1 COMPARATIVE JURISPRUDENCE PROJECT TOPIC:An analysis of police reforms, in light of Aristotle’s theory of justice SUBMITTED TO: PROF. AMITA DHANDA SUBMITTED BY: DEEPINDER BAL ROLL NO. - 11 LL. M I YEAR EMAIL- deepinder. [email protected] ac. in 1 Abstract In 1996, two former Director Generals of Police requested the Supreme Court to direct the central and the state governments to adopt a set of measures to address the most glaring gaps and bad practices in the functioning of the police. 2
Given the gravity of the problem and the total uncertainty as to when police reforms would be introduced, the Supreme Court, on 22nd September, 2006, delivered a historic judgment where it considered that it could not further wait for governments to take suitable steps for police reforms and issued 7 directives for immediate compliance which were binding upon central and state governments, until they frame appropriate legislations. The researcher would like to relate the topic with Aristotle's theory.
Aristotle's vision of a good civil society and the teleological theory can be related to the purpose of introduction of the police reforms viz. the judgment and the purpose of the implementation of the judgment. 2 Topic- An analysis of police reforms (In light of the judgment, Prakash Singh & others v. Union of India and others on 22, Sept, 2006) 3 The Government of India appointed a National Police Commission in 1977 to examine the role and performance of the Indian police as a law-enforcing agency and as an institution to protect the rights of the citizens enshrined in the Constitution.
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The Commission submitted 8 reports in a p of 2 years, wherein it made various recommendations so as to redefine the role, duties, powers and responsibilities of the police. With the 8th report, it drafted a new Police Act incorporating certain essential recommendations, which were never implemented. In 1996, a petition was filed by 2 former Director Generals of Police, praying for the issue of directions to the Government of India to frame a new Police Act drafted by the Commission to ensure that the police is made accountable essentially and primarily to the law of the land and the people.
As a part of my project research, I would like to examine the need of police reforms in India, the implications and implementation of the 2006 judgment of the Supreme Court (in response to the petition of 1996), in relation to the Aristotle’s theory of justice and his concept of a good civil society. India has established a vibrant democracy, where good governance and administration of justice to the citizens are essential attributes. The primary institution on which the state relies for the maintenance of law and order is the police.
Policing is an essential public service and it is the duty of every state to provide its people with the best police service possible. The society perceives police to be the custodians of law and order who provide safety and security to all. Thus police personnel have a vital role in a parliamentary democracy like India. The Police as an organized institution came into existence in India with the Police Act of 1861, which was the advent of the British. The police act was designed on the British model of colonial control, which was meant for its subjects and not for the free citizens of a democracy.
Independence has changed the political system in India, but the police system is still governed by The Police Act of 1861. It is shocking to believe that, till now, no government, central or state, has taken the initiative to replace the Police Act of 1861 with new legislation, which would be in tune with requirements of democratic policing. Aristotle in his theory states that the purpose of any organization is to from good citizens and to cultivate good character.
We must recognize that the police is one of the most vital social institutions needed to construct a democratic society in which human rights and freedoms are respected and protected. He also stated that “the end and purpose of a polis is the good life, and the institutions of social life are means to that end”. 1 1 Who deserves what? , Michael sandel’s theory of justice. 3 A political community exists to promote a good life and this aim cannot be achieved without the support of an efficient social organization.
So, the police service is a significant part of the socialization body and it seeks to enhance the democracy and the civility within the society. 4 The aim of the police force is to promote the welfare of society for which they must be equipped with the professional knowledge and the necessary powers for creating a social just environment for the citizens. Aristotle believes that it is possible to reason the purpose of social institutions. He reasons that the essential nature of the social institutions is not fixed once and for all.
Policing is a dynamic process. It needs to be constantly reinvented in order to be effective. Civil society advocates for a variety of policy changes, new legislations all aimed towards public good. Law is needed both to help habituate citizens to virtuous actions and to help maintain the salutary habits they acquire. For Aristotle, the primary purpose of law is to cultivate the habits that lead to good character. “Legislators make the citizens good by forming habits in them, and this is the wish of every legislator, and those who do not effect it miss their ark, and it is in this that a good Constitution differs from a bad one”. 2 Presently, the police organisation is marked by aback of democratic functioning and adequate police direction. Police priorities are defined by, and changed according to, the will of the political executive. The manner is which political control has been exercised in India has led to gross abuses, resulting in the erosion of rule of law as well as political credibility. At present the laws governing the relationship between police and the political executive are not clear enough to prevent the blurring of boundaries.
