Impunity in Corruption cases

Impunity in Corruption Cases

Law Facilitates It

                                                                    

In less than a year and a half, the UPA government’s credibility has been badly dented, with major scams tumbling out of government’s cupboard with surprising frequency.  More than the scams, it is the way they have been handled by the government that has damaged its reputation.  On the one hand, it has been pusillanimous enough not to take the bull by its horns and stop it from galloping at breakneck speed. On the other, it has been arrogant enough to brazenly deny its own culpability, but succeeding only in scoring one self goal after another, the biggest and the foulest being the appointment of Thomas as Chief Vigilance Commissioner.

Rahul Gandhi keeps on talking about bridging the gap between the rich and poor India, but prefers to remain conspicuously silent on the subject of corruption.  He probably does not realise that the most important factor responsible for the big gap between the two is corruption.   As long as corruption remains, a part of India and the major part will remain poor. Corruption, as somebody has rightly said, is a tax on poor people.  If he has realised, as his father did, that not more than fifteen paise out of one rupee spent by the government for the betterment of the poor really reach them, then he has to do something to ensure this does not happen, instead of keeping his mouth closed and eyes blind.  This ostrich like attitude, remaining silent and inactive hoping that the storm will pass on its own, does not help.  In these days of right to information and wide spread of competitive, investigative and judgmental media, the facts are not easily suppressed; nor does the storm disappear early and easily. 

When denial of its involvement in corruption is no longer possible, all that the government does is to shift the guilty person from one position to another and then proclaim that law will take its own course, which it invariably fails to do.

Law in most cases fails to take its proper course, primarily due to three reasons.  Firstly, the justice system is cumbersome, dilatory and badly flawed. Secondly, the anti-corruption agencies do not function effectively, particularly against rich or politically influential people, as they have been badly politicised and rendered effete.  Thirdly and it is this which is proposed to be discussed here, law itself provides impunity and allows guilty to escape unharmed.

The anti corruption law has three main provisions that provide impunity.   One requires government’s permission to investigate; the other its sanction to prosecute and the third allows the government to withdraw or close cases. 

CBI is the most prominent anti-corruption enforcement agency at the central level.  Section 6 (A) of the Delhi Special Police Establishment Act, 1946, which governs its functioning, mandates the CBI to obtain prior sanction of the head of the ministry or department before undertaking any inquiry or investigation against any officer of the rank of Joint Secretary and above in the Central Government, including those in the public sector undertakings and nationalised banks.  This is what in popular parlance is known as the Single Directive, issued by the central government sometime in 1986.  Without such sanction no inquiry, not even one the CBI calls PE (Preliminary Enquiry) can be conducted.  This provision was earlier a part of executive instructions but it was given a statutory wrap by the Central Vigilance Commission Act, 2003, despite the fact that the Supreme Court had declared it null and void in the Hawala case judgement.  The main objective of the Directive is to protect the decision making level officers from the threat and ignominy of malicious and vexatious inquires, so that they can take their decisions without fear of being victimised.  However, in a large number of cases, this provision of law is used to provide impunity.  The most recent case is that of a senior officer of the National Highways Authority of India, where the CBI had to ask the Cabinet Secretary to transfer him to his parent cadre when it was denied permission by the Ministry of Road Transport and Highways to probe into allegations of corruption made against him.

The other provision of law that provides impunity is Section 19 of the Prevention of Corruption Act, 1988, which requires the police agency to obtain sanction from the concerned government before prosecuting public servants involved in corruption cases.  In many cases, there is considerable delay in receiving sanction and in some it never comes.  This had caused concern to the Supreme Court too, which in the Havala case judgment directed that the maximum limit of 3 months to grant sanction must be strictly followed

This government is not satisfied by providing impunity merely to serving officers; it has tried to include even the retired public servants within the ambit of impunity provisions of law.  In 2008, it tried to extend the scope of such provisions to former public servants by amending Section 19 of the  Prevention of Corruption Act, 1988.  Luckily, the amendment was not ratified by the Rajya Sabha even though it had been cleared by the Lok Sabha.

The need for prosecution sanction  and inordinate delays in obtaining it is an important bottleneck in the effective functioning of anti corruption agencies.  This bottleneck not only results in impeding their functioning but also in providing impunity to accused persons and thus defeating justice.

Law not only prohibits investigation and prosecution without government’s sanction; it  provides a third protection.  Even if prosecution is instituted, the government can always withdraw the case with the permission of the court under Section 321 of the Cr.P.C.  The government has occasionally used this provision too, the most prominent case being of Captain Satish Sahrma, a senior Congress leader against whom CBI had instituted cases pertaining to alleged irregularities in allotment of petrol pumps and gas agencies during his tenure as Petroleum Minister between 1993 and 1996.  The cases were later on closed.

The ostensible purpose of all the these provisions of law is different from what they are often used for. Amongst other steps the government must take to deal with the menace of corruption, it must review the law that helps in providing impunity.

Appointment of the Central Vigilance Commisioner - the Law is Defective

DEFECTIVE LAW FACILITATES WRONG APPOINTMENT

The UPA government’s blatant decision to plant their own man, P. J. Thomas in the office of the Chief Vigilance Commissioner, despite strong opposition by the leader of the opposition, has sparked off a huge political controversy. The BJP, calling the Government’s decision “sad and shocking,” took the matter right up to the President, requesting her not to sign the order of appointment. Now that the appointment has been made and the matter has become a fait accompli, it calls for dispassionate discussion.

The BJP objected to this appointment mainly on the ground that P. J. Thomas did not have the right credentials for the job. In past, there were allegations against Thomas’s alleged involvement in the palm oil import scam in Kerala. Though he had been absolved of the charges in an inquiry, the BJP argued - and rightly so - that the man occupying such an important post must be spotlessly clean.  The BJP also fears that this appointment has been made by the government to cover up the 2G spectrum scam, in which accusations have been leveled against the Telecom Minister A Raja.

The appointment of Thomas cannot be faulted on grounds of law. The legal provision for the appointment is contained in Section 4 (1) of the Central Vigilance Commission Act, 2003. It says that the appointment shall be made by the President after obtaining the recommendation of a Committee consisting of the Prime Minister as the chairperson, Home Minister as one member and the leader of opposition as another member.  The Act does not require the recommendations of the committee to be unanimous.  It does not say that the appointment can be made only when all three members of the Committee agree on a name.

Similarly, the Act is also surprisingly and conspicuously silent about the integrity record of  appointees to the post.  All that Section 3 (3) of the Act requires is that the chief and the other members of the Commission shall be appointed from amongst persons “(a) who have been or are in an All-India Service or in any civil service of the Union …. having knowledge and experience in the matters relating to vigilance, policy making and administration including police administration” or (b) who have held office or are holding office in a corporation or a company owned or controlled by the Central Government and persons who have “expertise and experience in finance, law, vigilance and investigations”  Thus while the Act  insists on having persons with administrative and other types of experience, it is definitely mute about their integrity antecedents.

However, what is legal need not necessarily be legitimate. The BJP’s objection that the Chief Vigilance Commissioner must be spotlessly clean has considerable merit. The legislation governing the structure and working of CVC owes its existence to the judgement delivered by the Supreme Court of India in December 1997 in the Havala case.  Besides directing that the Commission must be given a statutory cover, the Judgement also said that selection for the post of Central Vigilance Commissioner should be made by the Committee “from a panel of outstanding civil servants and others with impeccable integrity.” The CVC Act conveniently omitted the category of “others” and confined the selection to a panel of civil servants or office bearers of public sector undertakings of the central government.   The Act did not even insist on having officers who were “outstanding” or have “impeccable integrity.”  Being a central government employee with certain experience alone was enough.

However, the CVC Act was passed by the Parliament in 2003 when the BJP was ruling at the centre.  That was the time when the BJP should have ensured inclusion in the legislative enactment of “impeccable integrity” clause and widening of the circle from which recruitment could be made to this post.

Another objection to this appointment has been raised by referring to P.J.Thomas’s decision as Secretary, Telecom to obtain views of the Ministry of Law whether the CAG or CVC could question the policy decisions of the government. Here again, law, with its inadequacies and shortcomings, comes to the rescue of the government.  Section 8(1) (h) of the CVC Act  requires the CVC to “exercise superintendence over the vigilance administration,” but with a proviso, which says that “nothing contained in this clause shall be deemed to authorise the Commission to exercise superintendence over the vigilance administration in a manner not consistent with the directions relating to vigilance matters issued by the Government and to confer power upon the Commission to issue directions relating to any policy matters.” There is no cut and dried definition of what constitutes a policy matter and the Act made no attempt to describe it.  Prior to the enactment of the CVC Act, the CVC’s working was governed by The Resolution of the Government of India No. 24/7/64-AVD dated February 11, 1964 with which it was set up on the recommendations of the Santhanam Committee on Corruption.  The Resolution had no such clause. It required the Commission to “exercise general check and supervision over vigilance and anti-corruption work,” but simultaneously authorised it to “initiate at such intervals as it considers suitable review of procedures and practices of administration in so far as they relate to maintenance of integrity in administration.”  These powers were diluted through law passed in 2003 to govern the working of the Central Vigilance Commission.

