WHAT CAN THE INCIDENT TELL US?
President Obama’s statement calling the action of the white Cambridge police officer James Crowley in arresting the renowned black Harvard University professor Henry Louis Gates ‘stupid’ has raised considerable controversy, with clear racial overtones.
This is what happened. After returning from an overseas study tour, Professor Gates found that the front door of his house had jammed. He with the help of his driver was trying to force open the door when a woman, on seeing "two black males with backpacks" trying to break in the front door, called the police, mistaking it for a burglary attempt. Sergeant Colley of the Cambridge police responded to the call. There was an altercation between the sergeant and the professor. According to the police version, the professor yelled at Crowley after the police officer asked him to show identification to prove he was living in that house. The police say they had to arrest the professor for "exhibiting loud and tumultuous behavior." He was handcuffed and charged with disorderly conduct, a charge that was later dropped.
The professor’s version was different. He was clear that he was a victim of racial profiling by the police and demanded apology from them for wrongfully arresting him. During a televised news conference, this event came up for Obama’s comments. He responded by saying Gates was a friend and he did not have full facts of the case. Even then he thought it fair to make three points. One, “any of us would be pretty angry.” Two, the Cambridge police “acted stupidly” in arresting the man who was in his own home. Three, “there is a long history in this country of African-Americans and Latinos being stopped by law enforcement disproportionately, and that's just a fact."
The fact to which the president referred is supported by considerable evidence, including the police and prison statistics. But then racism is an over sensitive issue in all multicultural societies including the USA and President Obama’s remarks immediately raised a hornet’s nest. They drew considerable criticism from various quarters, including the police. Sergeant Crowley said that the president was “way off base” for two reasons. One, this was a local issue not deserving of president’s intervention and, two, he made his comments without knowing the facts.
The sergeant received full support from his commissioner and the police union. The Cambridge police commissioner Robert C. Haas said that his department was "deeply pained" by the president's comments. They were a professionally proud group and Sergeant Colley acted according to the prescribed operational and training standards. His actions were not racially motivated. In fact, the sergeant had a good record on racially sensitive issues. He was also an instructor in the police academy teaching cops on racial profiling - a job assigned to him by a former black police commissioner Ron Watson. The Police Union also stood by what the sergeant did. A multiracial group of officers said Obama was “dead wrong” in making the disparaging remarks about the sergeant and the department.
Obama realised early that his comments had unwittingly created an unnecessary racial controversy- the first one after he became the President. He came out with numerous statements trying to mollify opinions and cool tempers. In addition, he invited both Sergeant Crowley and Professor Gates to the White House to have beer with him.
Besides the existence of police bias in dealing with people of ethnic minorities, the above event and the way it was handled raises many interesting points for discussion in this country. If a similar event were to happen in this country, what would be the reactions of different parties? At least, three questions immediately come to mind. One, would a subordinate police officer in this country ever question the statement of the head of the state and say it was wide off the mark? Two, would the head of the police force in this country ever come to support his subordinate against the highest political executive? Three, would the head of the state ever invite a subordinate police officer to have a cup of tea with him or her? Forget the head of the state, would the chief of police in any state invite an officer of the rank of Inspector to come to his house and have tea with him? It is not necessary to respond to these questions, as answers are obvious.
We take pride in the fact that we are a democratic country, like the USA. In fact, the two countries are considered the largest democratic countries in the world, but there is a world of difference. More than the structure, it is the difference in values that underpin the functioning of the governing institutions that is vital. In India, we have given ourselves a democratic structure of governance, but our values are highly feudal. In fact, so far as the police are concerned, they are exceedingly colonial in their structure as well as values. It is for this reason that the police in this country have failed to develop self esteem and professional pride.
Thursday, July 30, 2009
Tuesday, January 13, 2009
POLICE REFORM- AN ELECTION ISSUE
POLICE REFORM NOW MUST BECOME AN IMPORTANT ELECTION ISSUE
The general elections are only a few months away. It is time for political parties to draft manifestoes, decide strategies and choose contestants. The civil society must discuss what should dominate the agenda of the major parties. What type of governance do the public want?
Of the various challenges to governance being faced in our country, two are major – ensuring sustained development of the economy at a brisk pace and providing a sense of security to the public by controlling crime and violence in society. The two, in fact, are closely linked. A developing economy requires a climate of peace and stability. It is important for the political parties to realise that if development has to take place, crime and violence must be controlled. Crime causes not only immense social and economic loss; it produces tremendous individual human suffering too. That is why the UN Commission on Crime Control and Criminal Justice maintains that to feel safe from crime is as important to a person as access to food, shelter, education and health.
Controlling crime and maintaining internal security is dependent upon the establishment of a police force, which is efficient, honest and professional to the core. Do we have such a police force? Not, if one goes by the media reports, studies done by expert groups and the responses of the common men.
Many, including the Supreme Court, have voiced the need for police reform. Two recent incidents, though divergent in nature, have further put it in sharp focus. One was the incident of terrorist violence that raged in Mumbai for about 60 hours and brought out the deficiencies in the training and equipment of the police force and the conditions, including the type of political leadership, under which they serve. The other was the murder of PWD engineer Manoj Gupta in UP by the BSP MLA and the response of the local police. The fact that some policemen were also a part of the extortion racket and complicit in murder shows that in many parts of the country policing has become as crimialised as politics. In fact, criminalised policing is as much a result of criminalised politics as its cause and both are a great danger to the continued existence of our democratic polity
Police reform therefore becomes important not only for achievement of economic progress but also for the survival of our democratic system. The police can be a great support as well as a major threat to democracy. They support democracy when they function to serve the rule of law and they threaten democracy when they become a part of a corrupt spoils system to serve the wishes of a powerful leader or party and when they become a law unto themselves.
The Mumbai incidents also revealed that the police, despite their inadequacies and shortcomings and despite being constantly reviled, can be highly heroic and valorous in times of emergencies. The police in this country are a sizeable force, more than 2.3 million strong. This huge reservoir of manpower can do enormous good to society, provided they are utilised to serve the community and not merely the interests of the elite class and people in positions of power.
Presently, the public do not trust the police. This lack of public faith not only affects the performance of the police force in controlling crime and in maintaining law and order, but ultimately gets translated into lack of goodwill and support for the political party which is wielding power. This happens because the police are the most visible and ubiquitous of all the government agencies and it is their acts of commission and omission, which determine to a considerable extent the public perceptions about the quality of governance being provided to them. . A professionally efficient and an honest police force can give far better returns in terms of winning public support for the political party in power than a force, which is misused for selfish purposes. A misused police force gets corrupt and brutalised and in turn abuses its powers. The victims in such cases are mostly the common poor persons who constitute the vote bank.
The politicians must realise that ultimately it is in their own interests to reform the police. The police right since the Emergency days have been easily and conveniently used as a stick with which to beat one’s opponents into submission. What the politicians in power forget is that the same stick can be used against them too when they are out of power. The chief ministers may come and go but the police go on forever. If it is easy for one chief minister to misuse the police for narrow selfish considerations, it is easier for his follower to do the same. What is not realised is that till the police are reformed, nobody in this country is safe
The need for police reforms is self-evident and urgent and the resolve to reform such a vital organization must figure prominently in the agenda of political parties in the coming elections. Public must make it clear that the existing system is unacceptable to them; they want a reformed police force and would support only the parties which promise to reform the police within a fixed time schedule.
