ARUSHI MURDER CASE- DISTURBING RESPONSES

ARUSHI MURDER CASE- DISTURBING RESPONSES

It is somewhat premature at this stage to analyse the Arushi murder case, as the CBI investigation is still on. However, the fact that Dr. Rajesh Talwar has finally been released on bail and the CBI has given him a “clean chit” raises a few issues that need to be discussed.

The main issue is that of accountability. Who should be held accountable for the trauma and suffering that an entire family has gone through? The character of the youngest member of the family, who was herself a victim of the most dastardly crime, was shred to pieces. According to UP Police, she became the victim because she was found to be in an “objectionable,” though not in a “compromising” position with the servant of the house. It was an “honour killing.” The father was having extra-marital relations with his colleague and a family friend. Wife swapping was a pastime in which the family used to indulge. Till the last day, they were reported to have booked 12 rooms in a hotel on the day the murder was committed.

The litany of lies and unverified statements made brazenly and repeatedly in this case is mind-boggling. If the Up Police was incompetently unprofessional, the media, particularly the electronic media, was thoroughly irresponsible and insensitive. They searched for salacious and sensational details, concocted them where they did not exist, and presented them to the public relentlessly and shamelessly. Sometimes one got the impression that the CBI was wasting its time and resources when the TV channels could do the job equally well, if not better, with their bunch of Sherlock Homes.

The other issue is that of police investigation skills. It is difficult to imagine how a police force can commit the type of silly mistakes that the UP Police did in this case. Not examining the scene of crime thoroughly, failing to collect elementary evidence, jumping to conclusions without verifying facts and showing too much hurry in presenting them to the media were some of the elementary mistakes that were committed. Crime investigation is a specialised work, which can be done well only if the investigating officers are equipped with the requisite skills and attitudes. It also requires close and effective, but not excessive supervision. When due to pressures or to steal limelight, too many superior officers jump into the fray, it can create confusion. A tendency to open the cards when the investigation is not even half-baked can dent the image of the police badly, as happened to the UP police in this case. Thus while crime investigation training needs improvement, the police must learn how to interact with the media in these days of instant communication. The police manuals of many states do not allow their police, particularly those at the lower and middle levels, to interact with the media freely. It is now seen that even at senior levels, the police can make a mess of their presentations. Though information with the media has to be shared, the police department must train their people in this field well.

Talking of investigation, the press reports say that the CBI has given a clean chit to Dr Rajesh Talwar as they have not been able to find any evidence against him despite all the scientific tests that were done. However, it is clear that the CBI has really not been able to come to a decision about Dr. Talwar’s involvement in this case. If, as reported, the initial case diaries of the Noida Police did not have any evidence of Dr Talwar’s involvement in the case and the CBI during its investigation failed to find any, the obvious conclusion should have been to close the case against him. This has not been done. Dr Talwar was released on bail by the court because the CBI, unlike previous occasions, did not object to his bail application. They left it to the court to take whatever action it considered “appropriate.” Dr Talwar thus is still an accused in the case. The CBI investigation done so far raises more questions than it answers.

Linked to the issue of accountability is that of compensation. Of course, depending on the final outcome of the case by the court, Dr Talwar or the family can take a decision on this issue, but can we expect the police and the media to atone for their sins of commission and omission in this case?

To err is human and mistakes in crime investigation have been committed elsewhere too, even by highly reputed police forces, like the Metropolitan Police, London. There is that famous case of Stephen Lawrence, who was a young black man murdered by a gang of white racists in South London in 1993. Investigation was initially conducted twice by the Metropolitan Police, but the Macpherson Inuiry Commission appointed by the UK Government (1999) concluded that the police investigation was marred by “a combination of professional incompetence, institutional racism, and a failure of leadership by senior officers.'' The image of the police in the UK received a severe beating by the Commission’s findings, but the way the police and the government reacted was exemplary. The police admitted that police investigations were faulty. Sir Paul Condon, the then Metropolitan Police Commissioner, made a public apology to the family: “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.” Later, Sir Jack Straw, the then British Home Secretary, announced in the parliament: “ 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.”

Would it be too much to expect the UP Police and the Mayawati Government to emulate the Metropolitan Police and the British Government respectively, if not now but at least after the court clears Dr Talwar fully of the charges leveled against him!

RISING CRIME- MAIN REASON

CRIME DOES PAY


A 12-year-old mentally challenged girl is allegedly raped by her neighbour; one of the owners of a huge farm house is arrested for plotting the murder of his brother-in-law; an IAF pilot loses his life in an incident of road rage; a 35 year old woman, allegedly a rape victim, is thrashed by the family members and neighbours of the accused in public; a former airhostess is shot dead on a main road during night time, and an hour after that a retired army officer is grievously hurt when he resists attempts to rob him of his car; and a 24 year old blind girl is sexually assaulted and robbed in the university area by the driver of the auto rickshaw in which she was traveling. These are some of the incidents of crime that occurred recently in Delhi and near by areas.

Incidents like these cause great suffering and loss to the individual victims of crime and their families and friends. Economic and social loss, however, is much greater, as they create a feeling of fear and insecurity. “Every crime destroys Edens more than our own”

How does one explain the spurt in crime in the national capital? All types of explanations are being given. While some are ascribing it to the influx of criminals from other states, like UP, Bihar etc., others are associating the ill with increasing population and rapid urbanisation. The other favourite explanations are the widening of economic disparities between classes, changing of traditional value system, spread of consumerist values, influence of cinema and TV, and, of course, the inefficiency of the police- the all time favourite punching bag.

While some of these explanations may be valid, an elementary fact has not been adequately recognised. A large number of persons are committing crime, planned or otherwise, because law does not deter them any more. They feel that the chances of being caught are less and of being punished even lesser. “Commit a crime and the earth is made of glass” is what Emerson said long ago. The present earth this side of the world is definitely not made of glass. It is not only that a large number of people are getting away after committing crime; even after being caught, they succeed in defeating justice. The way the criminal justice system is functioning in this country, it holds no great terror to any one and, therefore, does not deter even those who are on the brink, what to talk of the hardened ones. While crime is increasing, conviction rate is declining and the number of cases pending in courts is becoming alarmingly large and it takes years to settle them.

The State is failing not only to prevent crime but also to deal promptly, justly and effectively with those who commit it. This has two harmful effects. One, it results in eroding public faith and confidence in the capability of the criminal justice system to control crime. The public are unwilling to cooperate with the system and its functionaries to control crime; it prefers in many cases to take law in their own hands and deliver instant ‘lynch justice’ to those who are caught while committing crime or even to suspects of crime. However, vigilantism, by public or by police, does not help in controlling crime. Two, fear of crime increases and it always grows at a rate faster than crime. It affects the quality of life enjoyed by citizens in many ways. They avoid moving out of their homes and known environs, particularly during certain times of the day, feeling paranoid about the dangers lurking elsewhere. They do not feel safe even inside the homes and start searching for alternative ways of protecting themselves and their property, like employing private security guards, using safety and protective devices, organising citizens’ patrols, forming vigilante groups etc. Inside or outside homes, the worst affected by this feeling of insecurity are women.

Over a period of time, crime has increased and its nature changed, with new types of criminality emerging fast, but the ability of the police to investigate it successfully has not improved. There are of course various problems. There has been tremendous increase in the workload of the investigating officers and often it becomes too heavy to be borne with any reasonable efficiency. Despite rapid advances in science and technology, an average investigating officer depends on traditional methods of crime investigation, including the use of third degree. In fact, a survey done a few years ago showed that the application of forensic science was limited to less than 6 % of IPC cases The police officers also feel that there are various inadequacies in laws that have remained unchanged- some for decades and others for centuries. The important laws like the Indian Penal Code, the Evidence Act and the Police Act were legislated by the British during the second half of the nineteenth century and they have remained unchanged.