The need of the UPA government to have its own man as Central Vigilance Commissioner has probably been guided by another consideration, which has not received adequate notice.  The present Director CBI is retiring very shortly.  The Central Vigilance Commissioner is the chairperson of the committee which selects the officer for the post of Director CBI.

The CVC Act, 2003 is not only inadequate and deficient but also mischievous in many ways.  This is the law which legalised a set of executive instructions known as the Single Directive, which were held by the apex Court in the Havala case judgement as contrary to law.  It also introduced a system of dual control over the CBI.  The Act did all it could to dilute the judgement of the highest Court in one of the most important criminal cases decided by it since Independence and to weaken the two important offices meant to check corruption in the country - the CVC and the CBI.

FEDERAL SYSTEM OF POLICING IN INDIA

The Federal Police System in India

1. Introduction

1.1 Political Profile

India, with an area of 32, 87,782 sq kms. and a population of about 1.15 billion, is a sovereign, secular, democratic republic, following a parliamentary system of governance. 

The Indian parliament is a bicameral legislature consisting of lower house (the Lok Sabha or House of the People) and an upper house (the Rajya Sabha or Council of States). State legislatures are mostly unicameral with a legislative assembly (Vidhan Sabha ) composed of members elected for five-year terms.

The polity is federal in structure.  India is a union of 28 states and seven union territories,[1] including the National Capital Territory of Delhi. 

The government at the centre consists of a council of ministers headed by the Prime Minister, who are collectively responsible to the Lok Sabha ( House of the People in the Parliament).  In states, the council of ministers headed by the Chief Minister are responsible to the Vidhan Sabha of the state. 

Direct elections are held on the basis of adult franchise to elect members both to the Lok Sabha as well as Vidhan Sabhas.  The political party winning the majority of seats forms the government.

1.2 Legislatures

Powers, functions and responsibilities of the union and states are demarcated in the Constitution of India.  The Constitution distributes the legislative powers between the Parliament and the State Legislatures.[2]  It prescribes three lists of subjects, which are spelt out in the Seventh Schedule of the Constitution.

List I is the Union List that enumerates the subjects in respect of which only the Parliament has the sole power to make laws. List II is the State List that specifies the subjects in respect of which the state legislature has the exclusive power to make laws.  List III is the Concurrent List that documents subjects on which both the Parliament as well as the State Legislatures enjoy concurrent powers to make laws.

The Parliament has the power to make laws for the whole or any part of the country, while the State legislature can make laws for the whole or any part of the state only[3]. 

The Parliament is also empowered to make any law with respect to any subject not enumerated in the State or Concurrent List[4]. 

If any provision of a law passed by the State legislature is repugnant to any provision of a law made by the Parliament, the latter prevails[5].

The parliament has the power to legislate in respect of any matter in the State List if a Proclamation of Emergency is in operation[6].

Even when the Proclamation of Emergency is not in operation, the Parliament can legislate with respect to a matter in the State List provided the Upper House of the Parliament has passed a resolution supported by two thirds of the members present and voting that it is in the national interest to do so[7]

1.3 Courts

The Supreme Court is at the apex of the judicial system. It has three fold jurisdiction- original[8], appellate[9] and advisory.[10]  Any law declared by the Supreme Court is binding on all courts within the country.[11]

 Below the apex court are the High Courts at state level, followed by subordinate courts in the districts.  High Courts exercise superintendence over all courts and tribunals in their jurisdiction.[12] The Constitution empowers the High Courts to issue directions, orders or writs for the enforcement of fundamental rights of citizens or for any other purpose.[13]

The Criminal Procedure Code, 1973 establishes the following four classes of criminal courts:[14]      

1. Courts of Session
2. Judicial Magistrates of the First Class and, in any metropolitan area,[15] Metropolitan Magistrates.
3. Judicial Magistrates of the Second Class and
4. Executive Magistrates

The courts of session exercise both original and appellate jurisdiction.  Major offences like murder, dacoity, rape, robbery etc cannot be tried in a court below the sessions.

One of the Directive Principles of State Policy laid down in the Constitution required the State to take steps to separate the judiciary from the executive.[16]  This was done by revising the Criminal Procedure Code in 1973.

1.4 Criminal Law

Criminal law and Procedure are subjects in the Concurrent list.

There are three major central criminal laws of relevance and importance to the state police forces in their day to day work.  One is the Indian Penal Code, 1860, which describes different types of crimes and prescribes punishment for them.  It has 511 Sections of which 330 prescribe punishments.

In addition, the police enforce numerous special and local laws enacted from time to time by the central as well as state governments to deal with emerging socio economic crimes and to protect the weaker sections of society.

The other two main laws are the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872.  The Criminal Procedure Code prescribes the procedure to be followed in a criminal case right from the registration of complaint to investigation and final trial.  The state police forces derive their powers of policing mainly from this law.  It also prescribes the boundaries within which the police have to operate while exercising their powers of arrest, search, seizure, examination of witnesses etc. 

The Indian Evidence Act prescribes principles and procedures for tendering evidence in courts of law, spelling out rules governing the admissibility of evidence in judicial proceedings.

The police are not required to take cognizance of all penal offences.  Criminal law makes a distinction between two categories of offences- cognizable and non cognizable.[17]  The police cannot investigate a non cognizable offence without the permission of the magistrate or arrest anyone in such an offence without warrant.

2. The Police System

2.1 Constitutional Provisions

‘Police’ and ‘Public Order’ figure in the State list of the Seventh Schedule. 

However there are certain provisions in the Constitution that empower the central government to establish police organisations and to intervene in certain situations having a bearing on the maintenance of public order in states.

 The Union List authorises the Parliament to make laws, inter alia, regarding the following subjects:

·         “Deployment of any armed force[18] of the union… in any state in aid of the civil power…” and “powers, jurisdiction, privileges and liabilities of members of such forces while on such deployment”[19]

·         “Central Bureau of Intelligence and Investigation”[20]

·         Union agencies and institutions for (a) professional training, including the training of police officers; or (b) promotion of research; or (c) scientific or technical assistance in the investigation or detection of crime.[21]

·         All India Services[22]

In addition, there are certain provisions in the Constitution regarding the administrative relations between the Union and the States.  The Constitution makes it mandatory for every state to exercise its executive authority so as to ensure compliance with laws made by the Parliament and for this purpose the central government has the authority to issue directions to the states it considers necessary.[23]  It is also the responsibility of every state to exercise its executive power so as “not to impede or prejudice the exercise of the executive power of the Union” and for this purpose too the central government is empowered to issue necessary directions to the state.[24]

There are certain “Emergency Provisions” in the Constitution.  According to one of these, it is the “duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution.”[25]  If there is a breakdown of the constitutional machinery in any state, the central government can take over all functions of the state government.[26]

2.2 Unity in Diversity

It is against this backdrop of constitutional provisions regarding centre state relations that the structure of the federal police system and its functioning need to be examined.

Each of the 28 states and 7 union territories has its own police force. Each state legislature has exclusive power to make laws relating to the police force and its functioning.  Since the executive power of the state extends to subjects in the State List,[27] it is the responsibility of the state governments to establish and maintain police forces and exercise superintendence over them.  Rules and regulations governing the state police forces are framed by the state governments and contained in their  Police manuals.

 Despite the existence of numerous state police forces and their manuals, there is considerable uniformity in their structure and functioning. This element of commonality is brought about by many factors.[28]  First, the structure and working of the State Police Forces are governed by the Police Act of 1861 which is applicable to most parts of the country or by the State Police Acts modeled mostly on the 1861 legislation. Second,  major criminal laws, like the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act are uniformly applicable to almost all parts of the country.  Third, there is in existence an All India Service i.e. the Indian Police Service, which is recruited, trained and managed by the Central Government and which provides the bulk of senior officers to the State Police Forces.  Last, but not the least important, is the quasi federal character of the Indian polity, with specific provisions in the Constitution, implying a coordinating and counseling role for the Centre in police matters and even authorising it to set up certain central police organisations.

2.3 State Police Forces

2.3.1 Organisational Structure

Superintendence over the police force is exercised by the state government.[29]  The word “Superintendence” has not been defined in the Police Act or in any other law.  This results in giving unlimited discretionary powers to those who exercise superintendence.  There is considerable evidence to show that superintending powers are not always exercised by the state governments judiciously. 