The general elections are only a few months away. It is time for political parties to draft manifestoes, decide strategies and choose contestants. The civil society must discuss what should dominate the agenda of the major parties. What type of governance do the public want?
Of the various challenges to governance being faced in our country, two are major – ensuring sustained development of the economy at a brisk pace and providing a sense of security to the public by controlling crime and violence in society. The two, in fact, are closely linked. A developing economy requires a climate of peace and stability. It is important for the political parties to realise that if development has to take place, crime and violence must be controlled. Crime causes not only immense social and economic loss; it produces tremendous individual human suffering too. That is why the UN Commission on Crime Control and Criminal Justice maintains that to feel safe from crime is as important to a person as access to food, shelter, education and health.
Controlling crime and maintaining internal security is dependent upon the establishment of a police force, which is efficient, honest and professional to the core. Do we have such a police force? Not, if one goes by the media reports, studies done by expert groups and the responses of the common men.
Many, including the Supreme Court, have voiced the need for police reform. Two recent incidents, though divergent in nature, have further put it in sharp focus. One was the incident of terrorist violence that raged in Mumbai for about 60 hours and brought out the deficiencies in the training and equipment of the police force and the conditions, including the type of political leadership, under which they serve. The other was the murder of PWD engineer Manoj Gupta in UP by the BSP MLA and the response of the local police. The fact that some policemen were also a part of the extortion racket and complicit in murder shows that in many parts of the country policing has become as crimialised as politics. In fact, criminalised policing is as much a result of criminalised politics as its cause and both are a great danger to the continued existence of our democratic polity
Police reform therefore becomes important not only for achievement of economic progress but also for the survival of our democratic system. The police can be a great support as well as a major threat to democracy. They support democracy when they function to serve the rule of law and they threaten democracy when they become a part of a corrupt spoils system to serve the wishes of a powerful leader or party and when they become a law unto themselves.
The Mumbai incidents also revealed that the police, despite their inadequacies and shortcomings and despite being constantly reviled, can be highly heroic and valorous in times of emergencies. The police in this country are a sizeable force, more than 2.3 million strong. This huge reservoir of manpower can do enormous good to society, provided they are utilised to serve the community and not merely the interests of the elite class and people in positions of power.
Presently, the public do not trust the police. This lack of public faith not only affects the performance of the police force in controlling crime and in maintaining law and order, but ultimately gets translated into lack of goodwill and support for the political party which is wielding power. This happens because the police are the most visible and ubiquitous of all the government agencies and it is their acts of commission and omission, which determine to a considerable extent the public perceptions about the quality of governance being provided to them. . A professionally efficient and an honest police force can give far better returns in terms of winning public support for the political party in power than a force, which is misused for selfish purposes. A misused police force gets corrupt and brutalised and in turn abuses its powers. The victims in such cases are mostly the common poor persons who constitute the vote bank.
The politicians must realise that ultimately it is in their own interests to reform the police. The police right since the Emergency days have been easily and conveniently used as a stick with which to beat one’s opponents into submission. What the politicians in power forget is that the same stick can be used against them too when they are out of power. The chief ministers may come and go but the police go on forever. If it is easy for one chief minister to misuse the police for narrow selfish considerations, it is easier for his follower to do the same. What is not realised is that till the police are reformed, nobody in this country is safe
The need for police reforms is self-evident and urgent and the resolve to reform such a vital organization must figure prominently in the agenda of political parties in the coming elections. Public must make it clear that the existing system is unacceptable to them; they want a reformed police force and would support only the parties which promise to reform the police within a fixed time schedule.
Friday, January 2, 2009
NATIONAL INVESTIGATION AGENCY
COMBATING TERROR THROUGH THE NATIONAL INVESTIGATION AGENCY
Of all the measures taken by the UPA government to deal with terrorist incidents, the establishment of a National Investigation Agency has received the widest attention. While some claim it to be an important step in the right direction, others think it is too little done too late and somewhat unsatisfactorily.
The idea of setting up such an agency is not new. Numerous expert bodies, like the National Human Rights Commission, Soli Sorabjee Committee, Padmanabahiah Committee, Justice Malimath Committee and Parliamentary Sanding Committee of the MHA have recommended its establishment.
Way back in 2001, the ruling BJP government at the centre had prepared a proposal to establish a Central Law Enforcement Agency to investigate certain crimes having interstate or international ramifications, like terrorist incidents, arms and drug trafficking, hijacking, money laundering, counterfeiting of currency, espionage and crimes targeting national infrastructure. The proposal fell through because some of the chief ministers were not willing to accept it. They felt it was an unwarranted and avoidable intrusion into their jurisdiction.
The recent Mumbai incidents led to the revival of the demand to treat certain types of crime as a national problem and controlling them as a federal responsibility. The rationale for the demand is convincing. Criminals now a days often cross interstate as well as international boundaries, using highly sophisticated methods, equipment and tactics to commit such crimes. The state police forces’ capability to prevent, investigate and deal with such crimes or to apprehend such criminals is limited by their reach, training and resources. The record of the state police forces in dealing with even ordinary crimes and law and order disturbances has been rather poor. They cannot be expected to either prevent major incidents of terrorist crimes or investigate them successfully. Terror requires fighting on many fronts and a well-established national agency can coordinate the preventive and investigative efforts with other departments much more speedily and efficiently than the state police forces can do on their own.
Public debate on the subject has revolved around two main issues. One is the Parliament’s competence to enact this law. Many arguments are given to support the competence. According to Soli Sorabjee Committee, offences aimed at destabilising the country cannot be construed as falling within “public order.” Terrorist activities blur the line of distinction between external aggression and internal disturbance. Measures taken to curb such activities are for defense of India and therefore covered in terms of Entry 1 of the Union List of the Seventh Schedule of the Constitution. The other contention is that residuary powers conferred by Article 248 read with Entry 97 of the Constitution authorise the Parliament to legislate on the subject. In addition, Entry 8 of the Union List covers “Central Bureau of Intelligence and Investigation.”
The other issue relates to the substance of the National Investigating Agency Bill, 2008 and its enforcement. The legislation shows all the signs of being drafted in unseemly haste.
The charter of this legislation is narrow and limited. As per the Preamble and Section 3(1) of the Act, the Agency has been established only to investigate and prosecute the scheduled offences. The Act is conspicuously silent about other functions, like preventing and controlling security related crimes, identifying and assessing the nature and scope of terrorist threats to the country, collecting and analysing intelligence etc.
Section 4(1) of the Act vests the superintendence of the Agency in the central government. The word ‘Superintendence’ has not been defined. There is no provision in the legislation to ensure the Agency will be autonomous in its functioning and not be misused. The record of the other central agency i.e. the CBI does not inspire confidence. There is enough evidence to show that the ruling party at the center has often misused it to either favour ones own or to harass opponents. An Agency of this type cannot function effectively without full support and cooperation of the state governments. Whether this Agency will get cooperation from the states ruled by opposition parties is yet to be settled.
