MUMBAI: Experience has shown that weaknesses and inadequacies of police have been largely responsible for starting or escalating communal violence. The root cause of this is the politicisation and communalisation of police in various states.

Several judicial commissions of inquiry appointed on major communal riots have strongly brought out this point.

Reference must be made in this context to the decision of the Supreme Court in the public interest litigation on non-implementation of the recommendations of the national police commission. The final decision of the court came only in September 2006, nearly 12 years after the filing of the PILs.

Though inordinately delayed, the Supreme Court laid down guidelines for reorganisation of the police departments in the states and the centre. Though nearly a decade has elapsed since the decision of the Supreme Court, most major state governments have not implemented the court orders.

For example, the data collected by the Bureau of Police Research and Development (BPR&D) for the year 2013 shows that almost 80 per cent of Superintendents of Police (SPs) in districts across the country got transferred within two years of their tenure in a district. More than 50 per cent got transferred in less than a year.

According to the data, Uttar Pradesh has been the worst offender in terms of transferring officers before their two year tenure is complete. Even officers senior to SPs have not been spared. As per the data, in 2013, 114 range DIGs faced transfers within a year of their tenure. As many as 48 were transferred within two years. (IE, November 29, 2015: 7) For some strange reason, the Supreme Court has been reluctant to haul up the defaulting states for contempt of court.

Another matter of serious concern is the politicisation and communalisation of police. In this connection special mention must be made of the statements of L. K. Advani who had spearheaded the Babri Masjid agitation. He has written in his autobiography, ‘My Country My Life’:

“I recall vividly an experience en route from Ayodhya to Lucknow [on December 6, 1992 after demolition of the Babri Masjid]. In spite of strict security all along the 135 –kilometre journey, I could see people engaged in celebrations everywhere. Within half an hour of our departure from Ayodhya, our car was stopped by the police. On seeing that the car carried Pramod Mahajan and me, a senior officer of the UP government walked up to us [and] said, ‘Advaniji, kuch bacha to nahin na? Bilkul saaf kar diya na?’ (I hope nothing of the structure is surviving and that it has been totally raised to the ground.) I am recounting this incident only to highlight the general mood of the populace, including employees and officials of the state government, after the tragic development in Ayodhya—that of jubilation.”

The National Police Commission in its eighth and concluding report submitted in May 1981 had made one significant recommendation. An officer who has functioned as the DGP /IGP, after his retirement from service, shall not be eligible for any employment under the government of India or under the state government or in any public undertaking in which GOI or the state government have a financial interest.

This is equally relevant for the senior Indian Administrative Service officers. This very critical recommendation ought to have been acted upon expeditiously. There have been any number of instances where senior police [and IAS] officers who had obliged the political party in power during the communal riots have been handsomely rewarded. One can cite dozens of instances to support this. I would suggest that even now it is not too late to accept this recommendation. I would like to suggest only one amplification thereof, namely, such officers will not also be given political party tickets to contest elections during a cooling-off period of three years.

If a sense of confidence is to be created amongst the minorities that they will be treated fairly, justly and their life and property will be safeguarded, all efforts will have to be made to deal with the communal bias in the police.

The precepts of secularism, safeguarding the interests of the minorities and importance of human rights are some of the subjects which need to be included in the syllabus of police training institutions. In the refresher courses organised for field police officers and constabulary, actual case studies of communal riots, findings of official inquiries or judicial commissions of inquiries must be placed before them for discussion. Knowledgeable representatives of minority communities could be invited for interaction with the police personnel in the training sessions. Unfortunately this important aspect has been totally lost sight of.

It is also necessary to give sufficient representation to minorities in the police services. In this context, the example of the Rapid Action Force of the central government which is often deployed during communal riots is noteworthy. Conscious efforts have been made by the central government to give representation to minorities in this force. This example needs to be replicated in the states.

The indication of how the winds are blowing since the coming to power of the BJP government at the centre in 2014 is the recent instruction issued by the home ministry to the National Crime Records Bureau (NCRB) not to publish the data on Muslims in police. The publication of such data first began 16 years ago. It is for the first time that such a ban has been imposed. (Indian Express, November 30, 2015: 1)

Such efforts are counter-productive for the success of secularism. It is interesting to see that the NCRB report for 2013 showed that there were 1.08 lakh Muslim police who accounted for 6.27 percent of the total strength of 17.31 lakh police in the country, as compared to their percentage of 7.55 in 2007. Public pressure must be brought on the government to revise this decision to ensure that data on Muslims in police will be published each year.