The head of the state police force is an officer of the rank of Director General of Police, who is responsible to the state government for the administration of the force and for advising the government on police and public order matters. He is assisted by senior  officers in charge of different departments, like Police Training, Crime Investigation Department, Police Telecommunications, Human Resources, Human Rights, Armed Police, Vigilance & Anti- corruption, Intelligence/ Security, Railway Police, Civil Defence/ Home Guards, Traffic Police, Police Housing,  etc.  There may be minor variations in the headquarters establishment of different state police forces, but generally each of the departments is headed by an officer of the rank of Additional Director General or Inspector General of Police and in some cases even by a Director General of Police.

For administrative purposes, states are divided into districts.  There are presently about 672 police districts in the country.[30] The police force in the district is headed by an officer of the rank of  Superintendent of Police, subject to the “general control and direction” of the District Magistrate[31].  The phrase “general control and direction” has also not been defined in any law.

A few districts form a police range, which is headed by an officer of the rank of Deputy Inspector General of Police.  Two or three police ranges generally form  a zone, which is under the charge of an officer of the rank of Inspector General of Police.

A district is divided into sub-divisions.  The sub-division is under the charge of an officer of the rank of Assistant or Deputy Superintendent of Police.  The sub-division, depending on its area, population and volume of crime, has a number of police stations in its jurisdiction.

The police station is generally in charge of an officer of the rank of Inspector of Police.  The police station is the basic unit of police administration in a district.  Under the Criminal Procedure Code, all crime has to be recorded at the police station and all preventive, investigative and law and order work is done from there.

The number of police stations in the country on 1.1.2008 was 13,057, of which 8,290 were rural, 4,328 urban and 439 Railway Police Stations.[32]

The rank structure of the state police force is as follows:

Director General of Police (DGP).

Additional Director General of Police (Addl. DGP)

Inspector General of Police (IGP)

Deputy Inspector General of Police (Dy.IGP)

Senior Superintendent of Police (SSP)

Superintendent of Police (SP)

Additional Superintendent of Police (Addl.SP)

Assistant/ Deputy Superintendent of Police (ASP/ Dy. SP)

Inspector of Police

Sub- Inspector of Police (SI)

Assistant Sub- Inspector of Police (ASI)

Head Constable of Police (HC)

Constable of Police

Every state police force has two major components- the civil and armed police.  The armed police are used as a striking reserve to deal with emergent law and order situations. The remaining part of the state police force is the civil police, which   includes district police forces, supervisory structures at the range, zone and state police headquarters and specialized branches to deal with crime, intelligence, training, vigilance etc. The district police force also includes armed reserves, used mainly to meet the district police requirements of armed guards and escorts. They are a part of the district police strength and not of the state armed police.

The state armed police is formed by battalions and their rank structure is different from that of civil police. On1.1. 2008, there were 377[33] battalions in states and union territories.

2.3.2 Police Strength 

The total sanctioned strength of the police forces in states and union territories on 1.1.2008 was 17.46 lakhs,[34] of which civil police accounted for 13.34 lakhs and armed police for 4.12 lakhs[35]. The actual strength was much less, as there were as many as 2.67 lakh vacancies in the police forces on that date.

On the basis of total actual strength of police forces in states/union territories, the police population ratio (number of police personnel available per one hundred thousand of population) worked out to 129.65 and police area ratio (number of police personnel available per 100 sq. kms) to 46.71 on 1.1 2008[36].  The police population and police area ratios were much less if worked out on the basis of actual strength of civil police.[37] The civil police population and area ratios were only 100.49 and 36.20 respectively.

The police is a hierarchical organization. The constabulary (Constables & Head Constables) accounts for about 86.39% of the total police strength. Inspectors, Sub-Inspectors and Assistant Sub-Inspectors constitute about 12.69% and the officers i.e Deputy Superintendents /Assistant Superintendents of Police to Directors General of Police account for 0.92% of the police strength.[38] It is thus a very small group of officers, who decide the policies of the organisation, issue instructions to be followed by the rest of the force and supervise the work of the subordinates. This has implications for the working of the federal system as this less than 1 % strength consists mostly of officers belonging to the Indian Police Service, which is an All India Service.

2.4 Central Police Organisations

Just as the state police forces have two main components- the civil and the armed police, the central police organizations (CPOs) can also be divided into two parts.  One category consists of para-military and the other of non para-military or civil police organizations.

2.4.1 Central Para Military Forces (CPMFs)

Numerous para military organizations have been established by the central government from to time to deal with emergencies.  The first post Independence specialized para military force was the Indo Tibetan Border Police (ITBP), raised in the wake of Chinese aggression in 1962.  Its main role was to provide protection to Intelligence Bureau’s posts, secure Indo Tibetan border and check border crimes.  The Chinese aggression led to the creation of another force in 1963, the Special Service Bureau (SSB), which is now known as Seema Shastra Bal.  Its present role is to ensure the security of the country’s borders and promote a sense of safety among the people living in the border areas by preventing trans- border crimes.   

Then came the BSF following the Indo Pak war in 1965, with more or less similar role as that of ITBP, but confined to border with Pakistan. Promoting a sense of security among the border population and preventing border crimes, including unauthorised infiltration across the international border, constituted its main charter

With the growth of public sector undertakings in the country, the government set up a Central Industrial Security Force in 1969 mainly to look after the security of industrial undertakings in the public sector.

Another federal contingency force called the National Security Guard was set up in 1984  to handle anti hijack and rescue operations and to support other organisations in dealing with anti terrorist activities. It was this force which was deployed to deal with terrorists during the Mumbai attack.  Learning from the Mumbai experience, the central government has set up four new NSG hubs in different parts of the country so that they could be deployed in emergencies without waste of time.

Prior to Independence, only two central para military forces existed- the Assam Rifles (AR) and the Crown Reserve Police Force (CRPF). The Assam Rifles was raised by the British in 1835 to guard British settlements and tea estates in the north east. Now this Force is used mainly to deal with law & order disturbances in the north eastern region of the country.

The other pre Independence force raised in 1939 was brought under a new central Act in 1949 and renamed as Central Reserve Police Force.  This is the largest and one of the most prominent central para military forces, whose main role is to help the states/union territories in maintaining law and order.

All these central para military forces have seen huge and rapid expansion during the last few decades.  The total combined strength of central para military forces had reached a staggeringly large figure of 8,20,902 on 01.01. 2008[39].  They thus constituted slightly less than 50% of the total strength of the state police forces, which were 17.46 lakhs strong at the beginning of the year 2008.  If the strength of the armed component of the state police forces, which was 4.12 lakhs on 1.1 2008, is added to the  strength of the central para military forces, the total combined strength of the armed police in the country was more than 1.2 million in January, 2008

This huge expansion, which is still continuing, has been necessitated by an increasing deployment of central para-military forces on law and order duties.  The Central Government has been playing a wide and active role in maintaining law and order in different parts of the country, something that was not envisaged by the Constitution of India for them, except in emergencies.  Law enforcement is a civil function and it is the responsibility of the state governments to discharge this function effectively through their own police forces.

Unfortunately, most state governments have failed to do so.  They have neglected the development of their police forces and have instead preferred to depend heavily on the central para-military assistance to meet urgent and emergent law and order needs.  This heavy dependence on the central assistance has been the result as well as one of the causes of comparatively poor development of some state police forces.  The state governments  requisition the central assistance on the ground that their own police forces lack adequate strength, arms, equipment and training to deal with tough situations effectively. The availability of central assistance in turn holds them back from attending to the needs of  modernising their police forces.  Consequently, many state police forces are still in bad shape because there is no political will to make them professionally efficient. 

 2.4.2 Other Central Police Organisations

The centre has established many non para military organizations too.  These are the Central Bureau of Investigation (CBI), Intelligence Bureau (I B), Bureau of Police Research & Development(B P R&D), National Crime Records Bureau (N C R B), National Institute of Crime & Forensic Science (N I C F S), Directorate of Coordination of Police Wireless (D C P W) and National Police Academy (NPA). 

The CBI is the premier investigating agency at the disposal of the central government.  The IB, as the name implies, is an intelligence organization.  Its main task is to collect and disseminate intelligence about subversive and other activities of people and organizations that threaten the internal security of the country and its institutions. The BPR&D was set up in 1970 to undertake a systematic study of police problems and to promote rapid application of science and technology to police work. The NCRB is responsible mainly for collecting, storing, analysing and disseminating information on crime and criminals and to develop computer based systems for police organisations.  The NICFS is meant mainly to do research and training work in the field of criminology and forensic science.  The DCPW is responsible for coordination and development of police telecommunication systems in the country.  The NPA is the premier central police training institution in the country.  It trains the officers of the Indian Police Service.

2.5 Expenditure on Police

Fairly sizeable sum of money is being spent on the Police ever year. The state governments spent  Rs 26269.09 crores[40] on their police forces in 2007-08, while the central government spent Rs 12817.06 crores[41] on its para military organiations. Thus even if the central expenditure on its other police organisations like IB, CBI, BPR&D, NCRB, NICFS and DCPW is not taken into account, the total expenditure on the Police in the country was   more than Rs 39806.15 crores in 2007-08, not a small sum by any means.

