praveen kumar on Indian police,policing and the UPSC and poems on love and human nature.

2002-09-13T20:42:00.000-07:00

praveen kumar on Indian police,policing and the UPSC and poems on love and human nature.

An analytical study of the philosophy and field dynamics of the policing in practice with live instances from the field penned by a Police Officer from India. The hypocrisy and the sad state of affairs in the profession in India and the UPSC as its appointing agent are effectively brought out by the author.
SOCIAL JUSTICE AND LAW ENFORCEMENT

Professor B. Kuppuswamy in his book "Social Change in India" apropos of
'Paradox of the Indian Situation Today' writes, "On the one hand there is a
conscious, deliberate effort to change the social structure as a result of the
assimilation of new social values. Because of the struggle for political freedom
and the desire for economic reconstruction, new social values have been
incorporated in society, based on the ideals of social justice and equality of
opportunity. On the other hand, there is the fear that the old social values are
being repudiated and destroyed by the values of social justice and equality,
which pose a challenge to the past privileges based on caste, aristocracy, age,
sex etc. The farm labourer, the factory worker, the student, and women are
repudiating the authority which denied them social justice and equity". This
perennial conflict between privileged and non-privileged, of reactionaries and
revolutionaries is the sema of zoetic society. The clash of interests and values
steeped in an instinct for survival is the hallmark of social change. It is here the
state comes into the picture as the arbiter elegantiarum, as a beacon to guide
both the pace and path of social change through public education and
legislation. The social awakening which is possible through public education is
a sine qua non for social change which can only be formalised through
legislation as a statutorily accepted social value to make its violation a criminal act. A good piece of legislation backed by effective enforcement works as a catalytic agent in the process of social change.

Social conflicts

Peter Worsley in 'The Third World' writes, "In those countries which fail to
achieve the take-off and relapse into the hungry frustrations of stagnation or
regression, all kinds of conflict from anarchic protest to regional schism or even
communist revolution could flourish. A revolutionary leadership could easily
replace those nationalist parties which have lost their social-reforming zeal."
The state can be impervious to the ascensive zeal for social reform only at its
own peril. Social inequality and social injustice as starting points of a vicious
circle wherein they are perpetuated cannot be the situation a welfare state seeks
to protect from the dynamics of positive change which as a natural force of
unending frustration expresses by peaceful means in principo and emeute as a la
dernier ressort if the state errs by protecting the vested interests of inequality
and injustice and fails to discharge its responsloilities towards positive social
change.

Social awakening in India

The veteran journalist Shri D.R. Mankekar in his book titled " A Revolution
of Rising Frustrations" beautifully analyses the situation of ascensive social
awakening in India. "The fact is that the worm is at last turning, falsifying the
prophets who have averred that the Indian masses are too underfed, too
lethargic, and too fatalistic to rebel against their fate and violently wrest from
the rulers their elementary human right - the right not only to survive but to
improve their lot." The new awakening roused the esurient expectations of the
long-repressed and infested segments of the gens de peu and fomented their
neoteric hopes of being extricated from age-old repression. The government of
democratic India responded favourably to the aspirations of the infaust segments
of its populace, non obstante the not-so-inopinatc resistance from the privileged
lobbies, by enacting legislations with the potential for far-reaching changes
towards establishing social isonomy and justice. However, the zest in enacting
the legislations is not amated by the political will to enforce them, though some
isolated attempts arc made here and there. Experience in the field dictates that
some thought should go to the modalities of the social legislation and their
enforcement to make the whole process genuinely effective as a vehicle for
faster growth towards social equality and social justice.

Challenges of social equality

As French thinker Auguste Compte noted, a nouveau regime can emerge
only if man assumes responsibility for his actions and makes his ain society.
The changes in social institutions do not occur by themselves, but by a positive
moral desire and commitment in that direction. This active aspect of social
change manifests in intellectual assertions for deliberate social legislations and
their effective enforcement. The theory of "Challenge and response" as
expounded by the great British historian Arnold Toynbee, points out that a
society can grow if it can constructively respond to challenges. The challenges
are often social and internal and every civilisation as a facet of the society can
learn from the failings of its quondam civilisations. Active responses to the
extant gauntlets of social equality and social justice against a background of ci-
devant nonfeasance should be the foundation on which social legislation and its
enforcement mechanism should be broadly based.

