India’s Oscar entry this year, the Tamil movie Visaaranai (meaning: enquiry, investigation), is a disturbing tale of police excess. The movie hinges on an investigation in which the police use arbitrarily arrest and then torture to extract a confession from an alleged suspect in a criminal investigation.
Such abuses, though, don’t occur just in the movies.
The Code of Criminal Procedure (CRPC) in India allows the police to arrest any person without a warrant even if there is a suspicion of what is known as “cognizable offenses.” A report by the National Police Commission stated that as many as 60 percent of the arrests made in the country are unjustified and unnecessary. Further, data from the National Human Rights Commission shows that between 1995-96 and 2002-03, the number of cases of “illegal arrest/detention” increased from 112 to 3,595 and cases of “other police excesses,” from 115 to 9,622.
The CRPC also allows a police officer to make a forced entry and search any place if there is suspicion that an offense has been or is being committed. This was the subject of another recent Indian movie, Masaan (meaning: crematorium), in which a young woman having consensual sex with her boyfriend in a hotel room is caught by the police after a “raid.”
The woman’s family is followed by the officer, who seeks a hefty bribe from her family, lest they be forced into legal battles in the notoriously slow Indian judicial system. And like Visaaranai, the story of Masaan is not that distant from the truth; police in Mumbai raided a number night-clubs, bars and even a private home in 2012, on the suspicion of “rave” parties and the use of narcotics, and arrested around 100 young people, including around 40 women.
Laws such as these not only create perverse incentives for junior-level police officers, they also allow for exploitation of traditionally marginalized communities such as women and LGBTQ individuals. Sex workers—mostly women—are often targeted by the police, as recounted by Girija, a former sex worker from Bangalore, India’s Silicon Valley, who was raped by three police officers when she first came to the city. Although prostitution is not illegal in India, soliciting for clients in public places is a crime, and sex workers often face the threat of arrest under these provisions.
Section 377 of the Indian Penal Code (IPC) makes gay sex illegal in India, and established it as a crime in which police don’t need a warrant to arrest a suspect. In 2014, gay rights activist Ajay Sathyan wrote a chilling account of how he was molested by police officers on the streets of his hometown, the conservative southern city of Chennai. Shaken by the incident, he sought asylum and has since moved to Europe, fearing further harassment at the hands of the police.
India also has several state-level laws and Police Acts that criminalize certain activities and have similar provisions allowing police to arrest without a warrant. The Karnataka Police Act, for instance, empowers the state police to record the names and addresses of members of the transgender community who are “reasonably suspected of kidnapping or emasculating boys or committing unnatural offenses.” Facing exploitation, the transgender community in the state appealed for a repeal of the provision, but the state government has not obliged. Historical crime records, in fact, point to a disturbing trend of arrests under Special and Local Laws, as they are referred to officially, consistently being 1.5 times the number of arrests under the IPC between 2005 and 2015.
The first step in addressing these abuses is a reform of India’s police laws, to recognize and punish “police excesses.” The benefits of such a reform are not hard to see. First, by reducing the scope of police discretion in the arrest and investigation of suspects it will reduce opportunities for rent-seeking by the police. Second, by placing such limits on the powers of the police both in terms of law and their operation it will help prevent exploitation of marginalized communities. Third, such efforts would make policing more effective by shifting the focus of law enforcement away from petty crimes to serious crimes. Last, by doing all these things, such a reform would make cities and villages safer.
Although there have been a number of efforts to reform police laws, none of them has yet been fully implemented. In most states of India, the model Police Act enacted in 1861 under British India still applies. States have also been slow to implement the seven directives on police reforms issued by the Supreme Court in 2006, which includes a directive to establish a Police Complaints Authority to review complaints against police officers received from the public.
Even if these were put in place, it would only be a start. The Indian government and judicial system need to start pruning the number of criminal offenses in which the police can arrest without a warrant, from both state-level and national-level laws. Further, citizens and the media must work together to bring instances of police excesses to the fore and work with other state and national-level independent agencies such as the Human Rights Commissions to help “police the police” in India.
Visaaranai did not win at the Oscars. But it did help to bring attention to a real and all-too-often overlooked problem in a country aspiring to join the club of modern development countries—with all the rights and justices that are implied. The real win for India will come when police reforms are institutionalized and citizens of India do not have to fear the police any more.