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Red Herring in Police Reforms

Contrary to popular belief, political interference is not the main reason for the many ills that plague the police force. A number of committees, the National Police Commission, a major Supreme Court judgment and even a draft model police bill have all dwelt on the urgent need for police reform and listed significant recommendations. Nothing has been put into actual practice. However, even these reports and judgments have not dealt with important issues like accountability to communities, involvement of the larger society in policing and the police bias against women, dalits and minorities.

COMMENTARY

the police invariably succumb to the

Red Herring in Police Reforms

whims of these masters, more so in controversial and sensitive situations. For a large section of the English-Mihir Desai speaking, articulate section of the media

Contrary to popular belief, political interference is not the main reason for the many ills that plague the police force. A number of committees, the National Police Commission, a major Supreme Court judgment and even a draft model police bill have all dwelt on the urgent need for police reform and listed significant recommendations. Nothing has been put into actual practice. However, even these reports and judgments have not dealt with important issues like accountability to communities, involvement of the larger society in policing and the police bias against women, dalits and minorities.

Mihir Desai (desmihir@gmail.com) is a Mumbai-based lawyer working on human rights issues.

T
he clamour for police reforms has grown exponentially since the Mumbai terrorist attacks. But this phenomenon is certainly not new. It is widely accepted that the police system in India needs a complete overhaul. The present police structure is a colonial legacy. The Indian Police Act, which is the central law governing the police in India was enacted in 1861. As it reads presently, the central act only provides a broad framework concerning the police force, making it clear that the police will work directly under the control of the state governments who have the power to transfer, promote, appoint and lay down service conditions for the police. After independence, though amendments have been made to this law, the basic structure remains the same.

Under the Indian Constitution, police is a state subject and every state government is entitled to have its own police act which may be totally different and divergent from the central act. Not all state governments have enacted separate laws. Some of the states like Maharashtra and Gujarat, for instance, have their own state-specific laws dealing with various issues including recruitment, regulation and powers of the police. But all the states which have enacted their own laws broadly follow the same pattern as the central law in making the police force totally subordinate to the political executive and unaccountable to the communities they police. Also, no mechanisms have been set up under which the police is accountable to the communities.

Present Fervour

Thus, whether they are governed by the central law or state laws the police across the country continues to be subordinate to the state government executive and is no where an independent or autonomous institution. This has been the hub of the present din. Because it is answerable to the state executive and the political class,

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and the communities, the answer to this is to do away with political interference. It is as if all the problems of the police force are related to their subjugation by the executive. And so, the solution is to make the police autonomous. The manner in which the present debate is going on gives the impression that the only reason the police is ineffective and untrustworthy is because of its subordination to the political class.

But the problem with the police force is much bigger than political interference. The purpose of policing is to ensure a safe, secure and crime free environment within the community. It is the only noncombatant organisation which has power to use force against citizens. The police have the power to detain, arrest, even injure and cause the death of citizens. Towards the use of this power it is the only force which can legitimately carry arms and curtail the liberty of citizens. This power has the innate and unlimited potential of abuse and in the absence of structures of accountability it is bound to be misused.

Torture and Abuse

Widespread torture and abuse by the police is a recognised reality. So much so that even the Indian Evidence Act of 1862 does not accept confessions made to a police officer as admissible evidence.

The maximum number of complaints before the national as well as the state human rights commissions are against the police. The Indian Express of 20 February 2009 (Mumbai edition) records that

reports of violation of human rights, resulting primarily out of harassment from the police machinery, has been on a steady rise since 2001, at an alarming speed. Since its inception in 2001, the complaints received by the State Human Rights Commission has increased almost sixfold. The chairperson, a former chief justice of the Bombay High Court said, “Almost 80% of the cases we receive are against police for harassment and custodial deaths.

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A recent study conducted by People’s Watch group in nine states and 48 districts across India reveals,

in the name of investigating crimes, extracting confessions, and punishing perpetrators, torture is inflicted not only upon the accused, but also upon bona fide petitioners, complainants, informants and innocent bystanders. Frequent police practices include assault, physical abuse, custodial death, rape, threats, psychological humiliation, and deprivation of food, water, sleep, and medical attention. Torture is also inflicted on women and girls in the form of custodial rape, molestation and other forms of sexual harassment. The NPPTI’s [National Project on Preventing Torture in India] fact-finding data suggest that 1.8 million people fall victim to police torture each year in India. In most of these cases, it is the vulnerable sections of the society – particularly dalit women, religious minorities and the poor – that are targeted. Many victims fear further prosecution or r etribution, and so suffer in silence.

