THE CENTRAL VIGILANCE COMMISSION BILL

THE CVC BILL- UNDERMINING THE SPIRIT OF LAW

Ever since the hawala case judgment was delivered by the Supreme Court on December 18,1997,consistent attempts have been made to see that the judgment is not implemented fully and is defeated in its basic purpose. The Central Vigilance Commission Bill, 1999 recommended by the Joint Committee of Parliament is another attempt in the same direction.

The Supreme Court’s judgment had declared the single directive null and void. The single directive was a set of executive instructions issued by the central government,prohibiting the CBI from undertaking any inquiry or investigation against any officer of the rank of joint secretary and above in the central government, including those in public sector undertakings and nationalized banks without the prior sanction of the head of the department.

The court found it bad in law on two grounds. It required a police agency to seek
permission from the executive to initiate investigations into a criminal offence, which is contrary to the law. Second, it violated the canon of equality in the application of the law. The committee’s bill seeks to infract these basic principles of legal jurisprudence by resurrecting the single directive, even though the original bill referred to the committee did not have any clause about the single directive.

The exemption extended to the senior officers from even being inquired into by the CBI without the government’s permission is now being accorded legal sanctity. Earlier (before it was declared null and void by the Supreme Court), it was based only on executive instructions.

The committee has tried to justify this restoration of single directive on the ground that “no protection is available to the persons at the decision-making level”. Protection against prosecution without the sanction of the government is already available to all public servants under Section 197 of the Criminal Procedure Code and Section 19 of the Prevention of Corruption Act, 1988.

The committee wants to provide protection even at the initial stage of conducting any inquiry or investigation into an allegation of corruption against senior officers. The implications of providing this type of impunity have been spelt out in the dissenting note of a member of the committee, Kuldip Nayar, who is in the Rajya Sabha. According to him, the pliable public servants “who carry out the errands of the political masters will go scot-free” and “corrupt officers will rule the roost due to their proximity to the seats of power.”

The committee’s bill has greater potential for mischief than what was attempted earlier through the Central Vigilance Ordinance of 1998. The ordinance had at least prescribed that approval prior to undertaking any inquiry or investigation against officers of the rank of joint secretary and above would have to be obtained by the CBI from the CVC. The committee’s bill lays down that this approval would have to be obtained from the central government.

The Supreme Court had directed that the Central Vigilance Commission should be
entrusted with the responsibility of exercising superintendence over the functioning of the CBI. The bill prescribes that the commission shall exercise superintendence over the functioning of only the Delhi Special Police Establishment insofar as it related to the investigation of offences alleged to have been committed under the Prevention of Corruption Act, 1988 only. This means that there will be a system of dual control over the CBI-one exercised by the CVC in respect of corruption cases only and the other by the central government in respect of its other work. Thus, the committee’s bill defeats the basic purpose of the Supreme Court’s judgment of insulating the CBI fully from illegitimate and undesirable influences exerted by politicians and bureaucrats.

The scope for the CVC to exercise superintendence over the functioning of the CBI even in respect of its work on corruption has been further curtailed by restricting the definition of the word ‘public servant’ to mean only civil servants of certain categories. As per clause 8 (1)(a) of the committee’s bill, the CVC’s superintendence would only be in respect of offences alleged to have been committed by members of the all-India services in connection with the affairs of the Union and group ‘A’ officers of the central government and such level of officers of the corporations, companies, societies and other local authorities owned or controlled by the central government.

In other words, superintendence over the work of the CBI in respect of corruption
offences committed by other categories of public servants as defined in Section 2 of the Prevention of Corruption committee by other categories of public servants as defined in Section 2 of the Prevention of Corruption Act of 1988, including politicians, would remain out of the purview of the CVC’s charter of responsibilities. This is another method by which the purpose of the Supreme Court’s judgment in the hawala case is sought to be defeated.

The Supreme Court’s judgment contained other important directions, like the constitution of a nodal agency to monitor and coordinate action to be taken in cases elated to the “politico-bureaucrat-criminal nexus”; improving the functioning of the prosecution machinery, including the setting up of a prosecution agency similar to the one in the UK; providing to the general public “feedback on investigations an information for redress of genuine grievances” etc. The three ordinances and the two bills drafted by the government did not have any provisions relating to these issues. The committee’s bill is also silent on these issues. The public, in fact has no idea at all about action taken by the government, if any, to implement these important directions of the court or even about the government’s intentions to do so.

Therefore, we are back to square one. The judgment of the highest court of the country in one of the most important criminal cases decided by it since Independence remains unimplemented even after the expiry of three years since it was delivered. We can only conclude that systematic and deliberate efforts have been made to subvert or thwart the judgment.

(Published in the Times of India, 26/12/00)

POLICE TRAINING IN ETHICS

TRAINING POLICE PERSONNEL OF LOWER RANKS IN HUMAN RIGHTS AND ETHICS


The subject of police training in this country has been reviewed from time to time by various expert bodies. Despite this, the state of police training in the country is known to be poor. The police training institutions in this country are known to be suffering from a host of infirmities and deficiencies. A survey of 100 out of 145 police training institutions in the country done by the Bureau of Police Research and Development in June 1995 revealed a dismal picture. 23 institutions were functioning without class rooms; 18 without black boards, 16 without overhead projectors; 57 without conference rooms, 76 without seminar or assembly halls; 20 without library; 70 without auditorium; 93 without simulation facilities; 95 without forensic science units; 72 without computers; and 4 did not have even lavatory facilities. The staff posted in the police training institutions is not of the desired standards and they are short of budget. There has been hardly any significant improvement since then.

More than lack of infrastructure and other facilities, it is the culture of the training institutions, which is only a reflection of the culture of the police organisation as a whole, that fails to produce a community friendly policeman. The existing system is aimed at developing a militaristic pattern of policing, which tries to control crime and law and order disturbances, without being sensitive to the requirements of the community.

The police training must change this culture. Besides introducing other needed improvements, the training syllabus for lower ranks must be reviewed and revised. It is important that the training programme stresses the need to impart proper and adequate training in human rights and in ethics to police personnel. The present arrangements are not satisfactory in this respect.

The BPR&D’s literature shows that the duration of the Basic Training course for Sub-Inspectors and Assistant Sub-Inspectors of Civil Police is 12 months. Out of a total number of 1458 periods kept for indoor instructions, 131 periods are allotted to Module IV, which is on “Human Behaviour, Police Attitude, Police Image and Police Public Relations.” This Module consists of eight capsules, one of which is on “ Human Rights and Civil Liberties.” The subjects covered under this capsule are: “1) International Law and mechanism on protection of human rights. 2) Provisions of the Indian Constitution on human rights and provisions in various other laws. 3) Why human rights are fundamental in a democratic society? 4) Human rights organisations at international, national and local levels and their activities.”

The BPR&D’s booklet does not indicate the number of periods allotted to each capsule. The average number of periods allotted to each capsule works out to about 16 periods. Only 16 out of 1458 periods are allotted to teaching the four subjects mentioned above. This means that slightly less than 1.1 % of the total indoor training time is spent on teaching human rights subjects. The same is true of syllabus prescribed for the Constables of the Civil Police. Out of 1398 periods of indoor training, only 14 are devoted to the Capsule on Human Rights and Civil Liberty.