Administration of the Agency vests in an officer of the rank of DGP, but the Act does not prescribe a procedure that ensures the selection of the best from the police forces in the country. The absence of such a provision is striking, because selection of the heads of police forces in the country, both at the centre and states, has often been guided by considerations other than merit.
Section 6 of the Bill requires the state government to inform the central government about the commission of a scheduled offence. It is for the central government to decide, firstly, whether it is a scheduled offence and, secondly, whether it is a fit case to be taken up for investigation by the Agency. Section 6 debars the state government to proceed with the investigation once the Agency has been asked to do so. Since the Centre has been given the overriding discretion to pick and chose what cases to investigate and prosecute, it creates an unwholesome concentration of power at the central level. The center may relegate the less glamorous investigations and prosecutions to the states. The idea in some cases may be to show that a particular state is not capable of dealing with important matters affecting national security.
As per the Statement of Objects and Reasons of the Act, the national investigating agency is being established in a “concurrent jurisdiction framework” However, investigation, as defined in Section 2 (h) of the Cr P C, is mainly police work and ‘Police’ is an item confined to the State List in the Constitution. That is why Section 6 of the Delhi Special Police Act that governs the functioning of the CBI prohibits its jurisdiction in a state without the consent of its government. The center is therefore walking on a very tight rope by setting up this police agency the way it has been done.
(Original version of the article published in the Indian Express dated January 2, 2009)
Of all the measures taken by the UPA government to deal with terrorist incidents, the establishment of a National Investigation Agency has received the widest attention. While some claim it to be an important step in the right direction, others think it is too little done too late and somewhat unsatisfactorily.
The idea of setting up such an agency is not new. Numerous expert bodies, like the National Human Rights Commission, Soli Sorabjee Committee, Padmanabahiah Committee, Justice Malimath Committee and Parliamentary Sanding Committee of the MHA have recommended its establishment.
Way back in 2001, the ruling BJP government at the centre had prepared a proposal to establish a Central Law Enforcement Agency to investigate certain crimes having interstate or international ramifications, like terrorist incidents, arms and drug trafficking, hijacking, money laundering, counterfeiting of currency, espionage and crimes targeting national infrastructure. The proposal fell through because some of the chief ministers were not willing to accept it. They felt it was an unwarranted and avoidable intrusion into their jurisdiction.
The recent Mumbai incidents led to the revival of the demand to treat certain types of crime as a national problem and controlling them as a federal responsibility. The rationale for the demand is convincing. Criminals now a days often cross interstate as well as international boundaries, using highly sophisticated methods, equipment and tactics to commit such crimes. The state police forces’ capability to prevent, investigate and deal with such crimes or to apprehend such criminals is limited by their reach, training and resources. The record of the state police forces in dealing with even ordinary crimes and law and order disturbances has been rather poor. They cannot be expected to either prevent major incidents of terrorist crimes or investigate them successfully. Terror requires fighting on many fronts and a well-established national agency can coordinate the preventive and investigative efforts with other departments much more speedily and efficiently than the state police forces can do on their own.
Public debate on the subject has revolved around two main issues. One is the Parliament’s competence to enact this law. Many arguments are given to support the competence. According to Soli Sorabjee Committee, offences aimed at destabilising the country cannot be construed as falling within “public order.” Terrorist activities blur the line of distinction between external aggression and internal disturbance. Measures taken to curb such activities are for defense of India and therefore covered in terms of Entry 1 of the Union List of the Seventh Schedule of the Constitution. The other contention is that residuary powers conferred by Article 248 read with Entry 97 of the Constitution authorise the Parliament to legislate on the subject. In addition, Entry 8 of the Union List covers “Central Bureau of Intelligence and Investigation.”
The other issue relates to the substance of the National Investigating Agency Bill, 2008 and its enforcement. The legislation shows all the signs of being drafted in unseemly haste.
The charter of this legislation is narrow and limited. As per the Preamble and Section 3(1) of the Act, the Agency has been established only to investigate and prosecute the scheduled offences. The Act is conspicuously silent about other functions, like preventing and controlling security related crimes, identifying and assessing the nature and scope of terrorist threats to the country, collecting and analysing intelligence etc.
Section 4(1) of the Act vests the superintendence of the Agency in the central government. The word ‘Superintendence’ has not been defined. There is no provision in the legislation to ensure the Agency will be autonomous in its functioning and not be misused. The record of the other central agency i.e. the CBI does not inspire confidence. There is enough evidence to show that the ruling party at the center has often misused it to either favour ones own or to harass opponents. An Agency of this type cannot function effectively without full support and cooperation of the state governments. Whether this Agency will get cooperation from the states ruled by opposition parties is yet to be settled.
Administration of the Agency vests in an officer of the rank of DGP, but the Act does not prescribe a procedure that ensures the selection of the best from the police forces in the country. The absence of such a provision is striking, because selection of the heads of police forces in the country, both at the centre and states, has often been guided by considerations other than merit.
Section 6 of the Bill requires the state government to inform the central government about the commission of a scheduled offence. It is for the central government to decide, firstly, whether it is a scheduled offence and, secondly, whether it is a fit case to be taken up for investigation by the Agency. Section 6 debars the state government to proceed with the investigation once the Agency has been asked to do so. Since the Centre has been given the overriding discretion to pick and chose what cases to investigate and prosecute, it creates an unwholesome concentration of power at the central level. The center may relegate the less glamorous investigations and prosecutions to the states. The idea in some cases may be to show that a particular state is not capable of dealing with important matters affecting national security.
As per the Statement of Objects and Reasons of the Act, the national investigating agency is being established in a “concurrent jurisdiction framework” However, investigation, as defined in Section 2 (h) of the Cr P C, is mainly police work and ‘Police’ is an item confined to the State List in the Constitution. That is why Section 6 of the Delhi Special Police Act that governs the functioning of the CBI prohibits its jurisdiction in a state without the consent of its government. The center is therefore walking on a very tight rope by setting up this police agency the way it has been done.
(Original version of the article published in the Indian Express dated January 2, 2009)
Thursday, January 1, 2009
Growth of CPMFs
CENTRAL PARA MILITARY ORGANISATIONS
Since Independence, the Government of India has set up a number of para military forces to deal with emergencies. The first post Independence specialized para military force created by the central government was the Indo Tibetan Border Police, raised in the wake of Chinese aggression in 1962. Its main role was to provide protection to IB’s posts, secure Indo Tibetan border and check border crimes. The Chinese aggression led to the creation of another force in 1963, the SSB, which is now known as Seema Shastra Bal. Then came the BSF following the Indo Pak war in 1965, with more or less similar role as that of ITBP, but confined to border with Pakistan. Promoting a sense of security among the border population and preventing border crimes, including unauthorised infiltration across the international border, constituted its main charter
With the growth of public sector undertakings in the country, the government set up a Central Industrial Security Force in 1969 mainly to look after the security of public sector undertakings. Its jurisdiction is now being extended to cover even private sector undertakings
Another federal contingency force called the National Security Guard was set up in 1984 (year of operation Blue Star) to handle anti hijack and rescue operations and to support other organisations in dealing with ant terrorist activities The central para-military police registered phenomenal growth in the country during the last few decades. In 1961, only two forces existed – the Central Reserve Police Force (CRPF) and the Assam Rifles (AR). The CRPF then was only 14 battalion strong; while on january1, 2007 it consisted of 201 battalions with a sanctioned strength of 2.6 laks. The BSF was set up in 1965 by amalgamating twenty-five-and-a-half state armed police forces; but by 2007 it had become 157 battalions strong and its total sanctioned strength had increased to slightly more than 2 laks. Other para-military forces at the centre have seen similar expansion. The total combined strength of the central para military organizations on 1.1.2007 was 7,30,827. They constituted less than 50% of the total strength of the state police forces, which were 16,32,651 strong at the end of the year 2006.