We keep on blaming the British for the type of police and legal system established in this country. Foreign rule in this country ended more than 60 years ago. Nobody asks the question- why haven’t we taken steps during more than six decades to improve the system? It is not only the functioning of the police, but also of the courts that needs to improve if crime has to be controlled.

Every society gets the kind of law enforcement it deserves. Criminalisation of politics in this country has obstructed the growth of professional policing and given rise to a culture that negates the impression that crime does not pay. Crime does pay and is being seen to pay.

CONTROLLING THE POLICE- MODELS

Controlling the Police
An Analysis of the Police Acts of Commonwealth Countries

Introduction

There are two ideas relating to the exercise of police powers, which have grown simultaneously in the democratic world. One, the police enjoy immense powers, which must be controlled to prevent their misuse. Two, controlling the police itself becomes a source of tremendous power that can be abused to serve partisan interests. While it is necessary to control the police so that they do not become a law unto themselves, it is equally important to see that control exercised over them is legitimate and serves public good.

This discussion raises some highly important issues. Who exercises control over the police and how is the control exercised? What are the checks and balances to which the police powers are subject? To whom do the police account for their performance and conduct? What type of relationship exists between the police and the political executive?

This paper examines the Police Acts of some Commonwealth countries to see how they deal with issues relating to the exercise of control and superintendence over the police. The paper has a limited objective- to provide information about the models of exercising control over the police that emerge from a study of the police legislation in the commonwealth countries.

This study of the Police Acts throws up five such models.

1.Regime Policing Model

This model exists in large parts of the Commonwealth, particularly in countries of Asia and Africa and the Caribbean islands, which were earlier colonies of the foreign powers. In such a system, the police function less to serve the rule of law and more to secure the interests of the dominant group or regime in power. Their accountability is mainly to their own hierarchy and the political executive, which provides them patronage. Structurally, the police as an organization are authoritarian and militaristic in design, whose managerial philosophy is based on distrust of lower ranks. The charter of functions assigned to them is narrow and limited, with great emphasis on law and order maintenance and on obeying orders faithfully.

The relevant provisions in the Police Acts that help in building and supporting such a model can be discussed under the following heads:

Exercising superintendence over the police force

The Police Act in countries where this model exists authorizes the government or the head of the political executive to exercise control over the police force, but without ensuring that the control or superintendence is exercised to make the police function in accordance with law. In fact, the provisions relating to exercise of control in some cases are deliberately left vague. For example, in India, the Police Act of 1861, which governs policing even now, vests the superintendence of the police in the state governments (Section 3). At the district level, it puts the police under the command of the District Superintendent of Police, but subject to the “general control and direction” of the District Magistrate (Section 4), who is essentially a bureaucrat and not a judicial officer. But neither the word “superintendence” nor the phrase “general control and direction” has been defined in law. This enables the government of the day to use the police to serve the partisan interests of the regime in power, whenever required.

In many African countries, the Police Acts vest the control in the head of the police force, but subject it to the directions given by the President or the Minister, which are binding. In some countries, the Police Acts go beyond this and give even the operational control of the police force to the head of the political executive. In Nigeria, while the Inspector General of Police (IGP), who heads the police organization, is charged with the command of the force subject to the directive of the President, the President is charged with the operational control of the force (Nigeria Police Act, 1943, Section 9). The President is also authorized to give the IGP such directions for the maintenance of public safety and public order as are necessary and the IGP shall comply (Nigeria Police Act, 1943, Section 10). In Uganda, the “Inspector General of Police shall be subject to and act in accordance with the laws of Uganda, except that on matters of policy, the President may give directions to the Inspector General”[The Constitution of the Republic of Uganda, 1995, Article 213 (4)] The problem with this provision of the Constitution is two fold. One, there is no cut and dried definition of what constitutes policy matters. Two, the provision does not state that the directions by the President should be given subject to and within the framework of law. This provision in fact is open to interpretation that requires the head of the police force to act in accordance with laws except where policy directions come from the President. There is a similar provision in the Police Statute of 1994, but here it is the Minister who may give policy directions to the IGP, who shall comply [The Police Statute, 1994 (Uganda) Section 6(2)].

Advent of Independence in countries like India and in other countries of South Asia and Africa, that were earlier colonies of foreign powers, did not bring about major changes in the police. It changed the political system and brought about enormous changes in economic and social spheres, but the police system remained more or less unaltered. In India, for instance, the Police Act of 1861 continued to govern it. Its managerial philosophy, value system and ethos remained what they were. The powers granted to politicians and bureaucrats to exercise control and superintendence over the police remained the same. They were a ruler or establishment supportive police force, considerably distant from the community and they continued to remain so.

It is not as if no new police legislation was passed. Some state governments in India have enacted new legislation since Independence to govern 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. The enactment of these laws after Independence did not bring about any significant improvement in the organizational structure, performance or behavior of the Police Forces. The reason - the new enactments were patterned on the model of the old 1861 legislation.

The same happened in most African countries, where the colonial powers had established a regime police force and used it to consolidate their rule. After Independence, the governments in many countries legislated new Police Acts. For instance, in Kenya, the Police Act was enacted in 1961 and later revised in 1988; in Uganda, a new Police Statute was legislated in 1994 and amended by the Police Act of 2005 and in Tanzania, a new Police Force and Auxiliary Services Act came into existence in 2002. Similarly many other African counties saw the birth of new police legislation. But despite the plethora of new laws, neither the basic structure of the police, nor the philosophy of policing was changed in most Asian and African countries of the Commonwealth

There is also the example of a small country in the Commonwealth i.e. the Maldives that did not consider it necessary to legislate a Police Act for long even after becoming independent in 1965. The Constitution of the country sanctions a perfect example of a regime policing system by declaring the President to be “the Head of State, Head of Government and the Commander in chief of the Armed Forces and the Police of the Maldives”( The Constitution of the Republic of Maldives, 1998, Article 33). The Government of Maldives has now drafted a new Police Bill, but it is as regime- police supportive as the Constitution. The President has the power to appoint and remove the head of the police force{Police Bill, 2006 (Maldives), Section 12 (b)} The Minister in charge of the Police has the authority “to make use, at any time, of the powers and discretions available to any senior officer of the police” and “to be able at all instances to give direct orders to the whole police force or a group of police men or an individual policeman,” but this authority can be used “provided that the Minister does not exceed the authority granted to him by the President and does not contravene any orders of the President” {Police Bill, 2006 Section 9 (b) (i) & (ii)}

The Police Acts in most Asian and African countries of the Commonwealth thus vest the superintendence of the police force in the political executive. The manner in which superintendence has been exercised over the police in most countries has led to gross abuses, resulting in erosion of the rule of law and failure of the police to grow as a professional organization. This is what a researcher says about the South Asia police and it is true of other Commonwealth countries too following this model: “The basic character of the South Asian police with its twin legacies of servility to the ruler and oppression for the mass of the people thus appeared set to survive well into the 21st century, neither the political class, nor the bureaucracy and least of all the police itself, showing any anxiety to alter its established culture, ethos, role and functional styles” [Dhillon, K.S, 1998, Defenders of the Establishment- Ruler-supportive Police Forces of South Asia, Indian Institute of Advanced Study, Shimla, India].