Thus time allotted for Human Rights training and course contents are highly inadequate. It is no wonder that the awareness and attitudes of police personnel towards human rights issues leave a lot to be desired. Recently, the Commonwealth Human Rights Initiative (CHRI), an international NGO mandated to ensure the practical realisation of human rights in the Commonwealth countries, did a survey of human rights awareness and attitudes of officers of the ranks of Assistant Sub-Inspector to Inspector of Police in a couple of states. The study revealed three things- (1) General awareness of police officers about basic human rights instruments, international as well as national, is poor. (2) Specific work related awareness of human rights issues is good, but there are some gaps here too. (3) Attitudes towards human rights are wrong and are at the root of the problem.

Human Rights training can not be regarded as a mere add-on to the existing syllabus; it must be treated as the core of the training programme for all ranks. There is a common perception amongst the police personnel that human rights are an encumbrance, an obstacle to effective policing. An important aim of the training programme should be to change this perception.

Appropriate training methods will have to be designed for the lessons to go home. Methods will have to be different for different categories of officers. Class room methods will have to be varied and include not only ‘chalk and talk’ but also role plays, exercises, discussions and video presentations. The simple method of sending police trainees as decoy complainants to the police stations to lodge complaints done as a part of an experiment being conducted by the UNDP in the country is reported to have brought about significant changes in their attitudes. Novel methods like these will be more effective than conventional methods of training

Ethics is another highly neglected area of police training in this country. The syllabus of basic training course for Assistant Sub-Inspectors and Sub- Inspectors of Civil Police shows that there is a capsule on “Human Values and Moral Science” This again is one of the eight capsules comprising the Module on “Human Behaviour, Police Attitude, Police Image and Police Public Relations” The average number of periods allotted to this subject is also 16 periods. The BPR&D’s booklet of training courses does not give the break-up of subjects covered under this capsule. There is a capsule on “ Ethics in Law Enforcement & Principles of Police Misconduct” in the basic training course for the Constables of the Civil Police too. 15 out of a total of 1398 indoor training periods are slotted for this capsule, under which the subjects taught are: (1)What is Ethics? (2) Ethics and Law Enforcement. (3) Good Manners & Etiquette.

This important subject is being neglected not only in terms of time allotted to it but also in terms of course contents. Teaching policemen good manners and etiquette is needed, but it is not necessary that this will lead to ethical policing Some highly corrupt police officers are known to have been men with great manners and etiquette. Training in Ethics should also not be confused, as is generally done, with delivering of moral sermons based on teachings of religious leaders to trainees. Such training rarely proves effective.

Police Ethics should be integrated into training curriculum of different ranks not as a set of moral code or instructions, but as a set of issues relating to abuse of powers by police and the implications of abuse or misuse of powers. The training programme must address itself to the root causes of unethical conduct and teach strategies to deal with them. Training must be imparted by those who have credibility with the trainees.

POLICE DEVIANCE

POLICE DEVIANCE IN INDIA

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. A media scan entitled “ criminality amongst police personnel” done a couple of years ago by the Commonwealth Human Rights Initiative (CHRI), an international NGO mandated to ensure practical realisation of human rights in the Commonwealth countries, revealed that there was considerable involvement of police personnel in committing crimes. Two findings of this scan were important. One, the police personnel were found to be involved in committing even heinous crimes, like murder, rape, robbery, extortion, grievous assault etc. Two, the involvement was confined not only to junior ranks; even seniors were involved.

The annual reports of the National Human Rights Commission (NHRC) contain details of cases of police atrocities investigated by them as well as statistics received from different States and Union Territories. The NHRC data shows that during the year 1998-99, the Commission admitted for disposal 183 complaints of ‘deaths in police custody’, 27 of ‘disappearance’, 436 of ‘illegal detention and arrest’, 634 of ‘false implication’ and 2252 of other ‘police excesses’. The majority of complaints received by the NHRC are against police personnel. Even the 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) of the Ministry of Home affairs, Government of India shows that during the year 1997, as many as 1,23,523 complaints against police were received from the public. The Union Home Minister, in reply to a question, informed the Rajya Sabha that the Delhi Police alone had received 34,947 complaints against the police officials during the year November 1997 to October 1998. Considering that the total strength of the Delhi Police is 57,497, it works out to a staggeringly high figure of about three complaints per five policemen.

What happens to these complaints? According to the Home Minister’s reply to the Parliament question, of the 33,384 complaints investigated by the Delhi Police, only 150 police personnel were punished. The remaining complaints were presumably found false or unsubstantiated. This brings into focus an important problem- who polices the police and how is it done?

In India, the police are policed mostly by themselves. The system has two major faults. One, it does not allow the entire dirt in the police department to come to the surface. The street cop culture, which is built around a strong sense of camaraderie and group loyalty amongst police personnel, ensures that all their sins of commission or omission do not come out in the open. Then there is the management cop culture, which sometimes tries to suppress incidents of misconduct by individual policemen because of apprehension that revelation of facts will demoralise the force, besides bringing it a bad name. Two, even where an inquiry into a citizen’s complaint against the police is done, it 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 citizens can, of course, go the courts to seek redress. This, however, is generally not done by them. Involvement in court cases is time consuming and costly. The courts are clogged with huge arrears of cases under trial. In a hard hitting speech delivered on the occasion of the golden jubilee celebrations of the Supreme Court in November last year, the Prime Minister of India mentioned that “the exasperating and increasingly expensive delays of the judicial system justly invite derision and contempt.” The system has lost its credibility.

AThe other institution to which the citizens can go with their complaints is the National Human Rights Commission, which has been in existence for about seven years now. 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. Most State Governments have yet to set up their own Commissions. In addition, the Protection of Human Rights Act, 1993, under which the National or State Human Rights Commissions are set up, is known to be weak and inadequate in its present form.

Elsewhere in most parts of the democratic world, special integrity cells within the police departments, police complaint boards, civilian complaint boards, ombudsman, community liaison committees etc have been set to ensure the existence of effective multiple mechanisms of police accountability. Civic oversight of, and community inputs, into policing are increasingly being accepted as the most essential requirements of democratic policing.

Policing in India has never been democratic. The Police as an organised institution in this country is about 139 years old. It was set up through the Police Act of 1861, which brought into existence a police force governed by the need of the colonial power to ensure their suzerainty over a subject population and to perpetuate their rule in the country. In this system, the police remained unaccountable to anyone except their own hierarchy and the executive. The idea of the police being a part of the community and accountable to it thus never grew in the Indian soil.

No attempt was ever made to change the system inherited from the colonial days. Though we adopted a democratic structure of polity, most institutions of governance and value systems have still remained feudal and colonial in character. The Police is a perfect example of such an institution. That is why it has been so easy for the politicians and bureaucrats to manipulate the organisation for their narrow partisan purposes. The situation has only become worse during the last few decades because of increasing criminalisation of politics. The worst victim of mafia politics and ignoble politicised policing that we see in this country is the common man, who really wants efficient and reliable policing, but is not being heard.

