THE UJJAIN SHOCKER
Few incidents have exposed the partisan role of the police more eloquently than the attack on college teachers in Ujjain, which resulted in the death of Professor H.S. Sabharwal. Not only did the police officers present refrain from taking action when the attacks were on, they failed to take timely action after the tragedy as well. The incidents led to a national outrage over the quality of policing in our society.
A recent interaction with some police officers about these incidents evoked a familiar response. They were dismissed as aberrations. Another routine response from policemen is to explain such behaviour in terms of political pressures. After all hapless policemen are constrained to carry out the wishes of their political masters, or so the argument goes.
It is true that the kind of superintendence exercised over the police force has led to gross abuses, resulting in the failure of the police to grow as a professional organisation. But the responsibility of police personnel themselves in contributing to this state of affairs cannot be denied. Closely associated with powerful interests, the police has generally acquiesced to the attempt to reap benefits from a perverted system. As the Parliamentary Standing Committee on Home Affairs mentioned in its report in April 2002: .Today we have a police which is politicised and politically polarised. For it has become a pawn in the hands of its masters. In return, policemen get political patronage, which has become essential for their survival..
Initially, in the Ujjain incident, the Madhya Pradesh chief minister made a public statement that the professor’s death was accidental. Both the local political leadership and the state police remained tight-lipped over this statement, although it was clearly not the truth. Action was taken only after television channels kept repeating the images making it difficult to ignore them.
The one good outcome of the judgment in the Jessica Lal case was the emergence of public opinion as an instrument of change. It is only to be hoped that an informed public opinion on such issues goes beyond its middle-class frontiers and mounts pressure on government agencies to undo injustice.
(Article published in the Indian Express dated September 09, 2006)
Saturday, September 9, 2006
Wednesday, August 2, 2006
RELATIONSHIP BETWEEN LEGISLATURE AND JUDICIARY
PARLIAMENT AND JUDICIARY- THE BELLIGERENT RELATIONSHIP
On July17, 2006, a Supreme Court bench headed by the Chief Justice of India censured the central government for enacting the Delhi Laws (Special Provisions) Act 2006, that put a moratorium on demolitions of unauthorized constructions in the capital for one year. The Court felt that the legislation was “wholly void and illegal”, and was “aimed at overruling the orders of the court”
Almost a year ago, on July 31, 2005, the Lok Sabha Speaker Somnath Chatterjee was echoing similar feelings about the authority of legislature. While inaugurating the 69th conference of the presiding officers of legislatives bodies in India, he expressed concern about the eroding independence of legislatures and said this was a challenge the presiding officers must grapple with. The meeting was being held in the backdrop of developments in the Jharkhand legislature The Delhi Laws (Special Provisions) Act 2006, that provoked such searing observations from the judges, is only one in the series of many such laws passed recently by the government. To give only a few examples, the Office of Profit law was passed with retrospective effect to allow the MPs to retain their offices of profit, disregarding the suggestions even of the President. The Central Vigilance Commission Act of 2003 legalised the Single Directive issued to CBI that was held unconstitutional by the Supreme Court in the Havala case. The Court held the Illegal Migration (Determination by Tribunals) Act, 1983 unconstitutional but the government decided on February 10, 2006 to set up tribunals under the Foreigners Registration Act, 1946, for determination of illegal migrants in Assam.
It is not only the central but also the state governments that have shown similar belligerence in nullifying the judgements of the courts. The two recent examples have been the Bangalore Mysore Infrastructure Corridor Project (BMICP) where the Karnataka Government tried to defy both the High court as well as the Supreme Court and block the implementation of the expressway project by the Nandi Infrastructure Corridor Enterprise (NICE) and the Ulhasnagar case, where the Maharastra Government promulgated an ordinance to regularize 855 illegal buildings that were being threatened with demolition under the orders of the Bombay High Court.