This huge expansion, which is still continuing, has been necessitated by an increasing deployment of central para-military forces on law and order duties. The Central Government has been playing a wide and active role in maintaining law and order in different parts of the country, something that was not envisaged by the Constitution of India for them, except in emergencies. Under the Constitution of India, Police and Public Order are State subjects. Law enforcement is a civil function and it is the responsibility of the state governments to discharge this function effectively through their own police forces.
Most state governments have failed to do so. They have neglected the development of their police forces and have instead depended on the central para-military assistance to meet urgent and emergent law and order needs. This heavy dependence on the central assistance has been the result as well as one of the causes of comparatively poor development of the state police forces. If the need to modernize their police forces and develop them as professional, well equipped, well trained and well led organisations had been recognized by the state governments, they would have performed much better even in dealing with terrorist incidents than they are doing now. The state police forces are in bad shape because there is no political will to make them professionally efficient.
Almost all central para military forces have deviated from the original role assigned to them. The BSF as well as ITBP have no longer remained merely border securing forces, while the SSB has now become one on Indo Nepal border. NSG is being used more on providing security to VIPs than on anti terror activities. All organisations, including CISF, have often been deployed on internal security duties.
Expansion has not merely been rapid but also unplanned, leading to various problems of discipline and morale resulting from poor career planning policies. In every organization, there is considerable stagnation of departmental officers, who were taken from a wide variety of sources, including army, state police forces and directly from the market. The central government has kept most top management posts in these organisations for the IPS, which has created discontent with departmental officers often going to courts.
Fairly sizeable sum of money is being spent on the Police. The state governments spent about Rs 22 thousand crores on their police forces in 2006-07, while the central government spent Rs 11 thousand crores on its seven para military organiations. Thus even if the central expenditure on its other police organisations like IB, CBI, BPR&D, NCRB, NICFS, DCPW and on UT Police Forces is not taken into account, the total expenditure on the Police in the country was more than Rs 33 thousand crores in 2006-07, not a small sum by any means. This is public money. Are the public getting adequate returns on their money? Considering the climate of insecurity and fear that prevails in the country, the answer is a big No.
Since Independence, the Government of India has set up a number of para military forces to deal with emergencies. The first post Independence specialized para military force created by the central government was the Indo Tibetan Border Police, raised in the wake of Chinese aggression in 1962. Its main role was to provide protection to IB’s posts, secure Indo Tibetan border and check border crimes. The Chinese aggression led to the creation of another force in 1963, the SSB, which is now known as Seema Shastra Bal. Then came the BSF following the Indo Pak war in 1965, with more or less similar role as that of ITBP, but confined to border with Pakistan. Promoting a sense of security among the border population and preventing border crimes, including unauthorised infiltration across the international border, constituted its main charter
With the growth of public sector undertakings in the country, the government set up a Central Industrial Security Force in 1969 mainly to look after the security of public sector undertakings. Its jurisdiction is now being extended to cover even private sector undertakings
Another federal contingency force called the National Security Guard was set up in 1984 (year of operation Blue Star) to handle anti hijack and rescue operations and to support other organisations in dealing with ant terrorist activities The central para-military police registered phenomenal growth in the country during the last few decades. In 1961, only two forces existed – the Central Reserve Police Force (CRPF) and the Assam Rifles (AR). The CRPF then was only 14 battalion strong; while on january1, 2007 it consisted of 201 battalions with a sanctioned strength of 2.6 laks. The BSF was set up in 1965 by amalgamating twenty-five-and-a-half state armed police forces; but by 2007 it had become 157 battalions strong and its total sanctioned strength had increased to slightly more than 2 laks. Other para-military forces at the centre have seen similar expansion. The total combined strength of the central para military organizations on 1.1.2007 was 7,30,827. They constituted less than 50% of the total strength of the state police forces, which were 16,32,651 strong at the end of the year 2006.
This huge expansion, which is still continuing, has been necessitated by an increasing deployment of central para-military forces on law and order duties. The Central Government has been playing a wide and active role in maintaining law and order in different parts of the country, something that was not envisaged by the Constitution of India for them, except in emergencies. Under the Constitution of India, Police and Public Order are State subjects. Law enforcement is a civil function and it is the responsibility of the state governments to discharge this function effectively through their own police forces.
Most state governments have failed to do so. They have neglected the development of their police forces and have instead depended on the central para-military assistance to meet urgent and emergent law and order needs. This heavy dependence on the central assistance has been the result as well as one of the causes of comparatively poor development of the state police forces. If the need to modernize their police forces and develop them as professional, well equipped, well trained and well led organisations had been recognized by the state governments, they would have performed much better even in dealing with terrorist incidents than they are doing now. The state police forces are in bad shape because there is no political will to make them professionally efficient.
Almost all central para military forces have deviated from the original role assigned to them. The BSF as well as ITBP have no longer remained merely border securing forces, while the SSB has now become one on Indo Nepal border. NSG is being used more on providing security to VIPs than on anti terror activities. All organisations, including CISF, have often been deployed on internal security duties.
Expansion has not merely been rapid but also unplanned, leading to various problems of discipline and morale resulting from poor career planning policies. In every organization, there is considerable stagnation of departmental officers, who were taken from a wide variety of sources, including army, state police forces and directly from the market. The central government has kept most top management posts in these organisations for the IPS, which has created discontent with departmental officers often going to courts.
Fairly sizeable sum of money is being spent on the Police. The state governments spent about Rs 22 thousand crores on their police forces in 2006-07, while the central government spent Rs 11 thousand crores on its seven para military organiations. Thus even if the central expenditure on its other police organisations like IB, CBI, BPR&D, NCRB, NICFS, DCPW and on UT Police Forces is not taken into account, the total expenditure on the Police in the country was more than Rs 33 thousand crores in 2006-07, not a small sum by any means. This is public money. Are the public getting adequate returns on their money? Considering the climate of insecurity and fear that prevails in the country, the answer is a big No.
Monday, December 29, 2008
Terror and Police Reforms
TERROR AND POLICE REFORMS
The Bombay events must be the rarest of rare occasions in the history of policing in this country when the police received more bouquets than brickbats following their handling of a major incident of violence. There appears to be an unprecedented outpouring of grief and sympathy for the families of slain police personnel and an understanding of the difficult conditions under which the police function.
