The following post concerns the use of police records in India, which are (like police records in this country) generally not available to the public, yet have important implications for individual privacy. In a later piece the authors will discuss Indian policy and practice on court records, which are publicly available and may be used by employers and others to deny benefits and opportunities. Ed. Comparative analysis is always good for the soul. As we think deeper and more broadly about the types, status and use of criminal records, it is helpful to consider laws and practices in other countries. Toward that end, this post illuminates the most salient and interesting type of criminal record in India, the “history sheet” and its cousin the “rowdy sheet”. History and rowdy sheets are analogous to our criminal intelligence databases, but are more subject to legal constraints. At the same time, they are more vulnerable to public disclosure because they call for intensive and frequently conspicuous monitoring both by police and civilian leaders. Since the days of the British Raj, Indian police departments have created history sheets and rowdy sheets for persons believed to pose a risk of future criminality. The “history-sheeter” may have been convicted, or have criminal charges pending. The “rowdy-sheeter” has committed or abetted the commission of offenses involving breach of peace. History sheeters and rowdy sheeters are subject to monitoring and surveillance. Although India, like the U.S., is s a federal system where criminal record laws/policies vary from state to state, all states require automatic creation of a history sheet for persons with certain criminal records. For example, Tamil Nadu requires creation of a history sheet for a person convicted once of a serious violent crime, twice for house breaking, three times for theft and certain other offenses. The police generally also have discretion to create a HS on an individual who has not been convicted, but whom police consider “addicted to crime” or a threat to public order. The police must have an articulable reason for creating a HS. And they must notify the record-subject that a history sheet has been opened. (Consider that, in the U.S., the police can add an individual to a gang intelligence file without notice.) The Indian history sheeter can challenge the HS decision in the state high court, although cost and delay undermine the effectiveness of that remedy. From a U.S. perspective, the HS is something like a cross between a rap sheet and a criminal intelligence database. However, the HS it is not digitized, fingerprint-supported or stored in a centralized database. Each local police station maintains its own HS and RS files. In the large cities, several police stations can have an HS on the same person. The police, with the assistance of the village officials are obliged to surveil and record information about the activities and movements of history-sheeters and rowdy-sheeters who reside in their jurisdiction. There are court restrictions and police best practice guidelines, varying from state to state, on the level of permissible monitoring and surveillance. There are many federal and state court decisions regulating when a HS can be opened, how long it can be kept, the intensity of surveillance that it authorizes and when it must be closed (e.g. after an acquittal). Courts have held that surveillance of history-sheeters must not be excessive. Some State Courts and some police agencies have issued best practice guidelines stating, for example, that first-time history-sheeters should be especially closely watched; surveillance should be discrete; domiciliary visits are not permitted; family members must not be harassed; police officers should make periodic and routine inquiries about the history-sheeter’s habits, associations, income, expenses and occupation; the police officers shall record history-sheeter’s movements and absences from his domiciliary home or area where he lives. The HS has been subject to constitutional challenge on privacy grounds. The India Supreme Court has recognized that police surveillance based upon an HS implicates a limited right to privacy implicit in the Constitutional right to life and personal liberty. According to the court, every individual’s autonomy should be respected; there is a right to be left alone. However, the right to privacy is not absolute[1], and the creation of a history sheet and surveillance of the history-sheeter is not unconstitutional if carried out in compliance with legal standards or, in the absence of standards, if conducted reasonably.[2] In one case, the India Supreme Court, struck down home visits as infringing on the right to personal liberty and freedom of movement.[3] Police are supposed to update the file periodically with both favorable and unfavorable information gathered via routine police patrols and enquiries. Such information should be recorded impartially, not with an eye toward compiling a negative case against the record-subject. With respect to convicted persons, the HS is supposed to be retained for two years after completion of sentence, unless the police commander decides that it should be retained longer, even indefinitely. The history sheet, including a photo of the history-sheeter, is a confidential record. The police are not authorized to disclose to public or private employers whether a job applicant or employee is a history-sheeter, much less what information the HS contains. However, the surveillance/crime control purpose of the HS requires that police officers have easy access to the HS and RS. Local police can only monitor and surveil record-subjects if they know who they are. The HS is supposed to be shared with the Railway Police. If the history-sheeter moves to another jurisdiction, the HS is transferred to the new jurisdiction’s police department. Moreover, for proper police reasons, the police may show the public a history-sheeter’s photos when necessary to capture a fugitive or solve a crime. In those jurisdictions where corruption is prevalent, unlawful record disclosures and data security generally is a problem. In sum, Indian law and policy recognize that police records, though necessary for crime control, implicate privacy and individual autonomy. The courts have struggled to regulate the history sheet system by providing court review for individuals objecting to their HS designation and by limiting police discretion to open, maintain and conduct surveillance. Unfortunately, to our knowledge, there has not been empirical research to illuminate how police in different jurisdictions use and abuse their history and rowdy sheet making authority. [1] Govind v. State of M.P. And Others (S. Ct. of India 1975) (even if it be assumed that Article 19(5) does not apply in terms, as the right to privacy of movement cannot be absolute, a law imposing reasonable restriction upon it for compelling interest of State must be upheld as valid). [2] Malak Singh v. State of Punjab (S. Ct. of India 1981) (discreet surveillance of suspects, habitual and potential offenders, may be necessary and so the maintenance of history sheet and surveillance register may be necessary too, for the purpose of prevention of crime. Permissible surveillance is only to the extent of a close watch over the movements of the person under surveillance and no more. So long as surveillance is for the purpose of preventing crime and is confined to the limits prescribed by Rule 23.7 we do not think a person whose name is included in the surveillance register can have a genuine cause for complaint.). [3] Kharak Singh v. Union of India (S. Ct. of India, 1963) (Regulation 236 (b) which authorizes “domiciliary visits” is struck down as unconstitutional).
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