Seeds of what is happening now were sown long ago. In 1951, the Constitution was amended for the first time. Article 31 B was introduced to provide immunity to certain Acts and Regulations specified in the Ninth Schedule to the Indian Constitution from being challenged even if it involved infringement of fundamental rights. The courts were deprived of the power to declare such legislation void. In the beginning, the Schedule consisted of mere 13 items, but now it has as many as 284 laws, with more than 35Acts added during the two years of emergency.
There are some differences between what occurred during the earlier years and what is happening now. One, the stature of members of the legislature in those days was generally much higher than what it is now. There was a galaxy of luminaries in the Parliament during Prime Minister Nehru’s days, who enjoyed public trust. Now the Parliament pales in comparison, with steep decline not only in the standards of debate but also of integrity and honesty of members, with many of them having past criminal records. Criminalisation of politics has led to an enormous loss of people’s confidence in the legislature. A similar loss of faith in the integrity and independence of the judiciary has not occurred, though charges of corruption against even the upper judiciary are occasionally heard. Two, when the legislature enacted laws to undermine or restrict the court’s jurisdiction and powers, action was guided more by public than private or partisan interests. Article 31 B went to the extent of even denying primacy to fundamental rights in the interests of protecting land and agriculture related legislation that was considered highly important from economic and social welfare point of view. Presently, it is mostly the partisan and selfish considerations and false notions of asserting ones supremacy that govern new legislation enacted to invalidate judicial verdicts. Whether it is the legislation preventing the demolition of buildings or allowing its members to enjoy the perks of two or more offices or giving impunity to officers of the rank of Joint Secretary and above from being inquired into in corruption cases or preventing large scale migration from the neighboring country, it is either the selfish considerations of vote bank politics, consolidating party’s power or even of protecting ones lackeys or distributing patronage that has shaped such decisions.
it is the job of the legislature to enact laws, it is for the judiciary to review and interpret them to ensure they are in accordance with the Constitutional provisions. So if the Court declares any law as null and void, any subsequent law passed by the legislature to set aside the impact of the judgement can not be upheld unless it meets the same constitutional or legal norms or standards, the absence of which led to throwing out the earlier law. This must be realized by the legislature; otherwise the rewriting of laws will continue to occur, leading to unnecessary wastage of public resources
In the final analysis, what is happening is more a confrontation between the executive and judiciary rather than the one between the legislature and judiciary. The doctrine of “separation of powers” is based on a clear-cut division of powers between the three arms of governance- executive, legislature and judiciary, where each one acts as a check on the others. In the west minister model of parliamentary democracy that we have adopted, the separation of power is not all that clear. The cabinet that heads the executive is drawn from the legislature. What the legislature passes as laws is what the executive wants them to do and the executive may occasionally be guided by protecting the interests of the party in power. Public interests may not always reign supreme.
Which is sovereign- parliament or judiciary? It is a superficial and hollow question that should never be raised or discussed. All institutions of governance owe their existence and powers to that supreme document- the Constitution of India. One sovereign truth must be realized by all-“Howsoever high you may be, the Constitution is above you.” This is the only way to preserve democracy in this country.
On July17, 2006, a Supreme Court bench headed by the Chief Justice of India censured the central government for enacting the Delhi Laws (Special Provisions) Act 2006, that put a moratorium on demolitions of unauthorized constructions in the capital for one year. The Court felt that the legislation was “wholly void and illegal”, and was “aimed at overruling the orders of the court”
Almost a year ago, on July 31, 2005, the Lok Sabha Speaker Somnath Chatterjee was echoing similar feelings about the authority of legislature. While inaugurating the 69th conference of the presiding officers of legislatives bodies in India, he expressed concern about the eroding independence of legislatures and said this was a challenge the presiding officers must grapple with. The meeting was being held in the backdrop of developments in the Jharkhand legislature The Delhi Laws (Special Provisions) Act 2006, that provoked such searing observations from the judges, is only one in the series of many such laws passed recently by the government. To give only a few examples, the Office of Profit law was passed with retrospective effect to allow the MPs to retain their offices of profit, disregarding the suggestions even of the President. The Central Vigilance Commission Act of 2003 legalised the Single Directive issued to CBI that was held unconstitutional by the Supreme Court in the Havala case. The Court held the Illegal Migration (Determination by Tribunals) Act, 1983 unconstitutional but the government decided on February 10, 2006 to set up tribunals under the Foreigners Registration Act, 1946, for determination of illegal migrants in Assam.