The need for police reforms is self evident and urgent. It is essential for the establishment of good governance, protection of human rights and economic progress. The reforms will not come on their own. Resistance to the idea of police reforms is deeply entrenched, as Mr Indrajit Gupta, the former Union Home Minister realised to his dismay and disappointment. Mr. Gupta in his famous letter of April 3, 1997 warned the Chief Ministers that the “day may not be far off when the judiciary may intervene decisively to force such socially desirable changes down the throat of the political executive.” More than the judiciary, it is the public, which will have to do so. As someone has rightly said: “The real protection of civil society can only come from its own creators: the people.”

A REQUIEM FOR THE NPC?

THE NATIONAL POLICE COMMISSION- BEGINNING, END & THE AFTERMATH

THE police system in India was established by the Police Act of 1861. The act, based on the draft prepared by the first Police Commission of 1860, had a limited aim – to perpetuate British rule in this country.

The failure of the act to produce an efficient and a professional police force in the country was even recognised by the British. The second police commission set up under the chairmanship of Sir A.H.L. Fraser concluded: ‘The police force is far from efficient, it is defective in training and organisation, it is inadequately supervised, it is generally regarded as corrupt and oppressive, and it has utterly failed to secure the confidence and cordial cooperation of the people.’

The advent of Independence changed the political system, but the police system remained unaltered. The Police Act of 1861 continued to govern it, laws and courts continued to distrust it, its organisational structure stayed unmodified, the politicians and bureaucrats continued to exercise control and superintendence over it, the managerial philosophy, value system and ethos remained what it was, and its public unaccountability remained unchanged. It was a ruler appointed police and it continued to remain so. Only the rulers changed, the foreign ones being replaced by the Indians

A colonial system of policing was thus required to function effectively in an environment which became increasingly democratic. The fact that the problems of the police had become highly complex and that the system had failed to meet the challenges was realised by many, including the police themselves. The need for change and reform was expressed by the Conference of General Inspector of Police on many an occasion. The conference, organised annually by the Central Intelligence Bureau, passed resolutions from time to time, asking the government to set up a National Police Commission NPC) to examine the problems of the police. The Ministry of Home Affairs doggedly turned down such suggestions on the ground that the police was a state subject and the central government did not consider it necessary to do so.

Though some state governments had set up police commissions after Independence, a systematic examination of the police problems at the national level had not been undertaken since the beginning of the century. The last time it was done was in 1902 by the Frazer Commission.

During the Emergency the police committed atrocities on a wide scale. The brazen manner in which the police were misused during this period provoked the Shah Commission of Inquiry to invite ‘the government’s attention pointedly to the manner in which the police was used and allowed themselves to be used for purposes some of which were, to say the least, questionable. Some police officers behaved as though they are not accountable at all to any public authority. The decision to arrest and release certain persons were entirely on political considerations, which were intended to be favourable to the ruling party. Employing the police to the advantage of any political party is a sure source of subverting the rule of law.’2

Some Janata Party members had gathered first hand experience of police brutality during the Emergency. The decision to set up the National Police Commission was taken by the Janata government, which came to power after the revocation of the Emergency in 1977.

Thus, while the Indian Mutiny of 1857 led the colonial government to appoint the first Police Commission in 1860 to suggest an organised system of policing for the country, the total abuse and misuse of the same system by the Congress government during the Emergency led the Janata government to set up the first National Police Commission (NPC) in 1977. As Dharam Vira, Chairman of the NPC said in his presentation at a seminar held in Mumbai on 19 April 1997: ‘lf there had been no Emergency there would have been no Police Commission.’3

The NPC was appointed4 by the Government of India to make a comprehensive review of the police system at the national level, with regard to the far-reaching changes that had taken place in the country after the enactment of the Indian Police Act, 1861, the report of the last Police Commission of 1902, and particularly those which had taken place since Independence. Though the commission was set up on 15 November 1977, the government took time to sanction staff and allot accommodation. The commission actually started functioning effectively only in April 1978. Its first meeting, in fact, was held on 22 December 1978.

The NPC had fairly wide and comprehensive terms of reference, involving a fresh examination of the role and performance of the police, both as a law enforcement agency and as an institution to protect the rights of the citizens enshrined in the Constitution. One of its most important terms of reference required it to recommend measures and institutional arrangements to ‘prevent misuse of powers by the police and misuse of police by administrative or executive instructions, political or other pressure, or oral orders of any type, which are contrary to law.’5 The Shah Commission of Inquiry had suggested that, ‘The government must seriously consider the feasibility and the desirability of insulating the police from the politics of the country and employing it scrupulously on duties for which alone it is by law intended.’6

The NPC produced eight reports between February 1979 and May 1981. In its first report the commission was deeply distressed to find (i) an absence of effective and credible police accountability mechanisms and (ii) very low police morale resulting from serious deficiencies in the living, working and service conditions of the police, particularly of the constabulary. The commission, in its first report, dealt with these two subjects.

On the advice of the commission, the Government of India organised a Conference of Chief Ministers of States on 6 June 1979 to discuss the recommendations made in the first report of the NPC. The move was prompted by the widespread agitation by police forces, which occurred the same year in many parts of the country. Despite all the fanfare and noise made about the need to adopt the recommendations of the first report, most of them are yet to be implemented. The following are some examples:

The abolition of the orderly system was one of the major demands of the police agitators. The chief ministers conference decided that the system should be abolished. It continues to exist even now.

Inadequate housing facilities has been a major complaint of the policemen. The NPC had recommended 100% level of housing satisfaction for policemen.7 The chief ministers conference decided to make efforts to provide at least 75% over a five year period. This target was never achieved. By 1985, there was only one state, i.e. Gujarat, which had succeeded in providing family accommodation to even 50% of its constabulary.8 By 1990, the all-India level of satisfaction achieved in respect of family accommodation for non-gazetted police personnel had reached only the 36.3% mark.9 The 1996 data compiled by the Bureau of Police Research and Development reveals an equally dismal picture.10

The chief ministers agreed that the status of the constabulary should be improved. The NPC had recommended that the constable should be rated as a skilled worker for determining his pay structure vis-a-vis other public services in the states.11 The recommendation is yet to be accepted.

The illegitimate interference of politicians in the police organisation and its work had not been discussed by the npc in its first report. However, the police agitators had expressed considerable resentment against interference. The conference of chief ministers, therefore, discussed this subject and agreed that the problem should be dealt with at the political level. The chief ministers at the state and the prime minister at the national level should initiate appropriate steps in this regard. Nothing was done. In fact, the situation continued to deteriorate with the passage of time.