The central government’s expenditure on its para military forces has been increasing by leaps and bounds.  From Rs 6077.33 crores in 2000-01, it had gone up to Rs Rs. 18027.26 crores in 2008-09[42] 

3 Federal Policing- Some Important Issues and Schemes

3.1 The Central Bureau of Investigation

There are two important central police organizations, which must figure prominently in any discussion on centre state relations in policing in this country.  One of them is the CBI, which has been in existence in its present form since 1963 and the other is the National Investigating Agency established in 2008 in the aftermath of the terrorist incidents that occurred in Mumbai in November that year.

The CBI owes its origin to an organisation called the Special Police Establishment set up by the British Government in 1941 to deal with corruption involving war time purchases and supplies. In 1946, they enacted the Delhi Special Police Establishment Act to give the organisation a statutory cover. This organisation provided the nucleus on which the CBI was built up.  It was established on 1.4.1963, mainly as an anti corruption agency, but its role over a period of time has extended beyond its original charter to include investigation of major crimes entrusted to it. 

Though the CBI is more than 47 years old now, till date no law has been enacted to govern its functioning.  It is still being governed by that outdated Act of Second World War vintage, the Delhi Police Establishment Act of 1946, some provisions of which were amended by the Central Vigilance Commission Act, 2003.  The Act vests the superintendence of the organisation in respect of its work relating to investigation of cases under the Prevention of Corruption Act, 1988 in the Central Vigilance Commission.  The superintendence of the organisation in all other matters vests in the Central Government.[43] 

The Act also makes it clear that the organisation cannot “exercise powers and jurisdiction in any area in a state…. without the consent of the Government of that State”.[44] The CBI thus does not have any original jurisdiction to do crime investigation  work in a state. If the state government does not invite the CBI, the only way it can do work there is when the Supreme or some High Court asks it to do so. The apex court in a recent judgment ruled that the constitutional courts in the country (i.e the Supreme Court and High Courts) have the power to order a CBI probe without  State’s consent into crimes committed within the state’s territory.  These courts get this power by virtue of their obligation and duty under the Constitution to protect citizens’ fundamental rights. According to the judgment, “ordering a CBI probe without the State’s consent will neither impinge on the federal structure nor violate the doctrine of separation of power and shall be valid in law.[45]”

The CBI as the leading investigating agency in the country is very often in the news, sometimes for the right and at other times for wrong reasons.  Over a period of time, being a specialised agency doing only crime investigation work, unlike state police forces which are required to perform multifarious tasks, it has acquired skill in investigating major crimes.  Another reason for CBI’s prominence in the field of crime investigation is that despite the Police being a state subject, the public do not have faith in their own local police forces, particularly when it comes to inquiring into cases involving rich and influential people.  There is invariably a demand for such cases to be handed over to the CBI.

However, the unpalatable part of CBI’s performance emerges when it has to deal with crimes committed by ruling party politicians or those who are close to them.  There have been many cases where the CBI has shown either reluctance to take up cases against ruling party politicians, or when forced to do so, adopted dilatory tactics.   In what is popularly known as the Havala case,[46] the Supreme Court pulled up the CBI for showing “inertia” to investigate offences involving such persons.   The political parties in opposition at the centre and in states have often made allegations that the CBI is used by the party in power to harass and intimidate political opponents and to favour those who are the ruling party members or supporters. There is evidence to support such allegations. The CBI’s misfortune is that it is a police organisation.  Like all police forces in the country, it has been open and amenable to undesirable illegitimate influences from its political masters at the centre.

3.2 National Investigating Agency (NIA)

The need for a central police agency to investigate certain types of crimes committed in states has often been debated.  This need has been felt forcefully in recent times due to increase in terrorist violence in the country.  After the 26/11 terror attack on Mumbai, amongst the many steps taken by the Government of India to upgrade the security set up, the most important was the establishment of a National Investigation Agency in 2008.

The idea of setting up such an agency was not new. Way back in 2001, the then ruling government at the centre had prepared a proposal to establish a Central Law Enforcement Agency to investigate certain crimes having interstate or international ramifications, like terrorist incidents, arms and drug trafficking, hijacking, money laundering, counterfeiting of currency, espionage and crimes targeting national infrastructure. The proposal fell through because some of the state chief ministers were not willing to accept it. They felt it was an unwarranted and avoidable intrusion into their jurisdiction.

The Mumbai incidents led to the revival of the demand to treat certain types of crime as a national problem and controlling them as a federal responsibility. The rationale for the demand is convincing. Criminals now a days often cross interstate as well as international boundaries, using highly sophisticated methods, equipment and tactics to commit such crimes. The state police forces’ capability to prevent, investigate and deal with such crimes or to apprehend such criminals is limited by their reach, training and resources. The record of the state police forces in dealing with even ordinary crimes and law and order disturbances has been ordinary, if not poor. They cannot be expected to either prevent major incidents of terrorist crimes or investigate them successfully. Terror requires fighting on many fronts and a well-established national agency can coordinate the preventive and investigative efforts with other departments much more speedily and efficiently than the state police forces can do on their own.

There was considerable public debate about the Parliament’s competence to enact the National Investigating Agency Act, 2008. Many arguments were given to support the competence. According to one view, offences aimed at destabilising the country cannot be construed as falling within “Public Order.” Terrorist activities blur the line of distinction between external aggression and internal disturbance. Measures taken to curb such activities are covered in terms of Entry 1 of the Union List of the Seventh Schedule of the Constitution, which is about the “Defense of India”. The other contention was that residuary powers conferred by Article 248 read with Entry 97[47] of the Union List of the Constitution authorise the Parliament to legislate on the subject. In addition, Entry 8 of the Union List covers “Central Bureau of Intelligence and Investigation.”

The charter of the NIA is narrow and limited. It has been established only to investigate and prosecute the scheduled offences.[48] The Commission on Centre State Relations has recommended the enlargement of its charter to include “ all crimes related to terrorism, such as terrorism, production and distribution of Fake Currency Notes (FCNs), espionage, smuggling of arms and ammunition money laundering, drug trafficking, organized crime, hijacking and assassination/assassination attempts on the life of iconic figures/ political leadership, cyber crimes, crime related to acquisition of radio-active and poisonous substances, bio-terrorism, Narco-terrorism, i.e. drug trafficking money used for organizing terrorist operations, etc.”[49]

The Act vests the superintendence of the Agency in the central government[50]. The word ‘Superintendence’ has not been defined. There is no provision in the legislation to ensure the Agency will be autonomous in its functioning and not be misused. The record of the other central agency i.e. the CBI does not inspire confidence.

The Act requires the state government to inform the central government about the commission of a scheduled offence[51]. It is for the central government to decide, firstly, whether it is a scheduled offence and, secondly, whether it is a fit case to be taken up for investigation by the Agency[52]. The Act debars the state government to proceed with the investigation once the Agency has been asked to do so.[53] Since the Centre has been given the overriding discretion to pick and chose what cases to investigate and prosecute, it creates an unwholesome concentration of power at the central level.

As per the Statement of Objects and Reasons of the Act, the National Investigating Agency is being established in a “concurrent jurisdiction framework.”  However, investigation, as defined in Section 2 (h) of the Criminal Procedure Code, is mainly police work and ‘Police’ is an item confined to the State List in the Constitution. That is why Section 6 of the Delhi Special Police Act that governs the functioning of the CBI prohibits its jurisdiction in a state without the consent of that government.

An Agency of this type cannot function effectively without full support and cooperation of the state governments. Whether this Agency will get cooperation from the states ruled by opposition parties is yet to be settled.

3.3 Power to Declare an area as Disturbed

Any discussion on the federal system in policing in this country would remain incomplete without reference to a somewhat unpopular law called the Armed Forces Special Powers Act, 1958 (AFSPA).  This law authorises the Governor of a State or the Central Government to declare the whole or any part of the state to be a disturbed area if in either’s opinion it is in such a disturbed or dangerous condition as to make it necessary to use the armed forces in aid of civil power.[54]  This law gives special powers to the commissioned as well as non commissioned officers of the armed forces to deal with the disturbed situation, like using force even to cause death;  arresting people without warrant; destroying shelters, camps, structures, arms dumps etc and entering and searching premises without warrant.[55] The Act provides protection to armed forces’ personnel working under the Act, as no prosecution can be launched against them without sanction from the central government.  However, the state police force working in the same area as the armed forces of the Union do not get the powers and protection that AFSPA provides to the central forces.

Neither this nor any other law defines what constitutes ‘disturbed or dangerous condition.’ It is thus left to the discretion of the central authorities to decide that the law and order situation in an area in a state has become disturbed or dangerous enough to call for the deployment of the army.  The Act was originally intended to be a short term measure, it has remained in force for decades in some north eastern states, like Manipur.  Despite tremendous public agitation in that state against this law, the central government has declined to repeal it, even though there is considerable evidence that it has led to gross violations of human rights in that area.  Unfortunately, the Supreme Court in a much maligned judgment[56] upheld the constitutional validity of this law. The Union Government has justified the promulgation and continuation of this law in terms of its responsibility to protect a state against internal disturbance.

