CAN A LAW BE MORE FAKE THAN THIS?

THE REPRESENTATION OF THE PEOPLE (AMENDMENT) BILL, 2002

It has been claimed that the Representation of The People (Amendment) Bill, 2002 (the Bill), which has been drafted by the Government with such unseemly haste, is an attempt to settle the long-standing issue of debarring the criminals from entering into our legislatures. The Government should, however, know that in a democratic society, no issue, particularly the one that is of such great public import as the present one, can ever be treated as settled unless it is settled right and unless it is done in consultation with the public.

For the last so many years, the citizens have been demanding amendments in law to debar the entry of criminals into our legislatures. The existing provisions in the Representation of the Principal Act, 1951 (the principal Act) disqualify a person from gaining entry into the legislatures only if he is convicted of an offence specified in Section 8 or found guilty of a corrupt practice. The existing law has failed to prevent entry of criminals, which is obvious from the fact that so many of them have become “disciplined members” of political parties and have won elections to “serve the public”. The fault lies not only with the election laws but with the way our criminal justice system has been functioning. Besides being slow, cumbersome and dilatory, the system has failed to bring the rich and powerful people to justice. It is not the rule of law but the rule of power and politics that has prevailed.

The Supreme Court’s order of May 2, implemented through the Election Commission’s guidelines of June 28, does not deal with the disqualification issue. All it says is that a citizen has a right to know a candidate’s criminal background, assets and liabilities and educational qualifications so that he can make an informed choice before casting his vote. The idea of disclosing information appears to have unnerved the politicians so greatly that they immediately closed ranks and urged its rejection. The Bill inserts a new clause in the principal Act (Section 33 A), which says that a candidate is required to furnish information only under the Act and the rules and no decree, order or direction of any court or Election Commission in this respect needs to be complied with.

The Bill makes a concession and requires a candidate to inform by filing an affidavit along with his nomination papers if he is accused of any offence punishable with imprisonment for more than two years in a pending case where the charge has been framed by a competent court. While the Amendment Bill provides for a penalty in the form of imprisonment for filing a false affidavit, this has not been included separately and specifically as a “corrupt practice” under Section 123 of the principal Act.

The Bill indicates that the politicians are more afraid of declaring their assets and liabilities and their criminal background than being charged in a court of law with having committed heinous offences. They are fully aware that the way our police and courts function, it takes years before charges are framed by courts in criminal proceedings, if at all the cases against politicians reach that stage. For a criminal case against a politician to reach the court, it is necessary to have a police force, which is insulated from illegitimate political control and pressures. Do we have such a police force? One need not go to Gujarat to answer NO. Thus presently, it will be one of the rarest of rare cases when a politician still holding some position of power is taken in a criminal proceeding to a stage where he has to face charges framed by a court of law not once but twice.

Declaration of assets, however, is a different ball game altogether, raising questions of how he has acquired them. A recent study done by a research organisation of Delhi has shown that a person to win elections has to be ‘superrich.’ Probably another study can be done by the same organisation to find if winning elections is the major way to become superrich.

Though a citizen’s right to have full information about the candidates’ background is not being recognised by law, the Bill makes a fraudulent attempt to convey that its purpose is to debar criminals from entering into legislatures. It adds Section 8B to the principal Act, which would have the effect of disqualifying a person against whom (i) charges have been framed by a competent court (ii) in two separate criminal proceedings, showing his involvement (iii) in “heinous offences” and this should have been done at least (iv) six months prior to the date of filing nomination papers. There are some peculiar features of this amendment, which need to be noted. One, the person to be disqualified must be involved in two separate criminal proceedings. One is not enough. If a person is charged by a court with having committed “heinous offences” in only one criminal proceeding, he will not be disqualified. There is also a proviso to this Section, which says that any criminal proceeding which is stayed will not be taken into account. If the concerned person succeeds in getting one of the criminal proceedings stayed, he will not be disqualified. Two, the offence must be heinous; an ordinary offence will not do. In other words, besides being a recidivist, he must belong to the hardcore category of criminals. Three, the “heinous offences”, as defined in the Bill, includes waging or attempting or abetting waging of war against the Government of India, murder, kidnapping or abducting in order to murder, or for ransom, rape, custodial rape, dacoity, drug peddling and a few specified offences under POTA. The person concerned can jolly well keep on committing other offences under IPC, like robbery, arson, riots, grievous hurt, extortion etc or under other local and special laws, like possessing or manufacturing arms and explosives, trafficking in women, illicit bootlegging, smuggling or amassing assets disproportionate to his income through corrupt means etc. He can rest assured that he will not be disqualified under this Bill.

Can any piece of legislation be more fake than this? But then, if it were not for such absurd attempts of the government to put wool over our eyes, we would have nothing left to laugh at.

(Original version of article published in the Indian Express dated 21.08.2002)

MURDER OF STEPHEN LAWRENCE

MURDER OF STEPHEN LAWRENCE IN LONDON-
CAN THE GOVERNMENT AND THE POLICE IN GUJARAT LEARN SOME LESSONS?


Stephens Lawrence was a bright 18-year-old young man. On April 22, 1993 he was waiting at a bus stand at 10.30 PM in south-east London to go home. Suddenly, a group of about five to six youngsters came across the street, shouting “what, what nigger”, attacked and stabbed him to death

The attack was completely unprovoked. Stephen was killed just because he was black. His murderers were white.

The Metropolitan Police Service, London conducted investigations in two phases.
Names of five white young delinquents came repeatedly to the notice of the police as prime suspects, including specific information of their involvement in murder. The police, however, failed to unearth sufficient evidence to prosecute them.

What was remarkable about this case was the huge dignity, courage and determination with which Stephen’s parents pursued the case. Their campaign for justice finally bore fruit when the UK Government appointed a Commission of Inquiry on July 31, 1997 under the chairmanship of Sir William Macpherson of Cluny, former Judge of the High Court, to inquire into matters arising from the death of Stephen Lawrence, particularly to identify the lessons to be learnt for the investigation and prosecution of racially motivated crimes.

The report submitted by the Commission to the Government in February, 1999 was a scathing indictment of the working of the Metropolitan Police service. The Commission identified many deficiencies in investigation and came to the conclusion that “the investigation was marred by a combination of professional incompetence, institutional racism and a failure of leadership by senior officers.” The Commission stated that institutional racism “exists both in the Metropolitan Police Service and in other Police Services and other institutions country wide.”

The Commission made 70 wide-ranging recommendations. They recommended that a Ministerial Priority be established for all police services to increase trust and confidence in policing among minority communities. The Freedom of Information Act should apply to all areas of policing, subject only to “substantial harm” test for withholding disclosure. Race Relations legislation should be extended to police and the chiefs should be made vicariously liable for acts and omissions of their officers relevant to that legislation. A comprehensive system of reporting and recording of all racist incidents and crimes should be created by making it possible for public to report them 24 hours a day and at locations other than police stations. A model manual of investigation into racist incidents and reviews of such investigations, which should be open and thorough, should be prepared. Dedicated and trained Family Liaison Officers must exist at local level in every police force. Training must be given to police in racism awareness at local levels and local minority ethnic communities should be involved in such training. The police forces must reflect the cultural and ethnic mix of the communities they serve. Racist words and acts spoken or done by the police should lead to disciplinary proceedings. Serious complaints against the police should be independently investigated.

