The police dragged Rajeev Sharma, an electrician, from his bed in Meerut, India, in 2004 and took him to the local police station for what was called “routine questioning” in a burglary investigation (Lakshmi Reference Lakshmi2004). A day later he was dead. “Their routine questioning proved fatal,” his brother lamented. After his arrest, family members had rushed to the police station and briefly talked to Sharma, reporting that “his eyes were red, his mouth was bleeding and he could hardly walk. They had beaten him very badly.” After leaving, the family next heard that he had “committed suicide.” The killing provoked two days of rioting by local residents upset over widespread police abuses.

The killing of Rajeev Sharma was part of a depressingly common pattern in India. Brutality, extortion, and corruption in the Indian police are “pervasive,” according to Arvind Verma, a former Indian police officer and the leading academic expert on the Indian police, permeating “every rank, from the constable to the chief of police in every police department in the country” (2004). Well more than a thousand people per year die in police custody, and many more are subjected to torture, rape, and other abuses. The vast majority of the victims are members of India’s poorest classes and marginalized groups (Verma Reference Verma2005). While some abuses occur during the course of routine criminal investigations, others are political, targeting members of poor peoples’ movements in their struggles against local landlords and employers. But members of the middle and upper classes are not immune: although largely free of physical abuse, they are widely subjected to extortion in exchange for protection or as payment for carrying out investigations (Verma Reference Verma2005).

The problem of police abuse poses a key issue for any theory of liberalism, a political ideology that values limits on governmental power. While the rights of property and freedom of expression form liberalism’s historical core and face continuing threats from governments, an equal if not more substantial threat in many countries is posed by the abusive actions of the police and internal security forces. In some places, particularly in the post–September 11 era, the police and security forces represent by far the most substantial and acute threat to liberal values.

Any adequate theory of liberalism must acknowledge these threats to liberal values and account for the conditions favoring protections not only for property but also personal freedom from police abuse. The theory of the legal complex, if defined sufficiently broadly, offers the best available analysis of the conditions for a robust liberalism. The legal complex as defined by Halliday, Karpik, and Feeley (2007), comprises legally trained professionals currently practicing as private lawyers, the organized bar, judges, lawyer-civil servants, prosecutors, and the legal professoriate. In the contemporary world, an additional sector, organized groups favoring civil liberties, civil rights, and human rights, has emerged as an important voice in defense of liberal values. The alliances between the human-rights sector and the organized bar have proven especially important in defending liberal values against police abuse. In some senses the organized human-rights sector may be seen as a specialized branch of the bar. Most of the key actors in this sector are lawyers; the values that they defend are essentially legal values (with an emphasis on fair procedure); and this sector enhances its influence and legitimacy in significant part by forming alliances with the broader bar. Equally importantly, the legal complex almost never articulates a position in opposition to the human-rights sector. While functionally distinct, the legal complex and the human-rights sector have an elective affinity.

The theory of the legal complex posits that a key condition for the development and maintenance of liberalism is the relative independence and ideological position of these legal actors. To the extent that these legal actors favor liberal values broadly construed, are independent of governmental control, and can mobilize in favor of these values, liberalism may flourish even in otherwise inhospitable conditions. But to the extent that they are not supportive of liberal values, or are subject to widespread governmental repression, liberalism will languish. The key conditions are thus both ideological and structural: both a normative commitment to checks on arbitrary governmental power and the structural conditions sufficient to give leverage to these values. These structural conditions are independence from governmental control, the capacity to act collectively, and alliances with liberal allies. In the contemporary world, the legal complex’s structural connections to its key ally, the human-rights sector, is especially significant.

India is an important site for examining the conditions favoring liberalism. India is among the largest of the countries freed from colonial domination some sixty years ago. Like many such post-colonial societies, India retains strong elements of a colonial legal system originally designed to facilitate control of the population. India’s Constitution authorizes the government to detain without charge or trial individuals considered a threat to security and to declare a national emergency and rule by decree. The police operate under a colonial-era statute (the Police Act 1861) adopted by the British in response to the Indian uprising of 1857. This statute grants local political leaders direct authority over the police, subjects the police to few meaningful legal checks, and authorizes broad discretionary police powers for the specific purpose of controlling the Indian masses.

At the same time India is the world’s largest democracy and is also one of the few striking success stories of liberal constitutionalism among Europe’s former colonies in the developing world. While many of the countries freed from colonial control in the twentieth century have sunk into abject poverty and governmental abuse, India has built a proud tradition of commitment to the liberal rule of law. The news media are numerous and free; critics of the government freely speak their mind; with the exception of several significant incidents, minority religious and ethnic groups are free from repression by the majority.

India also has the most well-developed and diverse legal complex in the developing world. The Indian legal profession is among the largest in the world. Its leading members are among the most respected members of India’s elite class. The higher judiciary, likewise, is large and enjoys enormous respect and legitimacy. Retired Supreme Court justices are commonly called upon to head sensitive inquiries and commissions. In the past thirty years a formidable collection of organizations advocating protection for civil liberties and human rights has grown and joined these more traditional elements of the legal complex. Civil liberties and human-rights organizations participate avidly and with widespread legitimacy in national political debates and have shaped the policy agenda on many key issues.