A few initiatives for reforms aimed at insulating the police from illegitimate outside control, pressures and interference have been taken in some South Asian countries of the Commonwealth, but these have failed. The political executive has strongly resisted the idea of establishing institutions that would take away or even dilute their power of exercising superintendence over the police force. Examples of three such initiatives and their failure are given below:

1.In India, the National Police Commission (NPC) had suggested way back in 1979 the establishment of a State Security Commission “to ensure political neutrality in police performance” [National Police Commission (India), August 1979, Second Report, p32 National Police Commission (India), August 1979, Second Report, p32]. Recently, the Supreme Court directed that a State Security Commission be set up in each state “to ensure that the State Government does not exercise unwarranted influence or pressure on the State police and for laying down the broad policy guidelines so that the state police always acts according to the laws of the land and the Constitution of the country” [The Judgment of the Supreme Court of India, September 22, 2006 in Writ Petition (Civil) No 310 of 1996- Prakash Singh & Others versus Union of India & Others, p 22]. The recommendation of the NPC made long ago was never implemented and the general response of the state governments towards the Supreme Court’s judgment has been evasive and poor.

2.In Pakistan, the Police Order of 2002 replaced the Police Act of 1861. This was later amended in 2004. The Police Order, 2002 in Pakistan met with strong resistance from the provincial political executive who felt that the Order had diluted their powers of exercising control over the police forces and therefore showed unwillingness to implement the reforms envisaged in the Order. The Federal Government could not resist the pressures and came out with an Ordinance known as the Police Order (Amendment) Ordinance, 2004, that restored some of the powers to control police forces to the political executive

The Pakistan Police Order of 2002 proposed the establishment of Public Safety Commissions at the federal, provincial and district levels. One of the important functions of the commissions at the provincial and district levels is to “take steps to prevent the Police from engaging in any unlawful activity arising out of compliance with unlawful or mala fide orders” [Pakistan Police Order, 2002, Section 80 (1) (b) & Police Order (Amendment) Ordinance, 2004, Section 22]. The reluctance of the political executive to accept the reforms propounded in the Order of 2002 led first to the dilution of its original provisions and later to its tardy and half hearted implementation. The commissions at different levels are yet to be established fully.

3.In Sri Lanka, a National Police Commission was established to act as a buffer between the government and the police. It was set up not only to take administrative and disciplinary decisions in respect of police officers; but also to entertain and investigate public complaints against police and provide redress; and formulate schemes for improvement of efficiency and independence of the police service. The Commission is not functioning presently because its composition, which had expired in November 2005, has not been revived. In any case, the way the Commission functioned, it never stirred up the requisite confidence in the public. As concluded by a researcher: “We have therefore a situation where the NPC has been wholly unable to fulfil its constitutional mandate to initiate a dramatic process towards change within the Sri Lankan police force. The need for an independent and credible NPC has never been greater” [Pinto, J. Kishali, 2007, “Regretting What Might Have Been: A Critique of The National Police Commission of Sri Lanka,” paper presented at the Roundtable on Police Reform: An Exchange of Experiences from South Asia organized by the Commonwealth Human Rights Initiative, New Delhi].

Appointment of the head of the police force

The police being a hierarchical organization, the power to appoint its head and to remove him becomes highly important from the point of view of controlling the force. In some countries, like India for instance, the Police Act is silent about the appointment of the head of the police force. Section 3 of the Act vests the superintendence of the police force in the state government, which uses this general authority to appoint the head of the police force. In the absence of any prescribed procedure in law and the fact that the word “superintendence” has not been defined, the political executive in the state enjoys enormous discretion to select and appoint officers of their choice as the heads of their police forces and remove them when they are not found ‘useful’. The absence of any fixed tenure makes them vulnerable to outside pressures.

In India, the National Police Commission had recommended that the head of the police force should be selected from a panel of three Indian Police Service officers of the state cadre and that this panel should be prepared by a committee headed by the chairman of the Union Public Service Commission [National Police Commission (India), August 1979, Second Report, p. 3]. A similar recommendation forms a part of the judgment delivered by the Supreme Court in Prakash Singh’s case[Judgment of the Supreme Court of India, 2006, Writ Petition (Civil) No 310 of 1996- Prakash Singh & Others versus Union of India & Others Judgment of the Supreme Court of India, 2006, Writ Petition (Civil) No 310 of 1996- Prakash Singh & Others versus Union of India & Others]. The judgment prescribes a fixed minimum tenure of two years for the head of the police force and lays down that the removal of the chief of police before the expiry of the tenure should be done in consultation with the State Security Commission.

In Pakistan, the Federal Government recommends a panel of three names for the head of the provincial police force and the Provincial Government has to select and appoint one from that list. The Order fixes a term of three years for the police chief, but allows his transfer before the expiry of the term. The transfer can be effected by the provincial government with the approval of the federal government, while the latter can do it on its own [Police Order (Amendment) Ordinance (Pakistan), 2004, Section 5 (a)].

According to the Constitution of Sri Lanka, the President of the country appoints the head of the police force. The Seventeenth Amendment to the Constitution done in 2001, however, prescribed that no person can be appointed as the head of the police force unless the Constitution Council established by the Amendment has approved the appointment [Seventeenth Amendment to the Constitution of the Democratic Socialist Republic of Sri Lanka, 2001, Article 41 C (1)]. The composition of the Constitution Council prescribed by the Amendment includes the Prime Minister, the Speaker, the leader of the opposition in Parliament, one nominee of the President, five persons appointed by the President on the nomination of the Prime Minister and the leader of the opposition and one member nominated by the majority of the members of Parliament.


In the African region again, the heads of the police forces are mostly Presidents’ men. They are appointed by the President or the head of the political executive and also removed by him. There are of course provisions in the Police Acts of some countries to ensure that the executive takes such decisions in consultation with other institutions, but whether this acts in checking arbitrary appointments and dismissals is another matter.

In Uganda, the IGP and the Deputy Inspector General of Police (Dy IGP), who is the next in command, are appointed by the President with the approval of the Parliament [Constitution of the Republic of Uganda, 1995, Article 213 (2)] He also has the power to remove them. He appoints them on the advice of the Police Authority whose members are appointed directly or indirectly by him. The advice thus may not be independent and, in the absence of any legal provision for review, cannot be questioned. In any case, neither the advice, nor the basis on which it is made is known as the procedure for selection is not transparent. The power to remove the head of the police force rests solely with the President and he is not obliged, either under the Constitution or any other law, to seek anybody’s advice for this purpose. There is no fixed secure tenure to the post of the head of police force. The recommendation made by the Sebutinde Commission [Judicial Commission of Inquiry into Corruption in the Uganda Police Force in April 1999 Judicial Commission of Inquiry into Corruption in the Uganda Police Force in April 1999] that the government should develop guidelines to be followed in the appointment of IGP and Dy. IGP and include those criteria in the Police Statute has not been implemented.

There are two important points. One, laws are silent about the process or procedures of selection. The process is not open. The laws neither prescribe any guidelines for appointment to the post of the IGP, nor do they usually set down any conditions under which the head of the police force can be removed. So it is left entirely to the discretion of the President to decide who should command the police force and how long the selected person should remain there.
Two, in none of the jurisdictions in Commonwealth Africa, except South Africa, does the head of the police force enjoy fixed statutory tenure.
Besides obstructing the growth of the police as a professionally efficient and honest organization, the absence of proper procedures in law for selection and appointment of the head of the police force has resulted in some African jurisdictions in the increasing militarization of policing. Since the head of the government in many countries has come from the army, mostly by staging coups, he is inclined to trust the army and its officers to do even police work. There have been numerous instances of army officers being appointed as the police chiefs in many African countries of the commonwealth.

The charter of duties prescribed in the Police Acts of the countries in this region has also contributed to the militarization of policing. The police can be asked to perform military duties. To give a few examples, the Police Act in Nigeria requires the police to perform such military duties as may be required [Nigeria Police Act, 1990, Section 4]. Similarly, the Botswana Police Act says that besides its police duties, the force shall perform military duties whenever required by the President to do so [The Botswana Police Act, 1979, Section 6]

In Uganda, though there is no provision in the Police Act, yet the military is frequently deployed on police duties because of a provision in the Constitution that allows for joint operations to be conducted by the army and police to control crime or maintain order. Operation Wembley is a well-known example of such operations.

