1st Edition
Police Discretion in India Legal and Extralegal Factors
This book is the first empirical study of police discretion in India. Going beyond anecdotal accounts, it addresses the issues and concerns of arrest discretion behaviour of police with analysis of available literature internationally, testing the validity in the context of police in India and explaining the gap that exists between the legislative intent and field law enforcement. It establishes how extralegal determinants like subculture, environment and situations influence arrest discretion as much as legal determinants such as statutes, rules, manuals and court rulings. It also provides vital explanations on the working of the police system in India.
The volume will be of great interest to policymakers, police leaders, officers of judiciary, scholars and researchers of criminology and criminal justice, sociology and social anthropology and South Asian studies.
List of Figures xiii
List of Tables xiv
Foreword xvi
UPENDRA BAXI
Acknowledgements xx
Abbreviations xxi
Preface xxii
1 Introduction 1
1.1 The Background 1
1.2 Ground Reality of Arrests in India 3
1.3 The Determinants of Arrest Discretion 6
1.4 Explanation of Terms 7
1.5 Context of the Study 10
1.6 Purpose of the Study 13
1.7 Queries That Need to Be Answered 14
1.8 Academic Significance of the Study 15
2 Police Discretion: Factors Influencing Arrest Discretion 18
2.1 Police Discretion 18
2.2 The “Discovery of Discretion” and Subsequent Developments 20
2.3 Interpretation of Discretion by National Courts 23
2.4 Factors Influencing Arrest Discretion 27
2.5 Measuring the Factors Influencing Arrest Discretion 38
2.6 Key Hypotheses 39
2.7 A Diagrammatic Representation of Arrest Drivers 41
3 Police Discretion: Laws and Policies in India 44
3.1 From Regulation of 1772 to Police Act 1861 45
3.2 The Legacy of Police Act 1861 48
3.3 Development After Independence 48
3.4 Constitution of India 49
3.5 The National Police Commission (1977–1981) 51
3.6 Recommendations on Structural Changes 53
3.7 Prakash Singh Case on Police Reforms 54
3.8 National Human Rights Commission 54
3.9 The Supreme Court and High Courts of India on Police Discretion 55
3.10 The Supreme Court of India 57
3.11 Police Manual 61
3.12 Law Commission of India: 177th Report on Law Relating to Arrest 62
3.13 Arnesh Kumar 67
3.14 Rajesh Sharma 69
4 Measuring the Factors Influencing Arrest Discretion 73
4.1 Distilling the Drivers of Arrest Discretion 73
4.2 Operationalisation of Organisational Determinants 75
4.3 Operationalisation of Subculture Determinants 79
4.4 Operationalisation of Environmental Determinants 82
4.5 Operationalisation of Individual Determinants 85
4.6 Operationalisation of Situational/Offender Determinants 86
4.7 Variables or Indicators of Discretion 88
4.8 Translating Indicators to Response Statements 89
4.9 Sampling Technique 91
4.10 Data Collection 92
4.11 Data Analysis Techniques 93
5 The Interplay of Legal and Extralegal Factors in Police Discretion 96
5.1 Data Analysis and Findings 96
5.2 Sample Area for the Study 98
5.3 Analysis of Frequency Distribution 99
5.4 Subcultural Determinants 109
5.5 Environmental Determinants 111
5.6 Factors With Significant Contribution in Influencing Arrest Discretion 113
5.7 Degree of Influence of the Determinants on Arrest Discretion Behaviour 117
6 The Effects of Individual and Situational Factors on Arrest Discretion 120
6.1 Analysis of Individual Determinants 120
6.2 Individual Determinants: Gender, Experience and Position as Variables 120
6.3 Relative Impact of Individual Determinants 134
6.4 Data Analysis of Situational/Offenders’ Determinants 135
6.5 Samples 136
6.6 Socio-Economic Status of Offenders as Variables 136
6.7 Awareness of Legal Rights 140
6.8 Legal Assistance 141
7 Conclusion: Findings and Recommendations 143
7.1 A Brief Summary 143
7.2 Key Findings 146
7.3 Organisational Determinants 146
7.4 Subcultural Determinants 148
7.5 Environmental Determinants 149
7.6 Relative Significance of the Independent Variables on Arrest Discretion 150
7.7 Subcultural Determinants 151
7.8 Environmental Determinants 152
7.9 Relative Significance of Organisational, Subcultural and Environmental Determinants Over Arrest
Discretion 152
7.10 Individual Determinants 153
7.11 Relative Significance Within Gender, Experience and
Position 154
7.12 Situational Determinants 154
7.13 Discussions on the Hypotheses 155
7.14 Discussions on the Questions That Need to Be Answered 158