In this chapter I will argue that the Indian legal complex helped to establish liberal institutions at two critical turning points in the country’s development. The first was the transition from British colony to independent nation in the wake of World War II. During this transition, the Indian legal complex contributed to the establishment of liberal constitutional structures that are the basis for India’s success as a liberal democracy. The second was the period of emergency rule by Indira Gandhi’s Congress Party in 1975–7. While the emergency, as it is called, was a low point in India’s commitment to both liberalism and democracy, it also marked a turning point in those commitments. Immediately in its wake, Indian leaders gained a new recognition that police repression of the lower castes, classes, and minorities represented a deep threat to liberal constitutionalism. For the first time they took steps to address this threat, calling for structural reform of the police and criminal justice system. In this ongoing transition, too, the legal complex has led the country toward a liberal path. Police reform, however, remains only a proposal: the Indian government has yet to implement it.

The Legal Complex in The Context of Theories of Democratization

Theories of the conditions for democracy help to illuminate how political liberalism is distinct from democracy – and that the conditions for liberalism are similar to, yet distinct from, those for democracy. Democratization is about bringing governmental power under majoritarian control. Political liberalism is about placing limits on governmental power, whether that power is controlled by majorities, powerful groups, or simply state officials, and it is also about building the key institutions – civil society and legal processes – that empower these limits and provide their justification. But liberalism and democracy have obvious affinities, and so I want to frame my analysis in relation to three standard theories of the conditions for democratization.

The first is that the key condition is capitalism and the development of a capitalist class independent of the state (Moore Reference Moore1966). In this view, the growing capitalist class in the west developed the interest and the capacity to check the monarchical state. As it succeeded in imposing such checks and in carving out a civil society separate from the state, capitalism laid the critical liberal foundations for democracy: a rule of law that protects property from the state and a civil society composed of non-governmental organizations – businesses, voluntary associations, the press, and the like – independent of the state. This theory of democratization views its conditions as essentially similar to those for the traditional core values of liberalism: the development of centers of power separate from the state that have the capacity to protect property from state control. This theory has obvious applications in the modern history of India. British colonial exploitation established a capitalist business sector. While this sector was closely aligned with the colonial state it was also entirely independent of India’s traditional princely powers and caste structure and served to establish a civil society separate from these traditional institutions.

A contrasting theory (Collier and Collier Reference Collier and Collier1997; Rueschemeyer, Stephens, and Stephens Reference Rueschemeyer, Stephens and Stephens1992) observes that while the limited state created by capitalist classes may be necessary to democratization it is not sufficient: its rule of law protects the property interests of the wealthy but not those of subordinate groups, imposes no effective restraints on arbitrary state power over subordinate groups, and does not favor expansion of the franchise. The critical condition for democracy, in this view, is the mobilization of subordinate groups and classes and their integration into political institutions. These conditions are increasingly met in India.

A third theory suggests that democracy rests on a gradual institutionalization of political norms and systems of accommodation and compromise among ethnic or racial groups, economic classes, and competing groups of political elites so that none has autocratic control over others (Bendix Reference Bendix1978; Linz and Stepan Reference Linz and Stepan1997; Przeworski, Mainwaring, O’Donnell, and Valenzuela 1992). In this view, where political societies have worked out systems of accommodation, democracy has prevailed; where they have not – where powerful groups reject accommodation in favor of gaining their demands in full – democracy has not taken root or has collapsed. Prominent interpretations of Indian democracy (Adeney and Wyatt Reference Adeney, Wyatt and Rights2004; Lijphart Reference Lijphart1996) favor this thesis.

While each of these standard theories helps to illuminate key dynamics in the development of democracy in India – the establishment of an independent civil society, the inclusion of the lower classes in political institutions, and the development of norms of political accommodation – they are nonetheless incomplete in accounting for Indian liberalism. India is not simply a majoritarian democracy: it is a liberal, constitutional democracy. Theories of the conditions for democracy do not fully account for this liberalism.

The legal complex thesis supplies the missing piece. This theory is a cousin to this third theory of democracy – that focusing on the institutionalization of systems of accommodation – but with a valuable twist. The legal complex thesis suggests that political liberalism is built or fails as the result of crucial choices between accommodation and domination made at historical points of major system crisis or transition. At these turning points, elites put in place institutions that favor either checks on autocratic power or enhancing their own power at the expense of others. The former is the path to stable liberalism; the latter is the path to something else, authoritarianism or instability. According to this thesis, elites do not operate at these historical turning points in a political (or legal) vacuum. The legal complex thesis posits that the relative level of development of the legal complex – and its capacity to resist repression by government elites – provides a key condition that shapes the direction taken at these historical turning points. Put simply, a well-developed legal complex pushes political elites in the direction of choosing institutions of accommodation over institutions of exclusive power. This is because a well-developed legal complex has trained its members in the traditions of reasoned debate and the values of open discussion and freedom from dictatorial control. But where the legal complex is weak and these norms are poorly institutionalized, political elites have a freer hand – and more inclination – to establish illiberal institutions. The Indian case illuminates the considerable power of a robust and collectively acting legal complex in establishing and defending liberal institutions.

