In the aftermath of the Nirbhaya rape case in Delhi, a committee was constituted by the government to suggest changes in laws dealing with safety of women. Justice J.S. Verma, retired Chief Justice of the Supreme Court was the head of the committee. The committee asked for suggestions from the public. My suggestions are contained in the letter below:
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Hon’ble Justice Verma,
I am
an officer in the rank of Joint Secretary, and I am scared of going to a Police
Station.
I
shudder to think what I will do, if I have to report misbehaviour with my
daughter or even something more mundane like a minor theft in my house. I will probably
call up a friend in the police department or someone who has a friend in the
police. That police officer will in turn call the police officer, who
supervises the “thana” of my area.
Believe me, Justice Verma, you would do the
same!
It is often said, indeed stated as ample
justification, that the police force is drawn from the same society and it
therefore cannot be any different. This is the most specious argument that is
put forth by way of explanation for incompetence and corruption. But, we forget
that the same society throws up members of the armed forces too, who show much
better standards of discipline and morality, though not impeccable in recent
times. Let exceptions not become a façade for all-round ineptitude.
In
the same manner as the police or other government functionaries cannot be
turned into islands of virtues in the society that obtains today, a single law
cannot be enforced in isolation if the justice delivery system ignores the rest
of the jurisprudence.
A vibrant democracy is known not only by
universal suffrage and free voting at the polling booth, but also by the
institutions that it creates and nurtures. Institutions that protect the
minority, the weak, the diseased and the destitute, women and children, dalits
and the dispossessed. A majority rule, otherwise, will at best look askance and
at worst perpetuate the divide. In a good democracy the majority binds itself,
through these institutions, to look after those, whose voice is but a feeble appeal
for help and likely to drown in the victory cry of the majority. I need not
tell a learned Judge like you that some of these institutions are the
Judiciary, the Human Rights Commission, the Police, Parliamentary
sub-committees and now increasingly the NGOs.
Coming back to the “from the same society”
argument, we underestimate how much difference training and technology can make
to the apathy and sometimes collusion of an insensitive government institution.
Citing another example from my own department, it is there for all to see how
corruption at reservation counters has been virtually eliminated by
computerizing these and then going another step in enabling a citizen to book a
ticket on the Internet. He can now even travel by showing the SMS message that
he receives on his mobile phone after he books the ticket. No need to carry a
printed ticket! Even the airlines in India, in spite of their entire hi-tech
demeanour have not achieved this.
But, this letter is meant to give you some
suggestions that your committee seeks from the public on laws related to safety
and security of women. Let me give these in the form of a questionnaire.
1. Why
does it take a “connection” to make oneself heard in a police station? In any
other civilized country a victim demands to be taken to a police station!
2. What
should be the redress to a citizen if the police station or the SHO, refuses to
attend to him within 10 minutes of his arrival with a complaint?
3. Why
should it take hours upon hours to file an FIR, if one is not connected and
indeed if the FIR is agreed to be written in the first place? Why can’t it be
done in 30 minutes to reduce further trauma to a victim or a complainant?
4. Why
should a complainant have to face a hard nosed police inspector or his “munshi”
for filing a complaint? Why can’t there be a more “civil” interface, which has
no vested interest in not registering a complaint? An FIR is after all only a
“First” Information Report.
5. Why is
there so much difference in the categories of a “station diary entry”, a
“police complaint” and an “FIR”? What is this rigmarole of converting a
complaint into an FIR at the behest of higher ups? Why can’t the CrPC be
amended to give credence to each type?
6. An
FIR, by its name and definition is a “First” Information Report. Why then this
exercise to find additional information and carry out more investigation before
agreeing to file one? Each “exercise” and pre-investigation is a source of
corruption and a chance to get the mighty, the powerful and the moneyed to
distort the “first” information, the names of suspects and dilute or enhance
the charges. The CrPC gives enough leeway to the police to add further
information to the FIR subsequently. Why do it in advance?
7. Why
this insistence of the police on geographical jurisdiction for filing an FIR,
when the CrPC clearly permits that FIR can be registered by any police station?
This only delays action and the poor victim is further traumatised running from
pillar to post. The FIR must be written in the police station nearest to the
victim at the time of writing the FIR.
8. In
case a police station refuses to file an FIR even in cases of heinous crimes
(or for that matter, any crime), what is the action prescribed against such
SHOs? Section 4 of the the Scheduled Castes
and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989 provides as under:
Whoever,
being a public servant but not being a member of a Scheduled Caste or a
Scheduled Tribe, wilfully neglects his duties required to be performed by him under this Act, shall be
punishable with imprisonment for a term which shall not be less than six months
but which may extend to one year.