Social justice vs legal justice

Social justice is imprimis an informal social process rather than a formal
legal procedure. It is the moral standard of a society to which its laws and
actions conform. The injustices and legal disabilities against certain sections of
the socfety enshrined in many rules of Indian society in bygone days are now a
matter of the past. It is only now that the need of liberty, equality, security,
freedom from want, fear and frustration as parameters of social justice are
realised. Social justice ex consequenti demands preferential treatment for the
socially backward and repressed classes who are at a disadvantage in respect to
others.

Social law as 'cleansing forces'

Johan Galtung defines "Structural violence" as "The dominance of one
group over the other with subsequent exploitative practices" in "Peace
Thinking". The pirlicue of this statement implies that preferential treatment by
the state to certain segments of the society to separate its dominance by the
others becomes at the outset an act of injustice and structural violence by the
state. However, as Jerome Skolnick preconised, violence is a louche mulicous
term whose meaning is established through political process, ipso facto acts of
institutional violence are comme ilfaut if perpetrated by the state in the larger
interests of the society as they fall beyond the ambit of the concept of violence.
Frantz Fanon, an African psychologist in "The Wretched of the Earth" calls
violence intended to restore self-esteem and do away tyranny as ‘Cleansing Force'. Jean-Paul Sartre confirms the idea when in 'Preface to Fanon', he says,
"Violence, like Achilles' lance, can heal the wounds that it has inflicted" indeed
while it is institutional violence in society's interests.

Social justice in Indian Constitution

The Indian Constitution in its Preamble preconises social justice and equality
of status and opportunity to all and in article 14 constales fundamental rights
while it declares that the state shall not deny to any person equality before law,
or equal protection of the law. The Article 15 interdicts any kind of
discrimination on grounds of caste, creed, sex, birth etc. However, the
Constitution recognised the inadequacy of legal equality in meeting the
exigencies of social justice when it recognised the necessity of special measures
to uplift socially deprived segments and constates in sub-section (4) of Article
15 that the constitutional provisions do not prevent the states from making any
special provision for the advancement of any socially and educationally
backward classes of citizens or the scheduled castes and scheduled tribes. This
exception in the constitution to legal isonomy is the cornucopia of most social
legislations intended to mispraise the crude ancien regime and usher in a dream
world of social equality and social justice.

Social laws

Law is an instrument of both the continuity of social behaviour and of social
change. Manu had said, ' Immemorial custom is transcendent law'. Social
consuetudes metamorphose into social laws in rerum natura and perpetuate
social customs. Professor B. Kuppuswamy in his book "Social Change in
India" writes about two functions of the law. He writes, "According to one
view, the essential function of law is to reinforce the existing modes and to
provide a uniform procedure for the evaluation and punishment of deviance
from the existing rules. In other words, me function of law according to this
view is social control and the major problem of law is to design the legal
sanctions to minimise deviances and to maintain social stability. According to
the other view, law could be more dynamic. It has not only the function of
social control but it has also to bring about social change by influencing
behaviour, beliefs and values". The social laws of India are devised to bear the
kiaugh of the dynamic function of bringing about social change by influencing
behaviour, beliefs and values in addition to social control. In Indian society
where social inequalities more suo, form the bedrock of living for historical
reasons and embedded in the Indian psyche as consuetudes and basic social
rules more majorum, the awakening and metabasis to new values of social
equality and social justice from the deep slumber of a millennium are not easy
to come by. Though isolated calls for certain changes are heard mostly from the
self-made spokesmen of the oppressed classes because of the influences of
liberal western thoughts, the albatross of orchestrating these thoughts to the
mosaic of the laws of the land falls on the government. Social laws function as
catalysts of social change in the Indian situation.