The First Critical Juncture: The Transition to Independence and The Creation of The Indian Constitution

India gained independence from Britain in the immediate wake of World War II and immediately set about creating a liberal, democratic constitution. That constitution contains some elements drawn directly from the country’s British heritage, principally a parliamentary government with a prime minister who is an elected member of parliament and a grant to Parliament of the authority to amend the Constitution by a simple majority vote. As we have seen, the Constitution also authorizes the national government to declare a state of emergency during which it may suspend the Fundamental Rights and rule the states by decree. But the Constitution also contains some elements of American-style constitutionalism, particularly a constitutional bill of rights (called the Fundamental Rights), a judicial hierarchy topped by a Supreme Court with the power of judicial review, and a federal structure in which the states enjoy a broad jurisdiction that is independent of national authority. As another contribution to this volume well describes (Mate, this volume), although the Constitution originally authorized Parliament to adopt constitutional amendments by majority vote, the Supreme Court has since ruled that Parliament’s authority does not extend to amendments that violate the Constitution’s “basic structure” (Kesavananda Bharati v. The State of Kerala 1973).

The Indian National Congress, a mass-based political party, led both the struggle for independence and the creation of the Indian Constitution, and the leading explanation for India’s liberal democratic path is that the Congress Party was itself deeply democratic and committed to liberal values. Those favoring the Congress Party thesis correctly observe that this party had been developing since the late 1800s, had established a very broad base in Indian society that encompassed all key ethnic and religious groups, and by 1947–9 had a well-institutionalized internal system for sharing power and accommodating deeply conflicting interests (Adeney and Wyatt Reference Adeney, Wyatt and Rights2004). By 1940 the Congress Party had deep roots in Indian society across the colony. Its internal systems rejected authoritarian control by party leaders, thus establishing a version of political liberalism within the party itself.

The legal complex thesis adds a significant element to this story. While the Congress Party thesis may help to explain the Indian government’s commitment to moderation and accommodation, it does not sufficiently explain Indian institutions’ deep commitment to liberal constitutionalism as the institutional structure to house that tendency toward moderation. The legal complex thesis helps explain why India since independence is home not only to a relatively moderate democratic politics but also to one of the world’s most vibrant liberal constitutions. The key to this explanation is the prominent role played by Indian lawyers and the organized Indian bar in the transition from British rule to independence. As Granville Austin’s magisterial history of the framing of the Indian Constitution (1966) demonstrates, distinguished Indian lawyers and jurists led the Indian Constituent Assembly, the body charged with drafting the Constitution, and contributed key decisions that pushed India toward liberalism and away from its alternatives. The Constituent Assembly was led by four distinguished men – Nehru, Azad, Prasad, and Patel – who formed what Austin called an “oligarchy.” Of these, two (Nehru and Prasad) were lawyers or trained in law. Beyond these four, Austin identified twenty members of the Constituent Assembly who played decisive leadership roles; of these, twelve were lawyers (1966, 19). Additionally, the Constituent Assembly used the services of B. N. Rau, given the title constitutional adviser. Rau was an eminent lawyer and judge with extensive knowledge of comparative constitutional law and history, which he drew on to advise the drafting process. B. R. Ambedkar, the chair of the drafting committee, and known as the father of the Indian Constitution, was a British-trained lawyer and intellectual.

These distinguished lawyers and jurists guided the Constituent Assembly to adopt a constitution containing critical liberal elements. These included a Supreme Court independent of direct governmental control and with a broad jurisdiction; robust guarantees of fundamental civil liberties, particularly rights to freedom of expression, freedom from arbitrary arrest and punishment, freedom of religion, legal equality, cultural and educational freedom, and rights against exploitation by the state, and a right to pursue claims of violations of these constitutional rights directly to the Supreme Court.

The Constitution’s liberal elements were the product not simply of the individual lawyers and jurists in the Constituent Assembly, however, but of the Indian legal tradition and bar more broadly. The language of the Constitution’s rights guarantees in many cases was taken directly from earlier statutes or draft constitutions dating in some cases to the nineteenth century and in most cases to no later than the 1930s (Austin Reference Austin1966, 52–8). Moreover, when the drafting committee proposed key qualifications to the fundamental rights, bar associations forcefully opposed any such revisions and the Constituent Assembly responded by revising the language to reflect an unqualified commitment to liberalism (Austin Reference Austin1966, 61–75, 324). While distinguished individuals played key roles in giving voice to these values, ultimately they grew from the Indian legal tradition itself as institutionalized and defended by the Indian legal complex.

