Monday, July 12, 2021

Guest Post: India Needs a 'Derek Chauvin' Moment

(This is a guest post co-authored by Anurag Tiwary and Priyanka Singh)

With Derek Michael Chauvin being sentenced to two hundred and seventy months in prison for the murder of George Floyd, it’s about time India followed suit by addressing the right questions on Police Reforms 


When 46-year-old African-American, George Floyd, was murdered on the streets of Minneapolis, Minnesota by Derek Michael Chauvin, a senior Minneapolis Police Department (MPD) officer, the incident brought to light the years of violence, oppression and acts of subjugation meted out against blacks and African Americans in the United States since centuries. It also brought to light how unashamed those in power were. 

It wasn’t the first time something like this had happened in America. Breonna Taylor, Rodney King, Michael Brown, Alton Sterling are just a few names that come to mind. This time it seemed like an inflection point in America’s racial history. There was a palpable sense of frustration among the entire population. Floyd’s death had sparked a row of protests across America. People of all age, class, race, gender, region, religion and community came out in the open and protested on the streets.

The administration acted swiftly. Mr. Chauvin was immediately dismissed from service, was arrested within three days of the incident and was convicted of murder by a 12-member jury within a year. Jurors took less than a day to reach this unanimous verdict. The MPD chief came out and said that the acts of Mr. Chauvin were against the norms, practice and training of the department. The President of the United States hailed the verdict. Chauvin is now in prison. The trial judge had identified four aggravating factors and sentenced Derek Chauvin to 270 months in prison. This was historic. 

This case is significant to India not just because it took practically less than a year to convict a white police officer (something next to impossible in India for any kind of matter given the number of cases pending in our courts) who murdered an African-American without any fear of the law in broad daylight with bystanders filming his dastardly act, but is also noteworthy for the kind of debates and discourse that it has given birth to on Policing and allied issues across the world. 

In this post, we shall specifically pick up two major developments which are comparatively new and fairly significant additions to the debate that help highlighting the major problems India faces today in the context of police reforms. 

Pattern-or-Practice Investigations
First and foremost is the debate around the need to introduce ‘Pattern or Practice Investigations’(POP Investigations) within our police administration. POP investigation was introduced in America under the Violent Crime Control and Law Enforcement Act of 1994 as a response to the Rodney King police beating in 1991. The Act authorises the Attorney General to conduct investigations and, if needed, file civil litigation to eliminate a “pattern or practice” from the police administration. POP investigations are the kind where the focus is on finding out whether the police, as a class, has systematically engaged in discriminatory activities. Do its actions form a pattern or behaviour and is it embedded in routine practices of misconduct? A historical analysis if you will. Post this identification stage, there is a preliminary enquiry against the erring police department collectively and if sufficient evidence exists then a formal investigation is initiated. 

The investigation involves a comprehensive evaluation of the policies, procedures and practices of the police in the areas where specific allegations are alleged. These investigations are carried out through in-depth interviews with the police personnel, evaluation of the department’s training and curriculum programs, reviewing the department’s written policies and practices, their systems for monitoring and supervising officers and their formal procedures for investigating complaints. According to a report, there have been more than 71 such investigations since 1994. 

The idea behind POP investigations is to identify the pain points within the police administration and initiate early interventions by critically examining the issues. A POP investigation assesses systemic deficiencies by gathering information from police officers, community members, advocacy groups, organisations and other stakeholders. Once the investigation is complete, it ends with a negotiated agreement which is then given a legal status by a federal court order and is overseen by an independent negotiator. 

The provision of initiating such an investigation into the wrongdoings and misconduct of the police, remains a distant dream in India. For one, such an attempt has never been made here and secondly, debates around Police Reforms in India have mostly remained ‘structural’ as opposed to being more ‘foundational’ and one that takes a bottom-up approach to solving the problem. Identifying and defining the issues that plague our system, outlining their scale and intensity and critically analysing these findings is key to successfully initiating any reform. On the contrary, there seems to be a lack of commitment in India to acknowledge any existence of police misconduct. This is at a time when misconduct and brutality has been institutionalised within the force. 

The 2019 Common Cause Report on Status of Policing in India which surveyed close to 12000 police personnel across 21 states and 10595 of their family members, states that 36% of our policemen use violence as means to deliver justice and 19% of them believe that killing convicts of heinous crimes by the police is the right way to go about dispensing justice. The report also claims that many police personnel today believe that Gender-based-Violence complaints are false and motivated and that members of the Transgender community, Muslims, Dalits and so on are more naturally prone to committing crimes. Resultantly, with its own share of obviousness, this attitude jeopardizes the underprivileged and the marginalised more than it does to anyone else. A few recent incidents also tend to vindicate this conclusion

According to a 2014 article, methods of torture by the police in India included hammering iron nails in the body, hitting private parts, urinating in mouth, applying chilli powder in private parts and inserting a hard-blunt object into anus, among others. These are not sporadic incidents of police brutality but appear to be part of the police administration machinery and normalised to an alarming extent in society at large.