Social changes through laws in India

Most of the important social laws were enacted in India in the face of
plangent opposition from reactionaries inveterated in the terra firma of the past
practices. The queasy practice of polygamy was made hors la loi and divorce
was legalised by the Hindu Marriage Act of 1955. The barbarous praxis of
untouchability was made punishable by enactment of the Untouchability
(Offences) Act in the same year in conformity with Article 17 of the Indian
Constitution. The Hindu Succession Act of 1956 is a meith in bringing
daughters on pareil with sons in respect of property inheritance. The Hindu
Adoption and Maintenance Act of 1956 strengthened the position of women in
regard to the right to adopt. The Dowry Prohibition Act of 1961 tried to deliver
nubile colleens from the menace of dowry. The Factory Act of 1948 raised the
minimum age of workers to 14 years and provided for annual medical
examination of minor workers. The Employment Exchange Act of 1959
provided for state help to unemployed citizens to get jobs. The Children Act of
1960 provided for special care of children. All these incipient legislations of
independent India on social matters were enacted as vindicated by the directive
principles of state policy in line with the fundamental rights enunciated in the
Indian Constitution. Article 24 of the Constitution sui juris interdicted
employment of children below 14 years of age in factories.

British India too saw much of momentous legislations conducive to change
and social justice. The Sati Prohibition Act of 1829, the Hindu Widow
Remarriage Act of 1856, the Female Infanticide Prevention Act of 1870, the
Special Marriage Act of 1872 providing for civil marriages and intercaste
marriages as amended in 1923, the Child Marriage Restraint Act of 1929, the
Payment of Wages Act of 1936 providing for regular payment of wages, the
Industrial Dispute Act of 1929 providing for settlement of disputes, the Trade
Union Act of 1926 which legalised trade unions, the Workmen's Compensation
Act of 1923 providing for compensation to workers for accidents, disablements
and death on duty, the Act of 1922 defining a child and preventing a child below
12 years for employment, the Act of 1931 and its 1946 amendment reducing
hours to work a week are major keeks to social change via social laws.

The trend to usher social change through new legislations or amendments to
old ones is en train even in this neoteric age. The Debt Relief Act of 1976, the Bonded Labour Abolition Act, the Protection of Civil Right Enforcement Act of
1976 and amendments thereon, the 1983 amendments to the Dowry Prohibition
Act are important instances of such a nisus.

Social norms and social laws

Whenever the enactment of law is consectaneous to a change in social
norms, the law as a device of legal sanction against deviations there from social
norms, succeeds in legalising these neonate social norms. However, the law
proves ill-equipped and falls into desuetude while it seeks to introduce
intempestive social norms as a means of social justice for 'forced compliance'
as Festinger called it in 'An Analysis of Compliant Behaviour'. The paradigm
is the law regarding dowry and child marriage being not as effective as that
pertaining to monogamy for lack of social force behind it.

Public education

Social laws can be social laws only if they are of the society, from the
society and for the society. They have relevance in a society only if they are
unrevocably concinnous with its everyday lives of its members - in terms of
their ken of the laws and its general acceptance. Social laws that are abstruse
and unacceptable to the plebeian are destined to atrophy because they lack en
arriere the inherent mechanism of compelling society to comply with their writ.
It is this sense, that social laws which are lex non scripta are indited with the
stamp of approbation of the state by popular demand, though the process from
the antipode can be inchoated if their assimilation by the society is assured
through active propagation. The effectiveness of social laws depends entirely
on their assimilation by society and the strength of propagation and publicity
that follows the enactment of the laws. This need of the social laws being
balked is the quiddity of the serious setbacks faced in making certain social laws
like the Dowry Prohibition Act or the Child Marriage Act effective. The
enactment of social laws that are intended to accord primacy to social norms
must be preceded by intensive fieldwork to introduce the newell and make them
acceptable to the society and enactment should be resorted to only when the idea
becomes ripe enough to be assimilated by the society because the symbiosis of
social norms and social laws is inseparable. Haste brings definite waste in
respect of the enactment of social laws.

Clarity of concepts

A kenspeckle feature noted in most social laws is the lack of perspicacity in
definition of the concepts involved. It is an understandable glitch when
commonsense concepts like dowry, labour, discrimination, practice of
untouchability, compensation or even marriage makes the quandary of the
commission or noncommission of an offence wafer-thin and often a matter of
opinion based on interpretation of the concepts involved. Though postliminary
amendments to the law based on field experience and interpretations of the
concepts by courts attempt to impale the concepts to a prim form, the inchoate
ambiguity continues to confound the issues in the popular mind, weakening the
credibility of the law itself. The louche spectrum of the impair interpretations of
a concept can turn an offence to innocence and more penniciously, an innocent
person into a criminal according to the predilection of the investigating officer.
The subjectivity involved in understanding the law by individual investigating
officers makes the law a feared and abhorred tool of harassment that is distanced
by both the aggressor and the victim, and by complainants and witnesses. This
subjacent weakness in laws renders getting justice impossible, ergo defeating
the very lelos of the laws. Social laws deprived of social credibility cannot
survive for long. Postliminary efforts to infuse credibility by redefining the
concepts to implete the loopholes cannot repair the credibility loss experienced
in society. It is for this reason, concepts in social laws must be formulated with
utmost caution.