7.15 Implications 163
7.16 Limitations 165
7.17 Recommendations 166
Appendix A: Number of Offences With Punishment Up to or Less Than Seven Years and More Than Seven Years in Indian Penal Code and Minor Criminal Acts 171
Appendix B: NHRC Guidelines Regarding Arrest 172
Appendix C: Interview Schedule for Odisha Police Officers 177
Appendix D: Interview Schedule 182
Appendix E: Interview Schedule for Offenders 186
Appendix F: Sampling Method of Officers From Odisha Police 188
Appendix G: Sample List of Field Police Administrative Units in the State (Selected by Adopting SRSWOR) 189
Appendix H: Explanatory Note on How to Fill Up the Written Interview Schedule 191
Appendix I: District-Wise Respondents of Odisha Police 194
Appendix J: Number of Respondent IPS Officers With Cadre 195
Appendix K: Sample Details for the Situational Determinants 196
Appendix L: Check List 197
References 198
Index 203
Biography
Satyajit Mohanty belongs to 1988 batch of Indian Police Service. In a career spanning over more than three decades, Mohanty has been posted at senior leadership positions in a number of Police Districts and Ranges, Police Commissionerate, Police Headquarters, Prisons and Correctional Services and Fire and Civil Defence Organisation in Odisha, India. He has also served as the Chairman of the Odisha Public Service Commission.
He holds M.Sc. and LL.B. degrees from Utkal University, Master’s degree in Human Rights from Pondicherry University, and PGPPM from IIM Bangalore and Maxwell School of Public Policy, Syracuse University, USA. He has been awarded Ph.D. degree in Law by the National Law University Odisha, India.
He is a recipient of Police (Antrik Suraksha Seva) Medal, Police Medal for Meritorious Service and President’s Police Medal for Distinguished Service.
"Police discretion is a vast domain of power which can be used for doing reasonably good for those who are subject to it. Police play a significant role in weighing the balance in the life of the people it governs. One of the attributes of such exercise of discretion is the power to arrest, which exercised judiciously benefits and when abused, harms. This academic work by Dr. Satyajit Mohanty, IPS (retd) is significant in understanding and broadening one’s view on such discretion used by the police and how it can evolve for the greater good."
Justice K.G Balakrishnan, Former Chief Justice of India
"An outstanding book meticulously researched and the fact that it is written by an insider (former police officer) makes it insightful. The author's extensive research and work on a subject which concerns every individual yet has rarely been written about, provides a critical analysis of Indian policing and what ails it and where we need to look to reform Indian policing. It was an eye opener for me!!"
Sidharth Luthra, Senior Advocate, Supreme Court of India
"Discourse on police discretion in the context of Indian police is mostly anecdotal as rarely any empirical study has been attempted. The book seeks to address the issues and concerns while the police exercise discretion in their powers of arrest, and explaining at the same time the gaps that exist between the legislative intent and actual law enforcement with compelling findings."
Prakash Singh,(formerly) Director General of Police Assam, Uttar Pradesh and DG BSF
"Police discretion in arrests can make a critical difference not only to the maintenance of law and order, but also to public trust in the institutions of a democracy like India. Combining considerable primary research and rigorous academic method, and drawing on the author’s decades of experience as a police officer, this book is incredibly important for scholars, lawmakers, and security officials interested in police and law reform."
Amitav Acharya, Distinguished Professor of International Relations, American University, Washington DC
"The wide and discretionary arrest powers of police have been the subject of critical debates over the past seventy-five years of Indian independence. An outstanding book written by a distinguished police officer, it explores the processes and methods to prevent its abuse in the best interests of society and police. It is a must read for teachers, scholars, judges, police officers, policy makers and all those who are concerned with the study of abuse of power by the police and its accountability."
Professor Srikrishna Deva Rao, Vice Chancellor, National Law University Delhi
