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| NEWS > 18 August 2007 |
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Mainstream - New Delhi,New Del
18 August 2007
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Police Reforms at Sixty
The Kiran Bedi controversy over her alleged ‘supersession’ for the post of Commissioner of Police, Delhi, even though she holds an equal rank, heading the only reasearch and development orgnisation on police in the country, came at a time when the Union and State governments are under the Supreme Court whip to bring about police reforms immediately. It is not incidental that transparent and tenured appointment of police chiefs are among the major reforms suggested by the Apex Court.
Earlier this year, the mystery of missing children, unravelled in Uttar Pradesh’s industrial-residential suburb to Delhi, Noida, underlined some known facts about the police. First, the police in India are inefficient, irresponsible, insensitive and corrupt and the maladies now affect not only the cutting edge level, for long touted as the problematic core of the organisation, but it has spread across the organisational ladder to the top, despite some shining examples of excellence and probity. Second, the need for organisational and systemic reforms for this crucial institution of governance, urgent for decades, has now become emergent. Third, the political class running the machinery of the Indian state at different levels is least interested in police reforms for known and obvious reasons.
Both the incidents, however, could not have come at a worse time for the police brass and the Indian state. The Supreme Court’s deadline on police reform is now hanging over them. Interestingly, even as the Noida incident shook the conscience of the Indian society, Union Home Minister Shivraj Patil discussed police reforms in the context of the Supreme Court deadline with State Chief Ministers and Home Ministers on January 2, 2007. The meeting, however, ended with very strong discordant notes from more than one State. The Chief Ministers, including those credited with good and responsive governance in their respective States, accused the UPA-led Union Government of ‘playing politics’ and circumventing India’s federal spirit by violating entries 1 and 2 in List II (State List) in the Seventh Schedule of the Constitution of India. Sadly, even the best of them have never given police reform the remotest thought, while many would have (mis)used the police politically. It would indeed be a pleasant surprise if most of them know of the Police Commissions appointed in their own States and the recommendations they made.
The Pointers
THE Noida incident was a pointer to the breakdown of policing at each level, particularly at the cutting edge level, and the complete erosion of police as the basic institution for internal security. The Kiran Bedi episode, on the other hand, showed how the rot has now set at the top, where the best known officers could put professional ethics above personal ambition. It is tragic that as India is celebrating the diamond jubilee of its independence, the police as the key institution of internal security, far from being democratised and responsive to the needs of the common man in the country, stands deinstitutionalised, discredited and deligitimised. It carries the image of being a repressive instrument of the state that functions only to protect and for the interest of politicians, many of whom are criminalised.
The police across the country has been known to avoid registering cases in order to keep the crime rate and work load low for decades; it is the poor who invariably bear the brunt of their inefficiency, corruption and brutality. The registration of the First Information Report (FIR), the initial complaint by affected persons before the police take cognizance of an unlawful incident or crime, has for long been used by the police as an instrument to extort money from and harass the complainants. It is, therefore, not surprising that the police turned away the poor complaining about their missing children from the police station with characteristic disdain. Starkly, a high-profile kidnapping in the posh Sector 15A of Noida in 2006 witnessed an unprecedented police (and the media) mobilisation, while the series of disappearance of children during the past two years in the impoverished part of this urban village drew apathy, scorn (for the poor victim families) and negligence from the police. Considering that Noida is a district town with seats of the District Magistrate and the Senior Superintendent of Police not very far away from the scene of the occurrence, the incident also clearly brings out the complete absence for the citizens of channels of appeal to the senior officers in cases of negligence and dereliction of duty at the lower levels. Clearly, the class bias of the police, nay the entire administrative structure, always there, has been perpetuated over the decades and has become a systemic feature even as Indian democracy matures.
The pervasiveness of dereliction of the basic duty by the police has recently been revealed also during the trials of Priyadarshini Mattoo and Jessica Lal cases in the nation’s Capital. In both the cases the Delhi High Court passed heavy strictures against the Delhi Police. The police was found deficient in taking cognisance of and investigating both the cases. In fact, the involvement of a senior police officer’s son in the former prompted the police to not only ignore the complaint of the victim, but also to resort to shoddy investigation, which in any case has become the soft underbelly of policing in India. The organisational rot is visible also from the rising cases of recorded custodial crime—death as well as rape—by the police. It has risen by 50 per cent in the country between 2004 and 2005. Abdul Karim Telgi’s stamp scam cast its shadow even over the hallowed chair of the Mumbai Police Commissioner. Inspector General rank police officers are facing trial in heinous crimes like murder. Obviously, the Indian Police Service, one of the two prestigious all-India services, has lost its sheen both in probity and efficiency. The pressure of and unpreparedness for facing challenges like terrorism and armed crime in a systematic and organised fashion has led to encounter deaths. The most glaring result of such a pressure was visible in Delhi nearly a decade ago when an innocent person was shot dead after a chase in the busy commercial hub, Connaught Place. Obviously, the pervasively deep rot necessitates comprehensive reforms at every level, incorporating every aspect of policing, though the delivery level deserves urgent and immediate attention.