Administrative Decisions regarding other ranks

Another issue very closely connected to regime policing is the manner in which the police are administered. Who exercises the power to administer the police? Who has the power to appoint, transfer, promote and exercise disciplinary control?

In India, transfer is one of the most potent weapons through which the political executive controls the police officers and forces them to follow their commands. In August 1979, the National Police Commission stated that transfer and suspension are two weapons frequently used by the politician to bend the police officers down to his will [National Police Commission (India), 1979, Second Report, p24]. The Supreme Court in an important judgment observed that frequent and whimsical transfers, besides “demoralizing the police force” and “politicizing the personnel” constitute a practice that is “alien to the envisaged constitutional machinery”[ The judgment of the Supreme Court of India, 1997, Writ Petition (Criminal) Nos. 340-343 of 1993, popularly known as the Havala case

Police Acts in most jurisdictions make a distinction between the senior and junior hierarchy and have separate mechanisms and procedures to deal with them. Generally the thumb rule in most jurisdictions is that while the government takes decisions concerning seniors, the head of the police force takes them for the lower ranks. There are some interesting variations to this rule with regard to decisions concerning lower ranks. Three such variations have been identified:

1.In some countries, a separate body has been set up to deal with such matters. For example, in Nigeria, a Police Service Commission [Nigeria Police Service (Establishment) Act, 2001] has been established to take decisions about appointing and promoting all officials of the Nigeria Police Force, other than its head i.e. the IGP; and about dismissing and exercising disciplinary control over the same persons. The Commission is headed by a chair, a retired justice of the Supreme Court or Court of appeal and a retired police officer not below the rank of a Commissioner of Police as its full time members.

2.In Sri Lanka, a National Police Commission was set up for the same purpose i.e. to decide the appointment, promotion, transfer, disciplinary control and dismissal of police officers other than the Inspector-General of Police [Seventeenth Amendment to the Constitution of the Democratic Socialist Republic of Sri Lanka, 2001, Article 155G (1), (2) & (3)]

A slightly different type of arrangement exists in some other countries. In Lesotho in Southern Africa, a Police Appointments and Promotion Board does appointments and promotions of police officers. The Board consists of the head of the police force as the chairman and two members, one nominated by the Police Authority and the other by the Minister in charge of the Police[Lesotho Police Act, 1998, Section 8]

In India, the Supreme Court has recently directed that a Police Establishment Board shall be set up in each state with the Director General of Police as the head and four other senior officers of the department as members to “decide all transfers, postings and other service related matters of officers of and below the rank of Deputy Superintendent of Police”[ Judgment of the Supreme Court of India, 2006, Writ Petition (Civil) No 310 of 1996- Prakash Singh & Others versus Union of India & Others Judgment of the Supreme Court of India, 2006, Writ Petition (Civil) No 310 of 1996- Prakash Singh & Others versus Union of India & Others]

3.In a large number of African jurisdictions in the Commonwealth, law establishes other structures of control. The most common is known as the Police Council. Though charters of such Councils differ, an important function of the institution is to advise the head of the executive about appointments and postings of police officers.

In Ghana, the power to appoint persons to hold or to act in any office in the police service vests in the President, but he is required to act in accordance with the advice of the Police Council[Ghana Police Service Act, 1970, Section 10 (3)]

In Uganda, the Police Act sets up two bodies. One is the Police Authority, which has the Minister as its chairperson, with the Attorney General. IGP, Dy IGP, a senior police officer in charge of Police Administration and three other persons appointed by the President as members [Uganda Police Act, 1994, Sections 8&9]
Its charter of functions includes advising the President on the appointment of IGP & Dy IGP, recommending appointments and promotions of senior police officers, determining the terms and conditions of service and settling appeals from decisions of the Police Council. The other is the Police Council, which is an all police body, with IGP as its chairperson and officers representing different ranks and departments as its members. Its charter of functions includes recruiting, appointing and promoting police officers up to the rank of Inspector of Police, exercising disciplinary control over police officers, formulating terms and conditions of service, ensuring efficient organization and administration of the force etc.

The experience with the functioning of such institutions has not been a happy one. The general assessment is that they have failed to achieve their objectives. To give a couple of examples, in Ghana, the effectiveness of the Police Council suffered as a result of the disruptions in constitutional rule by the military and the police. “Between independence in 1957 and constitutional rule in 1993, Ghana experienced four unconstitutional regimes which interfered with the smooth functioning of constitutional bodies such as the Police Council. This is because these unconstitutional regimes abrogated the constitution undermining the legal basis for the existence of the Police Council”[Foley, E.A, 2006, “Police Council in Ghana,” paper presented at the Roundtable on Police Accountability organized at Arusha, Tanzania by CHRI] In Uganda, the Sebutinde Commission felt that the Police Authority “has failed to effectively curb the widespread indiscipline and corruption in the Police Force”[Judicial Commission of Inquiry Into Corruption in the Uganda Police Force, 2000, Report, p. 240] That is why the Sebutinde Commission felt that powers of appointment, promotion and the handling of disciplinary matters in the Force should be vested in an independent and impartial body, like a Police Service Commission, consisting mostly of prominent citizens. The recommendation has not been implemented.

Weak and Inadequate Accountability Mechanisms

In a system of regime policing, the police generally believe in policing themselves. There is considerable reluctance to accept oversight of any outside agency. Police accountability is mostly to its own hierarchy and the political executive. Even where civic oversight agencies exist, they do not prove very effective in controlling police performance or behavior. Their powers remain as limited as their resources. The internal systems of accountability do exist but the habits of impunity and the presence of political patronage and interference have undermined the authority of the departmental leadership, consequently affecting the discipline of the force.

The Police Acts of the region do not require their police forces to be transparent. Most Police Acts do not set up any mechanism to monitor and inspect the police performance. Whatever monitoring is done is by the government or the police.

2. The Tripartite Model

This model of control and accountability established by the UK Police Act of 1964 is applicable to the 43 police forces of England and Wales. The model, with minor modifications, also exists in Northern Ireland, which saw the birth of a new Police Service in November 2001, following the recommendations of the Patten Commission on Policing.

As the name indicates, the tripartite system involves three parties in police governance- the Secretary of State that represents the government, the Police Authority which stands for the local community, and the Chief Constable, who heads the police force.

The Police Act, 1964 distributes powers and responsibilities relating to policing between the Secretary of State, the Police Authority and the Chief Constable. The tripartite arrangements were later endorsed by the new British legislation, like the Police and Magistrates’ Courts Act of 1994(PMCA), the Police Act, 1996 and the Police Reform Act of 2002, though the distribution of powers was altered to some extent.

The Secretary of State is answerable to Parliament and public for setting up an efficient and effective police service. The Police Act of the United Kingdom, unlike in the countries dominated by the regime- policing system, recognizes the responsibility of the government to provide efficient and effective policing to the public[Police Act (UK), 1996, Section 36 (1)]

The Police Acts of countries under the regime system talk more of governments’ control over the police forces and less of their responsibility to improve police efficiency and effectiveness. For example, in India, the Police Act of 1861 has no provision to make it the government’s responsibility to ensure that the people get the good policing that they so badly need and deserve.

The Police Act of the UK gives numerous powers to the Secretary of State. He sets strategic direction for the service; determines key national policing objectives; monitors police performance; issues codes of practice to police authorities and to chief officers of the police; determines cash grant to police authorities and approves the appointment and removal of the chief of a police force.

An important party in the tripartite system of police governance is the Police Authority. It is an independent body made up of local people. Generally, it has 17 members, 9 local councilors, 5 independent members and 3 magistrates from the local area. It is responsible for maintaining an efficient and effective local police force. It determines local policing priorities, sets a three-year strategic direction for the police force consistent with the National Policing Plan and monitors police performance against the set targets. The Authority is responsible for budgeting and resource allocation to the police. It has the authority to appoint and dismiss the chief constable, but this is subject to ratification by the Secretary of State. It can require the suspension or early dismissal of police officers on public interest grounds.