It is not the first time the police personnel have been killed by terrorists or other criminals In fact a large number of police personnel lose their lives in line of duty every year in this country. According to data compiled by the Intelligence Bureau, policing took a toll of as many as 21,428 lives of police personnel during the period 1961-62 to 1999-2000. During a nine-year period i.e. 1991-92 to 1999-2000, as many as 9389 police personnel lost their lives and during the present decade, 6898 police personnel have died in line of duty. This is a very heavy toll. No police force anywhere in the world has lost so many of its personnel in line of duty as the Indian Police have done. Even in the United States of America, where the violence levels during police-citizen encounters are quite high, the number of police casualties in line of duty has not been that high. According to the FBI’s Law Enforcement Bulletin, the total number of law enforcement officers feloniously killed in line of duty during the seventies in that country was 1,143 officers. The number slain during the eighties was only 801 and the number during the second half of the last decade (1996-2000) was 845. Ireland was one of the most violent spots in Europe during the period till the Good Friday agreement was signed. However, only 302 Royal Armed Constabulary officers and men lost their lives over the 30 year period. In Britain, till the eighties, only 220 police officers were reported to have been killed in line of duty since the Metropolitan Police Force was founded in 1829.
Unfortunately, the sacrifices made by police personnel while performing their duty have not received adequate recognition in this country. Poor image of the police of course has been an important reason for this, but this time it has been somewhat different. The touch of cold terror felt by the citizens on the streets of Bombay and the initial brunt of that terror faced by a highly ill equipped police force have led to a clamour for change. The public need and demand better security, which can be provided to them only by a police force that is much better than what it is at present. This therefore is an occasion when police reform becomes too important to neglect and too urgent to delay.
The question is- what type of reforms? The Government is yet to come out with a full answer, but the broad contours of the scheme that the government has in mind are visible from what the Home Minister P Chidambaram said in the Lok Sabha debate on terror on December 11, 2008. The establishment of a national investigating agency, the enactment of an anti terror law with stringent provisions, creation of regional NSG hubs, strengthening of intelligence network, setting up of counter insurgency and anti terrorism training schools and modernization of the police forces are some of the main features of the government’s scheme. New agencies and programmes are welcome, but the central and state governments need to remember that there is a huge existing police force waiting to be reformed. Its time it was realized it would not be possible for the police forces to deal with such incidents in future unless the police are depoliticised. The existing stranglehold that politicians have over the police must be loosened. In the debate on terror in the Lok Sabha on November 11, 2008, one of the most important points was made by the young MP Rahul Gandhi when he asked the MPs and MLAs to stop politicization of police: "As a young politician I would like to say that in the interest of the country we must desist from it. Also, that in the interest of common people we must stop interfering in the working of these institutions.” I would like to add that this is so even in the interests of politicians. A professionally efficient and an honest police force can give far better returns in terms of winning public support for the political party in power than a force, which is misused for selfish purposes.
Fighting terrorism requires a police force that is foundationally strong to function in an efficient and effective but also unbiased manner. This functioning has to be seen not only when they are dealing with emergencies but also when they are doing normal policing. Following an incident of terrorist violence, the governments must guard against the risk of normal day to day policing getting distorted or becoming a casualty altogether. In the fury of frustration that has followed the Bombay incidents, it is easy to forget that more than the specialized armed police it is the local thana and other civil police units that need to be professionalised. There is an impression amongst many that winning the war against terror requires a tough warrior cop’s policing approach. One may require that occasionally, but a sustained war against terror requires the development of a police force that is well organised, well controlled, well led, well equipped and well trained- a force that is friendly, sensitive and impartially fair, but firm.
The Bombay events must be the rarest of rare occasions in the history of policing in this country when the police received more bouquets than brickbats following their handling of a major incident of violence. There appears to be an unprecedented outpouring of grief and sympathy for the families of slain police personnel and an understanding of the difficult conditions under which the police function.
It is not the first time the police personnel have been killed by terrorists or other criminals In fact a large number of police personnel lose their lives in line of duty every year in this country. According to data compiled by the Intelligence Bureau, policing took a toll of as many as 21,428 lives of police personnel during the period 1961-62 to 1999-2000. During a nine-year period i.e. 1991-92 to 1999-2000, as many as 9389 police personnel lost their lives and during the present decade, 6898 police personnel have died in line of duty. This is a very heavy toll. No police force anywhere in the world has lost so many of its personnel in line of duty as the Indian Police have done. Even in the United States of America, where the violence levels during police-citizen encounters are quite high, the number of police casualties in line of duty has not been that high. According to the FBI’s Law Enforcement Bulletin, the total number of law enforcement officers feloniously killed in line of duty during the seventies in that country was 1,143 officers. The number slain during the eighties was only 801 and the number during the second half of the last decade (1996-2000) was 845. Ireland was one of the most violent spots in Europe during the period till the Good Friday agreement was signed. However, only 302 Royal Armed Constabulary officers and men lost their lives over the 30 year period. In Britain, till the eighties, only 220 police officers were reported to have been killed in line of duty since the Metropolitan Police Force was founded in 1829.
Unfortunately, the sacrifices made by police personnel while performing their duty have not received adequate recognition in this country. Poor image of the police of course has been an important reason for this, but this time it has been somewhat different. The touch of cold terror felt by the citizens on the streets of Bombay and the initial brunt of that terror faced by a highly ill equipped police force have led to a clamour for change. The public need and demand better security, which can be provided to them only by a police force that is much better than what it is at present. This therefore is an occasion when police reform becomes too important to neglect and too urgent to delay.
The question is- what type of reforms? The Government is yet to come out with a full answer, but the broad contours of the scheme that the government has in mind are visible from what the Home Minister P Chidambaram said in the Lok Sabha debate on terror on December 11, 2008. The establishment of a national investigating agency, the enactment of an anti terror law with stringent provisions, creation of regional NSG hubs, strengthening of intelligence network, setting up of counter insurgency and anti terrorism training schools and modernization of the police forces are some of the main features of the government’s scheme. New agencies and programmes are welcome, but the central and state governments need to remember that there is a huge existing police force waiting to be reformed. Its time it was realized it would not be possible for the police forces to deal with such incidents in future unless the police are depoliticised. The existing stranglehold that politicians have over the police must be loosened. In the debate on terror in the Lok Sabha on November 11, 2008, one of the most important points was made by the young MP Rahul Gandhi when he asked the MPs and MLAs to stop politicization of police: "As a young politician I would like to say that in the interest of the country we must desist from it. Also, that in the interest of common people we must stop interfering in the working of these institutions.” I would like to add that this is so even in the interests of politicians. A professionally efficient and an honest police force can give far better returns in terms of winning public support for the political party in power than a force, which is misused for selfish purposes.
Fighting terrorism requires a police force that is foundationally strong to function in an efficient and effective but also unbiased manner. This functioning has to be seen not only when they are dealing with emergencies but also when they are doing normal policing. Following an incident of terrorist violence, the governments must guard against the risk of normal day to day policing getting distorted or becoming a casualty altogether. In the fury of frustration that has followed the Bombay incidents, it is easy to forget that more than the specialized armed police it is the local thana and other civil police units that need to be professionalised. There is an impression amongst many that winning the war against terror requires a tough warrior cop’s policing approach. One may require that occasionally, but a sustained war against terror requires the development of a police force that is well organised, well controlled, well led, well equipped and well trained- a force that is friendly, sensitive and impartially fair, but firm.