3.4 Deployment of CPMFs

From the federal policing point of view, the main issue that has often been discussed in this country is whether the central government can deploy CPMFs in a state suo motu or this can be done only at the request, or with the consent, of the state government. There have been arguments and counter arguments from both sides.

The view that the central government can deploy its armed forces suo motu is based on the provision in the Constitution that makes it the duty of the Union to protect States against internal disturbance (Article 355).  In addition, Entry 2 (A) [57] in the Union List authorises deployment of the armed forces of the Union, including the central para military forces, in any state in aid of the civil power.  According to the two Commissions on Centre-State Relations set up by the Central Government, the first (1983-88) under Justice R.S. Sarkaria and the second (2007-10) under Justice M M Punchhi, these two provisions clearly empower the Centre to deploy suo motu C P M Fs in states, when needed. It is not necessary to wait for state Governments’ requisition. If the consent of state governments were to be a precondition, the centre would not be able to discharge its responsibility effectively.

The state governments, which have challenged this contention argue that the phrase ‘in aid of civil power’ connotes that such deployment can be done only at the request of the state government or with its concurrence. Aid is asked for and not forced on the recipient. The Sarkaria Commission on Centre State Relations, however, felt that this phrase signifies that the “deployment is in aid of the instrumentalities of the State charged with the maintenance of public order.  It does not necessarily imply that such deployment should take place only at the request of the State Government.” [58]

Even law makes it the responsibility of the state authorities to control law and order disturbances in their area and for this purpose requisition the assistance of the armed forces in aid of the civil power. It first requires such authorities to disperse an unlawful assembly by the use of civil force.[59] If this proves ineffective, they can requisition the assistance of the Armed Forces.[60]  Law makes it mandatory for the officer in charge of the armed force to obey the requisition, but leaves it to the officer to do so “in such manner as he thinks fit.[61]”  The only condition to be kept in view is that the use of force must be minimum to achieve the objective.

However, the law and order situations envisaged in the Cr P C cannot be equated to those which are being faced in the country on the internal security front due to terrorist or extremist violence and it is to deal with such situations that the Constitution requires the centre to intervene.   As long as it remains an ordinary  law and order disturbance, it should remain the state government’s responsibility to control it; but once it threatens internal security, the centre must intervene.  Thus both the states’ and centre’s power and responsibility can coexist.

Even if the CPMFs can be deployed without state government’s consent or willingness, it is an accepted fact that internal security operations can succeed only through concerted and coordinated action on the part of both the central and state police forces.  This has been borne out by experience of failure encountered by CPMFs on some occasions in dealing with extremist violence on their own in states like Chattisgarh, Jharkhand and West Bengal.  It is the state police personnel who have the  knowledge of  local people, area and culture, which is absolutely essential for the success of internal security operations.  That is why the Commission on Centre State Relations, while referring to the Centre’s power to deploy para military forces in states, observed: “Although the legality and the constitutionality of such an action is already established, the Union Government will do well to ensure the functional viability of the action which will be in every one’s interest[62]”  The Commission, therefore,   expressed the view that “‘Cooperative Federalism’ holds the key for healthy Centre-State relationship in our country. Such situations handled correctly keeping the sensitivities of the State Governments in mind can become the lasting ground for a harmonious relationship[63]”.

3.5Modernisation Scheme

A very important initiative to build up and upgrade the capacity of the state police forces was taken by the central government in 1969-70 when it introduced a scheme for modernization of state police forces.  Through this scheme the central government decided to extend financial assistance to the state governments for purchase of data processing machines, equipment for crime investigation, forensic science laboratories, wireless, communication and training institutions and vehicles for improved mobility

The original pattern under the scheme involved central assistance in the form of 25% grant and 25% loan and the remaining 50% was to be the state contribution.  When the National Police Commission examined the working of the Scheme in January 1980, they found that the state governments were not making adequate matching contribution.  They emphasised the need “for a greater involvement of the resources of the State Governments in modernizing their police forces.”[64]  During the first phase of the Scheme, which lasted for 30 years i.e. from 1969 to 1999, the central government had released a total amount of only Rs. 465 crores,[65]which proved completely inadequate to meet the requirements of the state police forces.

           

The Scheme was revised in 2000 and later reviewed from time to time. In 2001, the annual allocation under the Scheme was enhanced significantly to Rs 1000.00.  From 2000-01 to 2008-09, the central government released an amount of Rs.8856.56 crores to the state governments for the modernisation of their police forces under this scheme.[66]  The pattern of assistance was revised many times.  With increase in terrorist and Left Wing extremist activities, the government divided states into two categories- ‘A’ & ‘B’.  The former category included eight states (Jammu & Kashmir and all seven states in the north east ) which are facing very high incidence of terrorist or extremist violence.  These  were entitled to 100% assistance and the remaining 20 states were put in category ‘B’ to be given 75% funding.

The Scheme presently gives assistance for the following purposes:

Construction of police buildings.

Purchase of vehicles.

Purchase of arms & ammunition.

Purchase of equipment

Enhancement of infrastructure facilities for police training.

Computerisation

Purchasing forensic science equipment and developing  infrastructural facilities for forensic science laboratories.

The Scheme has helped in providing better equipment and weaponry to state police forces and in improving their transport and communication facilities.  However, the requirements are so huge that despite bigger central allocation of money, the state police forces have still a long way to go on the road to modernisation. The Scheme has yet to achieve adequately either of its two main objectives– meet the identified deficiencies of the state police forces and to reduce the dependence of  the state governments on the army and the central police organisations in dealing with major law and order challenges.

3.6 India Reserve Battalions (IRBs)

To strengthen the capabilities of states to deal with law and order disturbances and to reduce their dependence on the central armed police forces, the Government of India launched an innovative scheme in the early seventies of raising what are known as the India Reserve Battalions.  The scheme provided for central assistance to be given to states for raising armed police battalions.

Presently, 75% of the standard raising cost of a battalion up to a ceiling of Rs. 17crores and additional assistance to meet infrastructural and capital costs up to Rs. 15 crores is provided to the state government raising such a battalion.  The expenditure incurred after the battalion has been raised is to be met by the concerned state government.

Since the battalion is a part of India reserve, in case of requirements elsewhere, it can be deployed outside the state that has raised it.  In such a case, the recurring expenditure is to be borne by the borrowing state government.

So far, 105 out of 145 sanctioned India Reserve Battalions have been raised.[67]

3.7 Amendment of All India Service Rules

There are three All India Services- the Indian Administrative Service, Indian Police Service and Indian Forest Service.

In the month of January this year, the central government, in a move aimed at protecting civil servants from being victimised by the state governments’ arbitrary use of powers, amended the All India Services (Discipline And Appeal) Rules.  The Amendment withdrew powers of state governments to suspend the heads of these three services in states- Chief Secretary, Director General of Police and Chief Conservator of Forests.  This power was earlier available with state governments; now they are required to refer all such cases to the central government. Through this Amendment, the centre has also prescribed a time frame within which departmental proceedings against these officers will have to be completed, failing which their suspension will automatically be revoked. If a state government is unable to complete the departmental inquiry within the stipulated time, it will have to approach a high-level review committee set up by the Centre and  extension of suspension will depend only on the recommendation of the central review committee.

4 Police Accountability

4.1 Police System- A Colonial legacy

The police as an organised institution in this country was established by the British with the Police Act of 1861. In the system established by them through this Act, the police remained unaccountable to anyone except their own hierarchy and the political and administrative executive.  The need to make the police accountable to the community or other institutions did not figure in the regime policing model of control established through this Act.

The advent of Independence changed the political system, but the police system more or less remained unaltered.  It was a ruler appointed police, considerably distant from the community and it continued to remain so.  No attempt was made by the government to introduce reforms and to change the system inherited from the colonial days. A highly feudal and colonial system of policing, without any community involvement, support and oversight, continued to function in an environment, which became increasingly democratic

 For a few decades after Independence, the police system did not cause much unease, partly due to euphoria of freedom and partly due to the fact that the standards of leadership in the country, both at political and police levels, were much better than what they later became.  Later, politics became increasingly contentious and criminalized. This led to a perceptible decline in the quality of control exercised over the police and increasing misuse of the police organisation by people in positions of power for partisan interests. This had its inevitable fall out on the standards of police leadership and discipline of the force. The instances of police personnel committing infractions of law continued to multiply.

4.2 Police Deviance        

There is ample evidence of increasing police deviance in India.  The newspapers everyday report incidents of brutality, extortion and other crimes committed by police personnel in different parts of the country.   The annual reports of the National Human Rights Commission (NHRC) contain details of public complaints against police personnel received by them.  NHRC data shows that they received 370,000 complaints against police forces in the last 10 years relating to human rights abuses[68]. Complaints against police included arbitrary use of power, abduction, rape, custodial violence and death, fake encounters, unlawful detention etc. The majority of complaints received by the NHRC are against police personnel.

