The Andhra HC ruling has grave implications for national security, says C.B.S. Venkataramana
THE Supreme Court has rightly stayed the Andhra Pradesh High Court ruling, declaring that cases of murder under Section 302 of the Indian Penal Code should be filed against the police in cases where individuals are killed in firing either in law and order situations or extremist operations.
Indeed, the High Court order has grave implications for the maintenance of public security in the country. If it is enforced, policemen bearing arms — from those escorting VVIPs to those on patrol duty — will be reluctant to open fire. Otherwise, they will face charges of murder and possible life imprisonment for discharging their duty.
It is the state’s responsibility to protect the citizens. Police is the state’s coercive and enforcing arm. If individual police officers have to stand trial and defend themselves for their actions done as a part of their lawful duties, what is the protection and immunity that the society and state offer to them for having acted on their behalf in good faith? Who will come forward in future to act on behalf of the state in the fight against armed extremists, terrorists and anti-social elements and put themselves in risk for life imprisonment?
In the criminal justice system, the entire burden of investigation and proof generally rests with the prosecution and the state. The police will have to prevent, detect, and investigate crimes and maintain public order. If the High Court ruling is implemented, the policeman would probably take the path of least resistance and simply duck the responsibility for such functions by filing innocuous reports.
With over 110 districts in the country being under severe extremist threat and terrorist strikes in some state capitals, an overwhelming negative motivation will permeate the police officers in working in these areas of policing, if the state and society are unwilling to protect and indemnify their actions done in discharge of their official duties.
Peculiar problems will crop up. When police officers involved in deaths due to ‘encounter’ shoot-outs or crowd-control firings are prosecuted for murder, as in other cases, the state has to take up the prosecution. However, if the police have acted on duty as part of their responsibilities on behalf of the state, they would also have to be defended by the state. Or, would they be left to their own?
Moreover, if death in police firing is treated as prima facie murder and case initiated against the policeman involved, why should not the policemen also be charged for assault, etc. for injuries sustained by individuals in police action in crowd control operations? Secondly, there would be no merit in any policeman carrying firearms since a firearm’s purpose is to ‘shoot to kill’, if need be. By logical conclusion, it is pointless to provide armed escort to VVIPs.
The police might even become averse to carrying firearms as being avoidably risky. Shy of using weapons, police will cease to be the state’s coercive and enforcing arm. If the state itself is not to disintegrate, such functions would then have to be necessarily entrusted to some other force, say the army. The whole question of trusting such a force with use of firearms and causing death if need be would again rise and go through the same full circle.
When the trial court magistrate determines that the police shall stand trial for murder for deaths, the investigation has to be entrusted to other officers in the same police department, whose impartiality would naturally be suspect. Would a separate police force be then raised under the courts’ or some other authority’s control to investigate offences determined to have been committed by the police personnel prima facie?
Another implication of the High Court ruling relates to the degree of trust and distrust that ought to be placed by society in the police force vis-à-vis other wings of the state. Considered together with an earlier Supreme Court order that no member of the judiciary, judge or magistrate, shall be arrested by the police for any offence whatsoever without the permission of the higher courts, the law of the land as laid by these two judgments is that, on one hand, absolute trust shall be placed by society in the judiciary, and judges not arrested or cases filed for any offence small or big, even murder committed by them in their private capacity, without prior permission from the higher judiciary.
On the other, while police shall be trusted with the use of weapons that are used to kill, the police force itself shall be completely distrusted, and it be left to the judgment and discretion of a trial court magistrate whether the policeman’s version of facts and events should be believed or not.
A better alternative to this total distrust of the police force could be to compulsorily arrange for a judicial magistrate and a press television crew team to accompany every posse of armed police force proceeding on mob control functions or extremist and terrorist control patrolling tasks. Only then would the judicial magistrate or judge be able to take the sum total of circumstances of the incident, together with the extreme agitation and terror of the moment and the scent of fear of life and death that the police personnel face, in determining whether or not the action taken by them, leading to causing of a death, did actually occur in bona fide discharge of their lawful functions.
No individual or judge, sitting in the cool confines of his office or court, doing a legalistically clinical post mortem of events basing merely on reported descriptions of the event, do any justice in deciding whether the acts that were done by the police personnel under tension, facing the risk of death, were justified or otherwise. It has to be inferred, albeit sadly, that the High Court order shows an impractical and armchair approach to the matter.
A further alternative could be that instead of a case of murder being automatically initiated in the appropriate trial court in every case of death in police firing (death in police lock-up being excluded), a permanent statutory commission could be constituted for each state to scrutinise and review all such cases. The commission could have a reputed retired member of the higher judiciary as chairperson, reputed retired administrators and police officers with experience of working in districts with extremist/terrorist violence, and one or two reputed dispassionate members of the civil society as members.
The commission could scrutinise and review every case of death in police firing and give their finding to the government whether a prima facie case of abuse of powers is involved, and such finding could be binding on the government. This commission could be given statutory status through appropriate provisions to the Criminal Procedure Code.
Also, where criminal cases of murder are initiated against police officers in instances of death in police firing, the onus of proof of self-defence might be shifted from the individual police officer to the prosecution to prove that the said acts were not done in self-defence. For, it would be grossly unfair and impractical to put a police officer in the same situation as that of a private individual, who, if had killed another in self-defence, has to prove the same, the prima facie assumption being that that act was not in self-defence.
The issue in question is whether the state has the right and duty to protect itself and its very existence; and if so, what means are just in that process. A demoralised and psychologically disengaged police force can be the weakest link of the chain, however strong it may be, in its ability and resolve to defend the state.