Tuesday, September 16, 2008
POLICE REFORMS- A REBUTTAL OF DR. ASHOK KAPUR’S IDEAS
POLICE REFORMS- TOO IMPORTANT TO NEGLECT AND TOO URGENT TO DELAY- A REBUTTAL OF DR. ASHOK KAPUR’S IDEAS
I read Dr. Ashok Kapur’s article on Police Reforms in India published in the Open Forum of the India News and Features on May 18 and 19, 2008 with great interest but with greater anguish.
Dr Kapur is highly critical of the National Police Commission’s (NPC) recommendations, Mr. Prakash Singh’s petition and the judgment of the Supreme Court- all three closely linked. The purpose of this article is to deal with major points made by Dr Kapur and show how they are based either on lack of adequate information or a deficiency of understanding and at some places even on distortion of facts.
NPC Report, Supreme Court Judgment and Democracy
Dr Kapur starts and ends his article by suggesting the need to review the Supreme Court’s judgement on Prakash Singh’s petition. If it is implemented, it may “seriously impact democracy and the rule of law.” This can only mean either of two things. Either Dr Kapur is fond of conjuring up and fighting imaginary phantoms or the Supreme Court’s understanding of the concept of democracy and rule of law is really deficient.
Dr Kapur is of the view that the judgment of the Supreme Court, based on Prakash Singh’s Petition, which in turn is founded on NPC’s recommendations, violates the basic structure of the Constitution and the rule of law. How it does that is not very clearly stated. Studying the wooly arguments scattered at different places in the article, one can spot at least three areas where the NPC report, as per Dr Kapur’s analysis, violates the constitutional and rule of law standards:
1 Posting and Promotion of Officers:
According to Dr Kapur, the Commission “had suggested posting and promotion of senior police officers, permanently assigned to the State Governments, by official committees comprising a majority of Union Government representatives” Since the Police is a state subject, this is a “violation of the federal principle, a basic feature of the Constitution,” The assessment is wrong as the Commission never made this suggestion. All that the NPC suggested was that a committee headed by the Chairperson of the UPSC should prepare a panel of three IPS officers of the State cadre and the selection of the head of the state police force should be done by the state government out of that panel (Second Report, p31, para 15.45). The authority to post and promote all senor officers, including the chief of police, remains with the State Government. Neither the postings nor the promotions are to be done by the Committee as is being alluded to in the article. The NPC merely wanted to reduce the element of arbitrariness in selecting the head of the police force that has become so common now- a- days.
2. Establishment of State Security Commission:
Dr Kapur thinks that the idea of establishing the State Security Commission (SSC) recommended by the National Police Commission and accepted by the Supreme Court would amount to taking away the government’s “authority to exercise control or ensure accountability,” and “the prerogative of the elected cabinet, accountable to the legislature, even to frame policy would stand transferred to the security commission, a parallel cabinet, unelected and unaccountable.” It appears that the recommendation of the NPC has not been properly appreciated. The NPC has nowhere recommended that the superintendence of the Police Department should be transferred to SSC. All that the NPC has done is to “ lay down that the power of superintendence of the State Government over the Police should be limited for the purpose of ensuring that police performance is in strict accordance with law.” (Second Report, p30, para 15.38) It is to help the State Government discharge their superintending responsibilities in an open manner under the framework of law that the NPC recommended the constitution of a SSC in every State. As the NPC said: “ While retaining government responsibility for overseeing the police, this Commission will ensure that this responsibility is discharged in an open manner with publicly known policy directions and guidelines.”( Second Report, p32, para 15.54)
One may not agree with the composition or charter of SSC suggested by the NPC, but one can not but appreciate the environmental context in which this recommendation was made by the Commission. According to the Commission, the manner in which political control has been exercised over the police has led to gross abuses, resulting in erosion of rule of law and loss of police credibility as a professional organization in this country. It was therefore necessary to set up new institutional arrangements that would help in ensuring “political neutrality in police performance”(Second Report, pp31-32, para 15-53)
The NPC borrowed this idea of a commission to act as a buffer between the government and the police from such arrangements existing in other democratic countries. Japan is one example, where they have a National Public Safety Commission and the Prefectural Public Safety Commissions, which control the police forces at the national and prefectural levels. The Commission at the national level consists of a chairman and five members, having five-year terms, who are appointed by the Prime Minister with the consent of both Houses of the Diet. The Commission at the prefectural level usually consists of three members, whose appointments are made by the Governor with the consent of the Prefectural Assembly. The National Police Agency and the Prefectural Police Departments are controlled by the National Public Safety Commission and the Prefectural Public Safety Commissions respectively
The Commission model of police governance exists in many other democratic countries, like Canada, for instance. In British Columbia, every municipality with a population of 5000 or more has to provide for police service and all municipalities in such places are required to set up police boards to act as civilian oversight bodies. The Municipal Police Board in British Columbia, consisting of the Mayor, a councillor and not more than five other eminent persons(British Columbia Police Act, Section 23 (1)), determines the priorities, goals and objectives of the municipal police department, in consultation with the chief constable (British Columbia Police Act Section 26 (4)). Similarly in Northern Ireland, one such institution is the Police Board set up by the Police (Northern Ireland) Act, 2000. The Board is an independent public body made up of nineteen members, whose broad objective is to secure for the people of Northern Ireland an effective, efficient and impartial police service. In UK itself from where we have borrowed our Westminster system of governance, it is the Police Authorities that largely control the area police forces. They are freestanding bodies, independent and separate from local councils and are responsible for maintaining efficient and effective police forces for their areas.
Thus instead of damaging democracy or rule of law, as Dr. Kapur maintains, the Board or Commission model of police governance is increasingly being accepted as an important principle of democratic policing. The model serves two different purposes- one, to insulate the police from illegitimate influences of partisan politics by acting as a buffer between the police and elected governments; and, two, to involve community members in providing direction to the police and help improve police administration and management. NPC’s recommendation to set up SSCs was also motivated by the same twin objectives.
3. Inquiry into Complaints against the Police:
Dr. Kapur finds fault with the modalities of inquiring into public complains against police personnel that the NPC recommended in its First Report. There are two main objections. One, the accused in such complaints (i.e the police) ”double up both as the investigator and as the judge and jury.” Two, “dragging the neutral judiciary with a very fair reputation in the functioning of the executive” is a “violation of the principle of ‘separation of powers’. A basic feature of the Constitution”
Lets now study what the NPC recommended. The NPC felt that besides departmental inquiries, there are certain categories of complaints where some independent authority outside the police should do the inquiries. They suggested that a judicial inquiry should be made mandatory in three categories of complaints (First Report, page 61-62, paras10.18 & 10.19):
• alleged rape of a woman in police custody;
• death or grievous hurt caused while in police custody; and
• death of two or more persons resulting from police firing in the dispersal of unlawful assemblies.