How did the police and the government in the UK react to the findings? The police admitted that their investigations were faulty. Sir Paul Condon, the Metropolitan Police Commissioner, made a public apology to the parents: “I, we in the Met, feel a sense of shame for the incompetence of that first investigation and of how the family were let down. We could and we should have done better.” The report was submitted to the Government on February 15, 1999 and it was discussed in the House of Commons on February 24, 1999. Sir Jack Straw, the British Home Secretary, announced: “ The House will share my sense of shame that the criminal justice system, and the Metropolitan Police in particular, failed the Lawrence family so badly.” The Government announced its acceptance of all the recommendations and formulated an action plan to implement them within a given timeframe

What does the above reveal? A murder takes place. A very reputed police force handles the investigation badly. The revelation gives a big jolt to the collective conscience of the community. No attempt is made to suppress facts. Public apologies for institutional failures are made by the head of the police force and also by the government. The existence of the problem is recognised. Solutions are suggested, accepted and implementation starts.

And how do we react? As per the official count, more than 800 people are butchered on the streets of Ahmedabad and other places in Gujarat. The police do not register FIRs in all cases. They act partisan and fail to deal with rioters effectively. There is in fact evidence of their complicity in various crimes. The Commissioner of Police explains the partisan attitudes of his men by referring to the fact that they are bound to be affected by the general sentiments of the community. The head of the government refers to Newton’s laws to explain the reaction of the majority community. No apologies are offered by the government or by the head of the police force for their failure to protect the lives and properties of citizens. The guilty police officers and others appear to be getting away scot free.

What happened in Gujarat has happened earlier, not only in that state but in other places too. It will keep on happening in future, till our governments and the police forces realise that good, open, decent and neutral policing is the key to our survival as a democratic society, which is so heterogeneous in its composition and culture.

(Original version of the article published in the Indian Express dated 03.06.2002).

THE GUJARAT CARNAGE

IN SEARCH OF LOST CREDIBILITY
THE CARNAGE IN GUJARAT UNDERLINES THE NEED FOR POLICE REFORM

It is obvious there was an enormous failure of law enforcement machinery during the recent communal riots in Gujarat. The police failed to prevent damage to life and property and to provide a feeling of security to a large chunk of population. There are allegations that the police took sides and owed bias against members of the minority community.

This is not the first time this has happened. It happened in Nov 1984, when Sikhs were massacred and property worth crores was looted by rampaging mobs. There was the
Bhagalpur carnage in October 1989 when the Bihar Police allegedly joined the marauders in acts of arson, looting and butchering innocent persons from the minority community. The 1992-93 communal riots of Bombay brought in shocking incidents of police acting in a blatantly partisan manner against members of the minority community.

But the scale on which the state has lost its credibility this time is unprecedented. Once the state loses its credibility on such a mass scale, the feelings of insecurity amongst the minority community members give rise to faith in vigilantism, the tendency to congregate leading to ghettoisation with all the attendant evils, and militancy.

If there is one lesson that emerges clearly from what happened in Gujarat, it is this: the country cannot do any more without police reforms. The need for police reforms is too urgent to be delayed.

Police reforms must be pursued simultaneously in two directions. One, to establish statutory institutional arrangements to ensure that the superintendence of the state governments over their police forces is limited to guarantee that police performance is in strict accordance with law. To ensure the police function to establish rule of law, not rule of politics.

The other direction is to think in terms of strengthening policing under the existing set up. Besides improvements in recruitment, training and leadership, the condition of the constabulary needs immediate improvement. It is also necessary to set up statutory mechanisms to ensure effective monitoring and accountability of the police.

The most effective way of bringing about reforms in the police is by amending the Police Act. The relationship between the police, the government and the community is defined and regulated by the provisions laid down in Police Acts of different countries.

The Police Acts in other countries, unlike our Police Act of 1861, talk less of control and more of responsibility of the government to set up an efficient and effective system of policing. For instance, the main function of the Secretary of State in the U.K., according to Section 36 of the Police Act of 1996 of that country, is to exercise his powers “in such manner and to such extent as appears to him to be best calculated to promote the efficiency and effectiveness of the policy.”

It is this statutory obligation, which makes the governments accountable for their failures in policing and forces them to take steps to monitor police performance and take concerted action to improve the police system. The overall responsibility of providing the community with an efficient and effective force remains with the political executive and yet functional autonomy remains with the head of police. There is a statutory public process for arriving at a careful demarcation of roles between the politician, the police and the community.

We need to go back to the recommendations made by the National Police Commission more than two decades ago. The central as well as the state governments in this country turned a deaf ear to those recommendations. It is time we learnt the lessons from Gujarat.

(Published in the Indian Express dated 05.04.02)

THREATS TO DEMOCRACY

MUGGING OF DEMOCRACY IN DEMOCRATIC WORLD

The enactment of emergency laws in some democratic countries after Septmeber 11, including our own POTA, brings to the fore certain important issues about the shrinkage of democratic space available to citizens in the democratic world.

A few decades ago, one felt quite optimistic about the consolidation of democratic polity and culture in different parts of the world. The end of the cold war blocks, collapse of certain totalitarian, military and repressive regimes and transition to democracies in some countries of Asia, Africa and Latin America, the spread of human rights philosophy and institutions, the strengthening of the NGO movement and rapid growth of economy in some parts of the democratic world gave rise to confidence in the efficacy of democratic polity to solve peoples’ problems.

This optimism has been belied. Amongst the factors responsible for decline in public faith, two have been prominent. One has been the failure of the criminal justice system to control crime in a fair, just and effective manner and the other has been the failure on the economic front to alleviate poverty and inequalities.

There is an increasing feeling that the democratic system has failed to provide a feeling of security to the common man. The establishment of a feeling of security is extremely important because without it, one can not enjoy one’s basic needs and rights. As the UN Commission on Crime Prevention and Criminal Justice in 1995 said: “To feel safe from crime is as important to a person as access to food, shelter, education and health.”

A large number of people are of the view that democracy as a system of governance is weak and fails to control crime effectively. This feeling is supported by the fact that crime rate in almost all the democratic countries is definitely very high and is continuously rising. The State is failing to prevent crime and in some cases also to deal promptly, justly and effectively with those who commit it. When a large number of people, after committing crimes, are allowed to get away and justice is not meted out to victims, or criminal cases in courts of law are allowed to drag on for umpteen number of years, it results in eroding the faith and confidence of the public in the effectiveness not merely of the criminal justice administration but of the whole system of democratic polity and governance.

A democratic system is associated with the rule of law. Loss of faith is all the greater and widespread when the rule of law is not enforced. The way the system has worked in some countries, it has given rise to an impression in the public mind that some persons i.e. those who are rich, influential and politically powerful, commit crimes with impunity and manage to remain above the law of the land and it is only those who belong to the poor and underprivileged sections of society who are put behind the prison walls for committing even minor infractions of law. The system also shows bias and discrimination on the basis of race, colour and caste. This leads to alienation of a large section of people who are victims of discrimination and injustice. It fuels the seeds of discontent, protest and violence.

The citizens expect the State to provide them freedom from crime and violence. The State’s failure to do so gives rise to public fear of crime and criminals. Fear of crime feeds on itself and always grows at a rate faster than crime. It reduces the quality of life enjoyed by citizens in many ways. It is such public fear and perceptions, which provide a license to the police to ignore the law and deal with crime and criminals by using rough and illegal methods. Police deviance always increases whenever the fear of crime whips up the rhetoric of ‘war against crime and criminals’. Citizens’ vigilantism, which poses another threat to the rule of law, is also known to increase when citizens lose faith in the ability of the state to control crime. Public vigilantism has emerged as a big threat to the consolidation of rule of law in South Africa and some other democratic countries of that region and Latin America.