Under this Act, a Police Officer, if he fails to
register a complaint/FIR, is liable to be punished. Shouldn’t violation of a
woman’s body attract similar, or higher, penalty on a government official who
fails to take immediate action?
9. There
is a talk of making a database of rape convicts. This is mere eyewash. A rape
convict is probably already in jail, because he is a convict. What purpose will
such a database serve? Why not make a database of errant SHOs, who are in the
habit of turning away complainants or delaying action, of senior officers under
whom such SHOs thrive and make such a database public? Surely, you would agree
that a police officer needs to be put under higher public scrutiny given the
bottom that we have touched in the area of policing.
10. Why
should there not be a database, open to public, which should list all police
stations and cases pending investigation, under investigation, under trial and
finalised against each along with dates? Names of the police inspector and
superior officers supervising each case should also be mentioned. After all the
CVC does make public names of government officials against whom enquiries are
pending. The higher courts, viz. the Supreme Court and the High Courts routinely
publish the data of pendency of cases against them. Why should the police
station be exempt from making its functioning public? This is not a call for
the details of investigation to be made public, just of the fact that there are
these many investigations, trials pending and their details.
11. Why
should it take a judge in a lower court years to hear a case? Why can’t he sit
longer hours like most other officers in the government do, including police
officers?
12. Why
should a judge grant bail so easily to an accused citing the cause as failure
of prosecution to present a strong case? If every player in the justice
delivery system is allowed to get away by blaming the one before and the one
after him, the blame game will continue ad infinitum.
13. If a
court case, of rape or any other crime, fails to bring the culprit to justice
due to incompetence of the police, what action is taken against the prosecution
officer, and the supervising police officers all the way up?
14. Why
should the government hire a cheap public prosecutor against the brightest ones
launched by the high and mighty? Why can’t a careerist law officer be allowed
to practice in a court of law? Such a person would be a permanent officer of
the government and would be subject to evaluations and promotions based on his
performance just like any other officer.
15. Why
shouldn’t psychological profiling be a routine exercise for all police
officers, from the thana staff to all the way up? There are several positions
and posts in which unsuitable officers and staff can be posted, until they are
retrained and retested.
The police has effectively acquired an
independent status of its own, separate from the government. We do not find it incongruent
when statements like “the government has
asked police to act” are made. The police is the government as much as any other department is. It is
strange that police officers and the entire police establishment have started
behaving independently as if they have an independent constitutional status
like the judiciary. The oft repeated demand of making police independent of the
government (or of “civilian” oversight) is a slogan orchestrated by the police
itself. Give us more freedom and we will
deliver! I am afraid any more freedom and the police will become the
Frankenstein’s monster. There necessarily has to be a political and
bureaucratic oversight of the police function.
It is common for even senior police officers
to state that “no complaints have been
received so far”; “we will act when a complaint is received”. There have
been numerous cases, where, even after the crime has been reported on TV and in
Newspapers, no action was forthcoming from the police. What were the SPs, DIGs,
and the DGPs or the DCPs and the CPs doing? After all, the fifth and the sixth
pay commissions gave them allowances to
buy and read newspapers. What for? To wait for a formal complaint to reach
the SHO? It is with aplomb that the police disregards even the Human Rights
Commission and gets away with it. If the Supreme Court or a High Court can take
cognisance of events and admit a PIL based on a newspaper report or a postcard,
why should a police officer wait for a formal complaint? For one may not know a
complainant may already have been turned away.
I think that the police requires more
supervision, not less. Police also requires transparency that technology today
enables. Indeed, they also deliver better when under pressure. In the recent
case of rape in the moving bus in Delhi, the driver and accomplices were caught
within a few days, even from far away Bihar. Facts that the bus and the bus
owner were regular defaulters were already known to the police and the RTO.
There is a need to create a system that keeps the police under similar pressure
even for crimes, which do not attract public attention.
If your commission ends up recommending on just
how crime against women should be dealt with, it will at best be a half-done
job. Please expand the scope of your terms of reference and give comprehensive
advice to the government. Let the outcome of your deliberations be as much of a
landmark as the judgments that you wrote earlier.
I shall be glad, indeed, deeply obliged, if
I am given an opportunity to visit your office and speak further on this
important issue.