Regarding the second to eighth reports, the commission had finished only the first two reports when the government changed at the centre. With Indira Gandhi’s return to power in January 1980, the very existence of the National Police Commission came under threat. First, the commission had been appointed by her opponents, the Janata Party. Second, the commission had committed the unpardonable error of quoting from the Shah Commission’s report, criticising the way the police was used during her regime. Third, the commission’s secretariat was headed by C.V. Narasimhan, who was Director of the CBI when Indira Gandhi was arrested by that organisation during the Janata regime. He was relieved of his duties on 19 April 1980 and nobody was appointed in his place. The commission functioned without a regular member-secretary till it closed in May 1981.

he commission itself had become somewhat uncertain about the government’s response to its work. It is significant that the commission’s reports did not contain the chairman’s forwarding letter to the government after the third report. The last such letter dated 1 February1980, with which the third report was forwarded to the government, regretted that the earlier reports had not been released to the public despite the commission’s request to the government to do so. The chairman of the commission, while writing to Giani Zail Singh, then Home Minister, stressed the need for early release of the reports so that there could be public debate on the ‘proposed reforms in police, some of which are very fundamental and mark a departure from the old Imperial system which has continued even after Independence.’12

Indeed, it is the reforms aimed at changing the Imperial system, spelt out mostly in the second report,13 which have consistently blocked the implementation of the NPC’s recommendations. Dharam Vira, Chairman of the npc, later stated: ‘The basic recommendations of the Police Commission which were activated towards giving a different direction to the police and creating a force that was in tune with democracy and that was totally the servant of the law and not of any individual howsoever high he may be in stature in the country, was lost (sic). The rulers had got used to using the police force for their own purpose, according to their will. In fact, when I presented this report to the then Home Minister Sardar Zail Singh, he said, "Dharamji, what sort of report have you produced? I can’t even ask the sub-inspector what to do".’14

An eminent police officer, K.F. Rustamji, who was also a member of the commission, had a similar and, indeed, worse experience. According to him: ‘When the report came out Mrs. Gandhi asked me to go and see Mr. Zail Singh who was then the Home Minister. He made me sit down and entertained several visitors, one after another. Then he said we could meet again, but he never asked me to meet him again. He issued a statement that the report was undemocratic.’15

The result was obvious. The commission was asked to finish its work and disband itself by 31 May 1981. Some of the officers who had worked in the commission became victims of the government’s hostility. For instance, Ved Marwah was not given any posting for about a year after the NPC was disbanded.

The seven reports (second to eight) were released to the public only in March 1983. When the reports were forwarded to the state governments, they were not asked to merely take appropriate follow-up action. The state governments were specifically informed that, ‘at some places in the 2nd report (paras 15.24, 15.35 and 15.55) the commission has relied on the observations and findings of the Shah Commission to arrive at certain conclusions. Government strongly repudiate all such conclusions. At several other places (such as paras 15.2, 15.4, 15.6, 15.7, 15.18 15.19 and 15.26 of the 2nd report; para 22.3 of the 3rd report; para 32.7 of the 4th report; para 44.9 of the 6th report; paras 59.10, 59.19 and 59.25 of the 7th report and para 6.18 of the 8th report), the commission has been unduly critical of the political system or of the functioning of the police force in general. Such general criticism is hardly in keeping with an objective and rational approach to problems and reveals a biased attitude. Government are of the view that no note should be taken of such observations.’16

The message was loud and clear and after such advice it was not surprising that the state governments conveniently put the major recommendations of the NPC in cold storage.

The most important recommendations of the NPC centre around the problem of insulating the police from illegitimate political and bureaucratic interference. It is these recommendations which really perturbed the entrenched elite at the prospect of losing control over an organisation which they had misused for so long. Five of such major recommendations are important:

1. The investigative tasks of the police are beyond any kind of intervention by the executive or non-executive. It is only in respect of preventive and service oriented functions that the government should lay down broad policies for adoption. There should, however, be no instructions with regard to actual operations in the field. Policy directions should be openly given and made known to the state legislatures.

2. To help the state governments discharge their superintending responsibility in an open manner under the framework of law, a state security commission should be established statutorily in each state. The state security commission should: (a) lay down broad policy guidelines for the performance of preventive and service oriented functions by the police; (b) evaluate the performance of the state police every year; (c) function as a forum of appeal to dispose representations from officers regarding their being subjected to illegal orders and regarding their promotion; and (d) generally review the functioning of the state police forces.

3. The chief of police should be assured of a fixed tenure of office. The tenure may be for four years or for a period extending up to the period of retirement, whichever is earlier. The removal of the chief of police from his post before the expiry of the tenure should require approval of the state security commission.

4. The chief of the state police force should be selected from a panel of three IPS officers of that state’s cadre. The panel should be prepared by a committee headed by the chairman of the UPSC.

5. The Police Act of 1861 should be replaced by a new police act, which would not only change the system of superintendence and control over the police but also enlarge the role of the police to make it function as an agency which promotes the rule of law in the country and renders impartial service to the community.

There have been a few positive developments recently. Some significant initiatives have been taken, questioning the lack of will on the part of the government to introduce reforms on the lines recommended by the NPC and pressurising them to do so. Three of these initiatives deserve notice.

1. A civil writ petition17 was filed in the Supreme Court by two retired IPS officers, praying for issue of orders to the government to implement the recommendations of the NPC. In pursuance of the directions issued by the court in this case, the central government recently set up a committee on police reforms18 under the chairmanship of J. F. Ribeiro, a retired IPS officer, to review action taken to implement the recommendations of the National Police Commission, National Human Rights Commission and the Vohra Committee and suggest ways and means of implementing the recommendations of the above commissions/committees. The Ribeiro committee has completed its work and submitted two reports.

The committee’s reports have not been well received, in police as well as non-police circles. Two main objections have been raised. One, that the committee has exceeded its brief and revised the recommendations of the NPC instead of merely reviewing them, which it was required to do under its terms of reference. Second, it has diluted important recommendations of the NPC, like the one regarding the establishment of the SSC.

The NPC had recommended that the SSC should be a statutory body. In the committee’s view, the ‘possibility of a statutory SSC as envisaged by the NPC seems a far-fetched dream.’19 Reason – the NPC’s recommendations in their original form would not be acceptable to the political executive. The committee, against its own convictions, has recommended that the SSC should be a non-statutory body, forgetting in the process that it is not enough to establish the SSC. It is necessary to ensure that it continues to exist and functions independently, objectively and effectively to prevent the misuse of police force by politicians and bureaucrats and abuse of power by police personnel. A commission established by administrative instruction and not backed by the authority of law will always be hostage to the very power it seeks to check.

The committee also recommended that the SSC need not have a secretariat of its own. ‘The DGP of the state would be the ex-officio secretary and convenor of the commission and would provide secretarial assistance from time to time from his own establishment.’20 It is not known how a commission, whose secretary and convenor is the head of the state police force and who provide the police staff to function as the secretariat of the commission, can really be expected to monitor the functioning of that police force effectively and ensure its accountability. In the public eye, it would not be anything more than an adjunct of the police department.

The weakness of the Ribeiro Committee’s recommendations lies in the fact that while the problem of unlawful interference in the work of the police, or that of a nexus developing between crooked politicians and dishonest policemen at various levels, is worse than what it was at the time of the NPC’s study, yet it recommends an institutional arrangement which is weak and vulnerable because it feels that the entrenched power elite will resist.

2. In 1997, Inderjit Gupta, then Union Home Minister, wrote a letter to the chief ministers.21 Stressing the need to accomplish ‘a very difficult but nationally significant task,’ he urged the chief ministers to bring about urgently needed reforms of the police system in the country by taking action on the recommendations of the NPC, particularly those relating to the problem of political interference in the work of the service.