Over the course of time this lack of clarity has permitted all kinds of illegitimate interferences to seep into the police functioning and is one of the seminal causes for poor overall management of the police and the difficulty of fixing responsibility so as to achieve effective, unbiased and accountable performance. In a democracy, the police have to function as any other public service, which renders services to the community and not as “force”. Aristotle has also made a distinction between “rule of law” and “rule of force”.
The rule of law is a democratic rule for the benefit of the entire population (all citizens, the public or the nation as such), whereas the rule of force is an authoritarian, perverted and corrupted form of rule for the advantage of the ruler. 3 In relation to the above context, the Prime Minister, Dr. Manmohan Singh has observed, “Today, police forces have to serve the interests of the people, not rulers. In a democratic framework as we are in today, there is need to have in the police forces a managerial philosophy, a value system and an ethos in tune with the times.
I had 2 3 Richard Kraut, Aristotle: political philosophy, Oxford University press, 2002. Aristotle (384-322 BC): The Polis. Hammondsworth, 1991, Penguin. 4 5 emphasized the need to ensure that the police forces at all levels change from a feudal force to a democratic service. The spirit of public service, of respect for the rights of individuals, of being just and humane in ones action must permeate the entire police force”. 4 The Supreme Court too, reiterated the need of enforcing the rule of law in the police system with its verdict of the 2006 judgment5.
The Court ordered that police reform must take place. The states and union territories were directed to comply with seven binding directives viz. to Constitute a State Security Commission, selection and minimum tenure of DGP, minimum tenure of IG of police and other officers, separation of Investigation, Constituting a Police Establishment Board, to constitute a Police Complaints Authority and to set up a National Security Commission, that would kick start reform. These directives pulled together the various strands of improvement generated since 1979.
The Court required immediate implementation of its orders either through executive orders or new police legislation. According to me, the judgment of the Supreme Court though came after a decade of the filing of petition; it served the dire necessity of the implementation of police reforms, which was never initiated by any of the state or the central government so far. According to Aristotelian’s theory of justice, every social practice or an institution is established for some purpose, end or aim. The aim of the police force as a social institution is to maintain law and order in a democratic society.
If this purpose is not being achieved, the need for police reforms in keeping with the requirements of a modern, democratic state is self-evident. Aristotle has described his theory of justice as: Justice is teleological- defining rights requires us to figure out the telos (the purpose, end, or essential nature) of the social practice in question. Justice is honorific- to reason about the telos of a practice- or to argue about it- is, at least in part, to reason or argue about what virtues it should honor and reward. 6 In any country, administration of justice is one of the primary functions, which it seeks to promote.
One of the ways through which this purpose could be achieved is to have a policing system, which is equipped with such adequate powers. Aristotle in his theory while discussing the concept of justice with regard to telos and honouring of virtues, stresses that you honour only those persons who help in achieving your purpose. 4 Prime Minister’s address to the Annual conference of DGPs / IGPs of States and UTs; October 6, 2005; New Delhi; retrieved from http://pmindia. nic. in/speech/content. asp? id=207 5 Prakash Singh and others v. Union of India and others, Writ Petition (civil) 310 of 1996. 6 Supra, note 1. As according to Aristotle only virtuous people are honored, to imbibe that virtue in the police force, it is necessary that they should have such powers where they can function efficiently and effectively thus, imparting goodness in the society. 6 Aristotle says that essential nature is attributed to the social institutions so that the purpose or the telos can be achieved. Here, the police being still governed under the 1861 act have not been given the required powers through which they can achieve the purpose of policing. The crux of the police reform is to secure professional independence for the police to unction truly and efficiently as an impartial agent of the law of the land and at the same time, to enable the government to oversee the police performance to ensure its conformity to law. The need of law enforcement is to maintain peace, enforce the laws of the land, protect the people from criminals, and to help ensure the safety of the citizens. The corruption in political system and political leaders has made the Indian police toothless; so far doing their duties is concerned. If the police have no powers, it cannot function to provide a safe and secure environment for its citizens.