The State always uses the opportunity provided by the accelerating fear of crime to arm itself with repressive powers. Fear of crime provides an opportunity to the governments to introduce black laws; enhance powers of the police; overlook use of third degree methods by state agencies and curtail citizens’ rights. Instead of rule of law, rule of fear reigns supreme. In the final analysis, it is the democracy, which really gets mugged. This is what has happened in large parts of the democratic world after the September 11 incidents.

In such an environment where popular opinion supports authoritarian responses to crime and violence, the human rights movement suffers a set back. It faces an erosion of political support because the human rights groups are accused of coddling the criminals and ignoring the rights and needs of the citizens to live in a climate of peace and stability. There is also a feeling that the human rights organisations are always ready to denounce the police abuse, but hardly have any specific suggestions to improve their performance.

The other factor responsible for erosion of public faith is an economic one. There is considerable evidence to prove that poverty and income disparities in most democratic countries are increasing. In its Millennium Report on Human Rights and Poverty Eradication prepared for presentation at the next CHOGM meeting, the Commonwealth Human Rights Initiative, an independent NGO based at New Delhi, has brought out some interesting facts about the incidence of poverty in the commonwealth countries. According to the report on “Human Rights and Poverty Eradication” (2001), in a commonwealth of 2000 million people, nearly 700 million live on less than US $ 1 a day. Over 40 % of population in Lesotho, India, Ghana, Kenya, Nigeria, Zambia, Tanzania, Uganda, Gambia and Sierra Leone live below the national poverty line or below an income of less than one $ a day. The share of the word’s poorest 20% in global income is only 1.11%, down from 2.3% in 1960. Today, the richest 20% earn 78 times more than the poorest 20%, while in 1960, the disparity was only 30 times as much. Even in developed democratic world, there are pockets of poverty. In the UK and Australia, over 13 % of the population live below the poverty line, while in Canada, the population living in poverty is 17.6%

One of the reasons for increasing poverty and deepening disparities is the failure of democratic regimes to control corruption in public life. Corruption is nothing but a tax on the poor. As the CHRI report says: “Corruption negates the rights of the poor, depriving them of their right to participation and denying them access to economic and social welfare. The result is a sense of hopelessness among people and general cynicism and selfishness in society.”

Consolidation of democratic space is thus dependent mainly on the ability of the democratic regimes to deal with the forces of crime and disorder effectively but justly, without violating human rights and to ensure that the fruits of development are distributed equitably. A rights based approach to the problems of crime and poverty is the need of the hour.

(Original Version of the Article published in the Statesman dated March 22, 2002)

RIBIERO COMMITTEE ON POLICE REFORMS

REPORT OF THE RIBIERO COMMITTEE ON POLICE REFORMS-A CRITICAL ANALYSIS

Background

The Ministry of Home Affairs, Government of India, recently (Office Memorandum No.11018/1/98-PMA dated May 25, 1998. Office Memorandum No.11018/1/98-PMA dated May 25, 1998) set up a Committee on Police Reforms (Committee) in pursuance of the Supreme Court’s directions issued in the context of Writ Petition (Civil) No. 310 of 1996.

The terms of reference of the Committee were as follows:

1. To review action taken to implement the recommendations of the National Police Commission(NPC), National Human Rights Commission (NHRC) and the Vohra Committee.
2. To suggest ways and means to implement the pending recommendations of the above Commissions/Committee.
3. Consider and make recommendations regarding any other matter which the Government may refer to the Committee or which the Committee Considers necessary in this behalf.

On a reference made by the petitioners, the Supreme Court asked the Committee to review action taken to implement the recommendations of the NPC, particularly focusing on the need, relevance and practicability of:

1. setting up a Security Commission or Police Authority in each State and at the Centre on the lines suggested by the NPC,NHRC and the petitioners, and if so its functions and composition;
2. prescribing a procedure for the appointment of Police Chiefs which would be transparent and ensure that the best officers are selected and giving the senior incumbents a minimum tenure; and
3. insulating the investigative wing of the police from its law and order functions.

The Committee recently completed its deliberations on these three issues and submitted its report to the Court through the Government of India (Committee’s Report).

Comments

Police Reforms- the Guiding Principle

During a short period, the Committee has attempted to make several recommendations. However, confronted with a complex problem, the Committee appears to have gone against its own convictions and has recommended institutions and arrangements, which, in our view, are weak. It has done so on grounds of “practicability,” as it feels that the NPC’s recommendations in their original form would not be acceptable to the State Governments. The Committee’s recommendations have, therefore, been guided, according to its own admission, by the need to make “compromises and adjustments.”

Referring to its recommendations about the constitution of State Security Commission (SSC) the Committee suggests that this is not “to be taken as substituting our judgement for that of the worthy and wise men who were instrumental in making most profound and useful recommendations. If their intentions have to be achieved, their objectives attained and their goal realised, then some compromises and adjustments have to be made in public interest.”( Committee’s Report, paras.55&56, pp23-24)

We do not agree. The present functioning of the police system in this country has been the result of all types of ‘compromises and adjustments’, which have been made with what is absolutely necessary to bring about police reforms. Compromises have been made not in public but private interests. In fact, three main pressure groups have obstructed police reforms in this country- the politicians, bureaucrats and in many cases the police officers themselves.

Measures for police reforms should never be defined or circumscribed by the reaction of any of these pressure groups. Police is a part of the community and it is only the community’s interest, which should guide the movement for police reforms in the country.

Committee’s Composition

The composition of the Committee was as follows:

 Shri J.F. Ribeiro,IPS(Retd.), Chairperson
Former Ambassador of India
 Ms Nirmala Buch, IAS (Retd.), Member
Former Chief Secretary, Government of M. Pradesh
 Shri Arun Bhagat, IPS (Retd.), Member
Former Director, Intelligence Bureau
 Ms Prabha Sankarnarayanan, Member
Advocate

The Committee thus consisted of four members, including the Chairperson. The Committee was, however, “deprived of the benefit of the views of Mrs. Nirmala Buch in arriving at the conclusions as she did not associate herself with the Committee’s work after attending the first meeting from 6th to 8th July, 98” (Committee’s Report, p2) The report does not explain as to why the retired senior bureaucrat dissociated herself form the Committee’s work after attending only the first meeting. This was an unfortunate development as it disturbed the original composition of the Committee. Any disagreement within the Commission could have been accommodated by recording notes of dissent. The total disassociation of one of the four members with the Committee’s work does create an avoidable feeling of disquiet.


NPC’s Recommendations- the Centre’s Response

The Committee has referred to the “concern of the successive Ministers in the Ministry of Home Affairs, Government of India about the implementation of the NPC Report…”( Committee’s Report, p3.) This concern, according to the Committee, is reflected in the letters sent by Shri Rajesh Pilot, Minister of State in the Ministry of Home Affairs in July, 1994; Shri Inderjit Gupta, Union Home Minister in April 1997 and by Shri L.K.Advani, Union Home Minister in May 1998 to the Chief Ministers of all States/Union Territories, urging them to take action on the recommendations of the NPC. The Committee has tried to convey an impression as if the Central Government has been keen to bring about police reforms on the lines suggested by the NPC, but the State Governments have not shown even an inclination to consider the subject. This impression is ill founded.

While the State Governments have been stoically and consistently indifferent towards the recommendations of the NPC and even of their own State Police Commissions, the Central Government, except for occasional outbursts of sudden enthusiasm, has been equally lackadaisical in pursuing the subject with the State Governments.

