POLICE REFORMS- TOO IMPORTANT TO NEGLECT AND TOO URGENT TO DELAY- A REBUTTAL OF DR. ASHOK KAPUR’S IDEAS
I read Dr. Ashok Kapur’s article on Police Reforms in India published in the Open Forum of the India News and Features on May 18 and 19, 2008 with great interest but with greater anguish.
Dr Kapur is highly critical of the National Police Commission’s (NPC) recommendations, Mr. Prakash Singh’s petition and the judgment of the Supreme Court- all three closely linked. The purpose of this article is to deal with major points made by Dr Kapur and show how they are based either on lack of adequate information or a deficiency of understanding and at some places even on distortion of facts.
NPC Report, Supreme Court Judgment and Democracy
Dr Kapur starts and ends his article by suggesting the need to review the Supreme Court’s judgement on Prakash Singh’s petition. If it is implemented, it may “seriously impact democracy and the rule of law.” This can only mean either of two things. Either Dr Kapur is fond of conjuring up and fighting imaginary phantoms or the Supreme Court’s understanding of the concept of democracy and rule of law is really deficient.
Dr Kapur is of the view that the judgment of the Supreme Court, based on Prakash Singh’s Petition, which in turn is founded on NPC’s recommendations, violates the basic structure of the Constitution and the rule of law. How it does that is not very clearly stated. Studying the wooly arguments scattered at different places in the article, one can spot at least three areas where the NPC report, as per Dr Kapur’s analysis, violates the constitutional and rule of law standards:
1 Posting and Promotion of Officers:
According to Dr Kapur, the Commission “had suggested posting and promotion of senior police officers, permanently assigned to the State Governments, by official committees comprising a majority of Union Government representatives” Since the Police is a state subject, this is a “violation of the federal principle, a basic feature of the Constitution,” The assessment is wrong as the Commission never made this suggestion. All that the NPC suggested was that a committee headed by the Chairperson of the UPSC should prepare a panel of three IPS officers of the State cadre and the selection of the head of the state police force should be done by the state government out of that panel (Second Report, p31, para 15.45). The authority to post and promote all senor officers, including the chief of police, remains with the State Government. Neither the postings nor the promotions are to be done by the Committee as is being alluded to in the article. The NPC merely wanted to reduce the element of arbitrariness in selecting the head of the police force that has become so common now- a- days.
2. Establishment of State Security Commission:
Dr Kapur thinks that the idea of establishing the State Security Commission (SSC) recommended by the National Police Commission and accepted by the Supreme Court would amount to taking away the government’s “authority to exercise control or ensure accountability,” and “the prerogative of the elected cabinet, accountable to the legislature, even to frame policy would stand transferred to the security commission, a parallel cabinet, unelected and unaccountable.” It appears that the recommendation of the NPC has not been properly appreciated. The NPC has nowhere recommended that the superintendence of the Police Department should be transferred to SSC. All that the NPC has done is to “ lay down that the power of superintendence of the State Government over the Police should be limited for the purpose of ensuring that police performance is in strict accordance with law.” (Second Report, p30, para 15.38) It is to help the State Government discharge their superintending responsibilities in an open manner under the framework of law that the NPC recommended the constitution of a SSC in every State. As the NPC said: “ While retaining government responsibility for overseeing the police, this Commission will ensure that this responsibility is discharged in an open manner with publicly known policy directions and guidelines.”( Second Report, p32, para 15.54)
One may not agree with the composition or charter of SSC suggested by the NPC, but one can not but appreciate the environmental context in which this recommendation was made by the Commission. According to the Commission, the manner in which political control has been exercised over the police has led to gross abuses, resulting in erosion of rule of law and loss of police credibility as a professional organization in this country. It was therefore necessary to set up new institutional arrangements that would help in ensuring “political neutrality in police performance”(Second Report, pp31-32, para 15-53)
The NPC borrowed this idea of a commission to act as a buffer between the government and the police from such arrangements existing in other democratic countries. Japan is one example, where they have a National Public Safety Commission and the Prefectural Public Safety Commissions, which control the police forces at the national and prefectural levels. The Commission at the national level consists of a chairman and five members, having five-year terms, who are appointed by the Prime Minister with the consent of both Houses of the Diet. The Commission at the prefectural level usually consists of three members, whose appointments are made by the Governor with the consent of the Prefectural Assembly. The National Police Agency and the Prefectural Police Departments are controlled by the National Public Safety Commission and the Prefectural Public Safety Commissions respectively
The Commission model of police governance exists in many other democratic countries, like Canada, for instance. In British Columbia, every municipality with a population of 5000 or more has to provide for police service and all municipalities in such places are required to set up police boards to act as civilian oversight bodies. The Municipal Police Board in British Columbia, consisting of the Mayor, a councillor and not more than five other eminent persons(British Columbia Police Act, Section 23 (1)), determines the priorities, goals and objectives of the municipal police department, in consultation with the chief constable (British Columbia Police Act Section 26 (4)). Similarly in Northern Ireland, one such institution is the Police Board set up by the Police (Northern Ireland) Act, 2000. The Board is an independent public body made up of nineteen members, whose broad objective is to secure for the people of Northern Ireland an effective, efficient and impartial police service. In UK itself from where we have borrowed our Westminster system of governance, it is the Police Authorities that largely control the area police forces. They are freestanding bodies, independent and separate from local councils and are responsible for maintaining efficient and effective police forces for their areas.