It is not only the central but also the state governments that have shown similar belligerence in nullifying the judgements of the courts. The two recent examples have been the Bangalore Mysore Infrastructure Corridor Project (BMICP) where the Karnataka Government tried to defy both the High court as well as the Supreme Court and block the implementation of the expressway project by the Nandi Infrastructure Corridor Enterprise (NICE) and the Ulhasnagar case, where the Maharastra Government promulgated an ordinance to regularize 855 illegal buildings that were being threatened with demolition under the orders of the Bombay High Court.
Seeds of what is happening now were sown long ago. In 1951, the Constitution was amended for the first time. Article 31 B was introduced to provide immunity to certain Acts and Regulations specified in the Ninth Schedule to the Indian Constitution from being challenged even if it involved infringement of fundamental rights. The courts were deprived of the power to declare such legislation void. In the beginning, the Schedule consisted of mere 13 items, but now it has as many as 284 laws, with more than 35Acts added during the two years of emergency.
There are some differences between what occurred during the earlier years and what is happening now. One, the stature of members of the legislature in those days was generally much higher than what it is now. There was a galaxy of luminaries in the Parliament during Prime Minister Nehru’s days, who enjoyed public trust. Now the Parliament pales in comparison, with steep decline not only in the standards of debate but also of integrity and honesty of members, with many of them having past criminal records. Criminalisation of politics has led to an enormous loss of people’s confidence in the legislature. A similar loss of faith in the integrity and independence of the judiciary has not occurred, though charges of corruption against even the upper judiciary are occasionally heard. Two, when the legislature enacted laws to undermine or restrict the court’s jurisdiction and powers, action was guided more by public than private or partisan interests. Article 31 B went to the extent of even denying primacy to fundamental rights in the interests of protecting land and agriculture related legislation that was considered highly important from economic and social welfare point of view. Presently, it is mostly the partisan and selfish considerations and false notions of asserting ones supremacy that govern new legislation enacted to invalidate judicial verdicts. Whether it is the legislation preventing the demolition of buildings or allowing its members to enjoy the perks of two or more offices or giving impunity to officers of the rank of Joint Secretary and above from being inquired into in corruption cases or preventing large scale migration from the neighboring country, it is either the selfish considerations of vote bank politics, consolidating party’s power or even of protecting ones lackeys or distributing patronage that has shaped such decisions.
it is the job of the legislature to enact laws, it is for the judiciary to review and interpret them to ensure they are in accordance with the Constitutional provisions. So if the Court declares any law as null and void, any subsequent law passed by the legislature to set aside the impact of the judgement can not be upheld unless it meets the same constitutional or legal norms or standards, the absence of which led to throwing out the earlier law. This must be realized by the legislature; otherwise the rewriting of laws will continue to occur, leading to unnecessary wastage of public resources
In the final analysis, what is happening is more a confrontation between the executive and judiciary rather than the one between the legislature and judiciary. The doctrine of “separation of powers” is based on a clear-cut division of powers between the three arms of governance- executive, legislature and judiciary, where each one acts as a check on the others. In the west minister model of parliamentary democracy that we have adopted, the separation of power is not all that clear. The cabinet that heads the executive is drawn from the legislature. What the legislature passes as laws is what the executive wants them to do and the executive may occasionally be guided by protecting the interests of the party in power. Public interests may not always reign supreme.
Which is sovereign- parliament or judiciary? It is a superficial and hollow question that should never be raised or discussed. All institutions of governance owe their existence and powers to that supreme document- the Constitution of India. One sovereign truth must be realized by all-“Howsoever high you may be, the Constitution is above you.” This is the only way to preserve democracy in this country.