He never received a response to his letter. Later, during a workshop on police reforms, he informed the participants that ‘he did not even receive any acknowledgement to the letter. He said that he was highly anguished, but not surprised at the lack of any response to his letter. The politicians and bureaucrats have a great vested interest in retaining control and superintendence over the police organisation, so that they can continue to use it to further their interests. They would not easily relinquish their control over the organisation.’22

3. The Supreme Court delivered a judgement on 18 December 1997 on writ petitions (criminal) nos. 340-343 of 1996, commonly known as the hawala case. The judgement aimed at insulating the CBI and the Directorate of Enforcement from outside influences so that they could function efficiently and impartially to serve the rule of law. It also declared the single directive, which required the CBI to seek permission from the government before undertaking any inquiry or investigation against senior civil servants of the rank of joint secretary and above, null and void.

Once again, the bureaucrats showed great resistance to introducing reforms in police organizations like the cbi. Deliberate attempts were made to thwart the judgement of the Supreme Court by promulgating the Central Vigilance Ordinance, 1998. The ordinance even brought the infamous single directive back and this time gave it legal sanctity. It required another intervention from the apex court to undo the wrongs. The ordinance was amended and then a bill was legislated. The bill is yet to become law, as the Rajya Sabha could not ratify it, even though the 12th Lok Sabha had passed it.

The judgement of the highest court in the country, in one of the most important criminal cases decided by it since Independence, remains unimplemented almost two years since it was delivered. The CVC remains deprived of a statutory basis and is functioning under a resolution of the Government of India, which was notified in 1964.

This shows how deep-seated is the resistance to the idea of change and reform and how this resistance is born out of the narrow interests of a select few.

An attempt has been made to create the impression that while the central government has been keen to implement the recommendations of the NPC, state governments have not been interested. This impression is ill-founded. While the state governments have been stoically and consistently indifferent towards the recommendations, and even of their own state police commissions, the central government, except for occasional outbursts of enthusiasm, has been equally lackadaisical in pursuing the subject with the states.

The central government has always had the option of implementing the important recommendations of the NPC by introducing the model police act as drafted by the NPC in the union territories. The model act incorporates all the major recommendations of the NPC. If the central government had done so, it would have acquired the moral authority to ask the state governments to follow suit. It never did that and failed to convince the states that the centre was really and genuinely interested in implementing the NPC’s recommendations.

The NPC had observed that in making their recommendations about insulating the police from illegitimate political interference, they were hoping that the politicians and the police would look at these measures objectively and see in them a mechanism for rendering genuine public service. Obviously the expectations of the NPC have been belied. One lingering hope is that the judiciary will some day force police reforms ‘down the throat of the political executives.’23



References

1. Report of the Indian Police Commission, 1902-03, Government Central Printing Office, Simla, 1903, p. 150.
2. Shah Commission of Inquiry, Interim Report, GOI, Delhi, 26 April 1978, para 15.16, p. 142.
3. National Police Commission: its relevance today, papers and discussions at a seminar organised by the Nehru Centre and Hindus- tan Andolan, a Nehru Centre Publication, Mumbai.
4. Vide Government of India’s resolution number VI-24021/36/77-GPA.I, 15 November 1977. The commission consisted of Dharam Vira (retired Governor) as Chairman, N.K. Reddy (retd. Judge, Madras High Court), K.F. Rustamji (ex DG, BSF and Special Secretary, Home Ministry), N.S. Saksena, (ex DG, CRPF and Member UPSC) and M.S. Gore (Professor, Tata Institute of Social Sciences, Bombay) as members and C.V. Narasimhan (Director CBI) as Member Secretary.
5. Government of India’s resolution no. VI-24021/36/77-GPA.I, 15 November 1997; Term of Reference No. 10 (i) and (ii).
6. Shah Commission of Inquiry, Interim Report, op cit.
7.The National Police Commission: First Report, GOI, Delhi, February 1979, chapter IV, p. 32.
8. G.P. Joshi and J.C. Arora, A Survey of Welfare Facilities Available to Police Personnel in the Country, Bureau of Police Research and Development Publication (BPR&D), New Delhi, 1986, p. 11.
9. G.P. Joshi, Upgradation of Standards of Police Administration – Suggestions and Views About Problems and Priority Areas for Consideration of the 10th Finance Commission, BPR&D Publication, New Delhi, p. 6.
10. G.S. Pandher and K.D. Sharma, Data on Police Organizations in India as on 1.1.1996, BPR&D Publication, New Delhi, p. 56.
11. The National Police Commission: First Report, GOI, Delhi, February 1979, chapter III, p. 26.
12 The National Police Commission’s D.O., letter no. 10/30/80-NPC (Ch) Pt.II, 1 February 1980.
13 This report deals with the problem of political interference and suggests institutional and other arrangements to insulate the police from illegitimate outside interference.
14 National Police Commission: its relevance today, op cit., pp. 8-9.
15. Ibid., p. 13.
16.The Government of India’s letter no. 11013/11/83-NPC Cell, 31 March 1983.
17. Writ petition (civil) no. 310 of 1996.
18. Vide Government of India’s office memorandum no.11018/1/98-PMA, 25 May 1998.
19. First report of the Ribeiro Committee on Police Reforms, p. 9, (unpublished).
20. Ibid., p. 9.
21. No. 11018/5/96-PMA, 3 April 1997.
22. A Report of the Workshop on Police Reforms, CHRI, New Delhi, p. 14.
23. Inderjit Gupta’s letter no. 11018/5/96-PMA, 3 April 1997 addressed to the chief ministers of all states and union territories.


(Published in the Seminar 483- November 1999)

NATIONAL POLICE COMMISSION ON CONTROLLING THE POLICE

INSULATING POLICE FROM POLITICAL CONTROL-A CRITICAL REVIEW OF THE NATIONAL POLICE COMMISSION’S RECOMMENDATIONS

Introduction

The Police Act of 1861 brought into existence a ruler appointed Police Force, governed by the need of the British to ensure their suzerainty over a subject population and to perpetuate their rule in the country. Policing was to be done at the minimum possible cost to the public exchequer. Major reforms in the police, requiring substantial increase in expenditure, were to be avoided.

Obviously, the Act failed to produce an efficient and a professional police force in the country. The Indian Police Commission appointed in July, 1902 under the chairmanship of Sir A.H.L. Fraser concluded: “The police force is far from efficient; it is defective in training and organisation; it is inadequately supervised; it is generally regarded as corrupt and oppressive; and it has utterly failed to secure the confidence and cordial co-operation of the people.”

The advent of Independence did not bring about any significant change in the police system or its philosophy. It made no “substantial difference in one of the most significant aspects of the colonial police- its public unaccountability remained unchanged.”

For some years after Independence, it did not matter, because the quality of leadership, both at political and administrative levels, was of a high order. However, with the increasing criminalisation of politics, the quality of leadership at both levels has deteriorated, leading to a perceptible decline in the quality of control exercised over the Police and increasing misuse of the organisation by people in positions of power for partisan interests.