The Constituent Assembly worked in a period of potentially deep political unrest – and some of its leaders forcefully argued that these conditions justified granting the government emergency powers to suspend fundamental rights and rule by decree (Austin Reference Austin1966, 74). The legal sources for this idea, too, emerged from deep within Indian political history and specifically from the emergency powers held by the British colonial government. The Constituent Assembly balked at the first draft proposal for emergency powers, deeming its grant of emergency authority to be too broad. The assembly ultimately adopted a system of emergency powers that allowed the government to suspend the justiciability of constitutional rights during an emergency, so long as the period of the emergency was specifically identified and delimited and the affected rights specifically named (Austin Reference Austin1966, 75). While less broad than the initial proposal, this “law of exception” (Halliday and Karpik, this volume) echoed the tradition of arbitrary colonial power and was later to serve as the basis for Indira Gandhi’s extraordinary imposition of dictatorial rule. Still, for twenty-five years after adoption of the Indian Constitution, no government claimed the full powers authorized by the emergency provisions, and Granville Austin, writing in 1966 (p. 54), could confidently declare that there was “little evidence” that these provisions had “worked injustice on the people of India.”

In sum, the Congress Party, and, more specifically the Constituent Assembly which created India’s constitution and political institutions, was committed not only to an accommodation of competing interests but also to a constitutional rule of law as an absolutely essential element of that system of accommodation. This commitment to constitutionalism emerged from deep sources in the Indian bar and legal tradition, and was given voice by the distinguished lawyers and jurists who led the Constituent Assembly. When these individuals deviated from a full commitment to liberal constitutional rights, the organized Indian bar successfully encouraged the broader Constituent Assembly to affirm these values. In adopting a constitution with clear guarantees of civil rights and liberties, and making these justiciable, the Constituent Assembly placed independent India on a path of political development that favored liberal checks on abusive governmental power, and it has since largely stayed on this path. But the Constituent Assembly also authorized the government to temporarily suspend the justiciability of the fundamental rights during an emergency – and this “law of exception” lay in waiting until 1975.

The Second Critical Juncture: The Emergency

Prime Minister Indira Gandhi’s imposition of national emergency rule from 1975 to 1977 was a second critical juncture in India’s political development. The emergency is commonly characterized as the nadir of India’s democratic history, a tragic aberration that has fortunately not been repeated (see, e.g., Chadda Reference Chadda2000, 43–50, 61). Although it was indeed an isolated episode, this common view underestimates the extent to which the emergency marked a critical turning point that established fundamentally new patterns in Indian constitutionalism.

Gandhi declared the emergency in order to override an embarrassing loss in court, and this fact ironically served over the long term to enhance the power and liberal commitments of the judiciary. The precipitating legal conflict dated to the 1971 election. A political opponent had filed a lawsuit challenging the legality of Gandhi’s victory in that election, and on June 12, 1975, a judge of the Allahabad High Court struck down her election as based on corrupt practices and therefore illegal (Brass 1990, 41; Nayar Reference Nayar1977). Mrs. Gandhi immediately appealed to the Supreme Court, requesting an unconditional stay of the high court’s judgment. Justice V. R. Krishna Iyer heard Gandhi’s case on June 24 and issued a conditional stay on the following day, allowing the prime minister to remain a member of Parliament but ruling that she could neither participate nor vote in that body. Although opponents of the regime sharply criticized the ruling, Gandhi reportedly was furious over it for declining to grant her an absolute victory. Relying on advance planning by a handful of close advisers, she ordered the president to declare a state of emergency, which he did on June 26.

Upon declaration of a state of emergency, Gandhi ordered the detention of her political opponents, suspended the Constitution’s Fundamental Rights, imposed press censorship, banned dozens of opposition political organizations, and within months brought all of the country’s states under direct dictatorial rule (Nayar Reference Nayar1977). The federal police forces acted as the government’s enforcement arms, closing newspaper presses, destroying print runs, and arresting the government’s political opponents (Nayar Reference Nayar1977, 45). Tens of thousands of opposition party members and critics of the government, including all of the principal leaders of opposition political parties, were imprisoned for the duration of the emergency. During the emergency Gandhi inaugurated a series of unpopular policy reforms including an extraordinarily controversial policy of forced sterilization, and soon postponed elections indefinitely. The emergency stretched on for two years, a period in which the country’s police and security forces increasingly acted with impunity against the government’s critics, beating and arresting many. Ultimately, more than 100,000 people, including political leaders and ordinary Indians alike, were imprisoned for the duration of the emergency (Nayar Reference Nayar1977, 84–5). Justice Krishna Iyer later labeled the period “the darkest chapter in the democratic history of India” (2000).

