Another ‘coup’ occurred in Delhi, although it has been largely unreported. It was carried out by the police in Delhi in 1978 when, overnight, it broke ranks from the supervisory magistracy. It upgraded itself from just a directorate under the home department of the local government into virtual rulers of Delhi.
The force bypassed several supervisory levels and rushed to the then prime minister, who dutifully signed the dotted line. The then PM was an interim entity, without a popular mandate. The timing was perfect. Parliament was in recess. The legislation to overthrow the civil magistracy and erase all civilian control was rushed through the ordinance route.
The legislation that placed Delhi ‘under’ the police force repealed the earlier law on the subject, the Indian Police Act of 1861. It needs to be recalled that the latter Act was just a brief adjunct to the main Act, i.e. the Criminal Procedure Code of 1860.
Historically, the Criminal Code was the first piece of legislation in India that set the country firmly on the road to a modern democracy.
The Police Act of 1861 that was repealed was routinely dubbed ‘colonial’ by some police officers, without ever elaborating what was ‘colonial’ about it.
If this flawed argument were to be accepted, then all three ‘core Acts’ would fall under that category — the Criminal Code, the Penal Code and the Evidence Act. These Acts that have stood the test of time are still in existence, largely unchanged over the last 150 years or so.
The police derive their powers of investigation from the Criminal Code. As the code did not regulate the internal working of the police force, the British enacted a brief adjunct to it in the form of the Indian Police Act one year thereafter, in 1861. The two Acts worked in tandem.
Today, the mainstay of the criminal justice system is the Criminal Code. The police are under civilian control and in civil disputes, the police have no jurisdiction. Preventive powers are with the magistracy and not with the police. Civil licensing powers are vested exclusively in the magistracy.
The Criminal Code authorises the police to investigate all ‘offences’ as defined in the Penal Code. Once investigation is complete, the matter is placed before the court, which examines and weighs the evidence, and issue processes to compel appearance of witnesses and the accused.
The presiding magistrates alone are authorised to issue warrants of arrest if the accused fail to appear. The courts are exclusively authorised to examine witnesses, on oath, if the case requires oral evidence.
However, in 1978, the Indian Police Act was repealed through an ordinance. The successor Delhi Police Act, 1978 is draconian in the extreme, to put it mildly.
Ostensibly, it was meant to update the earlier Act, which only regulated the ‘internal functioning’ of the Delhi Police. Under the cloak of internal regulation, it has, in effect, tampered with the ‘core Acts’.
Thus, the Act of 1978 has created an entirely new class of ‘offences’, undefined either in the Penal Code or the Act — ‘pushing, annoying, shouting’ etc.
This provision, unprecedented in jurisprudence, has sinister implications. An undefined ‘offence’ necessarily implies that the police will determine what is ‘annoyance, etc’.
Besides, there is no categorisation of ‘offences’. Civil lapses, as distinct from civil wrongs, can be treated as criminal offences. In other words, both the Penal Code and the Criminal Code have been turned upside down.
All preventive powers under the Criminal Code have been usurped from the magistracy and appropriated by the police. Similarly, all licensing powers, essentially a civil function, have been grabbed by the police.
As a consequence, the Delhi Police extorts around Rs. 40 crore per month from half a million hawkers in Delhi, as reported by the central vigilance commissioner in 2005. It is anybody’s guess what the figure would be now.
Bacon, the great English law giver, had famously warned: “A bad law is the worst tyranny.” The Delhi Police Act, 1978 is one such prime law.
Ashok Kapur, a former civil servant, is director general, Institute of Directors
The views expressed by the author are personal