitute mechanisms for what policing must be. While courts and commissions are dispute redressal forums, the media serves the purpose of being the public's eye and ear. None of them can be expected to replace the police. The question is what if the policing itself is bad? Even though the presence of these institutions serves the purpose of a deterrent, that role is limited. The very purpose of having a Home Department is to monitor the functioning of the police and to lay down rules and procedures for policing and also to define the norms required to maintain discipline in the force.

Widespread use of custodial violence is an indicator that the Home Department is ignoring this role, intentionally. The letter issued by an officer as senior as the Additional Chief Secretary to the government is a proof to this. The courts in India and other para-legal mechanisms have tried to address this issue in part. The judgment of the Indian Supreme Court in the Prakash Singh v. Union of India delivered in 2006 is just one example.

In this case the Supreme Court of India has asked the state governments to come up with effective policies and even legislations to regulate policing in their respective jurisdictions, including but not limited to maintaining internal discipline and procedures to be put in place for the police to strictly adherence to the law of the land. The guideline in the judgment also to a large extent is expected to reduce one of the worst curses of policing in India – political interference. The AHRC believes that it is the duty of the Home Department in each state, among other duties, to advice their respective ministries how the judgment of the court could be effectively implemented. The communication received by the AHRC however does not reflect this attitude.

The Home Department is literally ruled by a Minister – the Home Minister – advised by a team of bureaucrats who might not be directly involved with policing. The implementing agency of the decisions made by the Home Department however is the police. What the AHRC, like any other human rights organisation did, was to urge the state government and the concerned departments to discharge their duty and in the process to help the police in correcting itself.

The response by the state government of Kerala to the AHRC is not only condemnable, but also exposes the neglect and contempt with which the department views their execution wing - the local police. If not for human rights organisations like the AHRC, at least the local police themselves must be concerned about why their bureaucratic counterparts in the government neglect them to an extent that the local police is taken for nothing more than a joke.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

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