In these circumstances, a POP investigation will facilitate the creation of an official database comprising of numerous incidents of misconduct that the police administration has engaged in for years together. Lack of such a historical database in the status quo is an obstacle to any critical analysis that needs to be undertaken. America, now, is seeking to create such a database with the help of a National Police Misconduct Registry which will improve transparency and naturally increase accountability. 

Accountability for Law Enforcement Misconduct
Ensuring Accountability is an important facet of any modern government in a democracy and a lack of it results in a serious blow to its legitimacy. Any debate around ensuring accountability for law enforcement misconduct has two facets. Firstly, ensuring that the accused, i.e. police officer accused of misconduct, is put on a trial and Secondly, that the trial doesn’t take years and that justice is served within a limited time frame. Both of these are principles that stems from our constitutional goals of creating a society where social justice is guaranteed and rule of law prevails. However, India has failed on both these facets. 

Despite the high number of custodial deaths in India (reportedly around five deaths daily), prosecutions are very rare and convictions rarer still. According to the National Crime Records Bureau (NCRB) data, between 2001 and 2018, only 26 policemen were convicted of custodial violence despite 1727 such deaths being recorded. These are shocking numbers. Added to that, immunity-conferring provisions such as Section 197 and 132 of the Cr.P.C. can act as barriers to pursuing cases against police personnel. Internal departmental disciplinary proceedings are allowed under the Indian Police Act of 1861. However, such proceedings can only be challenged before the High Court or the Supreme Court on the issue of “quantum of punishment on ground of proportionality”

If an FIR is registered, an already understaffed and overburdened police administration takes ages to get a chargesheet filed. Infact, even if a chargesheet is filed, the criminal intent is usually difficult to prove as the standard of proof requirement is ‘high’ and the victim needs to show a ‘clear and gross violation that shocks the conscience of the court’ or a ‘patent and incontrovertible violation of any Fundamental Rights’. Under the George Floyd Justice in Policing Bill, 2021, the USA is now seeking to lower the criminal intent standard and to limit qualified immunity as a defence available in such prosecutions. The Bill also seeks to restrict the use of certain policing standards and promises transparent policing with the help of a ‘National Police Misconduct Registry’. These are attempts to make police more accountable, responsible and trustworthy and to ensure that cases of police misconduct are tried faster than ever before by removing such legal barriers that act as obstacles in the status quo. 

Another obstacle to securing accountability in India is its liability regime in cases of police misconduct, which, as of this day, is largely pecuniary and compensatory as opposed to a criminal conviction. The Judiciary in several landmark judgments has paid huge emphasis on monetary compensation to be paid by the state for a lost life. Judgments such as Saheli vs. Commissioner of Police (1990), Rudul Sah vs. State of Bihar (1983), Bhim Singh vs. State of Jammu and Kashmir (1986), PUDR vs. Delhi Police (1989), State of Maharashtra vs. Ravi Kant Patil (1991), Nilabati Behara vs. State of Orissa (1993) and several others are examples of how accused police officers initially got away, and after many years the state was held liable to pay compensation to the victim’s family from the treasury. 

These are problematic areas of the law that serve the accused police personnel by granting them loopholes within the laws so that they can get away by either paying monetary compensation from the state treasury or being protected by immunity-conferring provisions. Furthermore, the extremely slow Criminal Justice System in India only exacerbates problems. Accountability, therefore, is almost never possible. 

Conclusion
There have been several other developments post the George Floyd murder. One such development is the rising call for defunding the Police, limiting its powers, and creating alternate organisations responsible for crime prevention. The murder of George Floyd was a final nail in the coffin for activists who have been demanding for years that the powers of the police be curtailed. Their demands rise from several well founded concerns. To start with, police brutality is just one form of police misconduct; other forms include false arrests, intimidation, illegal profiling, political influence, surveillance abuse, sexual abuse, police corruption, etc. These are global concerns which have resulted in claims that the police is no more good at its job and has, therefore, become a defunct organisation. That is precisely why there are specific demands to fund alternate organisations and incorporate scientifically driven and legally sound frameworks for crime reduction. Although this development hasn’t been covered in this post in greater detail, it certainly demands further exploration. 

Derek Chauvin’s conviction was the culmination of a long history of struggles but, Americans believe it is only the first step in the right direction. As India awaits its Derek Chauvin moment, it is important that these debates take place, that questions are asked, and that accountability is sought – more than ever before. All this has to first start with an acknowledgement of the problem at hand and only then steps to eradicate them can subsequently follow.

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