The NPC had finalised its eight and last report in May, 1981. The Government of India circulated the last seven reports of the NPC (Second to the Eight Report) to the State Governments in 1983. The response of the Central Government towards some highly important recommendations of the NPC was negative. In 1983, when the reports were forwarded to the State Governments, they were not asked merely to 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 61.8 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”.( The Government of India’s letter no. 11013/11/83-NPC Cell dated March 31, 1983)

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

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. If the Central Government had done so, it would then have acquired the moral authority to ask the State Governments to follow suit. It never did that and merely sent some routine reminders to the State Governments, which naturally failed to convince the States that the Centre was really and genuinely interested in implementing the NPC’s recommendations. Even the present attempts at reviving a process of reforms have come about at the instance of a couple of public-spirited retired police officers, the Supreme Court and the NHRC.

Establishment of the State Security Commission

Statutory or non-statutory

The Committee considers the establishment of the State Security Commission as highly relevant under the present circumstances. The SSC is required to (i)check the arbitrary acts of politicians, (ii) ensure transparency and accountability in governance, (iii) build public confidence in the police and (iv) protect politicians from unwanted pressures.

The Committee, however, departs from the recommendations of the NPC in a major way. While the NPC has recommended that the SSC should be a statutory body, the Committee has recommended that it should be a “non-statutory, advisory and recommendatory” body. In the Committee’s view, the “possibility of a statutory SSC as envisaged by the NPC seems a far fetched dream.” The main reason given by the Committee in arriving at this decision is that the Committee members encountered from the politicians “stiff opposition to the idea of any monitoring body or to the concept of an institution to supervise the superintendence of the political executive over the police force….It must be remembered that for 17 years, no State Government has lifted a finger in this direction."( Committee’s Report, p9) The Committee’s observations are correct. The reluctance of the political executive to accept the idea of such a body and the reasons for the reluctance as stated by the Committee are obvious. It is exactly and precisely for these reasons that the SSC should have a statutory base. The entrenched system of abuse of power and lack of political will to introduce police reforms need to be countered by establishing institutional structures backed by the force of law.

It is not enough to establish the SSC; what is necessary is to ensure that it remains in existence 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 instructions and not backed by the authority of law would always be hostage to the very power it seeks to check.

Law will not merely set up such an institution, but spell out its composition, process of selection of members, charter of functions, budgeting, procedure for implementation of decisions, safeguards against its misuse etc. The process of setting up the SSC and its composition are highly crucial. The Committee has not examined these issues in great detail; nor has it discussed the pros and cons of the alternate ideas put before it in the course of its work.

In a recent judgement, the Supreme Court decreed that the superintendence over the Central Bureau of Investigation would be exercised not by the Central Government but by the Central Vigilance Commission (CVC) (Supreme Court’s judgement in Writ Petition (Criminal) Nos. 340-343 of 1993, Commonly known as the Havala Case).. The CVC was already in existence, but it had been set up in 1964 through a Resolution of the Government of India (By Resolution No. 24/7/64- AVD dated February 11, 1964). The Supreme Court directed that the CVC should be given a statutory base so that it can exercise its superintendence over the CBI under the authority of law.

The Committee recognises that a statutory SSC is better than one set up through an executive fiat. It says: “This issue could have been easily solved if the political executive were to rise above personal interest and co-operate to do what is best in public interest, since a statutory institution would be the most satisfactory and efficient of solving this problem”(Committee’s Report, p8) The Committee, however, does not make this recommendation on grounds of “practicability”. It suggests an easier option, which would be acceptable to the political executive, who apparently can not be expected to rise above their personal interests.

Politics has been increasingly criminalised since the NPC made its recommendations. The weakness of the Committee’s recommendations lies in the fact that though the situation has worsened and the need to set up a strong institution is ever more acute and urgent, it nevertheless recommends a weak and vulnerable mechanism because it feels that entrenched power elite will resist. The advice being given to the Supreme Court is circuitous, to say the least. Luckily, the final decision rests with the Supreme Court.

SSC’s Secretariat & Budget

According to another recommendation of the Committee, the SSC need not have a separate 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.” The basis of making this recommendation is not known, as its rationale is not spelt out in the report.

One of the important functions in the charter visualised for the SSC is, to use the Committee’s own words, to work as “an impartial body to oversee” the functioning of the police. That is why the Committee has suggested that the SSC should be called the “Police Performance and Accountability Commission”(Committee’s Report p10). It is doubtful whether a Commission, whose Secretary and Convenor is the head of the State Police Force and who also provide the police staff to function as the secretariat of the Commission, can really be expected to monitor the functioning of that Force effectively and ensure its accountability. The Secretary and his Secretariat would be in a strong position to ensure that the Commission sees what the Police Department wants it to see and not what the public requires.

The absence of its own Secretariat means that the Commission would have to depend on the Police Department not only for the statistics and other material required by it but also for getting the necessary inquiries conducted in important matters of public interest. Such arrangements would clearly convey an impression to the public that the Commission is nothing but an adjunct of the Police Department. Lack of public faith in the institution would defeat the very purpose for which it is proposed to be set up.

The Committee has been silent about the budget of the SSC. Presumably, this will be a part of the police budget, as the expenditure to be incurred on the functioning of the organisation as visualised by the Committee may not be much. According to the Committee’s recommendations, the non-official members of the Commission “would not be entitled to any emoluments or allowances, except transport costs and sitting fees”( Committee’s Report p9)

The recommendations appear to suggest that the Commission will not have a standing office of its own. The meetings will be convened by the DGP; members will attend and go home, presumably leaving the police staff to take follow up action too.

District Police Complaints Authority

An important subject, like that of police accountability has not, in our view, been dealt with adequately. The Committee recommends the setting up of a “non-statutory body called the District Police Complaints Authority to examine complaints from the public on police excesses, arbitrary arrests and detentions, false implication in criminal cases, custodial violence etc and make appropriate recommendations to the SSC, the Government and the State or National Human Rights Commission” (Committee’s Report, p 12.) The Authority will be headed by the District Sessions Judge and have the District Collector and Senior Superintendent of Police as members.

The report is silent about the secretariat of the Authority and the procedure to enquire into complaints against police personnel. Since the District Superintendent of Police will be the Member Secretary of the Authority, it is safe to presume that the Committee wants the Secretariat to be provided by the District Police. If the SSC can function from the State Police Headquarters, the Committee obviously sees no reason why the Authority can not work form the District Police Office.

Two of the three members composing the Authority are a part of the existing executive set-up of the district. The District Police Force, despite being headed by the SP, is subject to the “general control and direction”(Section 4 of the Police Act of 1861) of the District Magistrate. The way the system is functioning, the public can not be expected to repose its trust and confidence in either of the two functionaries. The public can hardly be expected to approach with confidence the very persons who are supervising the system that has aggrieved them and who are now being asked to sit in judgement over themselves.

The credibility of the proposed institution will be further reduced because the Authority is not being provided with an independent investigating agency of its own. Obviously, the Authority will depend upon the police force to enquire into public complaints against the police personnel. This is precisely the reason why the existing system lacks public credibility. No police accountability mechanism can be considered successful if it fails to inspire public confidence.

According to its charter suggested by the Committee, the Authority can not initiate action; it can merely make recommendations. The organizations to which it can make recommendations include the SSC. However, the SSC itself is a recommendatory body only. In addition, the SSC is not meant to deal with public complaints against police personnel. At least, the charter prescribed for it by the Committee does not say so.

The trend all over the world is to set up complaint mechanisms under law, invest them with resources and authority to guarantee independent and fair investigations and clothe them with powers to ensure that the guilty policemen are not allowed to get away with their sins of commission and omission. In this country also, if the proposed institution is to succeed, it must be established to do its work openly, quickly, effectively and with patent impartiality. It must be independent, so that it has public confidence and the community sees it as unbiased.

