Why there is a problem in giving magisterial powers to the Police?

Why there is a problem in giving magisterial powers to the Police? Why I disagree with such an effort in Kerala ?

Please consider these facts and figures :

A) Custodial Deaths in India : Statistics placed by the home ministry before the Rajya Sabha on 14 March showed India recorded a total of 1,674 custodial deaths — 1,530 in judicial custody and 144 in police custody — between 1 April 2017 and 28 February 2018. That is five custodial deaths per day .This means at an average every five hours a custodial death happened in India .

B) 135 people were dead in police firing in 2016 alone .

Yesterday. I wrote that the proposed effot by the government of Kerala bestowing magisterial powers to the police is against the principles of Democratic Governance. Many friends asked me why did I write like that. Here are few key reasons.

1) In a substantive democratic republic, the sovereignty of the state is derived from the sovereign agency of the people. Hence people are supreme in a democracy and it is due to this core principle that peoples's representative parliament is supreme. The powers of the executive is accountable and answerable to the parliament.

2). That is why the constitution that is the defining grammar of the state and all organs of the State begins with ' We the people '. It is not the government or bureaucracy or army that constituted this nation state. It is WE THE PEOPLE of India ' that has the collective sovereign agency to constitute the nation state called India. Hence the basic principles and structure of the constitution can't be altered even by the parliament ( in the famous Keshavanda Bharathi case Supreme court to reiterated these principle ). Rights in our Constitution are called ' FUNDAMENTAL ' because the very foundations of our constitution depends on the foundation of these rights to those who constituted the constitution.

Human rights and freedoms are fundamental to any forms of liberal democratic state as well as democratic governance. The foundational structure and principles of the democratic republic of India are based on values in the preamble and the fundamental rights to all people who live in the country known as India.

3). The notions of transparency, accountability as well as checks and balance of Powers of all organs and state are derived from the above political values mentioned ( in point 1 and 2)

4). The coercive power of the state is implemented through military and police. While military is expected to ensure and protect the territorial integrity of a nation state from external aggression and also violence. The primary responsibility of military is to ensure safety and security to boarders and the lives and resources in a given territory designed as a country.
Police is the agency of a state responsible to ensure law and order, including protection to the lives, liberty and property of people and that of the government. Police is primarily a public service to ensure safely, security and human rights of people.

5). However iwhen a democratic nation state gets operationalized as government, government agencies at every level must be transparent and accountable to the people . It is based on this people now have a Rights to Information, including the rights to check any files of the government. And based on these principle of accountability of the government to the people, every power function of the government must be self regulated based on the principal of Checks and Balance of Power.

6). As police is an armed force with weapons that can kill people, the coercive powers and potential harmful behavior of police need to be regulated with utmost care. In a democratic governance it is RULE of LAW that is cardinal and it is not RULE by LAW.. These distinctions are fundamental difference between democratic governance and undemocratic authoritarian governance.

It is Luis 14 of France who said ' I am the state and what I say is the law '. The role of the police is to ensure law and order based on RULE of LAW and accountability to people and Rule of Law. It is based on this police can't do arbitrary arrest or torture or forces on people. Arrest warrant as well as producing arrested person to the magistrate and work within the ambit of law and Cr PC become fundamental to the policing. When police begins to Rule by Law using coercive powers, that is called Police Raj. That is what happened during the Emergency in India.. The authoritarian Prime Minister used the coercive power and force of police to supress the freedoms of of people

7) The key irony of the governance is that the Police which is expected to protect the lives, rights and freedom of people end up violating all these due to real physical as well as weapons might they have. Hence Police end up torturing and killing people in the custody and end up as the most common source of human rights violations. Shooting and so called ' encounter ' killing can violate the core of constitutional guarantee of freedoms and equality before law.

It is due to this unbridled potential for use of physical and deadly use of force that the powers of police not only within the ambit of Rule of Law and the magisterial powers to ensure the Rule of Law is vested in another agency of the government.

Hence an order to approve a shooting in a circumstances of big violence that can threaten safety and security of people as well law and order must be done by collectors vested with certain magisterial powers.

Police is often misused by those political power elites who control the political executive. This in reality end up police working nexus with powerful office bearers of the ruling political parties. Police is also often misused to threaten or to use violence on political opponents. And police often indulge in violence and custodial torture and killings.

Hence giving magisterial powers to police can undermine the core principle of democratic governance , human rights and giving unchecked powers that could be misused, given the track record of police violence, torture, atrocities and killings.

The issue is about politics of accountability as well as checks and balance of powers , particularly that of coercive powers of any government agency .

Police must be accountable, transparent and work within the rule of law as well with checks and balance of coercive powers .

JS Adoor