The Indian bar, returning to the pivotal role it had played in shoring up support for liberal rights during the framing of the Constitution, emerged as the center of opposition to the emergency and the sole prominent voice in defense of civil liberties and the rule of law (Austin Reference Austin1999, 335, 339; Jethmalani Reference Jethmalani1976; Nayar Reference Nayar1977). Lawyers widely spoke out against the emergency and filed thousands of habeas petitions seeking release of political detainees, leading to the first significant surge in civil liberties litigation in the country’s history (Epp Reference Epp1998, 97). V. M. Tarkunde, a retired Bombay High Court judge, formed Citizens for Democracy, the first Indian civil liberties organization, which other distinguished retired judges quickly joined (Nayar Reference Nayar1977, 94). In the immediate wake of the declaration of emergency rule, state and national bar associations across the country, with only one exception, issued statements condemning emergency rule (Nayar Reference Nayar1977, 46; see also Austin Reference Austin1999, 335, 339; Baxi 1980, 36; Jethmalani Reference Jethmalani1976). Several lawyers associated with the Gandhi government responded by calling a bar conference to issue a resolution in support of the emergency. Even though hundreds of attorneys who were known to oppose the emergency were prohibited from attending, the resolution was spectacularly defeated by a vote of 490 to 10 (Nayar Reference Nayar1977, 95). Both the Delhi High Court Bar Association and the Delhi District Bar Association elected imprisoned lawyers to the office of bar president, defeating the candidates favored by the Gandhi government (Nayar Reference Nayar1977, 96–7). In response, officials close to Gandhi ordered the bulldozing of some 1,200 lawyers’ chambers; lawyers who protested the demolition were immediately imprisoned (Nayar Reference Nayar1977, 97). As tensions between the Indian bar and the government escalated, Ram Jethmalani, the chair of the Bar Council of India – the country’s apex bar association – gave a major address condemning emergency rule and then, facing arrest, went into exile and was granted political asylum by the United States (Nayar Reference Nayar1977, 145).

Indian courts had a more mixed record, initially opposing the emergency but then, after facing intense government pressure, offering it qualified support. Nine high courts affirmed judicial authority to grant habeas corpus petitions and ordered the release of some held in detention. In response, the government rescinded the courts’ jurisdiction to hear habeas petitions and appealed the offending decisions to the Supreme Court. That Court, in the infamous “habeas corpus case” (Additional District Magistrate, Jabalpur v. S. S. Shukla, 1976), upheld the government’s authority to suspend habeas corpus. The decision was widely viewed as granting the Court’s imprimatur to the emergency. The Gandhi government then transferred recalcitrant high court judges as a means of isolating and punishing them (Nayar 1977, 150). The Gujarat High Court struck down this practice as unconstitutional (S. H. Seth v. Union of India 1976), but on appeal the Supreme Court again upheld the government’s actions (Union of India v. S. H. Seth 1977), effectively ending widespread judicial challenges to the regime. India’s educated classes were disillusioned by the Court’s actions, and its acquiescence in the emergency has since become its greatest historical embarrassment. But it was not altogether surprising: in the best of circumstances, courts rarely challenge the central prerogatives of national governments – and these were hardly the best of circumstances. As Upendra Baxi has observed (1980, 38), “nothing short of the very survival of the Court seemed then to be at stake,” and this undoubtedly affected the Court’s decisions.

In spite of the Supreme Court’s acquiescence, many Indians viewed the courts and lawyers as the last bastion of liberal values and the only hope for placing checks on abuses of power. In Additional District Magistrate, Jabalpur v. S. S. Shukla (1976), Justice H. R. Khanna issued a ringing dissent, declaring:

Justice Khanna’s dissent remains India’s most famous and enduring defense of the rule of law as a check on the arbitrary power of government.

The fact that Gandhi had imposed emergency rule in response to a judicial decision ultimately served to elevate rather than harm the judiciary’s reputation. Courts, for all of their limitations, emerged as the primary symbolic free space independent of the now-autocratic regime. As a prominent lawyer put it at the height of the emergency, “the only space where there is freedom of speech in this country is the few hundred square feet of various courtrooms” (quoted in Epp Reference Epp1998, 76).

In 1977, under growing international pressure, Gandhi ordered the end of emergency rule and called an election. Famously, she lost overwhelmingly, and the Congress Party was thrown out of political power for the first time since independence. The government’s repressive policies and suspension of constitutional rights had proven to be wildly unpopular. Kuldip Nayar observed that “the policeman had wielded his stick in villages too often and too indiscriminately” (1977, 172; see also Tarlo Reference Tarlo2003). Ironically, Gandhi’s restrictions on freedom of expression probably contributed to her miscalculation: she apparently failed to recognize the extent of domestic frustration with her repressive policies and erroneously believed that she would easily win reelection (Brass 1990, 42; Nayar Reference Nayar1977, 158).