Establishment of the Police Establishment Board

The Committee has recommended that a Police Establishment Board consisting of the Director General of Police as Chairman and four senior-most officers who are immediately junior to him in the police hierarchy should be set up “to monitor transfers, promotions and other related matters.” The Committee feels that “transfers, promotions, rewards, punishments, including suspensions and all service-related matters of officers of and below the rank of Deputy Superintendent of Police should be the sole prerogative of the police hierarchy”(Committee’s Report, p 14) The Police Establishment Board has been suggested to ensure this. However, how the Board will do so has not been spelt out clearly anywhere in the report. The only suggestion made by the Committee is to amend the Service Rules.

It is presumed that this would bestow enough authority on the Police Establishment Board to enable it to discharge its functions without fear or favour. What is not realised is that presently It is not the rules which allow the political executive or bureaucrats to decide or interfere in transfers, promotions, rewards, punishments and other service related matters of the non-gazetted ranks in the Police. Again it is not the rules which obstruct the police leadership to exercise its authority in such matters. In fact, the existing rules in most States empower the police hierarchy to take such decisions. The crux of the problem is that the senior hierarchy in the police has become vulnerable and in many cases is a willing party to outside illegitimate pressures. The scheme formulated by the Committee does not suggest measures to reduce the vulnerability of the senior leadership in the police or to break the nexus between the politicians and police officers.

According to another recommendation made by the Committee, the Board will also consider the postings and transfers of officers of and above the rank of Superintendent of Police and send its recommendations to the Government for final orders. According to the Committee, the Government should, “as a matter of course” accept these recommendations. In case of disagreement, the Government should record the reasons in writing and then “seek the views of the State Security Commission before issuing orders”(Committee’s Report, p 9)

This recommendation of the Committee creates confusion about the role of the SSC. Once the SSC has expressed its views to the Government, it can hardly be expected in such cases to attend to an important part of its mandate, which is to work as an advisory forum of appeal for disposing of representations from officers against their transfers or postings.


Selection Procedure for the post of DGP in the State

The NPC had recommended that selection for the post of the head of the police force in the State should be done by a Committee consisting of the Chairman of the UPSC, the Union Home Secretary, the State’s Chief Secretary and the senior-most among the heads of the Central Police Organisations. The Ribeiro Committee agrees with this recommendation, except in respect of one point. It feels that instead of assigning one slot in the Selection Committee to the senior most police officer among the Central Police Organisation Chiefs, it should be reserved for Director, Intelligence Bureau. As at various other places in the report, the Committee once again does not substantiate this recommendation with supporting arguments, except expressing a subjective opinion that it “ would be more appropriate”( Committee’s Report, p18.) to do so.

In our view, it would not be appropriate to do so, as it would result in depriving the Selection Committee of wide diversity of perspectives, experiences and opinions, which the NPC’s scheme would enable it to have. No organisation or individual should have a permanent interest in a matter of such vital importance as the selection of heads of police forces in the country. Rotating the slot amongst the heads of Central Police Organizations is a much better idea than to assign it to the head of one agency.

MADHYA PRADESH POLICE BILL, 2001

THE MADHYA PRADESH POLICE VIDHEYAK, 2001
NEED FOR AMENDMENTS


Introduction

In any discussion on police problems, the British invariably receive flak for the type of police system they established in this country through the Police Act of 1861(The 1861 Act). The argument is that the Act was legislated after the Indian Mutiny of 1857 and that the colonial rulers were not interested in establishing a people friendly police force here. They wanted to establish a police force, which could be used to consolidate and perpetuate their rule in the country.

Foreign rule in this country ended more than 54 years ago. How long shall we keep on blaming the British for establishing the police system they did? Why has no government - central or state - taken the initiative to replace the Police Act of 1861 with new legislation, which would give the country or the state a different police force?

It is not as if no new legislation has been passed. Some state governments have enacted new legislation since Independence to govern the functioning of their police forces. For instance, the Police Forces in Maharashtra 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. The enactment of these laws after Independence has not brought about any significant improvement in the organisational structure, performance or behaviour of the Police Forces. The reason - the new enactments were patterned on the model of the old 1861 legislation. They are as silent and remiss about the new requirements of democratic policing as the colonial legislation was.

The police forces in states/union territories have thus continued to be governed by the 1861 Act or by legislation modeled on that Act. Now that another state government is taking the initiative to replace the 1861 Act with their own model i.e the Madhya Pradesh Police Vidheyak,2001 (the MP Bill) this is an opportune moment to review critically the main provisions of the new Bill.

The Government of MP should not rush into legislating the Bill. A Bill, which purports to replace a century and four decades old legislation, must be debated widely. It should become a law after the government has received and considered comments/suggestions from different quarters.

There are many inadequacies and shortcomings in the MP Bill in its present form. A few important ones are discussed below:

Preamble

The Preamble to the Bill is as follows:

“A Bill to reorganise the police in Madhya Pradesh, reorient its responsibility for good governance and dedicated impartial service in protecting human dignity to improve the quality of life through solicitous care for women, children, members of the minorities, scheduled castes, scheduled tribes, other backward classes, the poor and the physically and mentally challenged persons and equip it to meet the exigencies of urbanisation, industrailisation and modernisation.”

This preamble is confusing and inadequate. A preamble is supposed to convey the basic ideas and spirit of the legislation. Any preamble to a Police Act must meet at least the following four requirements:

• It must mandate the police to function as a service to protect and promote the rule of law.
• It must recognise the paramount obligation of the police to function according to the requirements of the Constitution.
• It must require the police to be professional and service oriented.
• It must state the need for the police to be efficient and effective in discharging its basic responsibilities to prevent and detect crime, maintain order and security of the state without violating citizens’ rights.

The Preamble needs to be revised to clearly state the above objectives. The Preamble to the Bill should in fact incorporate the ideas figuring in the Statement of Objects and Reasons. The following version is suggested:

“A Bill to reorganise the police in Madhya Pradesh, so as to make it a highly professional and service oriented organisation dedicated to rendering impartial service to the community and protecting and promoting the rule of law; efficient in preventing and detecting crime, maintaining public order and security of state, while protecting the rights of the citizens; and functions according to the requirements of the Constitution, law and democratic aspirations of the people.”

Statement of Objects and Reasons

The statement of objects and reasons given in the beginning of the Bill has been reproduced from the Preamble to the model Police Bill drafted by the National Police Commission (NPC Bill).

The statement of objects should be reflected in specific provisions in the Bill. Unfortunately, the MP Bill in its present form does not have provisions incorporating the objects mentioned in this Statement. To give one example, the Bill is completely silent in so far as accountability is concerned. While the statement loudly proclaims that making the police accountable is one of the objectives, the Bill does not set up any mechanisms to ensure police accountability.

Para 3 of the Statement lists out the “salient features of the proposed bill.” There are 12 items in this list. Except item (i), the other new features of the Bill would hardly qualify to cover the basic objectives mentioned in the statement.

It is being claimed that a salient feature of the MP Bill [(para3 (ii)] is that it provides ”exemplary punishment to police officers for misconduct and other acts against the members of the public.” This is not true. For instance, Section 45 of the Bill, which penalises certain offences committed by police officers against the members of the public, has been borrowed from Section 129 of the NPC Bill. While the penalty prescribed in the NPC Bill for the offences extends to one year, the MP Bill has reduced the term of imprisonment to six months. Increase in fine from Rupees five hundred prescribed in the NPC Bill to Rs one thousand laid down in the Bill only accounts for the fall in the value of money that has taken place since the NPC days.