Even official statistics indicate that the number of public complaints received by the police departments against their employees is very high.   The Crime in India, an annual publication of National Crime Records Bureau (NCRB), Ministry of Home Affairs, Government of India shows that during the 5 year period (2004-08), as many as 2, 76,148 complaints against police were received from the public, out of which 48,939 were for the year 2008 alone.  About 36 % of the 2008 complaints i.e 17,518 were inquired[69] into.   60.4% of these complaints were not substantiated.[70]

The Human Rights Watch, in a recent study, has documented human rights abuses[71] committed by police in India. It shows how the police fail to investigate crimes because they don’t register complaints, something that affects the poor and marginalised people more than the rich and influential citizens. Instead of acting professionally to carry out scientific investigations, they rely on threats, intimidation and coercions to extract confession and adopt short cuts. They arrest people on false charges and detain suspects and their family members illegally for prolonged periods, subject them to torture and ill treatment and indulge in fake encounter killings with impunity.

4.3 Internal Accountability Mechanisms               

The police in India are policed mainly by themselves.  The Police Act of 1861[72] authorises senior police officers of the rank of Superintendent of Police and above to dismiss, suspend or reduce the rank of any police officer of subordinate ranks[73] whom they think remiss or negligent in the discharge of his or her duties or unfit for the same.  They are also authorised to impose one or more of the minor punishments.

The rules divide punishments into ‘major’ and ‘minor’.  Though the rules differ from state to state, generally, dismissal, removal, reduction in rank or pay and forfeiture of service are regarded as ‘major punishments’. They cannot be imposed on any police officer without conducting a regular departmental inquiry.  To give major punishments to guilty police personnel is difficult and takes time because the procedure of conducting departmental inquiry is highly elaborate, cumbersome and time consuming.

Even in cases where the police department takes citizens’ complaints seriously and institute inquiries, the system lacks credibility. The public distrust the police and feel that the department is incapable of conducting inquiries into public complaints in a fair and effective manner.

The success of internal accountability mechanisms depends upon the effectiveness of police leadership.  Unfortunately, the authority of police leadership has gradually been eroded over a period of time, leading to loss of discipline in the force and promoting a tendency at different levels in the police to seek outside patronage for rewards and for being shielded against punishment.

4.4 External Mechanisms

4.4.1 Courts

The courts constitute one of the most important external mechanisms of ensuring police accountability.  A number of significant judgments have been passed by the higher courts, prescribing safeguards or guidelines to regulate police conduct during arrest, interrogation and other stages of investigation.  The courts have also passed orders regarding payment of compensation in cases of custodial violence. The courts have passed strictures in many cases where defective or inadequate police investigation or biased handling of communal and caste riots was noticed..

The citizens can, of course, take their complaints to the courts to seek redress. However, if the complaint is against a police officer or a public official and is in respect of acts done by him while he was acting or purporting to act in the discharge of his official duties, the court cannot take cognizance of the complaint without the sanction of the concerned government[74]. In addition, involvement in court cases is time consuming and costly, thus inhibiting the common man to approach the courts. The courts are clogged with huge arrears of cases under trial.

4.4.2 Human Rights Commissions

The other institution to which the citizens can go with their complaints is the National Human Rights Commission. The problem, however, is that an institution like this in a country of India’s size becomes too remote from the scene to be effective in many cases.  A large number of police atrocities are committed in small towns and villages of India, where people are not aware either of Commission’s existence or of its procedures. Many State Governments have yet to set up their own Commissions.     Even where these bodies have been established, all of them are not functioning viably.  In addition, the Protection of Human Rights Act, 1993, under which the National or State Human Rights Commissions have been set up, is known to be weak and inadequate in its present form.  Under the Protection of Human Rights Act, the Commission has no power to enforce its decisions.  .  It can only give advice, leaving it for the government to accept or reject it.  The Act does not authorise the Commission to enquire into complaints against members of the armed forces.

4.4.3Media

One of the most vigilant watchdogs over the police functioning in this country is the media.  The media in India enjoys a wide measure of freedom. It has enormous reach and power.

The media has shown interest in reporting on human rights violations committed by police personnel.   In some cases, it has shown missionary zeal in investigating abuses of power and exposing impunity enjoyed by people in positions of power.  It has succeeded in some recent cases to force the system to review and reconsider cases where injustice had been done.

However, the known incidents of police misconduct or abuse of power are far less than those that take place.  The media’s coverage is quite often inadequate and selective.  Political news, politicians and celebrities dominate the media coverage.  Bias and lack of sensitive appreciation of issues involved affect the quality of coverage, selection of subjects and contents. The tendency to sensationalise issues and events has often been noticed. 

4.4.4Vigilance Organisations

The three most prominent features of the ugly face of the policeman in this country are his corruption, brutality and partiality.  To deal with the problem of corruption, there are separate laws, like the Prevention of Corruption Act, 1988 and also vigilance organisations at the central and state levels.  Even if the police agencies like the Central Bureau of Investigation (CBI) and the specialized police units in the states are not taken into account, the vigilance set up is quite widespread.  In addition to the Central Vigilance Commission, there are about six hundred Chief Vigilance Officers working in different central establishments. So far as the State Governments are concerned, there are Anti-Corruption Bureaux, Lok Ayuktas and Vigilance Commissioners.

The most well known organisation at the central level is the Central Vigilance Commission (CVC).  It was established by the Government of India in 1964 to check corruption in the Government of India organisations. The CVC has made some laudable efforts to deal with corruption amongst senior officers, but in a politicised culture of impunity prevailing in government institutions, including the Police, it has not succeeded in making a big dent on the problem.  The Central Vigilance Commission’s website shows a large number of officers who were found guilty after inquiry or investigation but who remained unscathed because the government did not accord sanction to prosecute them.

4.4.5 Police Complaints Authorities

In an important landmark judgment delivered on September 26, 2006,[75] one of the seven directives issued by the Supreme Court was to order the establishment of Police Complaints Authorities (PCAs) at state and district levels with immediate effect. These Authorities are to be headed by retired judges.  The State Authority will be empowered to look into complaints of serious misconduct by the police, like death, grievous hurt or rape in police custody, while the district level committee will look into other complaints, like extortion, land/house grabbing and any other abuse of authority. The findings of inquiries conducted by the Authorities shall be binding.

In 2009, the Commonwealth Human Rights Initiative (CHRI), an international NGO working on police reform issues, did a national overview of compliance by the state governments in implementing this directive of the Supreme Court.  Their study revealed that since September 2006, only 13 states[76] had set up the complaints authorities. However, it is only in five states the police complaints authorities are functional. The CHRI concluded: “ No state government has established Police Complaints Authorities at both district and state level that fully comply with the Supreme Court’s orders…A significant majority of states- Andhra Pradesh, Jammu &  Kashmir, Karnataka, Madhya Pradesh, Mizoram, Punjab, Tamil Nadu, Uttar Pradesh and West Bengal have completely ignored this directive.”[77]

5 Police Reform- Initiatives and Resistance

5.1 Two Approaches

The need for police reforms in this country is self evident and urgent. What is questioned is not the need but the type of reforms that should be prioritised.

The subject of police reforms is vast and covers many issues and concerns.  The need can be interpreted in terms of (i) reforms that can take place within the existing system; and (ii) reforms that require structural and institutional changes in the existing set up. 

The list of issues covered under the first  heading itself is fairly long, covering areas like recruitment, training, service and living conditions, career planning, improving infrastructure, resource management, community policing etc.  The other approach is that police reforms will not be lasting and meaningful unless substantial changes are made, preferably statutorily by setting up new institutions, that make the police professional enough to function in accordance with the requirements of law rather than perform according to the wishes of people in positions of power and which hold the police accountable for the wrongs they do.

5.2 Initiatives

The governments’ initiatives for police reforms, invariably half hearted, have always been guided by the first rather than the second approach. It was mainly during the sixties and seventies that some state governments set up Police Commissions[78] to examine the problems and requirements of their police forces, but they never showed the will to accept the package of reform measures recommended by the expert bodies.  The state governments’ reluctance was seen particularly in accepting and implementing two types of recommendations- one that required major budgetary allocations and the other, which aimed at changing the organisational structure.

5.2.1 National Police Commission

Like state governments, the central government has also appointed commissions and committees[79] from time to time to examine police problems, without showing the determination to implement their recommendations.  The most important initiative in police reform in this country was taken when the Government of India set up the National Police Commission (NPC) in 1977.  This Commission was appointed by the new government, which had assumed office at the centre on winning the election held after the Emergency[80] was revoked. The police during the Emergency had committed atrocities on a wide scale and some victims were the members of political parties which formed the new government. It was the total misuse of the police during the Emergency by the government of the time that led to the appointment of the NPC by the new government.