Reaching the deep malady

Another major hurdle in calling social change through law is the failure by
the authors of the laws to clearly comprehend and indite in them the causes and
mechanisms of the immanc social evils they intended to contain through the
laws themselves. The abhorred social practices that manifest as social evils are
only the external symptoms of a serious malady inveterate in the psyche of the
society. Attempts to strike at these skin-deep symptoms prove infructuous in
reaching the malady embedded in the vitals of the system. Often, the persons
comminated by the shallow social laws are simple innocent plebeians who are
caught unawares by the laws while they tread the path laid by their ancestors by
wont or perform acts they consider essential in the existing social
circumstances. The external symptoms, sine dubio, should be fittingly treated if
the malady is to be deracinated with all traces of its existence. However, such
approaches are secondary to the concerted attack on the ingrained malady which
forms the cornucopia of those symptoms. This exigency is generally balked in
most social laws. Only a springe mind with full grasp of the social problems in the circumstances of the existing situation can indagate and handle levers sine
prole to set in motion the laws that can strike at the core of the social malady.
This requires advanced study of these immane practices and their social
backgrounds involving psychological and anthropological analysis apart from
adequate public discussion within the society. Unfortunately, no enactments of
social laws are preceded by such vigorous exercises and the impotency of the
laws to excoriate the social evils are inevitably consectaneous. The laws should
provide the pollicitation of punishing the prime perpetrators of the social
injustices rather than catching secondary or tertiary commis to the commission of the offences.

Social situation and social laws

The glisk of undesirable social practices leading to painful hurtling of laws
often are the consequences of the existing social situations. A poor father of
four girls and a boy in the circumstances of prevalent admissibility of dowry in
the social psyche, nonobstante the criminality of the act, cannot but accept
dowry for his son to assure a reasonably contented married life for his daughters
even at the risk of being immanacled as his conscience is clean about accepting
the dowry. A person living in a closed society in a village has no alternative but
to practice untouchability against his conscience to save himself from ostracism
unless he is a zealous social reformer prepared to sacrifices his own interests for
the cause. In a competitive business world involving child labour or meagre
wages, an attempt by an individual to stand out in compliance to laws against
child labour and nether wages is a sure way to close down his enterprise. The
state, in such circumstances, should tackle an fond the social situations that
breed such immane symptoms and the law to be kind and understanding in
saving of innocent people caught in the social clamency. The scope for
corrective and remedial action and rehabilitation must form an integral part of
social laws to avoid the impression about the social laws as indulging in
supererogations to catch trivial slips of everyday life and ergo popularly
abhorred. Effectively orchestrated public education and concomitant vigorous
social service programmes aimed at changing specific social situations that
boost socially unjust practices must form an integral part of every social law.

Special accoutrements of social laws

All social laws must have some postern features incorpsed to make them
effective as vehicles of positive social change in view of the delicate ground the
laws cover in their operation wherein people in their interpersonal relationships
are often involved in the hide and seek game of everyday life. The social
offences are both trivial and serious-trivial in the nature of the acts and serious
in the nature of its consequences. It is almost impossible to demarcate when an
act in a given social situation is trivial and when it attains serious proportions.
Also, differences in norms and values and varying sensitivity and moods further
complicate the issue. It is not possible to arrive at a uniform definition of
concepts like harassment, practice of untouchability or compensation as
acceptable to all situations. The laws warrant special accoutrements to counter
the nonesuch quailings e re nata as discussed in the ensuing paragraphs.