Thus instead of damaging democracy or rule of law, as Dr. Kapur maintains, the Board or Commission model of police governance is increasingly being accepted as an important principle of democratic policing. The model serves two different purposes- one, to insulate the police from illegitimate influences of partisan politics by acting as a buffer between the police and elected governments; and, two, to involve community members in providing direction to the police and help improve police administration and management. NPC’s recommendation to set up SSCs was also motivated by the same twin objectives.
3. Inquiry into Complaints against the Police:
Dr. Kapur finds fault with the modalities of inquiring into public complains against police personnel that the NPC recommended in its First Report. There are two main objections. One, the accused in such complaints (i.e the police) ”double up both as the investigator and as the judge and jury.” Two, “dragging the neutral judiciary with a very fair reputation in the functioning of the executive” is a “violation of the principle of ‘separation of powers’. A basic feature of the Constitution”
Lets now study what the NPC recommended. The NPC felt that besides departmental inquiries, there are certain categories of complaints where some independent authority outside the police should do the inquiries. They suggested that a judicial inquiry should be made mandatory in three categories of complaints (First Report, page 61-62, paras10.18 & 10.19):
• alleged rape of a woman in police custody;
• death or grievous hurt caused while in police custody; and
• death of two or more persons resulting from police firing in the dispersal of unlawful assemblies.
To obviate delay in such appointments, there should be a standing body known as the District Inquiry Authority (DIA) headed by an Additional Session's Judge who should be assisted by an assessor from the police department. The DIA shall also serve as an independent authority to oversee the ultimate disposal of complaints dealt with departmentally.
Dr Kapur seems to suggest that the NPC under stressed the gravity of complaints of death or rape in custody by describing them as “misbehaviour” or “misconduct,” while the recommendation clearly shows that the Commission assigned greater seriousness to such complaints by suggesting a different, more independent and thorough system of inquiring into them. An officer from the police department to assist the DIA in its work does not mean that the accused becomes the investigator, judge and jury at the same time.
So far as the second objection is concerned, judicial inquiries have been instituted by the governments on numerous occasions to examine public complaints or matters of grave importance. If this amounts to violation of the principle of separation of powers, as Dr. Kapur thinks, obviously the Constitution has been infringed many times since Independence.
Police Act, 1861- Outdated:
Dr Kapur has serious objection to the petitioners regarding the Police Act of 1861 “outdated.” This is really astonishing, considering the fact that the Police Act was passed 147 years ago during the colonial rule when the problems and requirements of policing were completely different from what they are today. The Act is outdated not only because it is about a century and a half old but also because it set up a police organization that was totally subservient to the executive; that was unaccountable to anyone except their own hierarchy and the executive; whose managerial philosophy was based on distrust of the lower ranks; and that was highly militaristic and authoritarian in design and whose charter of functions was very narrow and limited.
Police Act, 1861- Adjunct to the Cr.P.C:
Amazingly, Dr. Kapur further propounds that the “Police Act of 1861 was not a ‘stand-alone’ legislation. It was a brief adjunct to the Criminal Procedure Code, enacted a year earlier.” This is a factual error. What was passed a year earlier was the Indian Penal Code and not the Criminal Procedure Code. Even if this error is disregarded, Dr Kapur never explains how the Police Act has to be looked upon as an adjunct to the Cr P C. The objectives of the two legislations were different.
Relationship between the Police and Magistracy:
Another objection of Dr Kapur is that the “petitioners conveniently bypassed the Criminal Code, whereby the police derive their formal investigative powers only under the overall control of the magistracy.” He does not explain why the petitioners should have included the Cr Pc matters in their petition, which mainly focused on the need to implement the recommendations of the NPC, including replacement of the Police Act of 1861. In fact it is Dr Kapur who conveniently forgets that if the police were subject to the general control and direction of the magistracy it was because the executive and judiciary were not separate when the Police Act or Criminal Procedure Code were enacted during the colonial times. After the separation of executive and judiciary done by the amended Cr P C in 1973, the NPC found no justification for the system. According to the NPC, Police should have a self-controlled organizational structure where there is no distortion of command and no dilution of responsibility. Their functions are subject to judicial scrutiny and they are accountable to law and therefore they cannot be subordinated to an executive. It is this approach of the NPC that is at the root of Dr Kapur’s angry analysis, as he later declares that the “most glaring lapse on the part of the Police Commission was to erase altogether the control of civil magistracy and make no provision whatsoever for any accountability on the part of the force”.
Post Retirement Benefits:
Dr Kapur feels that the “ostensible purpose of the PIL was to minimize “political interference” in the functioning of the police.” He finds it ironical because “what has come to pass is too stark to ignore. More and more retired police officers are being appointed under the Government since the submission of the report”. This argument does not cut much ice. If this is happening as Dr Kapur says, it is all the more necessary to institute arrangements that would help in insulating the police from illegitimate political interference so that the police officers’ opportunities to “hobnob” with politicians are reduced, if not altogether eliminated.
Summing Up:
There are some other points in Dr.Kapur’s article that can be discussed, but the constraints of space come on the way.
The need for Police reforms is urgent and important and deserves to be discussed dispassionately, unaffected by personal prejudices and service rivalries. Dr kapur’s analysis is found wanting in this respect. “How much easier it is to be critical than to be correct!”