Police Abuse and Attempts to Address it in The Wake of The Emergency

The emergency provoked a fundamental rethinking of the country’s commitment to political liberalism. Although Gandhi had ordered the release of opposition leaders as the election approached, some elements of emergency rule remained in place, and the new Janata government immediately ordered the release of all remaining political prisoners, restored freedom of speech and the press, and amended the Constitution to make it more difficult for a government to impose emergency rule. The constitutional changes greatly diminished the remaining elements of the colonial law of exception. But this was only the beginning of a more fundamental shift in the terms of debate (Kothari 1993). Members of subordinated groups had long experienced restrictions on freedom of expression, repression at the hands of the police and security forces, and detention without trial (Desai Reference Desai1986). The emergency for the first time had exposed a broad swath of the country’s political elite – opposition political leaders, journalists, intellectuals, and lawyers – to these abuses (Epp Reference Epp1998, 96–7). G. P. Joshi, a former director of the Indian Bureau of Police Research and Development, observed that opposition party members had “first hand experience of police brutality during the Emergency” (1999). Many were tortured in prison (Nayar Reference Nayar1977, 124–5). These experiences instilled in India’s educated political classes a new recognition of the value of legal checks on the powers of the police and of civil liberties in general.

In the wake of the emergency, the legal complex played a crucial role in elevating civil liberties. As summarized later, the Supreme Court, leading lawyers, the growing sector of rights-advocacy organizations headed by lawyers, and law-reform commissions composed mainly of lawyers each contributed importantly to these developments. In the past decade, an international legal complex appears to be emerging, in the form of the Commonwealth Human Rights Initiative, and, as I will note later, among its key activities is pressing for greater police accountability in commonwealth countries. Alone among the key elements of the legal complex, the country’s organized bar associations appear to be silent on the issue.¹

The Supreme Court’s public agenda shifted dramatically in the immediate wake of the emergency as it engaged in what the eminent legal scholar Upendra Baxi (1980, 121) has called a “populistic quest for legitimation.” The Court reached out to draw in legal challenges against governmental abuses and issued a number of landmark rulings extending protections for fundamental rights (Cassels 1989; Epp Reference Epp1998). The Court affirmed its earlier ruling that the government had no authority to amend the Constitution’s basic structure (Minerva Mills v. Union of India 1980), created a broad right to due process (Maneka Gandhi v. Union of India 1978), created a constitutional right to legal aid in criminal cases (M. H. Hoskot v. State of Maharashtra 1978), ordered substantial improvements in jail and prison conditions (Sunil Batra v. Delhi Administration 1978), prohibited long-term detention prior to trial (Hussainara Khatoon v. Home Secretary, Bihar, 1979), banned torture and other forms of cruel or degrading treatment (Francis Coralie Mullin v. Union of India 1981; Rakesh Kaushik v. B. L. Vig, Superintendent, Central Jail, Delhi 1981), ordered investigations into allegations of rapes committed by police officers (Sheela Barse v. State of Maharashtra 1983), and loosened standing requirements to allow public interest groups to file lawsuits on behalf of others (S. P. Gupta v. Union of India 1982; People’s Union for Democratic Rights v. Union of India 1982), among many other key cases (Epp Reference Epp1998).

In the wake of the emergency, the Janata government established a national commission headed by the former Supreme Court chief justice J. C. Shah (called the Shah Commission of Inquiry) to assess the abuses carried out during the emergency. The Shah Commission issued a scathing three-volume report (1978) concluding that the police had been brazenly used as a tool of political repression and had “committed atrocities on a wide scale” (Joshi 1999).

On the basis of this report, the Janata government established the National Police Commission (sometimes called the Dharam Vira Commission after its chair) to recommend reforms of the Indian police. Mr. Vira later observed that “lf there had been no Emergency there would have been no Police Commission” (quoted in Joshi 1999). The commission carried out extensive investigations and issued a wide-ranging eight-volume report calling for deep structural reforms in the police (1979–83). The commission observed that the police services were directly controlled by the governing parties of the states and were used for partisan purposes to harass, abuse, and arrest opposition politicians and grassroots movement leaders. To remedy this problem, the commission recommended measures to insulate the police services from inappropriate political influences. The commission also observed that the police widely violated even minimal conceptions of fair procedure in routine criminal cases, commonly making arrests and imposing detentions on the basis of coerced confessions. Accordingly, the commission recommended adoption of a number of accountability measures aimed at minimizing routine police abuses. The commission observed that the police were extremely poorly paid, commonly lacked even basic living accommodations, and consequently suffered from very low morale. These conditions exposed them to the constant temptation of extorting money and accepting bribes. The commission recommended substantial increases in police compensation.

The initial movement toward police reform in the wake of the emergency was short-lived. The election of 1980 restored Indira Gandhi’s Congress Party to power and the new government reacted indignantly to the widespread criticisms of the emergency and of the police. Gandhi’s government refused to act on the National Police Commission’s recommendations, and the reform agenda abruptly stalled.