The Chief Constable is the head of every territorial police force in the United Kingdom, except Greater London. The chief constable is responsible to the local police authority. The Chief Constable is responsible for direction and control of the police force. The responsibility for operational control of the police force vests solely in him. He also drafts local policing plan in conjunction with the local police authority. Achieving local and national policing objectives is a part of his responsibility.

An important feature of the system of police control and governance is the recognition of the functional independence of the police. The police are functionally independent and no one can interfere in their operations. This idea of police independence has received wide acceptance even though it is not supported by any provision in any statute book. All that the Police Act says is that a police force “shall be under the direction and control of the chief constable”[Section 10 (1)]

Besides, this concept, particularly the manner in which it has been interpreted in many countries, comes in conflict with a highly important principle of democratic policing- that of police accountability. In all democratic societies, the police have to be held accountable for what they do or do not do and the tactics that they often employ in discharging their responsibilities. Being independent in functioning does not mean that they become unaccountable for their performance and behavior. That is why the Patten Commission on Policing in Northern Ireland substituted the concept of operational independence with that of operational responsibility[Independent Commission on Policing for Northern Ireland, 1999, Report, paragraphs 6.19 to 6.21]

The roles and responsibilities of the three parties in the tripartite system of police governance have been defined in police legislation. The legislation also requires decisions to be taken through a process of consultation between the concerned parties and that imposes checks on their powers

3. Australasian Model

This is the model that exists in Australia and to some extent in New Zealand. The model can be summed up in these words. The Governor generally appoints the head of the police force, known as the Commissioner of Police. The appointment is done on the recommendation of the minister and in some cases the minister has to do so after consulting or even obtaining the approval of an external oversight body. The terms on which appointment is made are stated in the contract of employment signed between the two parties. The head of the police force remains at the post for a fixed period, mostly five years, and the grounds on which he can be removed are stated in the Police Acts. Where the grounds are not stated and the minister can remove him from service without assigning any reasons, he has to do so in consultation with an outside independent oversight agency. The responsibilities of the head of police are statutorily defined and in some cases, the scope of ministerial directions on police matters is also prescribed in law. Ministerial directions to the head of the police force have to be in writing. Invariably, there are provisions sanctioning parliamentary oversight of police-government relationship.

Thus, broadly speaking, there are four generic elements of police-government relationship in this model:
• Terms of appointment/dismissal of the head of police
• Statutory responsibilities of the head of police
• Scope of ministerial directions on police matters
• Parliamentary oversight of police-government relationship.

Terms of appointment/dismissal of the head of police

In Queens land, the Governor in Council appoints an appropriate person as the Commissioner of Police (COP) on a recommendation agreed to by the chairperson of the Crime and Misconduct Commission (CMC), which is a statutory civilian watchdog [Queens land Police Service Administration Act, 1990, Section 4.2 (1)]. The conditions on which appointment is made are determined by a contract of employment made between the government and the COP and are not subject to any award or industrial agreement [Section 4.3 (b) & (c) of the Queens land Act cited above]. The COP is appointed for a term of 3 to 5 years.

The grounds on which the Commissioner of Police can be removed from office are stated in law. These are:
• Breach of contract
• Incapacity to properly perform duties
• Incompetence or neglect of duties
• Found guilty by the Misconduct Tribunal of an official misconduct.
• Conviction of an indictable offence
• Imprisonment

Dismissal on any ground requires concurrence of the CMC chairperson or, failing that, request by the Parliament to the Governor [Section 4.5 (4) (a) & (b)of the Queen land Act]

The law governing the appointment and removal of the head of the police force in New South Wales is slightly different. The Governor on the recommendation of the Minister appoints the Commissioner of Police. Before recommending the appointment, the Minster is required to make inquiries from the Police Integrity Commission, the head of the Special Crime and Internal Affairs unit, and from any other person or body the Minister considers appropriate about the person’s integrity [New South Wales Police Act, 1990, Section 24 (6) (a)] In addition, the person selected for the job is required to provide a statutory declaration that he has not knowingly engaged in specified misconduct or any other misconduct [Section 24 (8) Section of the New South Wales Act] ]. Failure to provide mandatory statutory declaration renders the person unfit for selection [Section 24 (9 ) ]The employment of the Commissioner is governed by a contract of employment between the Commissioner and the Minister [ Section 27 (1) ] He holds office for a period not exceeding five years, but is eligible for reappointment [Section 26]

The Governor can remove the Commissioner from office after the Minister makes such a recommendation [Section 28 (1) ] No reason or notice is required to be given but the Minister can make such a recommendation only after the Police Integrity Commission has been notified of this intention and given a reasonable opportunity to comment on the proposed recommendation [Section 28 (3) (a) & (b)]

Statutory responsibilities of the head of police/ Scope of ministerial directions on police matters/ & Parliamentary Oversight of the Relationship

The responsibility for the efficient and proper administration, management and functioning of the police vests in the Commissioner of Police, and in most jurisdictions this superintendence is subject to the directions of the Minister. The Minister is authorized to give directions to the police, but they have to be in writing. In some jurisdictions, the areas in which directions can be given are mentioned in the Act. For example, in Queens land, police legislation requires the Commissioner of Police to furnish to the Minister reports and recommendations in relation to the administration and functioning of the police service, when required by the Minister to do so and otherwise when the Commissioner thinks fit [Queens land Police Service Administration Act 1990, Section 4.6 (1) (a) & (b)]. It also authorizes the Minister [Section 4.6 (2) (a), (b) & (c)] to give directions to the Commissioner about:
• the overall administration, management and superintendence of or in the police service;
• policy and priorities to be followed in performing police functions; and
• the number and deployment of officers and staff members and the number and location of police establishments and police stations.

Two conditions are prescribed. The directions have to be in writing and given “having regard to advice of the commissioner first obtained.” [Section 4.6 (2) of the Queens land Act]

The COP is bound to comply with directions, but he is required to register all reports and recommendations sent to the Minister and all directions received from him. This record is to be sent to the chairperson of the Crime and Misconduct Commission to be tabled by the Parliamentary Crime and Misconduct Committee in the Legislative Assembly within fourteen days of its receipt [Section 4.7 of the Queens land Act]

In South Australia, the Commissioner is responsible for the control and management of South Australia Police, but it is “subject to this Act and any written directions of the Minister” [South Australia Police Act, 1998, Section 6]

The South Australia legislation has a specific provision debarring the Minister to issue directions in respect of some administrative matters: “No Ministerial direction may be given to the Commissioner in relation to the appointment, transfer, remuneration, discipline or termination of a particular person” [section 7 of the SA Act] The Act requires the Minister to cause a copy of any direction given to the Commissioner to be (a) published in the Gazette within eight days of giving it; and get it (b) laid before each House of Parliament within six sitting days of the date of the direction if Parliament is then in session, or, if not, within six sitting days after the commencement of the next session of Parliament [Section 8]

According to the Act governing the Australian Federal Police, the Minister is authorized to give directions to the Commissioner “with respect to the general policy to be pursued in relation to the performance of the functions of the Australian Federal Police”. The directions have to be in writing and may be given after “obtaining and considering the advice of the Commissioner and of the Secretary”[ Australian Federal Police Act, 1979, Section 37 (2)] The Commissioner has to comply with the directions. The Commissioner must also give to the Minister such reports as the Minister requests relating to the administration and performance of the functions of the Australian Federal Police [section 37 (6) of the Federal Act]


