Guiding Police Discretion: Police Circulars and The Limits of Top-Down Reform

Let's do a thought experiment. Think of the criminal justice system — or criminal process as I like to call it — as a building. Now, the basic architecture of this building is fairly well-known to us, and exists in the form of three statutes: the Indian Penal Code 1860, Indian Evidence Act 1872, and the Criminal Procedure Code 1973. The interplay and intersections between these statutes, and the many judicial decisions that have interpreted their text, gives us a four-walled structure. Add to these the Police Act 1861, and the different state laws on policing, and now you get a real building with doors, floors, and windows. 

But what's inside these structures? To get a glimpse of that, we need to think about the various actors who are at the heart of the process. Go to any criminal court and you will find a judge, a prosecutor, a defendant, her lawyer, probably a victim, and the police. The incentives guiding these actors are what mark the ebbs and flows of the criminal process. But if I had to pick one actor out of these as being the most critical to the process, it has to be the Police.   

Police officers are at the heart of our criminal process. Like many other jurisdictions, police play a critical role in funnelling disputes, as suggested below:

Total Incidents of Crime = 100% → Total Incidents Reported / Noted by Police = 70%   → Total Cases Investigated = 50% → Total Cases Prosecuted in Court = 30%      

Let's take a moment to appreciate the dimensions of this suggestion. Even though we might forget it sometimes, at some level we all know that every incident of crime does not end up in court. What we often don't ask, is whether this selection is by design or by accident: Is it purported incompetence which leads to cases not being pursued, or the outcome of the police being aware of the limitations of the criminal process? 

The honest answer is that it is a little bit of both. But what matters for us is the fact that there is a very real design element to the funnelling process. This element tends to remain hidden if we only look at the statutes, or even at the judicial decisions. It only comes to light if we look at the many rules that govern the police as an organisation. The problem is that a large part of these rules and circulars are hidden in a more literal sense. Despite being public documents, they are often not published in a Gazette, or are not readily available in a bookshop or on the internet. 

In Delhi (where I mostly operate) we are lucky, insofar as the Punjab Police Rules of 1934 are not very difficult to find in court libraries or bookshops (and online). These Rules tell us the manner in which the Police are supposed to exercise the powers they are granted under law. But again, looking at the Rules to figure out how the police work means you are only looking at half the picture, and are bound to end up coming to incorrect conclusions. This is because there are a host of internal circulars that are issued under the offices of senior police officers to control different aspects of police powers and guide their exercise of discretion. 

Thanks to the Right to Information Act, I was able to get my hands on some of these police circulars that are relevant for the investigative process. These circulars, which are now available online, span a decade (from 2008 to 2018) and shed light on many different aspects. Some musings are below:

• The circulars show that the Delhi Police (and the Delhi High Court) was quite concerned with arrests in matrimonial cases, and created internal mechanisms that were designed to limit the possibility of arrest in such cases. For instance, by requiring that prior permission for arrest be sought from Deputy Commissioner of Police level officers, even though this is not required in the Cr.P.C. itself  (Circular No. 330 of 2008, Circular No. 48 of 2011). This is very interesting, especially if we consider that the Supreme Court itself proceeded to adopt a policy of curbing the powers of arrest generally in a matrimonial case as well (Arnesh Kumar v State of Bihar).
• On the subject of the Arnesh Kumar judgment, one finds that this is also the basis of a circular (Circular No. 38 of 2014). Importantly, while this judgment curbing police powers came out in July 2014, the corresponding Circular is only issued on 17 November 2014. This gap, between the rendering of a judgment and issuing a corresponding Circular, helps to grasp the idea of a lag in our systems of communication between the different branches of state. Perhaps a study can be constructed which looks at such internal circulars to determine the many factors which affect the time-lag, and thus help us improve our systems of governance (see here, for a related study in context of Section 66-A of the IT Act). 
• The General Guidelines for investigation (Circular 15 of 2015) shows that the police agencies are clearly receptive of the objections being faced in trial courts, and are using this feedback to issue appropriate instructions to officers in a bid to prevent future objections of the same kind from arising. 

There will be many more of these circulars guiding different aspects of the swathes of discretionary power that police officers are vested with. At the same time, this multiplicity of internal circulars — especially those affecting our right to personal liberty — force me to ask: what is the point? 

For instance, consider Circular No. 16 of 2017, which requires that the "calling of any person to the police station should be properly documented." This Circular was issued pursuant to the orders of the Delhi High Court, and is effectively guiding the statutory powers of police to examine suspects and witnesses, and arrest persons. So, we have all three sources of law guiding police conduct here: rules, statutes, and judicial decisions. All of them are curbing police powers that interfere with personal liberty. But how often are these rules, laws, and decisions not followed? Let's just say the probability is closer to 1 and not 0. And what are the odds of officers being punished for misconduct? Exactly the opposite.  

Should we think of our system of laws as a pointless paper tiger then? I wouldn't go so far. Rather, I'd say that these Circulars offer more proof for the view that top-down reform efforts, that focus on the Supreme Court and hope to make practices change on the ground, are securing very limited impact. Without a concerted reform effort from the bottom-up, by focusing on police stations and trial courts, the core values of liberty and freedom that we want our system of laws to protect will continue to remain illusory.