Recently Supreme Court has ordered the release of all the undertrials who have already spent more than half of their maximum supposed sentences in jail. This has sparked the debate of “guilty until proven innocent” in India. This is something the libertarians have been pointing out about the modern “justice” systems all over the world. It is unethical to kidnap someone and keep them in captivity until you have established that they are a threat to others in society. Police arrests whomever they want and they are almost assured that the person will not be released for a long time. The police is, in a sense, the real judges of our justice system. The laws implemented by the police is therefore their own law. It is neither the laws of the legislators nor is it the law as interpreted by the justice system. And one can see this aspect of the police in their modus operandi, where they decide to arrest someone first and then think as many legislative laws as they can think to apply to the case. More the number of IPC sections they can apply, more complex is the acquittal procedure. This kind of Justice system marches towards what can now be seen in the United Police States of America. To have a monopoly over law is to be lawless yourself, which is what the police ultimately become.
In a recent such debate over at NDTV (you can watch the debate here), the most appalling and dismal person in the debate was undoubtedly Kiran Bedi who at one point in the debate blames the victim on the face. (There was a BJP representative, but I expect no genuine thoughts from him). She spent the entire debate narrating the standard lines of police procedure and how systematic it is. At one point she asked “Does the police get sadistic pleasure by making false cases all the time?”. This goes to show how disconnected Kiran Bedi is from reality. Which isn’t surprising. When someone has a religious belief that a certain group of people with badges have the right to do things that you and I don’t have the right to do, they are likely to ignore their conscience and often narrate their beliefs over and over. (Apparently this is not the first time. Kiran Bedi had also previously defended police shooting and killing a teen biker)This is all what Kiran Bedi did in the debate: Narrating the law and laying down what systems are in place on paper. She asks “Why is the system not working (when it is so good on paper)?”. To which I answer: It was never meant to work the way she wants it to work. It is in no one’s interest (police, judges or legislators) to make it work. There is almost a collective effort to make it “not work” or rather to make it work FOR them. Any member of the state who dissents is collectively “taken care of”. People like Kiran Bedi who look at systems on paper forget that the people involved in the system are humans themselves and not machines who will work according to laid out rules. The judges and police are mortals who have to participate in the market process themselves to buy things for their needs for which they require money. Is it really hard to imagine them working for money just like the rest of us mortals? If so, why will they not exploit the position of authority they have assumed?
The most interesting turn of events was Kiran Bedi lashing out with “Why should there be a police at all?” when she was asked “Why should innocent people spend half their supposed sentence in jail”. Well, there shouldn’t be. If police is defined as a group of people who “serve and protect” then anyone should be allowed to do it. But if police is defined as a group of people with the right to monopoly over “protection” then all we have left with is a “protection racket” with the protectors being practically above the law and therefore lawless themselves.
To be serious, the reason why innocent people are in jail is due to a couple of reasons working in tandem with each other:
- Legislators make laws which punish victimless “crimes”. These laws are meant to protect no person or property. These are simply laws that are meant to protect the economic interest of certain class of people. For instance, the laws against import of gold is simply meant to protect the banking mafia.
- Laws made by legislators are not implemented the way legislators intend them to be implemented. With time there are numerous laws in the law book. Police are not lawyers who understand all the nitty gritties of it. A lawyer certainly has better understanding of the “law” than the police. The police modus operandi therefore becomes “arrest first, law later”, where police first decides that the person should be arrested and then looks for all the sections that they can charge the arrested person with. Every new section in the law enacted by the legislator, no matter how well intentioned, does not diminish the authority of the police and therefore becomes an extra arrow in the arsenal of the police. An interesting example is the Facebook arrests. The police did not arrest the girl because of the facebook post, as the mainstream narration goes. She was arrested to protect her from the mob, Section 66A was simply the easiest law they could think of. The police was not actively looking for violators of 66A (which a perfect implementation of the law would demand) otherwise most of the facebook users would be arrested by now. Although this is an example of police using a bad law for good purpose but it proves my point: that law as implemented by the police is not as legislators intended it to be.
- With different contradictory laws being in existence, even the cases that reach the court hearing get a political flavour where the judgement depends on the judge and the arguments in individual case. As a result, we are certainly not being governed by a set of objective rules that apply equally to everyone. (Read more in the myth of the rule of law)
- Since police does not implement the law as intended by the legislators, the system on paper as narrated by Kiran Bedi, simply does not exist. Since people respond to incentives (positive and negative) and since it is the police which ultimately (even if ordered to by the judge) has to take action against bad policing that violates the paper-perfect system, there is no incentive for police to work according to the system except not to deviate so much as to bring into question their very legality in the public opinion. The police are therefore lawless by definition.
- Since police are mere mortals with needs, they have to participate in the market by earning money. Given that they are lawless with a monopoly over law, they become open to corruption where they implement “law” on demand of the well-connected or the well-paying. Also given that they derive their authority from the perceived authority of the elected representatives they are more likely to respect their commands regardless of whether their command violates their own “law” or the legislated “law”. Since police are ready to follow orders, legislators and ministers too become susceptible to corruption in the same way. Government, therefore, becomes the agent of chaos in society.
- Since the police tries to overuse the justice system as much as they can, they cripple it delaying hearings. This further crippling emboldens the police to “unlawfully” arrest more and more people. After this, there is only a downward spiral for the justice system.
As long as monopoly over law exists, this is the best justice system we will ever have. No amount of judicial or police reforms are going to improve the justice system. Any new regulations, far from curbing misuse, will be added to the arsenal of the police. Things are only going to get worse.
Anarchism, far from being a system without checks and balances, is an idea of there being as many checks and balances as possible. It demands that there be no authority of policing because authority negates checks and balances. Authorities have rights that other normal people don’t. Does that mean that there will be no one serving and protecting? No. When left to their own devices and freed from the notion of justice being something which is granted by the state mechanism, people strive for justice themselves. In a market economy they hire people to protect them, they hire insurance companies to insure their judicial expense and property losses, and they hire arbitrators to sort out any conflicts that they may have with other people. In such a society, if someone was to arrest an innocent man and put him in captivity then he would be liable later on have to pay restitution to that man. Currently the police bear no personal losses for their bad decisions. Even if we were to invoke fines on police department, we would ultimately be making the tax payers pay. The only way to fix responsibility for ‘police’, or anyone doing the expected function of police in a free society, is to make them privately responsible for the bad decisions they make. Those who are not ready to take this responsibility should absolutely not act. Kiran Bedi laments that the police has to answer every time they make an arrest and every time they fail to make an arrest which seems unfair. But if you can’t justify your violent actions then you are probably in the wrong profession. Just using the words “responsible discretion”, as Kiran Bedi does in the debate to describe an arrest by an officer, does not make the police any more responsible. It is at best a religious incantation. If there are economic incentives for the officer to be irresponsible, he will tend to be irresponsible. In a free society, a person contracted to protect you will have to answer for his failure and he will have to answer for his transgressions. The quip offered by Kiran Bedi as an ad absurdum is actually the only sensible thing she has said ever. The drivel of “division of power” by Kiran Bedi and others in the debate is simply a myth. Her proposal to “implement the decision of Supreme Court” as solution is no better than before. Worse it will legitimize the act of by police to lock people up, further. The police will become the ultimate judges without private responsibility, when the justice system further cripples. In effect the police will be the new law, with all the sentences halved. Now obviously I am happy for all under-trial people being released but they should not have been there in the first place.