THE Supreme Court has rightly stayed the Andhra Pradesh High Court ruling, declaring that cases of murder under Section 302 of the Indian Penal Code should be filed against the police in cases where individuals are killed in firing either in law and order situations or extremist operations.
Indeed, the High Court order has grave implications for the maintenance of public security in the country. If it is enforced, policemen bearing arms — from those escorting VVIPs to those on patrol duty — will be reluctant to open fire. Otherwise, they will face charges of murder and possible life imprisonment for discharging their duty.
It is the state’s responsibility to protect the citizens. Police is the state’s coercive and enforcing arm. If individual police officers have to stand trial and defend themselves for their actions done as a part of their lawful duties, what is the protection and immunity that the society and state offer to them for having acted on their behalf in good faith? Who will come forward in future to act on behalf of the state in the fight against armed extremists, terrorists and anti-social elements and put themselves in risk for life imprisonment?
In the criminal justice system, the entire burden of investigation and proof generally rests with the prosecution and the state. The police will have to prevent, detect, and investigate crimes and maintain public order. If the High Court ruling is implemented, the policeman would probably take the path of least resistance and simply duck the responsibility for such functions by filing innocuous reports.
With over 110 districts in the country being under severe extremist threat and terrorist strikes in some state capitals, an overwhelming negative motivation will permeate the police officers in working in these areas of policing, if the state and society are unwilling to protect and indemnify their actions done in discharge of their official duties.
Peculiar problems will crop up. When police officers involved in deaths due to ‘encounter’ shoot-outs or crowd-control firings are prosecuted for murder, as in other cases, the state has to take up the prosecution. However, if the police have acted on duty as part of their responsibilities on behalf of the state, they would also have to be defended by the state. Or, would they be left to their own?
Moreover, if death in police firing is treated as prima facie murder and case initiated against the policeman involved, why should not the policemen also be charged for assault, etc. for injuries sustained by individuals in police action in crowd control operations? Secondly, there would be no merit in any policeman carrying firearms since a firearm’s purpose is to ‘shoot to kill’, if need be. By logical conclusion, it is pointless to provide armed escort to VVIPs.
The police might even become averse to carrying firearms as being avoidably risky. Shy of using weapons, police will cease to be the state’s coercive and enforcing arm. If the state itself is not to disintegrate, such functions would then have to be necessarily entrusted to some other force, say the army. The whole question of trusting such a force with use of firearms and causing death if need be would again rise and go through the same full circle.
When the trial court magistrate determines that the police shall stand trial for murder for deaths, the investigation has to be entrusted to other officers in the same police department, whose impartiality would naturally be suspect. Would a separate police force be then raised under the courts’ or some other authority’s control to investigate offences determined to have been committed by the police personnel prima facie?
Another implication of the High Court ruling relates to the degree of trust and distrust that ought to be placed by society in the police force vis-à-vis other wings of the state. Considered together with an earlier Supreme Court order that no member of the judiciary, judge or magistrate, shall be arrested by the police for any offence whatsoever without the permission of the higher courts, the law of the land as laid by these two judgments is that, on one hand, absolute trust shall be placed by society in the judiciary, and judges not arrested or cases filed for any offence small or big, even murder committed by them in their private capacity, without prior permission from the higher judiciary.
On the other, while police shall be trusted with the use of weapons that are used to kill, the police force itself shall be completely distrusted, and it be left to the judgment and discretion of a trial court magistrate whether the policeman’s version of facts and events should be believed or not.
A better alternative to this total distrust of the police force could be to compulsorily arrange for a judicial magistrate and a press television crew team to accompany every posse of armed police force proceeding on mob control functions or extremist and terrorist control patrolling tasks. Only then would the judicial magistrate or judge be able to take the sum total of circumstances of the incident, together with the extreme agitation and terror of the moment and the scent of fear of life and death that the police personnel face, in determining whether or not the action taken by them, leading to causing of a death, did actually occur in bona fide discharge of their lawful functions.
No individual or judge, sitting in the cool confines of his office or court, doing a legalistically clinical post mortem of events basing merely on reported descriptions of the event, do any justice in deciding whether the acts that were done by the police personnel under tension, facing the risk of death, were justified or otherwise. It has to be inferred, albeit sadly, that the High Court order shows an impractical and armchair approach to the matter.
A further alternative could be that instead of a case of murder being automatically initiated in the appropriate trial court in every case of death in police firing (death in police lock-up being excluded), a permanent statutory commission could be constituted for each state to scrutinise and review all such cases. The commission could have a reputed retired member of the higher judiciary as chairperson, reputed retired administrators and police officers with experience of working in districts with extremist/terrorist violence, and one or two reputed dispassionate members of the civil society as members.
The commission could scrutinise and review every case of death in police firing and give their finding to the government whether a prima facie case of abuse of powers is involved, and such finding could be binding on the government. This commission could be given statutory status through appropriate provisions to the Criminal Procedure Code.
Also, where criminal cases of murder are initiated against police officers in instances of death in police firing, the onus of proof of self-defence might be shifted from the individual police officer to the prosecution to prove that the said acts were not done in self-defence. For, it would be grossly unfair and impractical to put a police officer in the same situation as that of a private individual, who, if had killed another in self-defence, has to prove the same, the prima facie assumption being that that act was not in self-defence.
The issue in question is whether the state has the right and duty to protect itself and its very existence; and if so, what means are just in that process. A demoralised and psychologically disengaged police force can be the weakest link of the chain, however strong it may be, in its ability and resolve to defend the state.
The writer, a senior IAS officer, is Joint Director-General, Ministry of Shipping, Government of India, Mumbai
Source:- The Tribune 5 April 2009 http://www.tribuneindia.com/2009/20090405/edit.htm#1
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