“The provision for compensation for injuries to persons and damages to property during riots or unlawful assemblies”[para 3 (iv)] is being claimed as a salient provision. There is nothing new in these provisions. Sections 13 to 15 of the Police Act of 1861 provide for recovery of compensation if the misconduct during riots causes injuries to persons or damage to property. The Bill reproduces the provisions in the NPC Bill. In any case, experience reveals that these provisions in law are redundant, as these are never implemented.

If the objectives mentioned in the statement could be reflected in specific provisions in the Bill, this would probably become one of the best pieces of legislation on Police in the statute book. However, this has not been done and the present Bill falls far short of establishing a democratic and people friendly system of policing in the state.

Control/Superintendence of the Police Force

Control over the police in this country is exercised by the state government. Section 3 of the Police Act of 1861 vests the superintendence of the state police force in the state government

There are many reasons for the poor quality of policing in this country, but a major reason identified time and again by committee after committee and inquiry after inquiry has been the type of control that has been exercised over the police. There is enough evidence to prove that the type of control that has been exercised over the police by the state governments has generally led to gross abuses. Almost all State Police Commissions, the National Police Commission and other expert bodies, which have examined police problems, have found overwhelming evidence of misuse and abuse of police system by politicians and bureaucrats for narrow selfish ends. The situation resulting from wrong control over the police has become worse during the last few decades because of increasing criminalisation of politics. Bad elements in politics and in the police have now become a strong mutually supporting system whose influence permeates the police and negates its ability to be a crime fighting force or an organization pledged to uphold the law and protect the people or the constitution.

The National Police Commission examined this subject in detail. Even though the quality of control exercised over the police in those days was not as bad as it has now become, the NPC realised the serious threat that poor control over the police posed to the quality of policing. The Commission made numerous recommendations to insulate the police from outside illegitimate control. The Commission felt that there was an immediate need to devise a new mechanism of control and supervision, which would help the State Government to discharge their superintending responsibility in an open manner under the framework of law. For this purpose, they recommended the constitution of a statutory commission in each State to be called the State Security Commission. In this scheme of things, the superintendence of the police force vests in the State Government but is to be exercised through the State Security Commission.

The N.P.C Bill authorises the State Government to appoint a Director General/Inspector General of Police for the direction and supervision of the Police Force. The selection of the Chief of Police has to be made from a panel of not more than three IPS officers of that cadre prepared by a Committee consisting of the Chairman or Member of the UPSC, Union Home Secretary, the senior-most amongst the heads of the CPOs, the Chief Secretary of the State and the existing Chief of Police in the State. Posting from the panel should be according to seniority.

Another recommendation made by the NPC was that the Chief of Police in a State should be assured of a statutory tenure of office to enable the organisation to resist outside pressures and illegal or irregular orders. The term of office of the Director General/Inspector General of Police appointed under the Act should be four years from the date of his appointment.

One of the prominent reasons for the vulnerability of the police to illegitimate pressures is the threat of transfer that always hangs on the heads of police officers, particularly when they resist pressures. Transfer and suspension are two weapons frequently used by the politician to bend the police officers 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. As the Padmanabhaiah Committee on Police Reforms has said: “ One of the main reasons for the politicisation of the police is the lack of a proper tenure policy for posting of officers at various levels and the arbitrary transfers and postings which have been used for political interest”. To protect police officers against arbitrary and whimsical transfer orders, there should be provisions in the Bill specifying the authorities competent to issue transfer orders regarding different ranks.

The MP Bill vests the superintendence of the police force through out the state of MP in the State Government. This type of clause vesting the general superintendence of the police force in the state government is there in all the Police Acts. The Bill, however, goes a step further and extends the clause by specifically stating that “any control, direction or supervision exercisable by any officer over any member of the police force shall be exercisable subject to such superintendence”.

The extended clause of the MP Bill would have the effect of giving the state government power to intervene in all matters relating to police work- administrative as well as operational. The extension amounts to saying that an order issued by any police officer concerning another police officer can be rescinded or amended by the government if they want to do so. All orders regarding transfers, postings, suspensions, rewards and punishments in respect of police officers issued by the departmental leadership come within the purview of this clause. In fact, the government can even issue directions as to how investigation of criminal cases should be supervised.

The word “Superintendence” has not been defined in any legislation. The word has been interpreted by the Supreme Court in the Havala Case judgement of 1998. The Court was examining the validity of the Single Directive- a set of instructions issued by the central government prohibiting the CBI from inquiring into complaints of corruption received against officers of the rank of Joint Secretary and above. The plea made before the Court was that the power of superintendence that the central government exercised over the CBI by virtue of Section 4 (1) of the Delhi Special Police Establishment Act, 1946 allowed the government to issue instructions contained in the Single Directive. The Supreme Court refused to accept such a broad definition of ‘superintendence’. In the Supreme Courts interpretation, “The general superintendence over the functioning of the Department ….would not include within it the control of the initiation and the actual process of investigation, i.e direction;” nor would it “permit supervision of the actual investigation of an offence by the CBI contrary to the manner provided by the statutory provisions.’’

Earlier, the NPC had deliberated on this subject. The Commission examined the rulings of the Supreme Court relating to Article 227 of the Constitution according to which every High Court is authorised to exercise superintendence over all courts in the State. Based on the general principles enunciated in these judgements, the Commission recommended that “the power of superintendence of the State Government over the police should be limited for the purpose of ensuring that police performance is in strict accordance with law”.

To ensure reform, which is the intention of any amending or new legislation, it is important that the word ”superintendence” should be clearly interpreted to exclude use of the police for wrong and illegitimate purposes. This is the crux of reform.

Governments almost all over the world exercise control over the Police forces in some way or the other. What matters is the quality of control, the purpose for and the manner in which it is being exercised. In India, the 1861 Act and the MP Bill merely talk of control and superintendence over the police force and are silent as to how that control should be exercised. The Police Acts in other countries make it a statutory responsibility of the government to set up an adequate, efficient and effective police service in an area. It is this statutory obligation which makes the governments accountable for their failures in field of policing and forces them to take steps to monitor police performance and take concerted action to improve the efficiency and effectiveness of the police force.

Police Accountability

The police enjoy tremendous powers over the lives and liberties of citizens. History of policing in different parts of the world and our own experience tell us that these powers are not always used to uphold the rule of law. In fact, sometimes these powers are used for a purpose and in a manner that brings the rule of law into disrepute. Whenever this happens, it destroys public confidence not merely in the police but in the democratic system and its processes, which the police in a democratic society are supposed to safeguard. That is why it is being increasingly accepted all over the democratic world that the police must be made accountable for what they do and what they do not do.

Police accountability has two facets. Firstly, the organisation is responsible to provide an efficient and effective police cover to the community, and secondly, its individual members are expected to conform their conduct to the requirements of law. Thus so far as public is concerned, there may be dissatisfaction with the failure of the organisation to provide a feeling of safety and security to the community and there may be complaints from citizens against the misuse of powers by the individual policemen.

The Police Act of 1861 talks only of control over the police but is conspicuously silent about police accountability. The police in this country were a ruler appointed police and they continued to remain so. They therefore remained unaccountable to anyone except their own hierarchy and the executive. No external institutional mechanisms of police accountability were therefor set up.

The MP Bill does not set up a single accountability mechanism to ensure that the community gets an efficient, effective and honest police cover to the community and that the citizens' complaints against the individual instances of police misconduct are inquired into impartially, speedily and effectively. There is not much difference between the 1861 Act and the MP Bill in so far as police accountability is concerned. The 2001 Bill is as silent and remiss as the 1861 Act.