Tuesday, May 30, 2006
A LAW TO LEGALISE THE ILLEGAL
LAW BREAKERS AND LAW MAKERS
Oliver Goldsmith once said: “ The English laws punish vice; the Chinese laws do more, they reward virtue.” Looking at the Delhi Laws (Special Provisions) Act, 2006, it appears that the Indian laws do much more- they reward vice by legalising the violations of law committed with impunity by all concerned- the public, the building mafia, the local authorities and the politicians.
The Government of India was in an unseemly hurry in legislating and passing this Act. It was exempted from the mandatory seven-day notice for consideration. The Act is poorly drafted. Look at the title of the legislation itself- “The Delhi Laws (Special Provisions) Act, 2006.” It talks of special provisions about the Delhi laws, but what are these laws about which special provisions are being made? The title gives no idea about the purpose of legislation. It appears that the government was somewhat diffident to convey through the title that it was trying to prevent demolitions of unauthorized constructions ordered by the courts in Delhi. The Act, in fact, does not use the term “unauthorized constructions”; instead it prefers the phrase “unauthorised development” and defines it to cover the constructions and use of buildings and land in contravention of the sanctioned plans, including encroachment.
The Statement of Objects and Reasons with which the Bill was introduced tries to put considerable gloss over it. The Bill is necessary to enable the government to take all possible measures for the “finalisation of norms, policy guidelines and feasible strategies” to deal with the problems of unauthorized constructions so that, as Section 3 of the Act says, the “development of Delhi can take place in a sustainable and planned manner.” Section 3 gives one year to the government to frame the policies and prescribes that “status quo as on the 1st day of January, 2006 shall be maintained in respect of categories of unauthorized development” mentioned in the Act. This means that no punitive action shall be taken during this period in respect of unauthorized constructions or encroachments that had not been demolished till December 31, 2005.
This law raises more questions than it answers. The problem of illegal constructions and encroachments is not a new one; it has been in Delhi for many years. Why should the government require one year now to design strategies to deal with the problem, when they have not been able to do it for so many years and why should they need a law to do so?
Laws relating to unauthorized constructions or their demolitions have been applied randomly and unequally right from the beginning. These matters in Delhi are regulated as per the provisions of the Unified Building Bye-laws, 1983, which are implemented by local bodies in their respective areas. The fact that the local authorities either did not enforce the bye-laws or overlooked their violations is obvious from the large scale sealing of illegal properties and their demolitions that had to take place under the orders of the courts. Shri Jaipal Reddy, the Union Urban Development Minister admitted in the Lok Sabha on March 6, 2006 that “the extent and magnitude of violations of unauthorized construction and misuse of premises is assessed to be huge and the number of families likely to be affected may be in lakhs..” Obviously, all this did not happen overnight. Why didn’t the government wake up and take action in time? The CPI member Gurudas Dasgupta’s observation that the demolition issue had come to such a sorry pass because of persistent political connivance and corruption may be a part of the explanation.
Even when the demolitions were going on, the courts had to direct the Municipal Corporation of Delhi (MCD) and other local bodies on many occasions not to adopt the 'pick and choose' policy and initiate action against the 'big fish,' which had violated the building laws with impunity.
The present law adds to the list of laws that are “badly written and randomly enforced” Selecting the cut off date as January 1, 2006 to prevent further demolitions would always invoke peculiar feelings amongst a large number of people whose unauthorized constructions or encroachments unluckily and untimely came under the axe. According to Mr. Vijay Kumar Malhotra’s statement in the Lok Sabha, 40,000 shops and 20,000 houses had been brought down in the past few months.
The central government was not alone in formulating a law to regularize violations of law. The Maharastra Government had done it earlier, promulgating an ordinance to regularize 855 illegal buildings in Ulhasnagar that were being threatened with demolition under the orders of the Bombay High Court.
The politicians showed considerable solidarity in passing the Delhi Laws (Special Provisions) Bill, 2006 to prevent demolitions. The Bill was passed unanimously with both the treasury and opposition benches supporting it.