Even if police departments are restructured as above and other changes suggested herein are effected, unless rule of law is established in the country, nothing substantial can be achieved. This is particularly true in dealing with an important and sensitive subject like secularism.

Reference must be made to the important provisions of sections 153-A and 153-B of Indian Penal Code (IPC) which have largely remained on paper. The ‘majesty of law’ about which a common citizen hears time and again is supposed to have laid down that ‘howsoever high you may be, the law is above you’. This is certainly not true so far as the high and mighty in public life are concerned.

Full powers need to be given to the senior police officers to directly prosecute persons infringing these provisions, without the necessity of obtaining the approval of the state government. Experience has shown that the state governments look at this question entirely from a political point of view and withhold the approval for prosecution or even reject the proposal altogether.

It is seen that cases filed under these sections are often withdrawn later at the behest of the government for political ends. If secularism is to be translated into reality, communalism will have to be put down with a firm hand. And this would be possible only by ensuring that the above provisions of IPC are made effective. The National Commission to Review the Working of the Constitution has also said that “effective implementation of laws is lacking. This deserves the highest degree of attention.”

Towards this end, as recommended by the second administrative reforms commission (SARC), the provision contained in section 196 CrPC requiring prior sanction of union or state government or the district magistrate for initiating prosecution for offences under sections 153A, 153B, 295A and 505of IPC, be deleted. It has also rightly suggested that the punishment for communal offences be enhanced, and special courts should be set up for speedy disposal of the cases.

I fully agree with the recommendation of SARC that a separate law to deal with communal violence is not required. The UPA government’s proposal in this regard had led to bitter confrontation between the states and the centre and also the political parties which were in opposition then. Strengthening of the provisions of the IPC and CrPC will be adequate to deal with the situation.

Last 69 years since Independence have seen not only repeated incidents of communal violence, as brought out above, but regrettably some of these riots had literally turned into massacres. To recall, a few of these were: Jabalpur riot in 1961, Ahmedabad riot in 1969, anti-Sikh riots in Delhi in 1984, Mumbai riots in 1992-93 and Godhra riots in 2002.

Against this background it is necessary to make a special provision to deal with genocides such as these. The law should provide to make such offences cognisable and non-bailable and much stricter punishment extending up to life imprisonment. Fear of law must be inculcated unambiguously, and anti-social elements which generally take advantage of these situations and the government functionaries who either connive at them or even support them must also be dealt with severely.

Unusual times call for unusual solutions. Experience has shown that hardly any worthwhile action has been taken so far against government functionaries who were handling these situations and had failed miserably.

Time has come to examine whether the provisions of the law of torts should be extended to all those remiss in handling the genocides. Class-action suits need to be initiated in such cases as it would be impossible for the individual victims to file cases against the concerned powerful politicians and police functionaries. It is only by applying the provisions of the law of torts that they would become seriously aware of their responsibilities.

Another legislation which has wholly remained on paper is the Religious Institutions (Prevention of Misuse) Act, 1988. Rajiv Gandhi government must be given credit for enacting this legislation but it has remained only as a show-piece. It was seen during the Punjab agitation that there was a large scale misuse of Gurudwaras by the terrorists for preaching their ideology. In Jammu and Kashmir the separatists have been using Friday Namaz gatherings to launch their ideological offensive against the central government and its organisations. Hardly any action has been taken in these cases. Same is true of the Places of Worship (Special Provisions) Act, 1991 which too has not been acted upon.

It is equally frustrating to see that communal speeches made by candidates have not been adequately dealt with under the provisions of the Representation of People Act, 1951. In this context, the observation of the Supreme Court in one of the cases is significant.

The Court had said: so long as communal political parties are not banned from participating in political life of the country, there is very little that the courts can do to restrain. Reference must also be made to the recommendation of the National Commission to Review the Working of the Constitution in this regard. The commission has recommended: “Any election campaigning on the basis of caste or religion and any attempt to spread caste and communal hatred during elections should be punishable with mandatory imprisonment. If such acts are done at the instance of the candidate or his election agents, these would be punishable with disqualification.” (p. 87) Unfortunately, no action has been taken by the government on this recommendation.PolicPo

( Third and final extract from former Union Home Secretary Madhav Godbole’s proposed lecture at the Mantralaya at Mumbai that was cancelled just three days before it was scheduled on April 4. 2016. The Citizen has carried two other reports from the lecture on the Late B.G. Deshmukh Memorial Lecture 2016 by Dr. Madhav Godbole IS INDIA A SECULAR NATION?

Links to the Other Two Reports: )