Two suggestions need to be made. Firstly, the Bill should set up a Directorate of Police Evaluation (DOPE) independent of the police organisation. The Padmanabhaiah Committee on Police Reforms has made this recommendation too. The Directorate should carry out annual inspections of the district police forces as well as of the specialised units functioning in the State Police. It should also carry out thematic inspections periodically. The independent inspection reports would help in monitoring the performance of the police force, identifying the areas of weaknesses and shortcomings and ensuring that standards are maintained. It can function like a watchdog. Since the Unit has the specialised knowledge, it will provide to the government a means of getting an independent, objective and professional assessment on the working of the police force in the state and enable it to take measures to improve the efficiency and effectiveness of the police force. It will also provide to the head of the police force an independent assessment by experts who are not involved in the operations. The Inspectorate can draw its members from retired heads of the police force and outsiders with a mix of different skills and backgrounds.

Secondly, The present system of dealing with public complaints against police personnel departmentally fails on many grounds. The most serious objection against it is that it lacks public faith and credibility. Different models of civilian oversight of policing exist in foreign countries One is the most independent model, where citizens’ participation in dealing with public complaints against police personnel is the highest. This system employs paid, civilian, professional investigators to receive complaints; conduct fact-finding inquiries; review police reports; and make recommendations to the chief of police. In the other model, police personnel do investigations, but review of investigations is done by a civilian or a board of civilians, who then recommend action to the chief of police. In the third model, the internal affairs department of police receives complaints; conducts inquiries; and recommends action to the chief of police. If the complainant is dissatisfied with the result, he or she can complain to an appeal board, which includes civilian personnel. The board reviews the complaint and may recommend a different disposition to the chief.

There has been considerable dissatisfaction with the working of these bodies abroad. The criticism is mainly on two grounds. Firstly, public are not happy with a system where investigations into their complaints are done by the police officers. Secondly, they want these bodies to have a say in determining the disciplinary action against the officers found guilty.

The Bill should set up an independent, fair, effective and transparent police complaints body, which ensures that each and every public complaint against the police is conducted justly, promptly, thoroughly and without prejudice. The composition of such a body, its charter of functions, the process of handling complaints, investigation and supervisory procedures, action to be taken on its recommendations can be worked out once the decision to set up an independent complaints system is taken.

Impunity

Policing in a democratic society means functioning according to the rule of law. No one is above the law of the land and no one can be allowed to go unpunished when violating that law. This rule is as binding to police personnel as to ordinary citizens. In fact more so. Courts across the world routinely punish people in positions of trusteeship such as law enforcers with far greater severity because apart from the crime they have committed they have also breached the public trust and contributed to breaking confidence in the law.

It is, however, a hard fact that many state functionaries, even in democratic societies, including police personnel, succeed in getting away after committing major crimes. This happens due to various reasons. Crimes do not come to the surface because evidence is covered up. Investigations are not done effectively to unearth violations of law. Victims are intimidated or threatened to remain silent. Colleagues are not willing to blow the whistle and maintain a code of silence. However, an important source of impunity in many cases is the law itself, which does not allow prosecutions to be launched against the delinquent officers without sanction of the government. In order to make a beginning to break the unethical solidarity within the force itself and to build an environment that encourages the weeding out of the bad eggs from the force, the law needs to be reformed so that public servants cannot hide behind its provisions. If it cannot be done for all public officials, at least any reforming legislation relating to police must remove the barriers that presently exist to protect wrongdoers in the force.

There is no provision in the Police Act of 1861, which can be utilised by the government to grant or the police officer to enjoy impunity. It allows prosecution to be launched against the police officer provided it is done within a period of three months of the alleged deed and after giving one month’s notice in writing about the proposed action. However, if the act done is under the authority of a warrant, that plea can be made in defence by the concerned police officer. According to the Police Act, 1861:" when any act of prosecution shall be brought or any proceedings held against any police officer for any act done by him in such capacity, it shall be lawful for him to plead that such act was done by him under the authority of a warrant issued by a Magistrate." The Act however does not have any provision regarding the tort liability of the government or the police department for wrongful and illegal acts of police officers committed during performance of duties.

The NPC Bill follows the provisions contained in the CrPC, which can be utilised to grant immunity to police officers in cases of misconduct. Section 197 Criminal Procedure Code, provides that a public servant cannot be prosecuted without the sanction of the appropriate authorities for acts done “while acting or purporting to actin the discharge of his official duties.” The purpose of this provision of law is to ensure that frivolous and vexatious complaints are not filed against police officers to demoralise them and dissuade them from performing their duties. However, it is a fact that this provision of law has been abused to provide almost blanket protection to police officers even in serious cases of misconduct. This happens because of nexus between politicians, bureaucrats and police officers, which deliberately delays or denies sanctions for prosecutions. Eight years ago, the law Commission of India recommended that this provision should be amended to explain that it would not apply to any offence committed by a public servant, “being an offence against the human body committed in respect of a person in his custody, nor to any other offence constituting an abuse of authority.”

The National Police Commission has also recommended that protection available to the police officers under Sections 132 and 197 of the Cr.P.C. 1973 should be withdrawn so that the complainant is free to press his complaint against police official for a judicial pronouncement without having to obtain prior permission of the competent authority for such prosecution. However, contrary to this recommendation, the NPC's Police Bill debars the courts from taking any cognizance of offences under the prior sanction of the state government, when the accused is a police officer. Another provision in the NPC's Bill says that "No police officer shall be liable to any penalty or to payment of damages on account of an act done in good faith in pursuance or intended pursuance of any duty imposed or any authority conferred on him" by law.

The MP Bill also does not allow any court “to take cognizance of any offence under this Act when the accused person or any one of the accused is a police officer except on a report in writing of the facts constituting such offence by, or with the previous sanction of the Director General of Police.” This provision is exactly similar to the one contained in section 132 of the NPCBill, except for one difference. While the NPC Bill requires that prior permission for such prosecution has to be taken from the State Government, the MP Bill accords the power to sanction prosecution of police officers to the Director General of Police.

Lawmakers a century and four decades ago did not think it necessary to have a provision in law, which could be misused to provide escape to guilty but protected and patronised officers. In sharp contrast, the laws framed during the present days when the country is independent and democratic have provisions, which could be wrongly utilised to grant impunity.

The doctrine of governmental immunity is not recognised in the Police Acts of other countries. The Police Act of South Africa allows legal proceedings to be instituted against the local government for “an alleged act performed” or “an alleged failure to do anything which should have been done in terms of this Act or any other law, by any member of a municipal or metropolitan police service.”

The Police Act of UK makes the chief officer of police “liable in respect of torts committed by constables under his direction and control in the performance or purported performance of their functions” and shall “in respect of any such tort be treated for all purposes as a joint tortfeasor”

The Police Act of British Columbia in Canada makes a distinction between the government and the personal liability of the police officer in such cases. The liability of the government at all levels is total. The Minister on behalf of the government is jointly and severally liable for torts committed by police officers in the performance of their duties. A municipality, regional district board or government corporation are liable for torts committed by their police officers, while performing duties. There will be no personal liability except in certain circumstances. According to the legislation, “No action for damages lies against a police officer appointed under this Act for anything said or done by him or her in the performance or intended performance of his or her duty or in the exercise of his or her power or for any alleged neglect or default in the performance or intended performance of his or her duty or exercise of his or her power.” This immunity, however, is not available if the police officer “has been guilty of dishonesty, gross negligence or malicious or willful misconduct or the cause of action is libel or slander”

The doctrine of sovereign immunity has thus not been recognised by the Police Acts of the countries mentioned in this paper. In the USA also, this doctrine has either been extensively modified or completely abolished in different states. Recognition of governmental liability for the improper conduct of its police officers is being regarded as a greater incentive for the executive and the police leadership to institute the kinds of policies and practices that will guard against tort liability. Consequently, the American Bar Association, while prescribing standards for criminal justice, has recognised the need to do away with the system of governmental immunity.