Why were the politicians so keen to stop demolitions? Was it because of their concern for the hardships caused to the public? Those who know our politicians explain it differently. They passed this law because many of them had their own illegal buildings and encroachments to protect. In addition, this was too good a cause to miss in terms of vote bank politics.
“The illegal we do immediately. The unconstitutional takes a little longer”, Henry Kissinger had said in a different context. Our politicians can surely do both in quick time.
(Original version of an article published in the Indian Express dated May 30, 2006)
Oliver Goldsmith once said: “ The English laws punish vice; the Chinese laws do more, they reward virtue.” Looking at the Delhi Laws (Special Provisions) Act, 2006, it appears that the Indian laws do much more- they reward vice by legalising the violations of law committed with impunity by all concerned- the public, the building mafia, the local authorities and the politicians.
The Government of India was in an unseemly hurry in legislating and passing this Act. It was exempted from the mandatory seven-day notice for consideration. The Act is poorly drafted. Look at the title of the legislation itself- “The Delhi Laws (Special Provisions) Act, 2006.” It talks of special provisions about the Delhi laws, but what are these laws about which special provisions are being made? The title gives no idea about the purpose of legislation. It appears that the government was somewhat diffident to convey through the title that it was trying to prevent demolitions of unauthorized constructions ordered by the courts in Delhi. The Act, in fact, does not use the term “unauthorized constructions”; instead it prefers the phrase “unauthorised development” and defines it to cover the constructions and use of buildings and land in contravention of the sanctioned plans, including encroachment.
The Statement of Objects and Reasons with which the Bill was introduced tries to put considerable gloss over it. The Bill is necessary to enable the government to take all possible measures for the “finalisation of norms, policy guidelines and feasible strategies” to deal with the problems of unauthorized constructions so that, as Section 3 of the Act says, the “development of Delhi can take place in a sustainable and planned manner.” Section 3 gives one year to the government to frame the policies and prescribes that “status quo as on the 1st day of January, 2006 shall be maintained in respect of categories of unauthorized development” mentioned in the Act. This means that no punitive action shall be taken during this period in respect of unauthorized constructions or encroachments that had not been demolished till December 31, 2005.
This law raises more questions than it answers. The problem of illegal constructions and encroachments is not a new one; it has been in Delhi for many years. Why should the government require one year now to design strategies to deal with the problem, when they have not been able to do it for so many years and why should they need a law to do so?
Laws relating to unauthorized constructions or their demolitions have been applied randomly and unequally right from the beginning. These matters in Delhi are regulated as per the provisions of the Unified Building Bye-laws, 1983, which are implemented by local bodies in their respective areas. The fact that the local authorities either did not enforce the bye-laws or overlooked their violations is obvious from the large scale sealing of illegal properties and their demolitions that had to take place under the orders of the courts. Shri Jaipal Reddy, the Union Urban Development Minister admitted in the Lok Sabha on March 6, 2006 that “the extent and magnitude of violations of unauthorized construction and misuse of premises is assessed to be huge and the number of families likely to be affected may be in lakhs..” Obviously, all this did not happen overnight. Why didn’t the government wake up and take action in time? The CPI member Gurudas Dasgupta’s observation that the demolition issue had come to such a sorry pass because of persistent political connivance and corruption may be a part of the explanation.
Even when the demolitions were going on, the courts had to direct the Municipal Corporation of Delhi (MCD) and other local bodies on many occasions not to adopt the 'pick and choose' policy and initiate action against the 'big fish,' which had violated the building laws with impunity.
The present law adds to the list of laws that are “badly written and randomly enforced” Selecting the cut off date as January 1, 2006 to prevent further demolitions would always invoke peculiar feelings amongst a large number of people whose unauthorized constructions or encroachments unluckily and untimely came under the axe. According to Mr. Vijay Kumar Malhotra’s statement in the Lok Sabha, 40,000 shops and 20,000 houses had been brought down in the past few months.
The central government was not alone in formulating a law to regularize violations of law. The Maharastra Government had done it earlier, promulgating an ordinance to regularize 855 illegal buildings in Ulhasnagar that were being threatened with demolition under the orders of the Bombay High Court.