Coupled with undue political interference police functioning is plagued by the lack of policy directions and absence of any formal performance evaluation framework. The most glaring examples of illegitimate political interference affecting police work is evident in cases of communal riots and other disturbances. Public order is a critical necessity for progress. An unruly society would be a recipe for economic disaster. With the implementation of the police reforms the quality of life of the citizen, which is in great measure dependent upon the maintenance of public and police order will improve.
Aristotle also states that “at his best man is the noblest of all animals, separated from law and justice he is the worst”. 7 Even after 6 years of the judgment have elapsed, no effective steps have been taken by a majority of states to incorporate the directives issued by the Supreme Court. None of the directions to professionalize the police force, to prevent arbitrary transfer of officers and introduction of transparency in the system have been implemented. The criminalization of Indian politics has eroded the authority of the police leadership and consequently the discipline of the force.
Aristotle’s way of reasoning from the purpose of a good to the proper allocation of the good is an instance of teleological reasoning. Aristotle claims that in order to determine the just distribution of a good, we have to inquire into the telos, or purpose, of the good being distributed. The distribution of good that Aristotle talks about, in my case is equivalent to the distribution of powers in a democratic society. If we look into the purpose of power being distributed it should be in the hands of those who would best utilise the power and help in the achievement of a purpose, which is the administration of justice. And 7 Supra, note 3. 7 since police is a medium achieving the justice, they should be given proper powers in order to achieve the telos. Aristotle had said, “It is in justice that ordering of society is centered. The justice system in many ways is the bedrock of a democratic society since it upholds the rule of law, which is the fundamental feature of a true democracy. Our laws have to be sensitive to the changes in social structure and social philosophy, a reflection of contemporary social consciousness and a mirror of our values as a civilization. Thus, non-accessibility of justice results in the erosion of rule of law as well as police credibility”. For Aristotle, justice means giving people what they deserve, giving each person his or her due. It involves two factors: “things, and the persons to whom things are assigned”. 9 As far as the implementation of the judgment is concerned, the court stressed the need for a buffer body between the police and the politicians, which will accord functional autonomy to the police even as they are supervised by the political executive. As a result the relationship between the police and politician will loose its present character of unfettered discretion and illegitimate interference.
The non-seriousness in the approach of the state governments in abiding with the directives issued by the Supreme Court, destroy the very basis of a judicial mechanism. The purpose of the judgment was to provide a professional and a wellequipped police system, which can efficiently manage the democratic society. The lack of political will in implementing this reform is symptomatic of a larger malice in the system, whereby the politician is reluctant to let go off his control over the police and law enforcement agencies.
The alacrity with which thousands of northeast Indians fled Maharashtra and Karnataka recently has once again underscored the complete lack of the faith of the common man in the law and order machinery. It is yet another reminder that more than anything else a multi cultural and multi ethnic society like India needs an a political, professional police force and an efficient judicial system that will serve the rule of law without fear or favour. It is absence of such a vital mechanism that is at the heart of the unchecked crimes, poor conviction rate and the general lack of faith in the law and order system that we see in India today.
The police force is highly politicised and corrupt and more than anything else, it is the absence of strict enforcement of law and swift justice that is at the heart of the breakdown that we face today. Aristotle’s concept of a good civil society where he talks about the law of the polis inculcating good habits and thus forming a good character sets us on the way to civic virtue. This virtue can be achieved with the implementation of the police reforms in the society. 8 9 Supra, note 3. Supra, note 1. 7 8 The quality of the justice system in the country, to a larger extent depends upon the working of a police force.
Thus, having regard to larger public interest, it is absolutely necessary to issue the requisite directions. 8 Bibliography 9 ? Aristotle, Nicomachean ethics. Indianapolis: Bobbs-Merrill, 1962 ? Who deserves what? , from Michael Sandel’s Theory of Justice ? Morris, T. , (1998), If Aristotle ran General Motors: the new soul of business. New York: Henry Holt and Company, LLC. ? Richard Kraut, Aristotle: political philosophy, Oxford University press, 2002 ? Aristotle (384-322 BC): The Polis. Hammondsworth, 1991, Penguin 9
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