Presumptions of law

Social injustices are perforce committed by the pollent on weak and hapless
people. In the present argument-oriented judicial system where mother justice
takes sides on the basis of the kind of the lawyer being engaged on the strengths
of money and power, no social law can do justice to the weak and feckless gens
de peu who are misdight and nonpareil to their adversaries for the juste
rencontre except in rare obvious cases non obstante the state sponsored legal-
aid programmes. The cabal of the versute gens de condition resorting to social
evils necessitates some sui generis safeguards to be inherent in social laws to
make up for the nether social position of the wronged person and checkmate the
malengine and pravity of the powerful. Appropriate amendments to the Indian
Evidence Act to incorpse provisions of sweeping presumptions in social laws
against the accused persons on whom a prima-facie case is made out, with
provisions to prove innocence lying with them, is likely to lessen the ineluctable
disabilities of the oppressed people coram lex. Though such presumptions are
extant to varying degrees now in some social laws, the presumptions must be
made a toute force in all social laws. Such presumptions save the wronged
persons.from proving the wrong usually done at the convenience and terms of
the powerful guilty person sans evidences in the social situation under his ain
prise.

Vicarious liability

The special laws must provide for vicarious liability that suspends over the
head of the social group concerned even though there is no evidence to
incatenate him with the offence. Such criminal liability on the el patron while it
checks him from encouraging or indirectly fomenting commission or such
offences through his acolytes in the social group, also drives him to prevent
those injustices in his group.

Minimum punishments prescribed

There should be mandatory minimum punishments prescribed in all social
laws so that the laws become inherently mordant, independent of the malicho of
the pollent guilty persons. The social laws should abnegate the behoofs of the
anticipatory bail unless the person against whom a prima facie case is made out
satisfies the court about his innocence. The present queasy trend of prompt
anticipatory bails to fugacious social offenders can be brought under control by
this measure.

Rehabilitation

Each social law must provide ample opportunity for compromise on mutuus
consensus with an in-built raisonne mechanism prescribed to ensure corrective
and remedial measures in fit cases not involving serious guilt where such a
compromise is certain to ameliorate the position of the wronged persons. The
penal sections of the social laws inter alia must provide for huge fines and
compensations with provisions to streamline the fines and compensations for
rehabilitation of the victims or their dependants.

Protection of witnesses

The social nature of the offences in social laws makes witnesses to the
offences who are insiders of the society in most cases, reluctant witnesses for
the fear of reprisals from the society though injustice done to one of them sui
juris turns their clinamen against the guilty. A provision and concomitant
device in social laws to protect the interests of the witnesses en revanche to their
ready cooperation helps investigation of the social offences.

Time limits for investigation and trial

It is rightly said that justice delayed is justice denied. It is strikingly so in
social situations where the exigencies of survival and coexistence and future
interests forces the parties generally inter-related to apostatise and bury the past
cicatrix, leading to the weak and oppressed again submitting to the tyranny of
the powerful for the sake of survival, had the law glitched to take its course tout
de suite to prove to the world the futility of the social law. In the circumstances,
each social law should prescribe time limits for the continuation of the
investigation and trial. The possibility of summary trials for social offences also
should be probed into and employed as extensively as possible to ensure the
galvanic trial of social offences.

Social justice authority

The reason d'etre of social laws is the extirpation of social inequalities and
the establishment of a just society. The telos can be better achieved if the laws
are structured to effect compromises to rehabilitate a bon droit the wronged
persons, preceding the invoking of penal sections in lost cases. The social laws
true to their intentions must seek a device by which every case of social wrong
draws the attention of the authority for frack intervention and on-the-spot
solution which is statutorily binding on both the parties to avoid the crush of the
penal sections.

The device can be made a reality by the constitution of Social Justice
Authorities at taluq levels under a judicial magistrate with a police officer, an
officer of the social welfare department, a prominent lawyer, a representative of
local women's organisations and a representative of the legal aid board as
members. The Authority must work as a team in the taluq to hear cases of
socially unjust practices on the spot and adjudicate them then and there without
resorting to judicial technicalities and adjournments. The Authority must have
an office with a multi-channel telephone working round the clock with a widely
publicised number by dialling which anybody without giving identification can
report socially unjust practices so that the Authority as a team reaches the
destination within twenty-four hours a tout propos and passes infrangible orders
pleno jure on-the-spot per saltum on hearing the concerned parties. The
Authority must exercise de regle pernoctation over the process of the
compliances to the orders and pass sentences in cases of default. In such a
system, the address and telephone number of the Authority being known in
every village in the taluq is the clavis of perficient chevisance because then
anybody wronged can readily lodge querimonies for redressal. The approach of
the Authority in adjudication must be that of an adviser or well-wisher rather
than that of a government organisation steeped in technicalities. The Authority
should be able to reach every village in the taluq at least once a month. The
leiimoli behind the set-up is to affect compromises and rehabilitate victims by
levying fines and compensations if necessary.