The Commission had fairly wide terms of reference.  One of its most important terms of reference, and this is what distinguished it from other central or state initiatives, required it to recommend measures and institutional arrangements to prevent “misuse of powers by the police” and “misuse of the Police by administrative or executive instructions, political or other pressure, or oral orders of any type, which are contrary to law”.[81] For the first time, the government seemed to have felt “that employing the police to the advantage of any political party is a sure source of subverting the rule of law”.[82]  These two terms of reference indicated that while it was considered necessary to insulate the police from illegitimate control of politicians, they must simultaneously be made accountable for their performance and behaviour.  Unfortunately, it was the NPC’s examination of the theme of political control over the police and its observations and recommendations on the subject that became the main stumbling block to the acceptance and implementation of its major recommendations.

During the period between 1979 and 1981, the NPC produced eight reports.  Some

major recommendations centering around the problem of insulating the police from illegitimate political included: (i) setting up of a Security Commission in each state to see that the government exercises its superintendence over the police in an open manner within the framework of law; (ii) prescribing a selection procedure that would ensure the appointment of the best officers to head the state police forces; (iii) giving these officers a fixed minimum tenure so as to reduce their vulnerability; (iv) amending rules so that arbitrary transfers of police officers done without authority would become null and void; and (v) replacing the Police Act of 1861 with a new Police Act.

None of the above recommendations of the NPC was accepted. The central government, in fact, wrote[83] to the state governments, asking them not to take note of the Commission’s observations and recommendations on the subject of political control over the police as they lacked an “objective and rational approach” and revealed a “biased attitude.”  After such advice, it was not at all surprising that the state governments conveniently put the major recommendations of the NPC in cold storage and that is where they remained till a writ petition was filed by two retired Directors General of Police in the Supreme Court.  The Petition prayed for apex court’s  intervention to direct  the government to consider the NPC’s recommendations earnestly for implementation.   This writ petition[84] was admitted on July 30, 1996.

5.2.2 Supreme Court’s Judgment

The Supreme Court pronounced its judgement on September 22, 2006.  Through this historic judgement, the Court issued a package of seven directives to the central and state governments.  The package of reforms required the state governments to (i) establish  State Security Commissions to insulate the police from illegitimate outside pressures and influences; (ii) select and appoint the head of police force through a merit based transparent process and provide him a minimum secure tenure of two years; (iii) provide a minimum secure tenure of two years for officers on operational duties like Zonal Inspectors General of Police, Range Dy. Inspectors General of Police, District Superintendents of Police and Officers in charge of Police Stations; (iv) separate the investigation and law and order functions of the police; (v) set up a Police Establishment Board to decide transfers, postings, promotions and other service related matters of police officers of and below the rank of Deputy Superintendent of Police and (vi)  establish Police Complaints Authorities at the state and district levels. The seventh directive asked the central government to set up a National Security Commission (NSC) at the union level to prepare a panel for selection and placement of Chiefs of the Central Police Organisations (CPO) with a minimum tenure of two years.

In the meantime, the central government, irked by the constant criticism that the police in the country was still being governed by a colonial piece of legislation that had been enacted more than a century and four decades ago, appointed[85] a committee to draft a model Police Act under the chairmanship of Soli Sorabjee, former Attorney General of India. The Committee drafted a comprehensive Model Police Act and sent it to the Government on October 30, 2006.

5.2.3 Soli Sorabjee Committee

Soli Sorabjee’s Model Act  focused on ensuring functional autonomy for police by  insulating them from external pressures and influences; defining the new role and duties of Police; promoting professionalism through improved training, research and development and increasing use of science and technology in police work; setting up new accountability mechanisms at district and state levels; looking after the welfare of police personnel and establishing grievance redress mechanisms for them and improving their working and living conditions; and prescribing special provisions for  internal security and public order.

5.3 Resistance

The effort made by Soli Sorabjee committee met the same fate as the endeavours of the previous expert bodies.  The Model Act was put on the website of the Ministry of Home Affairs and circulated to the state governrnents. It has not been used to bring out an updated Police Act applicable to Delhi and other union territories. A similar response of the central government was noticed three decades ago when the NPC had drafted a model Police Bill, which incorporated their recommendations made in eight reports. The central government always had the option of implementing the important recommendations of the NPC by introducing that model Police Bill  in the Union Territories.  If it had done so, it would have acquired the moral authority to ask the state governments to follow suit.  It never did that and thus failed to convince the state governments about its genuineness in implementing the NPC’s recommendations.  More recently, the Central Government could take a lead in complying with the Supreme Court’s directives in those territories which are within its jurisdiction, but it failed to do so. 

The response of the state governments towards the directives of the Supreme Court has been apathetic.  While a few smaller states complied with the directives fully or partially and a few others filed for an extension of time, some states, particularly the bigger ones,[86] objected to the directives and asked the Court to review them. The Court dismissed the review petition on August 23, 2007.  The progress remained slow and finally on July 16, 2008, the Supreme Court set up a three member Committee under the chairmanship of one of their retired judges to monitor compliance of their directives by the centre and state governments. 

Till date, only nine states[87] have enacted fresh Police Acts to replace the old legislation and three states[88] have amended their earlier laws on the subject to accommodate the new directives of the Court. According to CHRI, the new laws were drafted without public consultation and “disturbingly, many provisions in these new police acts dilute the directives of the Supreme Court, to the point where the letter and spirit of the decision has been completely undermined”[89]

Thus both the union and state governments have shown resistance to the idea of police reform, particularly  when it aims to insulate the police forces from illegitimate control of politicians and bureaucrats and establish civic oversight structures to make them accountable for their misconduct and poor performance.  The reason-no government is willing to let its control over its police force be weakened. They have developed a vested interest in retaining control and superintendence over the police organisation.

However, threatened by the increasing incidence of terrorist and extremist violence witnessed in the country over the last few years, particularly after the 26/11 Mumbai massacre, the central government appears to have realised that some basic needs of the police cannot be neglected any more.  Nevertheless,  the concept of reform guiding the government even now  is somewhat narrow.  Fill up vacancies and raise the strength of police forces, moderrnise their weaponry and equipment, revamp their recruitment procedures and standards,  strengthen the intelligence net work, set up counter insurgency and anti terrorism training schools and enact or amend anti terror law with stringent provisions- these are the main ideas which emerged from the deliberations of the Union Home Minister’s meetings with the state chief ministers held on August 16 and with the heads of police forces held  on September 14 to 17, 2009.

All the above measures are essential, but the concept of police reform must go beyond these to include the establishment of statutory institutional arrangements, which would ensure that the power of superintendence of the State Governments over their police forces is limited to guarantee that police performance is in strict accordance with law and that the police are held accountable for their wrong doings. Modernisation of equipment and weaponry is important, but equally, if not more, significant is the need to change the mind set.  The Force must become a Service.

6. Conclusion

Despite the Police and Public Order being State subjects under the Constitution of India, the central government has taken interest in policing in the country.   This interest, however, has been exercised selectively.  From the very beginning, it has focused on raising and expanding its own para military set up.  Most of its expenditure on Police every year is spent on meeting the requirements of para military forces. This expenditure has been rising every year. There has been very heavy deployment of these forces on law and order duties in states.  While the state governments have found it administratively convenient and economically beneficial to let the central forces handle their serious law and order problems, the availability of central assistance has unwittingly inhibited the development of their police forces.

From the public point of view, improving the functioning of the local police at the station level should receive the top priority in modernisation schemes and policies targeting police reform. However, the police station is the most neglected unit of administration in the country. The state governments have not paid adequate attention towards meeting the requirements of police stations and improving their conditions. Most police stations in the country, particularly in  rural areas, are in  bad shape. They are understaffed and lack basic facilities. As the Human Rights Watch in its latest report (August,2009) on the Indian police system pointed out: “Police infrastructure is crumbling. Decaying, colonial-era police stations and posts across India are stocked with antiquated equipment and lack sufficient police vehicles, phones, computers, and even stationery. A severe police staffing shortage is compounded by additional demands on an already stretched force.”[90] If the centre had released even a part of money they have been spending every year on their para military forces, the conditions at police station level would have improved.  But then the center has never considered it their responsibility.  The central government has always taken refuge behind the provisions of the Constitution to wash its hands off the responsibility on the ground that Police is a State subject and improving its functioning is the responsibility of state governments.  Thus police reforms, interpreted even in terms of the first approach, remained largely unimplemented for a long time. Though it started its Police Modernisation Scheme in 1969-70, it was only after three decades, when terrorist and extremist violence started increasing and spreading, that it augmented its grant to the state governments substantially. Most state governments have neither found the political will nor funds to modernize and reform their  police forces

The increasing para-militarisation of police forces has led to promoting a law and order and security oriented model of policing in the country. An impression is gaining ground that winning the war against violence requires a tough warrior cop’s policing approach.  One may require that occasionally, but a sustained war against violence requires the development of a police force that is well organised, well controlled, well led, well equipped and well trained- a force that is friendly, sensitive and impartially fair, but firm.  This is yet to be realized either by the centre or states.