Widespread corruption within the police force is another well accepted phenomenon. Corruption always tilts the power balance in favour of the haves. A three-year intensive study of the Rajasthan police (conducted by the Massachusetts Institute of Technology and the Rajasthan police) which was completed in January, 2008 revealed that an aggregate of 71% of the people did not report crimes because they believed that the police could not or would not do anything and would ask for a bribe to register a first information report (FIR). Again, 82% of the people said that no beat police officer ever visits their neighbourhood or village. Obviously much of this has nothing to do with subordination to the state executive. The findings of this report can easily be extrapolated to the rest of the country.

Police Reforms

The last 30 years have witnessed many attempts to initiate police reforms. After the Emergency, the Janata Party which came to power shouting about police excesses, appointed a National Police Commission to go into various aspects of policing including conditions of work, accountability, transparency and interference from the political executive. The commission submitted eight reports between 1978 and 1981 making various recommendations. None of them were implemented. In Vineet Narian vs Union of

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India (1998 1 SCC 226) the Supreme Court noted the urgent need for police reforms and asked the central government to pursue the matter with the state governments especially the issues concerning selection, tenure, transfer and posting of police officers. The court observed that whimsical transfers not only had a demoralising effect on the police force but also had the effect of politicising police personnel. In May 1998, the central government appointed the Julio Ribeiro Committee to go into various aspects of policing. It submitted two reports – one in October 1998 and the second in March 1999.

In January 2000 the central government appointed the Padmanabhaiah Committee to again look at various aspects of policing. This committee has also submitted its report. The justice Malimath Committee appointed in 2002 has also made certain recommendations concerning police reforms.

All these reports have certain broad recommendations in common: First, that the 1861 police act be repealed and replaced by a new law. Second, that various measures be undertaken to make the police force independent of executive interference including the method of recruitment, transfers, promotions, discipline, etc. Third, that the investigative wing of the police should be separated from the law enforcement wing. Fourth, that mechanisms (by and large internal to the police force) be set up to deal with complaints against the police.

In 2005, the central government appointed the Soli Sorabjee Committee to draft a new model police act. In October 2006, this committee submitted a model police bill to the union government. It is still pending.

The Prakash Singh Judgment

Meanwhile, in 1996 two retired police officers and a non-governmental organisation (NGO) filed a case in the Supreme Court demanding implementation of the National Police Commission reports. The case went on for 10 years and finally when the Supreme Court realised that the government was merely dragging its feet, it passed the ruling (in 2006) that is now famous as the Prakash Singh judgment. Apart from the central and state governments even

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the National Human Rights Commission participated in the proceedings and gave its recommendations. This judgment deals with three aspects of policing – autonomy, accountability and efficiency. The Supreme Court has given detailed directions which are to be follo wed till legislation in this regard is enacted. Let us briefly look at these directions and their context.

An effective way for the state executive to exercise control over the police has been by appointing pliant superior officers to plum posts and using the threat of transfer, supersession, disciplinary action, etc, to make them toe the line of the political class. The Supreme Court, taking a leaf out of the police reports, directed that the director general of police in every state should not be picked and chosen arbitrarily by the government but must be appointed by the state government from amongst the three senior most meritorious police officers empanelled for promotion by the Union Public Service Commission. The minimum term of the director must be two years even if he is reaching the age of retirement during that period. Similarly, other senior officers on operational duties on the field such as station house officers and above must be posted at a place for a minimum of two years.

Under the Supreme Court’s direction every state is required to set up a police establishment board which will decide issues concerning transfers, postings, promotions and other service related matters of officers below the rank of deputy superintendent of police. The members of this board will be the director general of police and four other senior members of the department. The state government can interfere with this decision only in exceptional cases and even then the reasons must be recorded in writing. The board will also recommend to the state government about postings and transfers of officers above the rank of superintendent of police and ordinarily the state is expected to accept the recommendation.