The politicians showed considerable solidarity in passing the Delhi Laws (Special Provisions) Bill, 2006 to prevent demolitions. The Bill was passed unanimously with both the treasury and opposition benches supporting it.
Why were the politicians so keen to stop demolitions? Was it because of their concern for the hardships caused to the public? Those who know our politicians explain it differently. They passed this law because many of them had their own illegal buildings and encroachments to protect. In addition, this was too good a cause to miss in terms of vote bank politics.
“The illegal we do immediately. The unconstitutional takes a little longer”, Henry Kissinger had said in a different context. Our politicians can surely do both in quick time.
(Original version of an article published in the Indian Express dated May 30, 2006)
Friday, January 13, 2006
POLICING AND GOVERNANCE
BETTER POLICING FOR GOOD GOVERNANCE
The subject for panel discussion this evening is Better Policing for Good Governance. The idea seems to be that you have to improve your policing if you want to establish good governance. Somebody may dispute this assumption by asserting that you have to have good governance if you want to better your policing. This in fact shows how closely connected the two are and I presume that we will be discussing this subject in the context of a democratic society.
There are two major challenges to governance in this country:
1. Ensuring sustained development of the economy at a brisk pace and
2. providing a sense of security to the public by controlling crime and violence in society.
The two, in fact, are closely linked. A developing economy requires a climate of peace and stability.
This has become particularly important in view of the increasing globalisation and spread of the market forces across the national boundaries. It is important to realise that if development has to take place, crime must be controlled and order must be maintained.
Every civilized society requires to control crime and maintain order if it has to survive; but a democratic society for its survival requires something in addition. It needs for its survival the preservation of citizens rights. Good policing is thus essential not only for economic development, but also for the survival of our democratic system.
It has not yet been realised in this country that this 7 or 10 % growth rate about which we are talking so loudly and the democratic freedoms that we cherish so proudly will not last if we do not establish a system of good policing.
But what is good policing? Good policing in a democratic society is one where the police are professional enough to perform their core functions efficiently and effectively and are sensitive enough to see that they do their duty while respecting human dignity and maintaining citizens rights.
It is the same old perennial problem of maintaining collective security while preserving individual rights. The secret of good policing lies in balancing these requirements and this balancing can be done if we try to reorganise our system on the principles of democratic policing. What are these principles?
One basic principle is that the police should be subject to rule of law and not to the wishes of a person or party in power. In other words, it is very important that the police are controlled and governed to ensure that they work according to what the law and constitution of the country demands. A history of policing in this country shows that the type of control that has been exercised over the police has led to (a) undermining the rule of law and (b) obstructing the growth of a professionally sound system of policing in the country.
One way of dealing with the problem is to make institutional arrangements that provide functional autonomy to the police but simultaneously make them more accountable. The NPC had made many recommendations to ensure this, including the establishment of the State Security Commission (SSC), prescribing a procedure for selection of the head of police, giving him a fixed secure tenure and prescribing rules for transfer and laying down that any transfer done arbitrarily to be treated as null and void. The Padmanabhaiah Committee also placed considerable stress on having a proper tenure and transfer policy for police officers.
The idea of setting up a SSC has not been found acceptable. Can we do something else to achieve the results if SSC is not set up. I would like to introduce a few points to seek your suggestions:
Can we define superintendence in clear terms to say that superintendence is to be exercised in accordance with law and in public interest?
Can we make a distinction between policy formulation and operational directions? I would suggest a distinction to be made between the police as an organization and policing as a set of functions and activities. While the police as an organization should be the responsibility of the government policing as a set of activities should be the responsibility of the chief of police. This would mean that the government’s role is to formulate policies, set standards, monitor performance and provide the money and other resources required for a good police system and not to give operational directions.
Define the roles and responsibilities of different agencies controlling the police. There are three main agencies that control the police- the government, the community and the police themselves. If the law can define the roles of each in clear terms, a part of the problem will be over. .
Establish a system of checks and balances by making consultation amongst different agencies mandatory.