The Constitution establishes a federal system that tilts the balance in favour of the Union.   The central government has used the constitutional provisions to underscore its increasing role in policing. Heavy expansion of para military forces and the power to deploy them in aid of civil power, increase in modernisation grants, use of  CBI to browbeat the ruling opposition in some states, establishment of a National Investigation Agency, setting up of four new NSG hubs in state capitals and amendment of All India Service Rules to dilute the disciplinary power of the state governments are some of the factors that indicate  a trend towards centralisation of policing. If extremist or terrorist violence increases further in the country, this trend is likely to be accentuated.

  

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This paper was prepared for the Centre for the Democratic Control of Armed Forces, Geneva, Switzerland

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[1] Union territories are areas that do not form part of states’ jurisdiction and are governed by the central government

[2] The Constitution of India(1949), Article 246

[3] Ibid, Article 245

[4] Ibid, Article 248 (1)

[5] Ibid, Article 251

[6] Ibid, Article 249

[7] Ibid, Article 250

[8] Ibid, Article 131

[9] Ibid, Articles 132- 134

[10] Ibid, Article 143

[11] Ibid, Article 141

[12] Ibida, Article 227

[13] Ibid, Article 226

[14] The Code of Criminal Procedure, 1973, Section 6

[15] A metropolitan area is an area comprising a city or a town with a population exceeding one million, which has been declared as a metropolitan area by the state government.

[16] The Constitution of India, 1949, Article 50.

[17] The First Schedule of the Criminal Procedure Code lists all offences in the IPC and mentions whether they are cognisable or non cognisable.

[18] Includes the central para military forces under the administrative control of the Ministry of Home Affairs,

Government of India

[19] The Constitution of India, 1949, Union List, Entry 2 (A)

[20] Ibidt, Entry 8

[21] Ibid, Entry 65

[22] Ibidt, Entry 70.  The Indian Police Service is one of the three all India Services set up by the central government.

[23] Ibid, Article 256

[24]Ibid, Article 257

[25] Ibid, Article 355

[26] Ibid, Article 356

[27] Ibid, Article 165

[28] Commonwealth Human Rights Initiative, 2002,  Police Organisation in India.

[29]  The Police Act,1861, Section 3

[30] Bureau of Police Research & Development, 2008, Data on Police Organisation in India, p 2.

[31] The Police Act, 1861, Section 4

[32] Bureau of Police research & Development, 2008, Data on Police Organisation in India,p18.

[33] Ibid, p 24

[34] A lakh is equivalent to one hundred thousand.

[35] Bureau of Police research & Development, 2008, Data on Police Organisation in India,p39

[36] Ibid, p40

[37] These ratios are more meaningful as it is the civil police personnel who come in contact with the public on day to day basis.

[38] Bureau of Police research & Development, 2008, Data on Police Organisation in India,p 54

[39] Bureau of Police research & Development, 2008, Data on Police Organisation in India, p 76

[40] Bureau of Police research & Development, 2009, Data on Police Organisation in India, p87

    A crore is equivalent to ten millions

[41] Ministry of Home Affairs, Government of India, Annual Report, 2009-10, p100

[42] Ibid

[43] The Delhi Special Police Establishment Act, 1946, Section 3(1)& (2)

[44]Ibid, Section 6

[45] Venketeshan, J, High Courts Can Order CBI Probe Without State’s Nod, The Hindu, Chennai, February 2, 2010, p-1

[46] Writ Petition (Criminal) Nos. 340-343 of 1993

[47] Article 97 incorporates the residuary powers of legislation that the Constitution gives to the Parliament by saying: “Any other matter not enumerated in List II or III including any tax not mentioned in either of those Lists.”

[48] The National Investigating Act, 2008, Preamble & Section 3 (1)

[49][49] Commission on Centre State Relations,  March 2010, Report, Volume V, Internal Security, Criminal Justice and Centre-State Co-Operation, para 3.6.04(i).

[50] The National Investigating Act, 2008,   Section 4 (1)

[51] The list of offences given in the Schedule to the Act includes offences under The Atomic Energy Act, 1962; The Unlawful Activities Prevention Act,1967; The Anti- Hijacking Act,1982; The Suppression of Unlawful Acts Against Safety of Civil Aviation Act,1986; The SAARC Convention on (Suppression of Terrorism) Act, 1993; The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002; The Weapons of Mass Destruction and Their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005; and offences under Sections 121 to 130 of Chapter VI and under sections 489-A to 489- E of the Indian Penal Code.

[52] The National Investigating Act, 2008, Section 6 (1) to (3)

[53] Ibid , Section 6 (6)

[54] The Armed Forces Special Powers Act, 1958, Section 3

[55] Ibid, Section 4

[56] Naga Peoples’ Movement of Human Rights vs. the Union of India, 1998

[57] Inserted in the Constitution by the 42nd Amendment in 1976.  Though this amendment of the Constitution was done when the Emergency was in force in the country, the successive governments at the centre retained the amendment

[58] Commission on Centre State Relations, 1988, Report, Part I, p623.

[59] The  Code of Criminal Procedure, 1974, Section 129

[60] The  Code of Criminal Procedure, 1974, Section 130 (1)

[61] The  Code of Criminal Procedure, 1974, Section 130(2)

[62] Commission on Centre State Relations, March 2010,Report, Volume VI, para 4.6.01

[63] Ibid

,[64] National Police Commission, Government of India, January 1980, Third Report, p40

[65] Sabbarwal, P. C, Police Modernization Fund: An Overview, Paper presented at the 40^th All India Police Science Congress, held at Raipur, Chattisgarh on June 2-4, 2010

[66]Ministry of Home Affairs, Government of India, Annual Report, 2009-10, p145.

[67] Ministry of Home Affairs, Government of India, Annual Report, 2009-10, p103

[68] Rahman Azera, April 29, 2010, Over 3.7 Lakh Complaints Against Police on Human Rights Abuse, NERVE, http://www.nerve.in/news

[69] Departmental inquiries were done in 17,215, magisterial in 99 and judicial in 204 complaints.

[70] National Crime Records Bureau, Crime in India, 2008, Chapter 16, p161: http://ncrb.nic.in

[71]  Human Rights Watch,  Broken  system-  Dysfunction, Abuse and Impunity in the Indian Police, August, 2009              

[72] The Police Act,1861, Section 7

[73] Subordinate officers mean officers of and below the rank of Inspector of Police

[74] The Code of Criminal Procedure, 1973,  Section 197

[75] Prakash Singh and Others V Union of India and Others (2006) 8 SCC 1.

[76] These are Assam, Bihar, Chattisgarh, Goa, Haryana, Himachal Pradesh, Kerala, Maharastra, Orissa,Rajasthan, Sikkim, Tripura     and Uttarakhand

[77] Commonwealth Human Rights Initiative, 2009, Complaints Authorities- Police Accountability in Action,  p17

[78] Police Commissions were set up in Bihar in 1958-61, UP & West Bengal in 1960-61, Punjab in 1961-62, Maharastra in 1962-64, Delhi in 1966-67, Assam in 1969 and Tamil Nadu in 1969-71

[79] The main expert groups set up by the central government were the Working Group on Police in 1966, Gore Committee on Police Training in 1971, National Police Commission in 1978, Ribeiro Committee on Police Reforms in 1998 and Padmanabhaiah  Committee on Police Reforms in 2000

[80] The Emergency was declared on June 26, 1975 and remained in force till March 21, 1977.

[81] The Ministry of Home Affairs, Government of India’s Resolution No.VI.24021/36/77-GPA I dated November 15, 1977,  para 2 (10) (i) & (ii).

[82] Shah Commission of Inquiry, Government of India, Delhi, April, 1978, Interim Report para 15,16

[83] The Ministry of Home Affairs, Government of India’s Letter No.11013/11/83- NPC Cell dated March 31, 1983.

[84] Writ Petition (Civil) No. 310 of 1996 in the matter of Prakash Singh and others versus Union of India and others.

[85] Vide Ministry of Home Affairs, Government of India’s Office Memorandum No 25019/15/2005-PM II dated September 20, 2005.

[86] Tamil Nadu, Gujarat, Punjab, Maharashtra, Uttar Pradesh and Karnataka

[87] These are Assam, Bihar, Chattisgarh, Haryana, Himachal Pradesh, Punjab, Rajasthan, Tripura, Uttarakhand

[88] These are Gujarat, Kerala and Sikkim.            

[89] Kotwal, Nawaz, Programme Coordinator, Police Reforms, CHRI, Police reform: We need it, but do we want it?- http://infochangeindia.org/

[90] Human Rights Watch, , August 2009 Broken System- Dysfunction, Abuse and Impunity in the Indian  Police