In New Zealand, the Police Act of 1958 and Police Regulations, 1992, which govern policing, are currently under a broad review by the government. Amongst other major areas of concern, the government feels that the “1958 Police Act contains virtually no guidance on the boundaries of the Commissioner-Minister relationship” [Government of New Zealand, May, 2007, Policing Directions in New Zealand for the 21st Century, paragraph 5.24 (http://www.policeact.govt.nz)]. Though the Police Regulations state that “the Commissioner shall be responsible to the Minister for (a) the general administration and control of the police; and (b) the financial management and performance of the police” [Police Regulations (New Zealand), 1992, Section 3 Police Regulations (New Zealand), 1992, Section 3], it does not clearly specify what the relationship between the Minister and Commissioner of Police should be. The Government feels that “freedom from political interference in operational decisions is a fundamental value of New Zealand’s policing tradition. Consideration could be given to recognizing this in legislation by putting the notion of constabulary independence on a statutory footing” [Government of New Zealand (May, 2007):”Policing Directions in New Zealand for the 21st Century,” paragraph 5.28(http://www.policeact.govt.nz). According to para paragraph 5.27 of the same document, the Government broadly accepts that “the Minister may provide direction to the Commissioner on overall Police resourcing, and matters of administration which do not directly affect the Commissioner’s operational responsibilities”

4. The Board/Commission model

Two major ideas or developments in policing have gained ground internationally during the last few decades. One is the idea of community policing that has been tried in different forms. The other is the idea that policing is too serious or important a business to be left to the policemen or politicians alone and that it is necessary to exercise some form of civilian control or oversight over the police. This idea has led not only to the setting up of independent mechanisms to inquire into complaints against police personnel but also to the establishment of autonomous police commissions or boards.

The Commission model serves two different purposes- one, to insulate the police from illegitimate influences of partisan politics by acting as a buffer between the police and elected governments; and, two, to involve community members in
providing direction to the police and help improve police administration and management.

The Board or Commission model of police governance exists widely in some developed countries, like Canada. Canada has police forces at the municipal, provincial and federal levels. In addition, a number of First Nations policing agreements for aboriginal communities are in place across Canada. The role that the Police Boards or Commissions play in governing the police forces, particularly at the municipal level, is very significant, as they involve community members in providing direction to the police. For example in British Columbia, every municipality with a population of 5000 or more has to provide for police service. Municipalities with their own police forces are required to set up police boards to act as civilian oversight bodies. The Municipal Police Board in British Columbia consists of the Mayor of the Council, one member appointed by the Council and not more than five persons appointed, after consultation with the director, by the Lieutenant Governor in Council [British Columbia Police Act, Chapter 367, Section 23 (1)]. The municipal police board, in consultation with the chief constable, must determine the priorities, goals and objectives of the municipal police department [Section 26 (4) of the BC Act cited above]

The charter of the boards or commissions in Canada may differ somewhat across the country, but their mandate is mainly two fold – one to provide general direction to the police in accordance with law and in response to the community needs, and, two to protect the police from illegitimate influences of politicians.

A country, which has recently emerged out of a history of conflicts and violence but is setting up new institutions in policing, is Northern Ireland. One such institution is the Police Board set up by the Police (Northern Ireland) Act, 2000. The Board is an independent public body made up of nineteen members, whose broad objective is to secure for the people of Northern Ireland an effective, efficient and impartial police service. The Board has a comprehensive charter that monitors police performance not merely for ensuring the efficiency and effectiveness of the organization but also to see that the police do not violate human rights of citizens. By holding the head of the police to account for his actions and those of his staff and by overseeing the working of the internal police complaints and discipline system, the Police Board performs a very active management and oversight role.

5. South Africa Model

The South Africa model presents an example of an institution that has made determined efforts to make a complete break with the past during a very short period of less than thirteen years. The apartheid regime, which lasted till 1994, used the police as a “political instrument” and “created a militaristic, secretive, unaccountable, racist, and violent institution” [Haysom, Fink: “Policing the Transition: Transforming the Police”, A Discussion paper on Policing Commissioned by Department of Information and Publicity, African National Congress (http://www.anc.org.za/ancdocs/policy/policing.html)] The Constitution as well as the Police Act reflect the aspirations of the people of South Africa to turn a highly regime police force into a democratic police service.

The South Africa Police Service (SAPS) Act of 1995 establishes a secretariat for Safety and Security (a) to advise the Minister; (b) to ensure civilian oversight of the service; (c) promote democratic accountability and transparency in the service; and (d) to evaluate the functioning and report to the Minister.

Chapter 10 of the SAPS Act establishes an Independent Complaints Directorate to investigate complaints of criminality and misconduct against police service members. Steps have also been taken to evaluate the performance of the police on a scientific basis.

South Africa has a national police service, which is structured to function in the national, provincial and, where appropriate, local spheres of government. The South Africa Constitution makes it the “political responsibility” of a member of the Cabinet responsible for policing to “determine national policing policy after consulting the provincial governments and taking into account the policing needs and priorities of the provinces” [The Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), Article 206 (1)]

The National Commissioner of Police Service is required to “exercise control over and manage the police service in accordance with the national policing policy and the directions of the cabinet member responsible for policing” [Article 207 (2) of the Constitution] The National Commissioner is required to develop a plan before the end of each financial year, setting out the priorities and objectives of policing for the following financial year [The South African Police Service Act, 1995, Section 11 (2) (a)]

Though the President of South Africa appoints the National Commissioner of Police Service [ The Constitution of the Republic of South Africa, 1996, Section 207 (1)], the National Commissioner appoints the Provincial Commissioner of Police for each province[The South African Police Service Act, 1995, Section 6 (2). Even though he is required to do so with the “concurrence of the provincial executive” [The Constitution of the Republic of South Africa, 1996, Section 207 (3)], the fact that the head of the police force in a province is appointed by another police officer and not by the political executive is very significant. Both the National and Provincial Commissioners have a fixed minimum tenure of five years [The South African Police Service Act, 1995, Section 7 (1)], which can be further extended, subject to a maximum of ten years [Section 7(2) of SAPS]

If the National Commissioner of Police has lost the confidence of the Cabinet, the President may establish a board of inquiry, with a judge of the Supreme Court as chairperson, to inquire into the circumstances that led to the loss of confidence and make recommendations [Section 8 (1) of SAPS]. If the Provincial Commissioner has lost the confidence of the Executive Council, the National Commissioner, on receiving a notice from the concerned Minister, shall establish a board of inquiry, with a person qualified in law as chairperson, to make an inquiry [Section 8 (2) of SAPS]

The Board shall submit its report to the President, or to the National Commissioner depending on whether the inquiry was conducted against the National or the Provincial Commissioner. In addition, the report is also to be submitted to the concerned Commissioner and to the Parliamentary committees [Section8, (6) (a) of SAPS] The Inquiry Report may recommend [ Section 6 (b) of SAPS] that (a) no action be taken in the matter; (b) the concerned Commissioner be transferred; (c) his salary or rank or both be reduced; (d) he or she be removed from office; or (e) any other appropriate steps.

The President or National commissioner has the option to postpone taking a decision on the recommendations of the Board of Inquiry for a period not exceeding 12 calendar months [Section 6 (b) (vi), SAPS]. If the decision is postponed, at the end of the period the same or a similar Board of Inquiry has to make a new recommendation after having considered the conduct of the Commissioner during such period [Section 7, SAPS].

The same procedure is applicable in cases of allegations of misconduct by the National or Provincial Commissioner or his or her fitness for office or capacity for executing official duties efficiently is questioned [Section 9, SAPS].

Conclusion

The Commonwealth is an association of 53 independent states representing about 30 per cent of the world's population. A large number of countries in this region were ruled by the colonial powers for long in history. The type of police system established in such countries was governed more by considerations of consolidating and safeguarding the colonial rule rather than providing sensitive and people friendly policing. The police system was, therefore, designed to be subservient to the rulers of the moment. The type of police legislation enacted during colonial times to ensure this remained in existence even after the countries became independent. Even where new legislation was enacted after Independence, the model remained the same. It is thus the regime policing model that governed policing during the colonial times and continues to do so even now in large parts of the Commonwealth.