This has resulted in subverting the rule of law in this country. It has also obstructed the growth of a healthy and professional system of policing. When important decisions relating to promotions, postings, appointments, transfers etc. in the police are taken on political or other extraneous considerations and not on the basis of merit, it not only shatters the morale of honest officers but encourages the wrong ones to court favour by pandering to the wishes of those in positions of power. This distorts the command structure of the police, erodes discipline, breeds corruption and leads to abuse of police authority and miscarriage of justice. It ultimately shakes the confidence of the public not only in the police but in the entire system of governance. This is what has been happening in this country for a fairly long time now.

The police organisation and its leadership can not be absolved of the blame altogether, for they have also contributed to this state of affairs by willingly falling in line.


National Police Commission (NPC)’s Recommendations

The problem of illegitimate interference in the work of the police and its consequences on the rule of law in this country were examined by the NPC. The major recommendations made by the NPC to deal with the problem can be discussed broadly under the following three heads:

1. Establishment of the State Security Commission (SSC).
2. Appointment, transfer and Fixed Tenure of Service.
3. Enactment of a new Police Act

The purpose of this paper is to critically assess the NPC’s recommendations to find if they can really provide effective insulation to the Police against illegitimate political control and interference.

Establishment of the State Security Commission

Composition

According to the NPC, the SSC should be set up statutorily, having the Minister in-charge of the Police as its chairman and six more members. Two of these should be from the State Legislature (one from the ruling and the other from the opposition party to be appointed on the advice of the Speaker of the State Legislature) and four should be appointed by the Chief Minister, subject to the approval of the State Legislature, from amongst the retired judges of the High Court, retired senior government officers and eminent social scientists or academicians.

There are four main objections to the type of arrangements suggested by the NPC. Firstly, the Minister in-charge of the Police is to be the Chairman of the SSC. This is somewhat odd, as the primary objective of the SSC is to limit the power of superintendence of the State Government over the Police. Secondly, the composition does not reflect the plurality of perspectives and experiences available in civil society. Thirdly, the selection or appointment of members is to be done by or on the advice of politicians only. Considering the fact that the need to set up SSC has been felt because of illegitimate influences exerted on the police by politicians, selection of members done by them would definitely lack public credibility. Fourthly, no procedure for selection of members has been prescribed by the NPC, which can prove fatal to the success of such an organisation.

It is, therefore, considered extremely important that some basic principles should be laid down to govern the establishment and composition of the SSC. Some of these principles could be as follows:

 Law must establish the Commission.
 It should be independent from government and this should be reflected in its mandate and methods of work.
 The composition should reflect the plurality of experiences and perspectives existing in the civil society. The members should be drawn from a variety of different backgrounds, including relevant professional groups and the non-governmental sector.
 Selection of members should be done on the basis of their record and reputation. They should be eminent persons known for their integrity and having the capability to decide about matters in an impartial, fair and objective manner unaffected by inducements, pressures, interference or threats of any kind.
 The method of selection of members should be clearly specified in law.
 The selection of members should not depend on whims, preferences and predilections of individuals. In fact, a Committee formed specifically for this purpose and headed by a member of the National Human rights Commission/State Human Rights Commission should do the selection
 The process of selection should be open and transparent.
 The terms of appointment, tenure and removal of members of the Commission should be clearly prescribed, so as to guarantee that it functions impartiality, independently and competently.
 The Commission should have the authority to select its staff and be assured of required resources, including its budget.
 The mandate of the Commission should be wide and effective enough to insulate the police from illegitimate pressures and influences.
 The Commission’s reports and major decisions must be made known to the public at the earliest possible opportunity, definitely within a maximum period of three months.

The NPC’s recommendations about the constitution of SSC need to be reviewed in the light of the principles enunciated above

Charter

A notion exists in many quarters that the NPC has recommended the establishment of the SSC to exercise superintendence over the State Police Force. The NPC has made no such recommendation.

The functions prescribed for the SSC by the NPC do not include exercising superintendence over the Police and are as follows:

(i) Laying down broad policy guidelines and directions for the performance of preventive tasks and service-oriented functions by the police;
(ii) evaluating the performance of the State Police every year and presenting a report to the State Legislature;
(iii) functioning as a forum of appeal for disposing of representations from any police officer of the rank of Superintendent of the Police and above regarding his being subjected to illegal or irregular orders in the performance of his duties;
(iv) functioning as a forum of appeal for disposing of representations from police officers regarding promotion to the rank of Superintendent of Police and above; and
(v) generally keeping in review the functioning of the police in the State.


The charter prescribed for the SSC by the NPC is somewhat effete. The NPC has divided police tasks in three categories (i) investigative; (ii) preventive; and (iii) service- oriented. According to the NPC, the investigative tasks of the police are beyond any kind of intervention by the executive or non-executive. However, in the performance of preventive and service-oriented functions, the police should be subject to the overall guidance from the government, which should lay down broad policies for adoption in different situations from time to time. Even here, policy directions are to be openly given and made known to the State Legislatures. “There should, however, be no instructions in regard to actual operations in the field.”

Thus, in the scheme recommended by the NPC, the SSC has no jurisdiction in so far as investigative functions are concerned. The SSC can not even prescribe broad policy directions for police investigation work, which it can for the other two categories of functions.

It has been the general experience of the police forces that most situations in which illegitimate pressures are exerted on the police officers involve investigative tasks. The NPC’s list of typical situations or matters in which pressure is illustrates brought to bear on the police by political, executive or other extraneous sources shown in para 15.13 of the Second Report the point.

It is a weakness in the NPC’s scheme that it offers no solution to the problem of insulating the police from undesirable outside influences in an area of operations where such interference is at its most and worst.

The idea of functional independence of the police in respect of its investigative tasks has been recognised by the Supreme Court in its earlier as well as the recent Havala case. It is in the light of the Supreme Court's judgement that the NPC projected it as a fundamental principle governing police work that the investigative tasks of the police are beyond any kind of intervention by the executive or non-executive.

Enunciation of a principle is one thing; its implementation by the concerned parties is another. In the U.K, the principle has been accepted and implemented because the standards of leadership, both in the politics and in the police, have been comparatively of a high order. The police as an organisation and policing as a set of functional activities have evolved on healthy lines. The existence of an alert and enlightened citizenry has combined with the growth of healthy democratic institutions to ensure that the prescribed boundaries are not crossed by the concerned parties.


Unfortunately, in our country, we have not been able to set up healthy traditions and practices of good governance. It, therefore, becomes essential to establish institutional and other arrangements, which would ensure that the police are able to attend to their investigative functions without illegitimate interference. As already suggested, the State Security Commission must play an active role in ensuring this by closely monitoring police performance. The Commission must build up capability in the police to take cognizance of, and pursue cases involving politicians and other influential people. It was this consideration which led the Supreme Court to decide in the Havala case that a statutorily established Central Vigilance Commission should exercise superintendence over the CBI. If the superintendence of the Central Government over the CBI can be terminated, there is no reason why the control of the State Government over the investigation work of the police should not be similarly dealt with, at least in respect of cases involving politicians and others in positions of power.

The SSC has been conceived of merely as an advisory body to the Government and not as a mechanism which would provide the type of insulation required by the police if they have to function effectively as an instrument of law and not of the Government.

Appointment, Transfer and Fixed tenure of service

It is felt that one of the prominent reasons for the vulnerability of the Police to illegitimate pressures from the executive is the threat of transfer that always hangs on the head of Chief of the State Police Force and other officers, particularly when they resist pressures.