The first principle that has been discussed so far requires the police to be an instrument of rule of law. Being subject to the rule of law also means that the police cannot be a law unto themselves. What the police in this country have not been able to appreciate is that there are limits to their powers- limits imposed by the constitution, law and their own manuals. It is becoming difficult to control police behaviour for many reasons. Some of these are:
1.Criminality in the police has registered considerable increase over a period of time. This was one of the findings of the Pad Committee. The Vohra Committee had also mentioned this. It is not merely misuse of power, but downright criminal acts which have been committed. Nexus between the wrong policeman and dishonest politician results in providing impunity
2.Disciplinary mechanisms have become weak because of the erosion of authority of the departmental hierarchy
3 There has been considerable slackening of the standards of recruitment and appointments due to fast expansion, corruption and favouritism,
Another important principle of democratic policing is that the police must be neutral and non discriminatory. It must protect democratic freedoms of all. How do you ensure this in a highly heterogeneous society?. It has been suggested that the police must be representative of the community it serves. Every effort should be made to get minority people to join the force, but should reservation be made in recruitment on caste and communal basis? The NPC was against this.
One of the most important requirements of democratic policing is to make the police accountable to multiple agencies for improving their performance and behaviour. The PM has suggested the establishment of a Police Performance Evaluation Board and a Police Complaints Authority.
There are two other points that I would like to make. One is about modernisation. Modernisation has been interpreted in terms of equipment- providing the police with all that technology can offer. The modernization grant is now is about Rs 1000 crores. There is no doubt that police must be equipped adequately. But along with the modernization of equipment, modernization of attitudes is very important. Unless the attitudes change, a highly modernized police force need not be a better police force. It may prove to be an oppressive force. How do you modernise the attitudes? If training is the answer, are we doing enough on that front? The BPR&D’s figures show that not even 2% of police budget is being spent on training.
Technology may make police more efficient. However there is no necessary guarantee that the enhancements of police power offered by new technologies will be used to protect, rather than to undermine democracy, particularly when this can happen so silently and effortlessly. We have of course not reached that stage as yet but some signs of this happening are visible in the wiretapping incident.
The other important point for better policing is the need to restructure the police force Restructure it from the point of view of improving the career prospects of lower ranks. The entire structure and philosophy of police organization are loaded highly against the lower ranks. Till the structure is altered and philosophy is changed and the conditions of the lower ranks who constitute 99% of the force are improved, the police can not become a means of good governance.
The subject for panel discussion this evening is Better Policing for Good Governance. The idea seems to be that you have to improve your policing if you want to establish good governance. Somebody may dispute this assumption by asserting that you have to have good governance if you want to better your policing. This in fact shows how closely connected the two are and I presume that we will be discussing this subject in the context of a democratic society.
There are two major challenges to governance in this country:
1. Ensuring sustained development of the economy at a brisk pace and
2. providing a sense of security to the public by controlling crime and violence in society.
The two, in fact, are closely linked. A developing economy requires a climate of peace and stability.
This has become particularly important in view of the increasing globalisation and spread of the market forces across the national boundaries. It is important to realise that if development has to take place, crime must be controlled and order must be maintained.
Every civilized society requires to control crime and maintain order if it has to survive; but a democratic society for its survival requires something in addition. It needs for its survival the preservation of citizens rights. Good policing is thus essential not only for economic development, but also for the survival of our democratic system.
It has not yet been realised in this country that this 7 or 10 % growth rate about which we are talking so loudly and the democratic freedoms that we cherish so proudly will not last if we do not establish a system of good policing.
But what is good policing? Good policing in a democratic society is one where the police are professional enough to perform their core functions efficiently and effectively and are sensitive enough to see that they do their duty while respecting human dignity and maintaining citizens rights.
It is the same old perennial problem of maintaining collective security while preserving individual rights. The secret of good policing lies in balancing these requirements and this balancing can be done if we try to reorganise our system on the principles of democratic policing. What are these principles?