Similarly, the central government is to set up a national security commission at the central level to prepare a panel to be placed before the appointing authorities for selection of heads of central police organisations. These appointments are

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also meant to be for a minimum term of two years. The commission should also to look at improvement of service conditions, etc, of these forces and will have the home minister, heads of the central police forces and some security experts as its members. All the police reports recognise that there are widespread complaints against the police concerning corruption, torture, etc. They also accept that in the present legal scenario it is extremely difficult even for genuine complaints to be satisfactorily addressed. Structures of accountability have been totally lacking. The Supreme Court, again based on the police commission reports has now directed that every state government will set up two police complaints authorities. At the district level this committee will be headed by a retired district court judge and at the state level by a retired high court judge. These heads will be assisted by a panel of persons appointed by the state to be selected from lists of security experts, retired police officers and civil society submitted by the state human rights commission/lokayukta/public service commissions. Complaints made against officers below the rank of superintendent of police will be tried by the district committee and others by the state committee. The state-level committee would entertain serious complaints involving rape, murder and grievous hurt against officers while districtlevel committees, in addition to the above, can also go into complaints of extortion, land grabbing and serious abuse of authority. The recommendation of the committees at both levels whether for departmental investigation or criminal proceedings will be binding on the state authorities.

Lastly, the Supreme Court also directed that the investigating police should be separated from the law and order wing to ensure speedier investigation, better expertise and improved rapport with the people. The court suggested that the separation should first be effected in cities having a population of 10 lakhs or more and gradually extended to smaller towns.

Soon after this judgment, on 30 October 2006, the Soli Sorabjee Committee submitted the model central police act to the government which broadly follows the Prakash Singh judgment. The Supreme Court had ordered that its directions be complied with by 31 December 2006 by all states as well as the union government. Some of the parties asked the court to review its judgment but the the plea was rejected. On 11 January 2007, the court directed that some of its directions, namely, those pertaining to selection and minimum tenure of director general of police, inspector general of police and other officers and formation of police establishment board, were self executory and ought to be implemented immediately. As regards other directions the court granted time till 31 March 2007 for implementation.

More than two years have passed since then. Some of the states, particularly the north-eastern ones, Uttarakhand and Goa are said to have complied, by and large, with the decision. But the majority of the states have refused to do so on one pretext or another. On 16 May 2008, the Supreme Court appointed a committee headed by retired justice K T Thomas to oversee the implementation of its directions.

Problem Areas

It is expected that the Prakash Singh judgment will be implemented sooner or later and it will lead to making the police force a little more independent from political interference. However, even with full implementation of the judgment as also with passing of the new police act, a large number of problems with the police force will remain untouched.

The Prakash Singh judgment as well as the draft bill have three major problems.

Their perspective is that of superior police officers whose main problem is political and executive interference. While granting autonomy to the police they shy away from taking any serious measures concerning accountability. A large number of police atrocities is reported daily in the newspapers and torture is a routine law enforcement strategy. If you are poor and/or a victim of crime the police are not p erceived as helpful and are seen as f earsome and terrifying. And this per ception is based on widespread real life experiences. The National Police Com mission in its eighth report submitted in 1981 recommended “Protection available to the police officers should be withdrawn under sections 132 and 197 of the Code of Criminal Procedure, which provide protection to various categories of public servants from prosecution for acts they commit in the course of p erforming their duties.”

This is possibly the most important recommendation totally ignored by the subsequent police commission reports, the draft bill of 2006 and the Supreme Court. Sections 132 and 187 provide that a public servant cannot be prosecuted without the prior sanction of the State for an offence he is alleged to have committed. This gives virtual immunity to the police from being prosecuted as very rarely are such sanctions granted and, even when they are granted, by the time this process is completed the evidence is lost or destroyed. These sections have been the biggest legal stumbling blocks to holding the police accountable.

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    Under the law, such protection from prosecution is granted only if the crime is alleged to have been committed in the course of duty. In other cases no sanction is necessary. However, it is always a matter of dispute whether a particular act is done in the course of duty. Earlier the Supreme Court consistently held that whether sanction is necessary or not and whether sanction is obtained or not can be decided before the completion of trial. But recently it has held that such sanction has to be obtained before cognisance of the offence is taken and failure to do so would render the entire trial nugatory. Similarly, the court has recently expanded the meaning of the term “acting or purporting to act in the discharge of duty”. It is only in these cases that sanction is required. In a recent case the court held that even if a person dies in police firing the action of the police is purportedly in the discharge of duty and so sanction of the State is necessary for prosecution. In short, the court itself has made the criteria concerning sanction for prosecution of police officers.