To obviate delay in such appointments, there should be a standing body known as the District Inquiry Authority (DIA) headed by an Additional Session's Judge who should be assisted by an assessor from the police department. The DIA shall also serve as an independent authority to oversee the ultimate disposal of complaints dealt with departmentally.
Dr Kapur seems to suggest that the NPC under stressed the gravity of complaints of death or rape in custody by describing them as “misbehaviour” or “misconduct,” while the recommendation clearly shows that the Commission assigned greater seriousness to such complaints by suggesting a different, more independent and thorough system of inquiring into them. An officer from the police department to assist the DIA in its work does not mean that the accused becomes the investigator, judge and jury at the same time.
So far as the second objection is concerned, judicial inquiries have been instituted by the governments on numerous occasions to examine public complaints or matters of grave importance. If this amounts to violation of the principle of separation of powers, as Dr. Kapur thinks, obviously the Constitution has been infringed many times since Independence.
Police Act, 1861- Outdated:
Dr Kapur has serious objection to the petitioners regarding the Police Act of 1861 “outdated.” This is really astonishing, considering the fact that the Police Act was passed 147 years ago during the colonial rule when the problems and requirements of policing were completely different from what they are today. The Act is outdated not only because it is about a century and a half old but also because it set up a police organization that was totally subservient to the executive; that was unaccountable to anyone except their own hierarchy and the executive; whose managerial philosophy was based on distrust of the lower ranks; and that was highly militaristic and authoritarian in design and whose charter of functions was very narrow and limited.
Police Act, 1861- Adjunct to the Cr.P.C:
Amazingly, Dr. Kapur further propounds that the “Police Act of 1861 was not a ‘stand-alone’ legislation. It was a brief adjunct to the Criminal Procedure Code, enacted a year earlier.” This is a factual error. What was passed a year earlier was the Indian Penal Code and not the Criminal Procedure Code. Even if this error is disregarded, Dr Kapur never explains how the Police Act has to be looked upon as an adjunct to the Cr P C. The objectives of the two legislations were different.
Relationship between the Police and Magistracy:
Another objection of Dr Kapur is that the “petitioners conveniently bypassed the Criminal Code, whereby the police derive their formal investigative powers only under the overall control of the magistracy.” He does not explain why the petitioners should have included the Cr Pc matters in their petition, which mainly focused on the need to implement the recommendations of the NPC, including replacement of the Police Act of 1861. In fact it is Dr Kapur who conveniently forgets that if the police were subject to the general control and direction of the magistracy it was because the executive and judiciary were not separate when the Police Act or Criminal Procedure Code were enacted during the colonial times. After the separation of executive and judiciary done by the amended Cr P C in 1973, the NPC found no justification for the system. According to the NPC, Police should have a self-controlled organizational structure where there is no distortion of command and no dilution of responsibility. Their functions are subject to judicial scrutiny and they are accountable to law and therefore they cannot be subordinated to an executive. It is this approach of the NPC that is at the root of Dr Kapur’s angry analysis, as he later declares that the “most glaring lapse on the part of the Police Commission was to erase altogether the control of civil magistracy and make no provision whatsoever for any accountability on the part of the force”.
Post Retirement Benefits:
Dr Kapur feels that the “ostensible purpose of the PIL was to minimize “political interference” in the functioning of the police.” He finds it ironical because “what has come to pass is too stark to ignore. More and more retired police officers are being appointed under the Government since the submission of the report”. This argument does not cut much ice. If this is happening as Dr Kapur says, it is all the more necessary to institute arrangements that would help in insulating the police from illegitimate political interference so that the police officers’ opportunities to “hobnob” with politicians are reduced, if not altogether eliminated.
Summing Up:
There are some other points in Dr.Kapur’s article that can be discussed, but the constraints of space come on the way.
The need for Police reforms is urgent and important and deserves to be discussed dispassionately, unaffected by personal prejudices and service rivalries. Dr kapur’s analysis is found wanting in this respect. “How much easier it is to be critical than to be correct!”
I read Dr. Ashok Kapur’s article on Police Reforms in India published in the Open Forum of the India News and Features on May 18 and 19, 2008 with great interest but with greater anguish.
Dr Kapur is highly critical of the National Police Commission’s (NPC) recommendations, Mr. Prakash Singh’s petition and the judgment of the Supreme Court- all three closely linked. The purpose of this article is to deal with major points made by Dr Kapur and show how they are based either on lack of adequate information or a deficiency of understanding and at some places even on distortion of facts.
NPC Report, Supreme Court Judgment and Democracy
Dr Kapur starts and ends his article by suggesting the need to review the Supreme Court’s judgement on Prakash Singh’s petition. If it is implemented, it may “seriously impact democracy and the rule of law.” This can only mean either of two things. Either Dr Kapur is fond of conjuring up and fighting imaginary phantoms or the Supreme Court’s understanding of the concept of democracy and rule of law is really deficient.
Dr Kapur is of the view that the judgment of the Supreme Court, based on Prakash Singh’s Petition, which in turn is founded on NPC’s recommendations, violates the basic structure of the Constitution and the rule of law. How it does that is not very clearly stated. Studying the wooly arguments scattered at different places in the article, one can spot at least three areas where the NPC report, as per Dr Kapur’s analysis, violates the constitutional and rule of law standards:
1 Posting and Promotion of Officers:
According to Dr Kapur, the Commission “had suggested posting and promotion of senior police officers, permanently assigned to the State Governments, by official committees comprising a majority of Union Government representatives” Since the Police is a state subject, this is a “violation of the federal principle, a basic feature of the Constitution,” The assessment is wrong as the Commission never made this suggestion. All that the NPC suggested was that a committee headed by the Chairperson of the UPSC should prepare a panel of three IPS officers of the State cadre and the selection of the head of the state police force should be done by the state government out of that panel (Second Report, p31, para 15.45). The authority to post and promote all senor officers, including the chief of police, remains with the State Government. Neither the postings nor the promotions are to be done by the Committee as is being alluded to in the article. The NPC merely wanted to reduce the element of arbitrariness in selecting the head of the police force that has become so common now- a- days.