Transfer and suspension are two weapons frequently used by the politician to bend the police down to his will. It is not always easy to take statutory punitive action against police personnel under the disciplinary rules, but transfers can be effected on grounds of administrative expediency without difficulty.

This, however, is not the only reason for whimsical and arbitrary transfers. Postings and transfers are done to reward people too. In fact, the moment somebody is appointed as the Chief Minister, he brings a person of his choice as the head of the police force. This imports into the system a personal factor, sends a message that the chief of police is the Chief Minister's man and increases the vulnerability of the organisation to pressures.

Superintendents of Police are posted in the districts less on grounds of merit and more on considerations of caste and communal politics or on the basis of estimation of being amenable to pressures. The Supreme Court in its ‘havala’ case judgment observed: "It is shocking to hear, a matter of common knowledge, that in some States the tenure of a Superintendent of Police is on an average only a few months and transfers are made for whimsical reasons."

Transfers are also used by corrupt politicians as a means of making money. There are certain postings, which are considered lucrative as they offer opportunities to make money, while others are regarded as 'dry.' Then there are postings, which are known to be hard, either in terms of absence of even basic facilities in places of posting or on account of arduous and perilous nature of the new job. Transfer orders to some places or jobs and cancellation of orders in other cases fetch handsome illicit gains. As Shri Madhav Godbole, the former Union Home Secretary, in his essay “Corruption, Political Interference and the civil Service” has pointed out: “The transfer mela gets converted into a wholesale market where posts often go to the highest bidder.”

The NPC had considered this subject. Even at that time, when the situation was somewhat better than what it is now, the NPC was appalled by the fact that "transfers were too frequent, ad hoc and arbitrary in nature, and were mostly ordered as a means of punishment and harassment, sometimes due to the influence of local politicians" ( Second Report, p24, para 15.15). The NPC cited figures and cases, including that of a Sub-Inspector of Police, who was subjected to 96 transfers in 28 years of service, to prove that frequent and arbitrary transfers badly damaged the professional health of the police organisation.

In Uttar Pradesh, during the recent regimes of Mulayam Singh Yadav and Mayawati, 3000 IAS, IPS & PCS officers were transferred during the short period of 1993 to 1995. Mayawati set an all-time record by transferring as many as 250 of the 310 IPS officers in the State in a short span of 100 days. Some officers were transferred as many as six times in this period

Frequent and arbitrary transfers damage the growth of the police organisation on professional lines in many ways. Firstly, they introduce an element of instability in the police organisation. This happens not only due to changes in policies and programmes of the police organisation at different levels, but also because the short period of stay of incumbents hardly equips them with knowledge of the new place to perform effectively. Secondly, they invariably result in putting the wrong man at the right place and the right man at the wrong place. Since postings are not governed by merit, honest men are assigned comparatively inconsequential postings and wrong men are given crucially important assignments. This demoralises those who can deliver. Thirdly, they encourage the system of patronage and impunity, which in turn promotes police deviance.

According to the Supreme Court, frequent and whimsical transfers, besides "demoralising the police force" and "politicising the personnel," constitute a practice that is "alien to the envisaged constitutional machinery."

The main recommendations made by the NPC on the subject can be briefly summarised as follows:

 The Chief of Police should be assured of a fixed statutory tenure of office. The tenure may be for four years or for a period extending up to the period of retirement, whichever is earlier. The removal of the Chief of Police from his post before the expiry of the tenure should require approval of the State Security Commission.

 The Chief of the State Police Force should be selected from a panel of three IPS officers of that State cadre. The panel should be prepared by a committee headed by the Chairman of the UPSC, with Union Home Secretary, the senior most among the heads of Central Police Organisations, the Chief Secretary and the existing DGP of the State as members.

 There should be a provision in the Police Act, specifying the authorities competent to issue transfer/suspension orders regarding different ranks and stating clearly that any such order issued by any other authority would render the order null and void.

 The rules should state that every transfer/suspension order should contain a brief statement of reasons for the issue of the order and any order not supported by the explanatory statement should be treated as invalid.

Considerable water has flown down the bridge since the above recommendations were made by the NPC. The problem has become much worse than what it was at that time. However, some initiatives taken by the civil society organisation recently appear to be bearing fruit. One of these initiatives was the Civil Writ Petition filed in the Supreme Court in what has come to be known as the Havala Case. The Supreme Court, in the Havala case, decreed that superintendence over the CBI's work should be exercised by the Central Vigilance Commission. Director CBI should have a fixed tenure of two years and a Committee headed by the Central Vigilance Commissioner should recommend the selection of an officer to the post. In fact, selection/extension of tenure of officers up to the level of Joint Director in the CBI should be decided by this Committee. The Court further suggested that a similar mechanism should be set up in States for the selection/appointment, tenure, transfer and posting of not merely the Chief of the State Police but also all police officers of the rank of Superintendent of Police and above.

The charter prescribed for SSC should be widened to include this responsibility.

Premature termination of tenure should be permissible in exceptional circumstances, which should be clearly stated in law.

Under no circumstances should the tenure of service be extended beyond retirement.

Enactment of a new Police Act

The Police Act of 1861 had a limited purpose. As per its Preamble, it was enacted mainly to "reorganise the police and to make it a more efficient instrument for the prevention and detection of crime." This objective can not be regarded as adequate for the police force of a modern democratic country.

Enormous changes have occurred in this country since Independence, which, as pointed out by the National Police Commission of 1997, cast a paramount obligation and duty on the Police to function according to the requirements of the Constitution, law and the democratic aspirations of the people. They also suggest the need for the police to be professional, service-oriented and free from extraneous influences and yet remain accountable to the people.

As already stated, the 1861 Act provides for control over the police force but not for its accountability to the community. This is its biggest shortcoming in the present context.

Even in respect of control, it vests the superintendence of the police force in the State Government and the administration of the district police in the District Superintendent of Police, but subject to the "general control and direction" of the District Magistrate. This system of dual control over the district police subjects it not merely to its departmental seniors but also to a part of the executive outside the department. This has been a unique feature of the police system introduced in this country by the British and has been a considerable source of resentment to the senior police hierarchy. Two important features of the situation prevailing at the time the Police Act was introduced are relevant. One was the combination of judicial and executive in one authority which the British introduced here for reasons of administrative expediency. This position no longer obtains today and one of the fundamental tenets of a democratic polity i.e. separation of executive and judiciary has been accepted and implemented. The other was the fact that that the policing at that time was considered a relatively simple task which could be performed reasonably efficiently under the general control and direction of a functionary who was not professionally trained in police work. It is significant to note that in 1860, when the new system was introduced, there was no regular cadre of superior police officers. This situation also no longer prevails and there is now a full-fledged cadre of professionally trained police officers.

The charter of functions prescribed in the Police Act of 1861 requires the policeman to obey and execute all orders issued by a competent authority; collect and communicate intelligence affecting public peace; prevent commission of offences and public nuisances;detect and bring offenders to justice; and apprehend persons whom he is legally authorised to apprehend. This charter does not include even some basic functions associated with the police, like preserving public order; controlling traffic etc. In addition, the preventive and service oriented functions are missing from the charter.