    Under the Prakash Singh judgment and the Sorabjee bill if a police officer commits rape or murder, first the state-level committee has to be approached and if the committee so recommends then the police officer can be prosecuted or departmentally tried. On the one hand, the police are being given more autonomy and on the other hand, it is made more difficult to prosecute police for even heinous crimes. The Supreme Court’s answer to this is the police complaints authority which each state government has to set up. What is required is police monitoring cells at local levels with involvement of civil society groups and individuals having impeccable record on working for human rights. Such cells should have the power to make surprise visits to police stations and lock-ups, interview inmates, look at the records, etc. The Supreme Court has tried to make the police complaints authority as independent as possible by having a retired judge heading it and nominees of human rights commission manning the authority. To begin with, the presence of a retired high court judge does not automatically ensure sensitivity to human rights issues. Also, there is no mandatory requirement for having a member from the civil society.

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    Though field visits are spoken about, these are to be conducted by retired investigators and again there is no involvement of civil society. Moreover, it is not clear as to what the powers of those conducting field visits are, and whether they have full fledged powers to conduct investigation as per the criminal law.

    While the Supreme Court has at times been dealing sympathetically with issues concerning police torture most of its directions have been routinely breached. The court has from time to time observed that custodial torture is not permissible under the Constitution and that it amounts to violation of fundamental right to life. On a few occasions the court has ordered compensation to the victims. But at the ground level there is hardly any impact. In fact, India has consistently refused to ratify the torture convention and has not passed a single piece of legislation dealing with torture. The Prakash Singh case was an excellent opportunity for the court to have ruled that once torture is held to be a violation of fundamental right (as it has repeatedly held) the provisions of torture convention ought to be read into the Indian law. Also, the court ought to have recommended to the union government to enact a legislation concerning torture but the court failed even on this count. Similar is the case with the rights of arrestees. Though the Supreme Court in the D K Basu judgment gave detailed directions concerning rights of arrestees (most of which have now been incorporated in the criminal law through an amendment), in reality these directions are repeatedly flouted without any punitive action against the police. Merely having in-house or even a semi-independent body to look into the issue of grievances against the police is hardly an answer to the massive abuses by the police. The second issue which is of crucial importance to policing is what is internationally known as democratic policing which includes involvement of the civil society in the task of policing. The police are expected to work with the civil society rather than over it. This is not to be confused with vigilante policing as in Salwa Judum. Presently, both under the law and in practice the police are required to control the population rather than provide

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    security to the community. The American expert on world policing David Bayley (2001) has outlined four features of d emocratic policing.

  • Police must give top operational priority to servicing the needs of individuals and private groups.
  • Police must be accountable to the law rather than the government.
  • Police must protect human rights, especially those that are required for the sort of unfettered political activity that is the hallmark of democracy.
  • Police should be transparent in their activities.
  • The third issue concerns the manner in which police deal with specific groups such as women, dalits, adivasis and religious minorities. Virtually every judicial commission that has been set up following a major communal riot has deplored and condemned the biased role of the police. This is only partially due to political interference. It is a matter of concern but nonetheless widely recognised reality that police routinely betray bias against dalits, women and religious minorities. No directions have been given in the Prakash Singh judgment concerning this inherent bias of the police and methods to tackle it.

    Conclusions

    While it is true that political interference is the bane of independent police functioning and should be dealt with effectively, there are larger issues concerning police functioning which need to be recognised and addressed. Neither the Prakash Singh judgment nor the pending police bill deal effectively with these issues. Apart from this, the reforms also need to look at conditions of work especially of the constabulary and other lower ranks of the police, who undergo tremendous drudgery while being underpaid and live and work in terrible conditions. Besides, they are forbidden from self organisation to pursue their demands.

    But most of all, it must be realised that in an inherently unequal society, the police, whether they are autonomous or not, are always going to tend towards playing the role of handmaidens of the haves and the powerful and unfortunately, the Prakash Singh judgment hardly touches upon this aspect.

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