One basic principle is that the police should be subject to rule of law and not to the wishes of a person or party in power. In other words, it is very important that the police are controlled and governed to ensure that they work according to what the law and constitution of the country demands. A history of policing in this country shows that the type of control that has been exercised over the police has led to (a) undermining the rule of law and (b) obstructing the growth of a professionally sound system of policing in the country.
One way of dealing with the problem is to make institutional arrangements that provide functional autonomy to the police but simultaneously make them more accountable. The NPC had made many recommendations to ensure this, including the establishment of the State Security Commission (SSC), prescribing a procedure for selection of the head of police, giving him a fixed secure tenure and prescribing rules for transfer and laying down that any transfer done arbitrarily to be treated as null and void. The Padmanabhaiah Committee also placed considerable stress on having a proper tenure and transfer policy for police officers.
The idea of setting up a SSC has not been found acceptable. Can we do something else to achieve the results if SSC is not set up. I would like to introduce a few points to seek your suggestions:
Can we define superintendence in clear terms to say that superintendence is to be exercised in accordance with law and in public interest?
Can we make a distinction between policy formulation and operational directions? I would suggest a distinction to be made between the police as an organization and policing as a set of functions and activities. While the police as an organization should be the responsibility of the government policing as a set of activities should be the responsibility of the chief of police. This would mean that the government’s role is to formulate policies, set standards, monitor performance and provide the money and other resources required for a good police system and not to give operational directions.
Define the roles and responsibilities of different agencies controlling the police. There are three main agencies that control the police- the government, the community and the police themselves. If the law can define the roles of each in clear terms, a part of the problem will be over. .
Establish a system of checks and balances by making consultation amongst different agencies mandatory.
The first principle that has been discussed so far requires the police to be an instrument of rule of law. Being subject to the rule of law also means that the police cannot be a law unto themselves. What the police in this country have not been able to appreciate is that there are limits to their powers- limits imposed by the constitution, law and their own manuals. It is becoming difficult to control police behaviour for many reasons. Some of these are:
1.Criminality in the police has registered considerable increase over a period of time. This was one of the findings of the Pad Committee. The Vohra Committee had also mentioned this. It is not merely misuse of power, but downright criminal acts which have been committed. Nexus between the wrong policeman and dishonest politician results in providing impunity
2.Disciplinary mechanisms have become weak because of the erosion of authority of the departmental hierarchy
3 There has been considerable slackening of the standards of recruitment and appointments due to fast expansion, corruption and favouritism,
Another important principle of democratic policing is that the police must be neutral and non discriminatory. It must protect democratic freedoms of all. How do you ensure this in a highly heterogeneous society?. It has been suggested that the police must be representative of the community it serves. Every effort should be made to get minority people to join the force, but should reservation be made in recruitment on caste and communal basis? The NPC was against this.
One of the most important requirements of democratic policing is to make the police accountable to multiple agencies for improving their performance and behaviour. The PM has suggested the establishment of a Police Performance Evaluation Board and a Police Complaints Authority.
There are two other points that I would like to make. One is about modernisation. Modernisation has been interpreted in terms of equipment- providing the police with all that technology can offer. The modernization grant is now is about Rs 1000 crores. There is no doubt that police must be equipped adequately. But along with the modernization of equipment, modernization of attitudes is very important. Unless the attitudes change, a highly modernized police force need not be a better police force. It may prove to be an oppressive force. How do you modernise the attitudes? If training is the answer, are we doing enough on that front? The BPR&D’s figures show that not even 2% of police budget is being spent on training.
Technology may make police more efficient. However there is no necessary guarantee that the enhancements of police power offered by new technologies will be used to protect, rather than to undermine democracy, particularly when this can happen so silently and effortlessly. We have of course not reached that stage as yet but some signs of this happening are visible in the wiretapping incident.
The other important point for better policing is the need to restructure the police force Restructure it from the point of view of improving the career prospects of lower ranks. The entire structure and philosophy of police organization are loaded highly against the lower ranks. Till the structure is altered and philosophy is changed and the conditions of the lower ranks who constitute 99% of the force are improved, the police can not become a means of good governance.
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