2. Establishment of State Security Commission:
Dr Kapur thinks that the idea of establishing the State Security Commission (SSC) recommended by the National Police Commission and accepted by the Supreme Court would amount to taking away the government’s “authority to exercise control or ensure accountability,” and “the prerogative of the elected cabinet, accountable to the legislature, even to frame policy would stand transferred to the security commission, a parallel cabinet, unelected and unaccountable.” It appears that the recommendation of the NPC has not been properly appreciated. The NPC has nowhere recommended that the superintendence of the Police Department should be transferred to SSC. All that the NPC has done is to “ lay down that the power of superintendence of the State Government over the Police should be limited for the purpose of ensuring that police performance is in strict accordance with law.” (Second Report, p30, para 15.38) It is to help the State Government discharge their superintending responsibilities in an open manner under the framework of law that the NPC recommended the constitution of a SSC in every State. As the NPC said: “ While retaining government responsibility for overseeing the police, this Commission will ensure that this responsibility is discharged in an open manner with publicly known policy directions and guidelines.”( Second Report, p32, para 15.54)
One may not agree with the composition or charter of SSC suggested by the NPC, but one can not but appreciate the environmental context in which this recommendation was made by the Commission. According to the Commission, the manner in which political control has been exercised over the police has led to gross abuses, resulting in erosion of rule of law and loss of police credibility as a professional organization in this country. It was therefore necessary to set up new institutional arrangements that would help in ensuring “political neutrality in police performance”(Second Report, pp31-32, para 15-53)
The NPC borrowed this idea of a commission to act as a buffer between the government and the police from such arrangements existing in other democratic countries. Japan is one example, where they have a National Public Safety Commission and the Prefectural Public Safety Commissions, which control the police forces at the national and prefectural levels. The Commission at the national level consists of a chairman and five members, having five-year terms, who are appointed by the Prime Minister with the consent of both Houses of the Diet. The Commission at the prefectural level usually consists of three members, whose appointments are made by the Governor with the consent of the Prefectural Assembly. The National Police Agency and the Prefectural Police Departments are controlled by the National Public Safety Commission and the Prefectural Public Safety Commissions respectively
The Commission model of police governance exists in many other democratic countries, like Canada, for instance. In British Columbia, every municipality with a population of 5000 or more has to provide for police service and all municipalities in such places are required to set up police boards to act as civilian oversight bodies. The Municipal Police Board in British Columbia, consisting of the Mayor, a councillor and not more than five other eminent persons(British Columbia Police Act, Section 23 (1)), determines the priorities, goals and objectives of the municipal police department, in consultation with the chief constable (British Columbia Police Act Section 26 (4)). Similarly in Northern Ireland, one such institution is the Police Board set up by the Police (Northern Ireland) Act, 2000. The Board is an independent public body made up of nineteen members, whose broad objective is to secure for the people of Northern Ireland an effective, efficient and impartial police service. In UK itself from where we have borrowed our Westminster system of governance, it is the Police Authorities that largely control the area police forces. They are freestanding bodies, independent and separate from local councils and are responsible for maintaining efficient and effective police forces for their areas.
Thus instead of damaging democracy or rule of law, as Dr. Kapur maintains, the Board or Commission model of police governance is increasingly being accepted as an important principle of democratic policing. The model serves two different purposes- one, to insulate the police from illegitimate influences of partisan politics by acting as a buffer between the police and elected governments; and, two, to involve community members in providing direction to the police and help improve police administration and management. NPC’s recommendation to set up SSCs was also motivated by the same twin objectives.
3. Inquiry into Complaints against the Police:
Dr. Kapur finds fault with the modalities of inquiring into public complains against police personnel that the NPC recommended in its First Report. There are two main objections. One, the accused in such complaints (i.e the police) ”double up both as the investigator and as the judge and jury.” Two, “dragging the neutral judiciary with a very fair reputation in the functioning of the executive” is a “violation of the principle of ‘separation of powers’. A basic feature of the Constitution”
Lets now study what the NPC recommended. The NPC felt that besides departmental inquiries, there are certain categories of complaints where some independent authority outside the police should do the inquiries. They suggested that a judicial inquiry should be made mandatory in three categories of complaints (First Report, page 61-62, paras10.18 & 10.19):
• alleged rape of a woman in police custody;
• death or grievous hurt caused while in police custody; and
• death of two or more persons resulting from police firing in the dispersal of unlawful assemblies.
To obviate delay in such appointments, there should be a standing body known as the District Inquiry Authority (DIA) headed by an Additional Session's Judge who should be assisted by an assessor from the police department. The DIA shall also serve as an independent authority to oversee the ultimate disposal of complaints dealt with departmentally.
Dr Kapur seems to suggest that the NPC under stressed the gravity of complaints of death or rape in custody by describing them as “misbehaviour” or “misconduct,” while the recommendation clearly shows that the Commission assigned greater seriousness to such complaints by suggesting a different, more independent and thorough system of inquiring into them. An officer from the police department to assist the DIA in its work does not mean that the accused becomes the investigator, judge and jury at the same time.
So far as the second objection is concerned, judicial inquiries have been instituted by the governments on numerous occasions to examine public complaints or matters of grave importance. If this amounts to violation of the principle of separation of powers, as Dr. Kapur thinks, obviously the Constitution has been infringed many times since Independence.
Police Act, 1861- Outdated:
Dr Kapur has serious objection to the petitioners regarding the Police Act of 1861 “outdated.” This is really astonishing, considering the fact that the Police Act was passed 147 years ago during the colonial rule when the problems and requirements of policing were completely different from what they are today. The Act is outdated not only because it is about a century and a half old but also because it set up a police organization that was totally subservient to the executive; that was unaccountable to anyone except their own hierarchy and the executive; whose managerial philosophy was based on distrust of the lower ranks; and that was highly militaristic and authoritarian in design and whose charter of functions was very narrow and limited.
Police Act, 1861- Adjunct to the Cr.P.C:
Amazingly, Dr. Kapur further propounds that the “Police Act of 1861 was not a ‘stand-alone’ legislation. It was a brief adjunct to the Criminal Procedure Code, enacted a year earlier.” This is a factual error. What was passed a year earlier was the Indian Penal Code and not the Criminal Procedure Code. Even if this error is disregarded, Dr Kapur never explains how the Police Act has to be looked upon as an adjunct to the Cr P C. The objectives of the two legislations were different.
Relationship between the Police and Magistracy:
Another objection of Dr Kapur is that the “petitioners conveniently bypassed the Criminal Code, whereby the police derive their formal investigative powers only under the overall control of the magistracy.” He does not explain why the petitioners should have included the Cr Pc matters in their petition, which mainly focused on the need to implement the recommendations of the NPC, including replacement of the Police Act of 1861. In fact it is Dr Kapur who conveniently forgets that if the police were subject to the general control and direction of the magistracy it was because the executive and judiciary were not separate when the Police Act or Criminal Procedure Code were enacted during the colonial times. After the separation of executive and judiciary done by the amended Cr P C in 1973, the NPC found no justification for the system. According to the NPC, Police should have a self-controlled organizational structure where there is no distortion of command and no dilution of responsibility. Their functions are subject to judicial scrutiny and they are accountable to law and therefore they cannot be subordinated to an executive. It is this approach of the NPC that is at the root of Dr Kapur’s angry analysis, as he later declares that the “most glaring lapse on the part of the Police Commission was to erase altogether the control of civil magistracy and make no provision whatsoever for any accountability on the part of the force”.
Post Retirement Benefits:
Dr Kapur feels that the “ostensible purpose of the PIL was to minimize “political interference” in the functioning of the police.” He finds it ironical because “what has come to pass is too stark to ignore. More and more retired police officers are being appointed under the Government since the submission of the report”. This argument does not cut much ice. If this is happening as Dr Kapur says, it is all the more necessary to institute arrangements that would help in insulating the police from illegitimate political interference so that the police officers’ opportunities to “hobnob” with politicians are reduced, if not altogether eliminated.
Summing Up:
There are some other points in Dr.Kapur’s article that can be discussed, but the constraints of space come on the way.
The need for Police reforms is urgent and important and deserves to be discussed dispassionately, unaffected by personal prejudices and service rivalries. Dr kapur’s analysis is found wanting in this respect. “How much easier it is to be critical than to be correct!”
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