This, however, is not the whole story. There are countries in the Commonwealth, which present examples of good policing. The Police Acts in such jurisdictions recognise the governments’ responsibility to set up an efficient and effective system of policing; establish institutional and other arrangements to insulate the police from illegitimate outside control; demarcate the areas of responsibility between the political executive and the chief of police; set up credible and effective complaint handling mechanisms and procedures; create mechanisms to ensure proper and neutral selection of the head of the police and strengthen his/her authority by reducing his/her vulnerability; outline objectives and performance standards and set up independent mechanisms to monitor and inspect police performance; and establish institutional arrangements to consult the community and involve them in police work.

It has been rightly said: “Some of the best policing in the world is found in the Commonwealth, and also some of the worst. But by and large, its 1.8 billion people do not have the policing they deserve. Police Reform is too important to neglect and too urgent to delay” [Commonwealth Human Rights Initiative. 2005. Police Accountability Too Important To Neglect, Too Urgent To Delay, CHRI’s 2005 Report, p2]

Reforming the police across various countries of the Commonwealth would require diverse steps, but changing and refining the police legislation is definitely one of them.

References:

Commonwealth Human Rights Initiative. 2005. Police Accountability Too Important To Neglect, Too Urgent To Delay, CHRI’s 2005 Report
Constitution of the Republic of Maldives, 1998
Constitution of the Republic of South Africa, 1996
Constitution of the Democratic Socialist Republic of Sri Lanka
Constitution of the Republic of Uganda, 1995
Dhillon, K.S. 1998, Defenders of the Establishment- Ruler-supportive Police Forces of South Asia, Indian Institute of Advanced Study, Shimla, India.
Foley, E.A. 2006, “Police Council in Ghana,” paper presented at the Roundtable on Police Accountability organized at Arusha, Tanzania by CHRI.
Government of New Zealand (May, 2007): “Policing Directions in New Zealand for the 21st Century” (http://www.policeact.govt.nz)
Haysom, Fink: “Policing the Transition: Transforming the Police”, A Discussion paper on Policing Commissioned by Department of Information and Publicity, African National Congress. (http://www.anc.org.za/ancdocs/policy/policing.html)
Independent Commission on Policing for Northern Ireland, 1999, Report.
Judicial Commission of Inquiry Into Corruption in the Uganda Police Force, Report, 2000
Judgment of the Supreme Court of India, 1997, Writ Petition (Criminal) Nos. 340-343 of 1993.
Judgment of the Supreme Court of India, September 22, 2006 in Writ Petition (Civil) No 310 of 1996- Prakash Singh & Others versus Union of India & Others
National Police Commission (India), 1979, Second Report
Pinto, J. Kishali, 2007, “Regretting What Might Have Been: A Critique of The National Police Commission of Sri Lanka,” paper presented at the Roundtable on Police Reform: An Exchange of Experiences from South Asia organized by the Commonwealth Human Rights Initiative, New Delhi.
Federal Police Act, 1979 (Australia)
Police Act, 1990(New South Wales, Australia)
Police Service Administration Act, 1990(Queens land, Australia)
Police Act, 1998(South Australia)
Police Act, 1979(Botswana)
Police Act, Chapter 367(British Columbia, Canada)
Police Service Act, 1970(Ghana)
Police Act, 1861(India)
Police Act, 1998(Lesotho)
Police Bill, 2006 (Maldives)
Police Act (CAP 359), 1943(Nigeria)
Police Act, 1990(Nigeria)
Police Service (Establishment) Act, 2001(Nigeria)
Police Regulations, 1992(New Zealand)
Police Order, 2002(Pakistan)
Police Order (Amendment) Ordinance, 2004(Pakistan)
Police Service Act, 1995(South Africa)
Police Statute, 1994, (Uganda)
Police Act, 1996(UK)
Seventeenth Amendment to the Constitution of the Democratic Socialist Republic of Sri Lanka, 2001

(Published by the International Police Executive Symposium, Washington, USA as Paper No 13 in their Working Paper Series.)

CRIME REGISTRATION

NON- REGISTRATION OF FIRS- A SORRY STATE OF AFFAIRS


“It is a sorry state of affairs in the country where police officers are totally corrupt.” Harsh words indeed, but the Supreme Court’s anger reflected in this observation made on July 24, 2007 mirrors what the ordinary citizens in this country feel and suffer every day. Non-registration of their complaints is the most common, serious, frequent and widespread grievance of the people against the police.

The process of criminal justice starts with the registration of information by the police about the commission of a crime. Non-registration of a case ends the process of justice then and there. It leads to denial of justice in two ways. One, it shuts the doors on the victims of crime and, two, it allows the criminals to escape.

The police resort to different practices to avoid registration of complaints. One is to intimidate and threaten the complainant to dissuade him from registering his complaint. He is accused of fabricating the case or told that the case is full of lies and will not hold out in the court of law. One subterfuge employed is to make pretence of registering his complaint without actually doing so. This is done by making an entry in the General Diary of the police station and giving the complainant a copy of that entry. The complainant goes under the false impression that the police have registered his complaint while in reality they have not done so. At times, the complaint is not registered on the ground that the offence has occurred in the jurisdiction of some other police station. If registration of complaints becomes unavoidable, an attempt is sometimes made to minimize the gravity of crime. For example, an offence of robbery is reduced to an offence of theft or an attempt to murder becomes a case of hurt.

There are various reasons why the police do not register FIRs. The governments sometimes encourage non- registration of crimes. Crime figures are often used for political gains. During the last election in UP, the repeated advertisement telecast by various channels showed Amitabh Bachan singing his paean of praise for Mulayam Singh’s government, citing Crime in India figures to show that “zurm yahan kam hai”. Another example of a brazen attempt was made in the same state a few years earlier, where instructions to bring down the crime figures were given to the police. According to Mr Prakash Singh, a former DG of the state, “the Chief Minister, to drive home the message, suspended quite a few officers of the rank of SP and DIG. What followed was suppression and minimization of crime on a scale never before witnessed in the history of independent India.”(The Pioneer, dated July 12, 2003) Later, the UP government inserted advertisements in the newspapers, extolling the Chief Minister for her achievements, including that of bringing down crime in the state by 69% in less than a year of her rule.

Crime figures are used not merely to advertise the success of the government in providing security to the citizens, but also to evaluate the performance of the police. This is a major reason for the existence of the evil of non- registration of complaints When the department evaluates the performance of its employees on the basis of crime and conviction figures, the police station staff do not hesitate to use questionable methods to artificially bring down the crime figures and to secure convictions by using means fair or foul

Corruption is another important reason for this practice. The accused bribes the station officer, who ensures that the case is either not registered or the facts are twisted to save the guilty. If the complainant or the accused happens to be poor, he suffers because of his inability to bribe the police station staff.

Heavy crime load and inadequacy of staff also encourage non- registration of complaints. Crime keeps on increasing but the strength of the police station does not increase correspondingly. Consequently, the existing investigating staff come under heavy pressure and one way of avoiding additional investigation work is not to register complaints.

The 1973 Code of Criminal Procedure introduced two new provisions in law to deal with the malady. One made it mandatory to provide a copy of the FIR to the complainant free of cost. The other laid down that any person aggrieved by a refusal on the part of the officer in charge of the police station to record his complaint could send its substance in writing to the District Superintendent of Police, who would then take necessary action to ensure investigation of the case. The initiative did not succeed in curbing the malady.