By the 1990s, however, pressure for police reform was growing again. The Supreme Court, acting on the request of human-rights groups and reform elements within the Indian police, issued several landmark decisions addressing police abuses. These decisions contributed to a significant increase in public attention to the problem. In 1994, the Court placed general limits on police power to arrest (Joginder Kumar v. State [1994 (4) SCC 260]). In 1996, two retired former officers of the India Police Service (India’s national police force) filed a writ petition in the Supreme Court requesting an order to require the government to implement the NPC’s recommendations (Writ Petition [civil] no. 310 of 1996). The Court issued such an order, and the national government established a committee to recommend specific reforms, but the committee’s report was widely criticized for watering down the earlier recommendations (Joshi Reference Joshi1999). Likewise, the Supreme Court in 1997 issued an order to better insulate elements of the national police services from political control (in writ petitions [criminal] nos. 340–3 of 1996), but the government has not taken action to do so.

The National Human Rights Commission, a statutory agency created in 1993, recommended guidelines on preventing and investigating deaths and rapes in police custody (1993), police killings during “encounters” prior to arrest (1997a), and arrest procedures and human-rights investigators’ access to prisoners in police custody (1997b). In 1997, the Court ordered the police to comply with the specific terms of the National Human Rights Commission’s guidelines on arrest procedures (D. K. Basu v. State of West Bengal A.I.R. 1997 SC 610).

In the wake of these agenda-setting decisions, a number of high-level commissions – the Law Commission of India (1994), the Ribeiro Committee on Police Reforms (1998), and the Padmanabhiah Committee on Police Reforms (2000) – have similarly called for fundamental reforms of Indian policing, with particular attention to accountability and control of police abuses. In the first of these, the Law Commission of India (1994) carried out an extensive investigation of the problem of police abuse, observing an “alarming rise” in the problem of coercion, torture, and deaths in custody afflicting especially the “weaker sections” of society (1994, 1, 2). The commission reported that police throughout India routinely held people in “informal detention” during police investigations, commonly subjecting them to torture to extract confessions or gather evidence (1994, 2). The commission issued detailed recommendations for structural reforms aimed at minimizing these abuses. Subsequent commissions and committees have issued similarly detailed recommendations, many focusing on increasing police accountability to the law and reducing police abuse. To be sure, some of these reports have also been criticized by human-rights advocates for recommending that the police retain broad emergency powers (Commonwealth Human Rights Initiative 1999, 2001, 2006a, 2006b).

Security measures adopted by the Indian government since the September 11, 2001, terrorist attacks in the United States have added a new dimension to the problem of police abuse. In 2002, the Indian government adopted a sweeping security law, the Prevention of Terrorism Act (POTA), which authorized the police to arrest and detain people suspected of involvement in terrorism or related acts without charge or trial. Amidst controversy, the government rescinded the law in 2004 but then adopted many of its key provisions as amendments to other existing statutes (Kalhan et al., 2006–7). A recent investigation of police actions pursuant to these provisions has reported widespread abuses, particularly broad use of preventive detention against people alleged to be involved in ordinary crimes (rather than terrorist activity) (Kalhan et al., Reference Kalhan, Conroy, Kaushal, Miller and Rakoff2006–7).

In 2006 the Supreme Court issued a landmark decision (Prakash Singh v. Union of India) that has contributed to a palpable shift in the national debate on the police. Reflecting growing frustration with the lack of police reform, the Court took the extraordinary step of announcing seven directives to guide police reform and ordered the national and state governments to adopt measures pursuant to these directives by the end of the year. The Court’s 2006 directives encapsulate many of the reform ideas dating to the NPC, among them insulation from direct political control, security of job tenure, and mechanisms for accountability in cases of abuse.

In response, the national government established a high-level committee, the Police Act Drafting Committee, to recommend specific legislation. The PADC, commonly called the Soli Sorabjee Committee after its chair, a distinguished lawyer and former Indian attorney general, issued a highly detailed legislative proposal for fundamental reform in the country’s police structure (Police Act Drafting Committee 2006). This proposal would for the first time replace the country’s colonial policing statutes with a modern democratic police law. This law would insulate the police from political pressure, ensure a form of civil service tenure for police officers and constables, and create for the first time meaningful checks and mechanisms of legal accountability over the police. Although some have criticized the reform by national statute (preferring state-led initiatives) (Godbole Reference Godbole2006), human rights and civil liberties groups have celebrated these elements of the Model Police Act. But at the same time chapter IX of the act would create what one human-rights group called “an emergency law” authorizing the government to use the police to establish “internal security schemes” governing entire regions in which the police would have authority “to massively curtail civil liberties” (Commonwealth Human Rights Initiative 2006a).

The government, however, has not adopted any statutory reforms of the police and the police routinely violate the Supreme Court’s rulings (Joshi 1999). Dharam Vira, the NPC’s chair, lamented, “The rulers had got used to using the police force for their own purpose, according to their will” (quoted in Joshi 1999). The Asian Centre for Human Rights (2010) has reported that deaths in police custody increased by more than 40 percent from 2000 to 2010 and has observed that “the Supreme Court’s guidelines … have failed to reduce the custodial deaths in India” (see also Francis Reference Francis2004).