The National Police Commission has removed the inadequacies and redefined the role of the police. The preventive and service oriented role of the police has been heavily stressed, requiring the police, inter alia, to identify problems and situations that are likely to result in commission of crimes; reduce opportunities for commission of crimes; aid individuals who are in danger of physical harm; counsel and resolve conflicts and promote amity; provide necessary services and afford relief to people in distress situations; assist in preventing the poor from being exploited; prevent harassment of women and children in public places; refrain from causing needless inconvenience to the members of the public; arrange for the provision of prompt medical aid to the injured persons etc.

It is not merely the Police Act of 1861, but certain State Police Acts too, which too need to be replaced. There is an impression in certain quarters in the public that it is the Police Act of 1861 which is governing the Police Forces all over the country. This impression is wrong. A number of States have enacted own laws since Independence to regulate the functioning of their Police Forces. For instance, the Police Forces in Maharastra and Gujarat are governed by the Bombay Police Act of 1951, in Kerala by the Kerala Police Act of 1960, in Karnataka by the Karnataka Police Act of 1963, in Delhi by the Delhi Police Act of 1978 etc. Some State Governments have also framed separate legislation to regulate the working of their State Armed Police Forces. The enactment of these laws after Independence has not brought about any significant improvement in the performance or behaviour of their Police Forces. The new pieces of legislation have been as silent and remiss as the Police Act of 1861 in so far as ensuring police accountability to the community is concerned. It only proves once again that there has through out been a resistance, covert or overt, to the idea of reforming the police in the country.

It is necessary to discard the outdated Police Act of 1861 as well as some State Acts introduced after Independence and replace them with new legislation.

All new legislation introduced to govern the working of the Police Forces must be measured against the criteria suggested by Mary O’Rawe & Dr. Linda Moore in their book “Human Rights on Duty- Principles for Better Policing- International Lessons for Northern Ireland” The minimum standards should:
1. incorporates reference to international and domestic rights standards relevant to policing;
2. establish institutional and other arrangements to insulate the police from undesirable and illegitimate outside control, pressures and influences
3. outline the nature, philosophy and practices expected of the police;
4. prescribe mechanisms to ensure police accountability;
5. delineate powers as well as functions; and
6. impose a statutory requirement on the police to consult with and be influenced by the community and provide appropriate guidelines for such consultation.

SUPREME COURT ON CBI's AUTONOMY

WILL APEX COURT’s SCHEME ENSURE CBI AUTONOMY?

A dispassionate study of the recent judgment of the Supreme Court about the superintendence and control over the Central Bureau of Investigation (CBI) evokes a mixed response. The judgment welcome on two counts-first for focusing on the need to insulate the CBI from “extraneous influences” and secondly, for quashing the infamous “Single Directive” on the grounds of it being bad in law However, the institutional and other arrangements suggested to replace the existing system may not provide the type of insulation required for the CBI to function as an effective but a fair and impartial organization.

The court had felt that allegations of a “definite nexus between a crime and corruption in public life at high places in the country” and the CBI and other investigating agencies showing “inertia” in investigation offences involving influential persons revealed a grave situation that posed a serious threat “even to the unity and integrity of the nation”. It considered it necessary to issue orders that would activate the CBI and other agencies to “at least commence a fruitful investigation.”

It took up the responsibility of monitoring the progress of investigations and directed the CBI not to report progress to the person occupying the “highest office in the political executive.” It reiterated the basic tenet of rule of law: “Be you ever so high, the law is above you” and stressed that investigations into accusations must therefore, be completed expeditiously, irrespective of status or position of the accused.

Another significant result of the judgment has been to quash a part of what is termed as the Single Directive by which the Government had debarred the CBI from undertaking any enquiry against any officer of the rank of Joint Secretary or above in the Central Government, including those in Public Sector Undertakings, Reserve Bank of India, SEBI and nationalized banks, without prior sanction of the Secretary of the concerned ministry / department.

In addition to quashing the Single Directive, the judgment issues directions aimed at insulating the CBI from “extraneous influences” and here it raises more questions than it answers. While the Court entrusts the responsibility of exercising superintendence over the CBI’s functioning to the Central Vigilance Commission (CVC), it simultaneously holds that the concerned minister shall be ultimately responsible for its efficient functioning to Parliament. The charters of responsibility of the Central Government and the CVC to exercise supervision over the CBI are to clear. It appears that the Court has made a distinction between the Government’s general responsibility and the CVC’s specific responsibility to ensure an efficient and impartial functioning of the CBI. The line of distinction, however, is too thin to be observed and maintained in practice.

It has been held by the Court that none of the minister’s powers can extend to interfering with the course of investigation and prosecution in any individual case. Investigation is to be governed strictly by the provisions of law. In fact, the process of investigation, including “the initiation and manner of investigation of the offence.” has not been regarded by the Court as “an area which can be included within the meaning of superintendence in Section 4 (1)” of the Delhi Special Police Establishment Act 1946. In this respect, the CVC’s authority of exercising superintendence would be no different from what has been in case of the Central Government.

At present, the CVC has neither any constitutional nor statutory bases. It was set up by the government of India in February 1964 on the recommendation of the Santhanam Committee on Corruption. The Commission is a part of the executive and has invariably been headed by a senior bureaucrat serving or retired. Its functions are mainly advisory and it is up to the central government to accept its advice in vigilance and corruption cases involving Central Government employees. The fact that corruption amongst public servants at the Centre has increased considerably since the commission was set up indicates that it has not been successful in achieving its objectives.

The CVC’s experience or expertise is limited by its charter of dealing only with corruption or vigilance matters. The CBI on the other hand deals not only with corruption cases but also with major crimes having inter-state or international ramifications.

Thus neither the structure of the Commission nor its charter nor its record inspire any confidence that the new arrangements suggested would really insulate the CBI from wrong and illegitimate influences.

The directions given in the judgment about selecting officers for the posts of Central Vigilance Commissioner and Director CBI only strengthen this apprehension. Selection of the Central Vigilance Commissioner is to be made by a Committee consisting of the Prime Minister, the home minister and the Leader of the Opposition from a panel of “outstanding civil servants and others of impeccable integrity” to be furnished by the Cabinet Secretary. Selection of the CBI Director shall be made by a Committee headed by the Central Vigilance Commissioner with the Home Secretary and Secretary (Personnel) as members. Thus while a committee of politicians will select the central vigilance commissioner, a bureaucrats’ board will choose the CBI Director. This board would also have the power to extend or prematurely terminate the tenure of officers up to the rank of Joint Director in the CBI.

The judgment has the effect of enhancing the powers of civil servants over an important organization like the CBI. This should not cause any worry to politicians as most illegitimate political control over the police organizations in this country has not been direct; it has been exercised through senior bureaucrats.

The judgment directs that the CVC shall be given statutory basis. Legislation enacted for this purpose must provide for enough checks and balances to ensure that the CBI’s functioning serves the law of the land and not the vested interests of politicians or bureaucrats. The minimum that should be done is to give the CVC a quasi-judicial status or to provide that the head of the CVC shall be a judge, serving or retired, at least of the High Court. ( Published in the Times of India dated March 18, 1998)