One of the standards prescribed by the Association is: “In order to strengthen the effectiveness of the tort liability for improper police activities, governmental immunity, where it still exists, should be abolished, and legislation should be enacted providing that governmental subdivisions shall be fully liable for the actions of police officers who are acting within the scope of their employment.”

Consultation with the Community

The Indian Police is a ‘regime police’. The idea of the police being a part of the community and accountable to it has never grown in the Indian soil. It is not at all surprising that the Police Act of 1861 talks of the community or the inhabitants of an area only in terms of their responsibility to maintain order and penalties that should be imposed on them in case of failure to do so. There is not a single provision in this Act, which suggests the need on the part of the police to consult the community or involve them in any way in their work.

The NPC Bill also has no provision that specifically requires the police to consult the community about their policing needs and priorities or establish better relations with them. There is just one provision in the NPC Bill that authorises the Superintendent or Commissioner of Police to constitute Defence Societies for protecting persons, securing property and public safety.

The MP Bill is as silent on this issue as the 1861 Act. The 1861 Act reflected the relationship between the colonial ruler and his subjects. But can this lack of people’s participation or consultation be the parameter for policing in a democratic society today?

Amongst all the developments that have occurred in international policing during the last few decades, the most popular and widespread has been that of community policing. It has been increasingly realised in different parts of the world that if policing has to succeed it must involve the community in defining, guiding and helping the performance of the police. The Police Acts of other countries have specific provisions to obtain community’s views on policing and emphasise the need to establish good relations between the police and the community.

In South Africa, the Constitution itself makes it the “political responsibility” of each province “to promote good relations between the police and the community” and to appoint a commission of inquiry into any breakdown in relations between the two. The South Africa Police Act, 1995 gives effect to the provisions of the Constitution by prescribing the establishment of Community Police Forums at police station level to act as forums for liaison between the Police Service and the community. The liaison is meant to assist in :
 establishing and maintaining a partnership between the community and the police;
 promoting communication and co-operation between the police and the community;
 improving the rendering of the police services in the community;
 improving transparency in the Service and accountability of the Service to the community; and
 promoting joint problem identification and problem solving by the Service and the community.

In addition to forums, the Act establishes community police boards at area and provincial levels. The area community police boards are to consist of representatives of community police forums in each area, while provincial community police boards are to include representatives of all area community police boards in that province.

The UK Police Act requires that “ arrangements shall be made for each police area for obtaining (a) the views of the people in that area about matters concerning the policing of the area, and (b) their co-operation with the police in preventing crime in that area.” These arrangements are to be made by the police authority for each area and by Commissioner of Police of the Metropolis under the guidance of the Secretary of State.
the Bill must incorporate provisions that establish police-community liaison groups or committees at various levels, which would help in improving the police community relations and assist the police in controlling crime and maintaining law and order. The Bill must provide for the composition of the committees, their charter of functions and responsibilities, meetings to be held at different levels and procedures for follow up action to be taken on the meetings between the community members and police personnel.

Discipline

According to the Bill, the police officer is to be considered to be always on duty and can not resign or withdraw himself from duties unless allowed to do so. The upper subordinate officers, like Assistant Sub-Inspectors, Sub-Inspectors and Inspectors of Police can not resign within three years from the completion of basic training and if they do so they will have to reimburse the expenditure incurred on heir training. This provision discriminates against these officers, as officers of other ranks are not required to return the money spent on their training at the time of leaving the service within three years of joining it. It is therefore suggested that this provision should be deleted or made applicable to all ranks.

The list of disciplinary penalties prescribed by the Bill is fairly comprehensive. However, there are two points we would like to stress. Firstly, the Bill does not require the officer to record his order of punishment along with the reasons for the same. When a major punishment like dismissal from service etc. is being awarded, it is only fair to insist that the officer giving the punishment must record his order and his reasons for awarding that punishment. Secondly, the Bill is silent about the authorities to whom appeals against penalties can be made. The Bill must set up a mechanism to hear appeals against punishment orders, prescribing the authorities to whom the aggrieved party can make appeals.

In addition to the offences committed by a police officer against his department, he is also guilty of committing offences against citizens. According to the Bill, a police officer is guilty of an offence if he
(a) “without lawful authority or reasonable cause enters to search or causes to be entered or searched any building, vessel, tent or place;
(b) vexatiously and unnecessarily seizes the property of any person;
(c) vexatiously and unnecessarily detains, searches or arrests any person;
(d) offers any unnecessary personal violence to any person in his custody;
(e) holds out any threat or promise not warranted by law to an accused person”.

Three points need to be made in this regard. Firstly, while Section 129 of the NPC Bill on which this provision is based, prescribes the period of punishment as one-year imprisonment for these offences, the Bill reduces the penalty to six months sentence. These are all serious violations of human rights. There is absolutely no justification for showing any leniency in penalising the offenders.

Secondly, another offence should be added to this list. One common complaint of citizens is that they are unauthorisedly detained in the police stations and are forwarded to the magistrate with considerable delay. To curb this practice, it should be made a specific offence in the Bill to do so. Sub-section (f) may be added to Section 45 of the Bill on the following lines: “(f) Vexatiously and unnecessarily delaying the forwarding of any arrested person to the Magistrate or to any other authority to whom he is legally bound to forward such person.”

Thirdly, Sub-section (e) of Section 45 of the Bill should not be confined only to accused persons. The police are known to hold out threats or promises to others too, like witnesses. We, therefore, suggest that this sub-section should read only as follows: “(e) holds out any threat or promise not warranted by law.”

Summing Up

Briefly, the following amendments must be introduced in the Bill:
1) The Preamble to the Bill should be amended to convey the basic ideas underlying the new legislation.
2) Most objectives of the Bill stated in the Statement of Objects and Reasons are not reflected in the provisions of the Bill. The Bill should be amended to incorporate specific provisions to achieve the objectives.
3) Section 4 of the Bill should be amended to merely state that the superintendence of the police force through out the state of Madhya Pradesh vests in and is exercisable by the state government.
4) The Bill should define the word ‘Superintendence’ and make arrangements to ensure that the power of superintendence of the State Government over the police is so exercised as to ensure that police performance is in strict accordance with law.
5) The Bill must make it a statutory responsibility of the government to establish an efficient and effective system of policing in the state. It should set objectives and define performance standards.
6) The Bill should set up credible and effective complaint handling mechanisms and procedures.
7) The Bill should set up independent mechanisms to monitor and inspect police performance.
8) The Bill should establish institutional arrangements to consult the community and involve them in police work.
9) The Bill should not have any provision that helps in getting impunity in cases of misconduct and wrong doing. Section 50 of the Bill should be deleted.
10) Section 10 (3) of the Bill should be deleted as it discriminates against upper subordinate officers or this provision should be made applicable to all ranks.
11) The offences listed out in Section 45 of the Bill are serious violations of citizens’ rights. The penalty of six months sentence on conviction is low and as recommended by the National Police Commission should be one year imprisonment.
12) One common complaint of citizens is that they are unauthorisedly detained in the police stations and are forwarded to the magistrate with considerable delay. To curb this practice, it should be made a specific offence in the Bill to do so.
13) Sub-section (e) of Section 45 of the Bill should not be confined only to accused persons. A police officer holding out any threat or promise not warranted by law should be liable for conviction under this Section.