An observational study of police practices in five police stations in Mumbai reported that the requirements of D. K. Basu – the Court’s key attempt to reform the police by direct order – are significantly violated (Swarup Reference Swarup2006). Although all twenty-four constables interviewed for the study were aware of Basu’s requirements, these officers and their police stations violated many of these requirements (Swarup Reference Swarup2006, 14). Forty percent of arrestees interviewed claimed that they had suffered physical abuse by the police (Swarup Reference Swarup2006, 15). Several writ petitions have been filed with the Supreme Court seeking meaningful enforcement of the arrest rules announced in D. K. Basu, but the Court has yet to hear these petitions (Asian Centre for Human Rights, 2010).

While fundamental police reform remains elusive, police reformers place their final hope for change in the courts. As Joshi observed, “One lingering hope is that the judiciary will some day force police reforms ‘down the throat of the political executives’” (1999, quoting Inderjit Gupta, a former high government official).

Is this an empty hope? Or is it merited by the limited alternatives and the Indian legal complex’s record of accomplishments? The recent historical record suggests that Indian police reformers are not naïve in their turn to the courts. Since the emergency, a working alliance has formed among reformers within the ranks of the police, human-rights NGOs, the Indian bar, and the higher judiciary. These reformers unanimously affirm the urgent need for fundamental police reform. While they disagree on the precise elements, they agree on the basic nature of what is needed: insulation of the police from direct political control, improvements in selection and training of officers, and improved systems of professional and legal accountability. None of these reformers believes that such deep reforms can be accomplished without the support of the Indian government and fundamental statutory reform. Support from courts and lawyers, in other words, is not sufficient to bring the police under the rule of law. But support from courts, lawyers, and human-rights organizations has been the key necessary condition for elevating police reform to its present prominent place on the national agenda. The legal complex, to put it simply, has been the indispensable driving force behind pressure for police reform.

Conclusion

Liberalism is about placing limits on arbitrary government power, and police accountability is an essential element of the liberal project. Organized police forces are a remarkably recent development, and modern society hardly seems possible without some form of organized domestic police. But their rise has been accompanied nearly everywhere by the problem of police abuse, particularly of the poor and of marginalized groups. Checking these abuses and bringing the police under meaningful forms of oversight and accountability is an extremely important goal. Some countries have made more progress toward this goal than others. Many developing countries have not done so well, and India is notable for its failures in this area. Reforming the police is among the most urgent of liberal goals in India. Police reform, to be sure, would not distribute resources more equally among the Indian population: it would not raise the destitute from poverty or help to spread nutrition, healthcare, or education more widely. Police reform is not in this fundamental sense an egalitarian reform. It is, instead, a liberal reform: it is about limiting arbitrary governmental power. While police reform is essentially liberal, it has deeply egalitarian implications, because the main victims of police abuse are the poor and marginalized.

Democratic institutions appear to be incapable of addressing widespread police abuse in any systematic way. This observation is made especially clear by the Indian case. India’s democratic institutions – its parliamentary structure and political parties – have been successful far beyond expectations at integrating the Indian population into majoritarian politics (see, e.g., Chadda Reference Chadda2000). Even the lower classes are increasingly integrated into Indian political institutions. While democratic processes in India undoubtedly can be improved, there has been no wholesale political failure of these institutions. But they have been singularly incapable of addressing the persistent problem of police abuse. Indeed, a key source of the problem of police abuse is the continuing interest of India’s political leaders in using the police to secure their own political power and to punish their opponents (Godbole Reference Godbole2006; Verma Reference Verma2005).

This is nothing new, nor is it unique to India. A century ago, the police in the United States were similarly politically controlled and abusive (Walker 1977). The source of the problem in the United States, as in India, was not an absence of democracy but an excess of political control over the police. The solution, at least as it emerged in the United States, lay not in increasing democratic control over the police but in increasing police accountability to liberal legal norms (Epp 2009).

But just as the conditions for a fully realized democracy lie in the expansion of the political participation and power of the lower classes (Rueschemeyer, Stephens, and Stephens Reference Rueschemeyer, Stephens and Stephens1992), so the conditions for fully realized legal checks on the police and security forces lie in the expansion of the legal participation and power of the lower classes (Epp Reference Epp1998, 2009). It is these classes that historically suffer the most from police abuse, and the middle and upper classes typically have had little understanding of these abuses and little interest in curbing them. Alliances between elements of the legal complex and the lower classes have proved crucial to informing the former about the problem of police abuse and giving them an interest in establishing legal checks to address the problem. Thus, McCarthyism in the United States (Epp 2009) and the emergency in India jarred elements of the legal complex into forming alliances with representatives of those suffering from police abuse, and these alliances fostered a growing recognition of the problem and a new interest in addressing it.

If India succeeds in bringing its police under the rule of law, much of the credit must go to the legal complex. This configuration of legal professionals, alone among Indian institutions, has pressed for the extension of liberal values to the area of policing, and this pressure has been remarkably successful in placing the problem of police abuse on the national agenda. That is a most significant accomplishment in a country that has stubbornly retained its colonial legacy of police repression for more than half a century since independence.