Law and Order

Modern systems allow police, prosecution to decide who to arrest, release, put to trial. Here, judiciary decides that.

“Law and Order” was the single longest running crime drama in the history of American television. When it was finally cancelled in 2010, it left behind not only legions of disappointed fans, like myself, but also a template for all future such serials. It is a template from which our politicians and our policymakers can learn much.

Each episode of  “Law and Order” thus consisted of two parts; the “order” part in which a crime would be investigated and a “law” part in which the crime would be prosecuted. The message that this structure sent was in fact made very clear by the intro to each episode: “In the criminal justice system, the people are represented by two separate yet equally important groups: the police, who investigate crime; and the district attorneys, who prosecute the offenders. These are their stories.”

I was reminded of this wonderful television series recently by a report titled “Stabilising Pakistan through Police Reform” (Hassan Abbas ed.) issued by the Asia Society.

The Asia Society report is an ambitious and generally successful effort to provide an overview of the major issues in the area of police reform. The 25 authors whose contributions make up the report are sub-divided into five different topics so that the reader is provided with a comprehensive picture of a large number of topics, ranging from the role of the private sector and NGOs to accounts of police reform in Balochistan and Khyber Pakhtunkhwa to analyses of police issues and women’s rights.

Reading through the report is thus a wonderful introduction for the general reader. It is, for example, important that people learn the Police Act of 1861 deliberately set out to create a paramilitary force on the basis of the Royal Irish Constabulary rather than a modern investigative, service-oriented force. Similarly, I found it heartening that so many authors recognised that the Police Order, 2002 was a brave and well-meaning effort that got scuttled by political cowardice and vested interests.

At the same time, I do wish the report had been more comprehensive. As the intro to “Law and Order” notes, the criminal justice system has “two separate yet equally important” parts — the police, who investigate and the lawyers, who prosecute. The Asia Society really only deals with the first half of that equation. Thus, one could implement each and every recommendation of the report and while it would undoubtedly produce a better police system and one more capable of identifying criminals, it most likely would not produce a system significantly better at convicting criminals.

The simple fact is that the criminal justice system is just that — a system. It cannot be reduced to the sum of its parts, let alone one part of that whole system. As such, if the system is to be reformed, one has to look at the entire system and not just isolated elements.

Let me elaborate. As some of the scholars in the Asia Society report explain, the British decision to opt for a paramilitary police force was driven primarily by colonial insecurity. In other words, the 1857 War of Independence convinced the British that (a) there were sizable numbers of Indians who did not regard British rule as an unmitigated blessing; (b) those restless natives needed to be thrashed into submission at regular intervals; and (c) a paramilitary police force was an efficient way of thrashing unhappy subjects into silence. The British knew full well even back in 1861 that the police force being set up would not be very good at solving crime. And while they tried to mitigate this through a different police system in the largest cities, they were content with this compromise so far as the majority of their territory was concerned.

My point is that there is a ‘deep structure’ buried in the other elements of the criminal justice system, just like there is in the Police Act of 1861. Thus, the design of the Criminal Procedure Code, 1898 reflects not just the fact that it was enacted by the British at a time when they ruled India but also the racial divisions of that time as present within the administrative structure of the British Empire. Or to be less polite, the criminal justice system concentrated power in locations where the personnel were generally white (higher judiciary, district administration officers) and took away powers from people who were generally brown (police, subordinate judiciary).

Take a look, for example, at how our system handles bail and FIR matters.

In modern Western systems, the police have tremendous discretion on how to deal with criminal complaints, including deciding who to arrest, who to release, who to investigate and who to try. Our system, however, robs the police of this discretion.

In brief, the law requires the police to register every report of every cognisable crime in the form of an FIR. However, once an FIR is recorded, the standard practice is for the police to arrest everybody named in the FIR because failure to arrest someone named in an FIR is normally seen as good grounds for judicial interference. The police are then also required to investigate every named person and while again, they have the discretion to drop charges, the standard practice is for the investigative report (challan) to be lodged in court and for the court to then determine the guilt or innocence of everybody.

To summarise, modern Western systems are set up so that the police and the prosecution decide who to arrest, who to release and who to subject to trial. In our case, the judiciary makes most of these decisions. This is because historically the judiciary was white (and presumptively smart) while the police were brown (and presumptively stupid).

My further point is that these systems — repeat, systems — need to be rethought. Currently, we are trying to beat 21^st century terrorists with a 19^th century criminal justice system. It’s the equivalent of trying to stop a high-rise fire with a bucket of sand. And if we don’t figure out how to reform our systems, we will soon learn how ineffective that approach can be.

Published in The Express Tribune, September 18^th, 2012.