The Law Commission of India examined the subject in its eighty fourth report (April 1980) and recommended the insertion of a specific provision in the Indian Penal Code to prescribe that the officer in charge of the police station refusing or without reasonable cause failing to record the FIR would be punished with imprisonment for a term of one year or with fine or with both. The Government did not accept the recommendation. Recently, the model Police Act drafted by Soli Sorabjee committee (October 2006) has a provision that a police officer, who “without lawful reason, fails to register a First Information Report as required by Section 154 of the Code of Criminal Procedure 1973… shall, on conviction, be punished with imprisonment for a term which may extend to three months or with fine or both.” The draft is presently under government’s consideration.

To deal with the problem, steps must be taken to increase the strength of investigating officers in the police stations, base evaluation of police performance on criteria involving more than crime statistics, improve the quality of supervision exercised over the work of the police station staff and make non registration of a citizen’s complaint a specific penal offence either in the penal code or in the Police Act. These recommendations can work, but only if there is no pressure from the political executive on the police to show ‘good results’ on the crime front.

Xxx

( Original Version of the Article published in the Indian Express on 11.08. 2007 )

A PROFESSOR'S MURDER

THE UJJAIN SHOCKER

Few incidents have exposed the partisan role of the police more eloquently than the attack on college teachers in Ujjain, which resulted in the death of Professor H.S. Sabharwal. Not only did the police officers present refrain from taking action when the attacks were on, they failed to take timely action after the tragedy as well. The incidents led to a national outrage over the quality of policing in our society.

A recent interaction with some police officers about these incidents evoked a familiar response. They were dismissed as aberrations. Another routine response from policemen is to explain such behaviour in terms of political pressures. After all hapless policemen are constrained to carry out the wishes of their political masters, or so the argument goes.

It is true that the kind of superintendence exercised over the police force has led to gross abuses, resulting in the failure of the police to grow as a professional organisation. But the responsibility of police personnel themselves in contributing to this state of affairs cannot be denied. Closely associated with powerful interests, the police has generally acquiesced to the attempt to reap benefits from a perverted system. As the Parliamentary Standing Committee on Home Affairs mentioned in its report in April 2002: .Today we have a police which is politicised and politically polarised. For it has become a pawn in the hands of its masters. In return, policemen get political patronage, which has become essential for their survival..

Initially, in the Ujjain incident, the Madhya Pradesh chief minister made a public statement that the professor’s death was accidental. Both the local political leadership and the state police remained tight-lipped over this statement, although it was clearly not the truth. Action was taken only after television channels kept repeating the images making it difficult to ignore them.

The one good outcome of the judgment in the Jessica Lal case was the emergence of public opinion as an instrument of change. It is only to be hoped that an informed public opinion on such issues goes beyond its middle-class frontiers and mounts pressure on government agencies to undo injustice.

(Article published in the Indian Express dated September 09, 2006)

RELATIONSHIP BETWEEN LEGISLATURE AND JUDICIARY

PARLIAMENT AND JUDICIARY- THE BELLIGERENT RELATIONSHIP

On July17, 2006, a Supreme Court bench headed by the Chief Justice of India censured the central government for enacting the Delhi Laws (Special Provisions) Act 2006, that put a moratorium on demolitions of unauthorized constructions in the capital for one year. The Court felt that the legislation was “wholly void and illegal”, and was “aimed at overruling the orders of the court”

Almost a year ago, on July 31, 2005, the Lok Sabha Speaker Somnath Chatterjee was echoing similar feelings about the authority of legislature. While inaugurating the 69th conference of the presiding officers of legislatives bodies in India, he expressed concern about the eroding independence of legislatures and said this was a challenge the presiding officers must grapple with. The meeting was being held in the backdrop of developments in the Jharkhand legislature The Delhi Laws (Special Provisions) Act 2006, that provoked such searing observations from the judges, is only one in the series of many such laws passed recently by the government. To give only a few examples, the Office of Profit law was passed with retrospective effect to allow the MPs to retain their offices of profit, disregarding the suggestions even of the President. The Central Vigilance Commission Act of 2003 legalised the Single Directive issued to CBI that was held unconstitutional by the Supreme Court in the Havala case. The Court held the Illegal Migration (Determination by Tribunals) Act, 1983 unconstitutional but the government decided on February 10, 2006 to set up tribunals under the Foreigners Registration Act, 1946, for determination of illegal migrants in Assam.

It is not only the central but also the state governments that have shown similar belligerence in nullifying the judgements of the courts. The two recent examples have been the Bangalore Mysore Infrastructure Corridor Project (BMICP) where the Karnataka Government tried to defy both the High court as well as the Supreme Court and block the implementation of the expressway project by the Nandi Infrastructure Corridor Enterprise (NICE) and the Ulhasnagar case, where the Maharastra Government promulgated an ordinance to regularize 855 illegal buildings that were being threatened with demolition under the orders of the Bombay High Court.

Seeds of what is happening now were sown long ago. In 1951, the Constitution was amended for the first time. Article 31 B was introduced to provide immunity to certain Acts and Regulations specified in the Ninth Schedule to the Indian Constitution from being challenged even if it involved infringement of fundamental rights. The courts were deprived of the power to declare such legislation void. In the beginning, the Schedule consisted of mere 13 items, but now it has as many as 284 laws, with more than 35Acts added during the two years of emergency.

There are some differences between what occurred during the earlier years and what is happening now. One, the stature of members of the legislature in those days was generally much higher than what it is now. There was a galaxy of luminaries in the Parliament during Prime Minister Nehru’s days, who enjoyed public trust. Now the Parliament pales in comparison, with steep decline not only in the standards of debate but also of integrity and honesty of members, with many of them having past criminal records. Criminalisation of politics has led to an enormous loss of people’s confidence in the legislature. A similar loss of faith in the integrity and independence of the judiciary has not occurred, though charges of corruption against even the upper judiciary are occasionally heard. Two, when the legislature enacted laws to undermine or restrict the court’s jurisdiction and powers, action was guided more by public than private or partisan interests. Article 31 B went to the extent of even denying primacy to fundamental rights in the interests of protecting land and agriculture related legislation that was considered highly important from economic and social welfare point of view. Presently, it is mostly the partisan and selfish considerations and false notions of asserting ones supremacy that govern new legislation enacted to invalidate judicial verdicts. Whether it is the legislation preventing the demolition of buildings or allowing its members to enjoy the perks of two or more offices or giving impunity to officers of the rank of Joint Secretary and above from being inquired into in corruption cases or preventing large scale migration from the neighboring country, it is either the selfish considerations of vote bank politics, consolidating party’s power or even of protecting ones lackeys or distributing patronage that has shaped such decisions.

it is the job of the legislature to enact laws, it is for the judiciary to review and interpret them to ensure they are in accordance with the Constitutional provisions. So if the Court declares any law as null and void, any subsequent law passed by the legislature to set aside the impact of the judgement can not be upheld unless it meets the same constitutional or legal norms or standards, the absence of which led to throwing out the earlier law. This must be realized by the legislature; otherwise the rewriting of laws will continue to occur, leading to unnecessary wastage of public resources

In the final analysis, what is happening is more a confrontation between the executive and judiciary rather than the one between the legislature and judiciary. The doctrine of “separation of powers” is based on a clear-cut division of powers between the three arms of governance- executive, legislature and judiciary, where each one acts as a check on the others. In the west minister model of parliamentary democracy that we have adopted, the separation of power is not all that clear. The cabinet that heads the executive is drawn from the legislature. What the legislature passes as laws is what the executive wants them to do and the executive may occasionally be guided by protecting the interests of the party in power. Public interests may not always reign supreme.

Which is sovereign- parliament or judiciary? It is a superficial and hollow question that should never be raised or discussed. All institutions of governance owe their existence and powers to that supreme document- the Constitution of India. One sovereign truth must be realized by all-“Howsoever high you may be, the Constitution is above you.” This is the only way to preserve democracy in this country.