Social police

The administration of social laws is a specialised task requiring specialised
skills in the Police force handling the job. The force has to be understanding
and circumspect in its approach though tenacious when circumstances warrant.
It should have the right ken of the social circumstances and their problems with
a deep sense of commitment to social justice. These operators should be kind
and devoid of the malfeasance of harsh police methods and should never forget that they are dealing with distinct problems which are the outcome of historical
reasons and special social situations, that they are dealing with a wider social
malady through the individual symptoms in their hands for solution and ergo
there are no villains in real sense of the term, that they are social doctors
interested only in exercising cancerous growths from society. This special
decession from problems in policing necessitates special care in recruitments to
the job to draw people of appropriate mental makeup and impart specialised
training to reinforce those special attributes. The police also requires periodical
programmes of sensitisation for the cause of social justice with exhaustive
theoretical inputs. These officers should be aufait in social legislations which
are proliferating in geometrical proportion. This exigency necessitates the
constitution of a special Police force to handle social laws which may be called
'Social Police' distinct from the normal police in charge of regulatory and other
police duties. The social police should have its parallel organisations &t all
levels as per specific needs with distinct recruitment, training and sensitization
facilities. An extra-ordinary commitment to the social cause and out-of-the-
normal alacrity in tackling social problems should be the hallmarks of the social
police.

Social courts

Delayed trials of social offences are more a reality than an exception while
promptitude is a virtue de rigueur for tackling social offences. The inquietude
of delays are often caused by lack of commitment to social causes. The same
can be said about easy anticipatory bails and easy release of persons arrested for
social offences and light sentences to convicted persons or failure to appreciate
available evidences which leads to frequent acquittals. Such a predicament for
social offences when they are treated on par with conventional cases in courts is
au naturel because of the popular perception of the social offences as trivial
social problems. A judiciary sensitized is de rigueur if the cause of social
justice is to be served in the trial stage. The establishment of social courts to try
exclusively social offences of all hues is en regle in the circumstances and
should prove efficacious. As distinct from conventional courts, a committed
judiciary should be the bedrock of these courts where hand-picked magistrates
or judges committed a fond to social justice and specially sensitized to the social
causes preside. The courts, owing to their specialisation in trying social
offences would be in a better position to appreciate the special circumstances of
the offences and therefore appreciate evidences in the right perspective and with
sympathetic understanding. This specialisation also facilitates fast disposals
while the sensitization helps to see through the gravity of the offences so that
unduly light sentences are not pronounced and persons arrested for social
offences are not wantonly released on bail.

Social prosecutors

Similarly, specially handpicked lawyers should be posted as prosecutors to
the social courts. These prosecutors should be selected on the basis of their
commitment to social justice and undergo a course in sensitization to social
causes prior to their posting to handle social offences. A case of social offence
would be feracious in the hands of a prosecutor who is committed to social
justice and specially sensitized for social causes.

Social justice and changing social norms

Social justice is a glidder concept that changes its hues with time depending
on prevailing social norms and social values. No age including ours has a right
to call its own norms and values as absolute and peremptory though we might
believe it to be so. In this sense, social laws are peregrine and passe beyond
their immediate time frame. This deciduous nature of social laws necessitates a
circumspect approach in enforcing them as the elements of mens rea in the
sense it is used in conventional offences is absent in these cases. Thus, as the
face of social justice changes its countenance from time to time, the emergence
of new social laws is au nature!. The enforcement machinery should keep pace
pari passu with these developments and be semper paratus to differentiate
justice and injustice in terms of the extant laws which are spawned by the
fugacious social needs and values of the time. The effective enforcement of
social laws reinforces reigning social norms and values by giving them teeth and
ipso facto helps hail the social justice in terms of the norms and values of the
period.

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