The Reform Proposals
SEVERAL aspects of the police administration— organisational structure, work culture, training, politicisation, accountability structures, magisterial control, corruption, brutality, etc.— have been discussed and reviewed in order to bring about reforms since independence. Interestingly the government of United Provinces (Uttar Pradesh after independence) appointed a Police Reorganisation Committee on January 23, 1947, which reviewed the ills plaguing the police organisation, like corruption, misuse of authority, brutality and so on, and also discussed the reasons behind ills like non-registration of First Information Report (FIR), poor investigation, fabrication of evidence et al.
While recommending some organisational rearrangements, the Committee laid great emphasis on recruitment policy, better salary and service conditions, training (the report laid tremendous emphasis on it), professionalisation and specialisation of the personnel and various units of the police (training becomes crucial here too), inculcation of scientific methods of investigation and creation of a special unit for it (again training).
However, the discourse on police reform began after independence at the State level in the 1960s, when several States appointed Police Commi-ssions to look at police reforms within the framework of the 1861 Police Act. The Union Government obviously adopted a textbook constitutional position by leaving this matter of the List II of the Seventh Schedule (state list) entirely to the States, though given the political atmosphere of the time and the prevailing ‘Congress system’, to use Rajni Kothari’s famous formulation on India’s one-party dominant system, it was possible for the Union Government to undertake a leader’s role in guiding and coordinating police reforms. For, the Centre alone could have contemplated replacing the Indian Police Act 1861 that designed and founded the present police ‘force’ in the aftermath of the events of 1857 with one drawn in accordance with the new republican Constitution enacted in 1950. Anyway, the State governments appear to have been governed by their own political imperatives to set up Police Commissions and accordingly defined their terms of reference. Thus, throughout the 1960s and 1970s one State after the other reviewed its police system (some did it more than once), but none of the States authorised its Commission to question the Act of 1861 in any way. Naturally, solutions were suggested within the existing framework. The recommendations of these Commissions were mainly concerned with details of the administrative set up, the strength of the police force in different wings of the system, pay and allowances of the police in different ranks, qualifications for recruitment to various ranks, the set-up for training centres, curricula for training and the like.
However, the Union Government too felt the need to review the functioning of the police in the context of the administrative reforms. Hence, without meddling with the State realm, the Centre reviewed administrative structures and training in the 1970s, but the recommendations remained on paper. The Dharam Vira headed National Police Commission in 1977 came after three decades of inaction to reform this vital institution of governance and its growing decadence under political patronage. Its appointment however, was under the shadow of the misuse of the police machinery and the police behaviour during the Emergency imposed by Mrs Gandhi. In severe indictment of the police the Shah Commission of Inquiry appointed to look into excesses committed during the Emergency said:
The police was used and allowed themselves to be used for purposes, some of which were, to say the least, questionable. Some police officers behaved as if they were not accountable at all to any public authority. The decision to arrest and release certain persons were entirely on political considerations, which were intended to be favourable to the ruling party. Employing the police to the advantage of any political party is a sure source of subverting the rule of law. The government must seriously consider the feasibility and desirability of insulating the police from the politics of the country and employing it scrupulously on duties for which alone it is by law intended. (emphasis added)
Obviously, despite a stupendous task accomplished by the NPC, the shadow of the Emergency and the observations against the police and the Indira Gandhi regime during the Emergency was likely to fall on its recommendations. The defeat and fragmentation of the Janata Party regime and return of Mrs Indira Gandhi in 1980, when the report of the Commission was eventually presented, created a negative political atmosphere for the NPC report, making the new regime look at the report with politically coloured glasses. Yet, despite being jettisoned, the NPC report has led the urge and quest for police reforms amidst strong political, bureaucratic and internal resistance. It indeed set an agenda for all the future discourses on police reforms.
The Supreme Court’s directive on police reforms on Prakash Singh’s petition followed the then Union Home Minister Indrajit Gupta’s (of the United Front Government) prophetic warning in 1997:
…if the political executives do not take the desired measures even now to bring about suggested reforms and restructuring of the police, the day may not be far off when the judiciary may intervene decisively to force such socially desirable changes down the throat of the political executives. The judiciary indeed did intervene, first by directing the Union Government to consider the NPC recommendation for implementation and a decade later to set a deadline with specific recommendations for implementation.
The successive committees—Rebeiro (1998), Padmanabhaiah (2000), Malimath (2000), which situated the police reforms in the Criminal Justice System framework and Soli Sorabji (2005), appointed to draft a new Police Act—have used the NPC report and recommendations therein as the reference point. The Rebeiro, Padmanabhaiah Committees were appointed to honour the directive of the Supreme Court of India to the Government of India in response to the petition for police reforms by Prakash Singh, et al., to identify action points for the implementation of the recommendations of the NPC. The Rebeiro Committee laid great emphasis on introducing institutional and scientific approaches to streamline the affairs in police departments across the country. It did not claim to make a major departure from the NPC recommendations, for many of its suggestions referred to the NPC report for a detailed reference; it updated the report keeping in view nearly two decades of developments since the NPC made its recommendations. This committee too followed the institutional approach of the NPC and the Rebeiro Committee. There were minor variations such as the two-year minimum term for a State Police chief as compared to three years preferred by the Rebeiro Committee and so on. Some of its recommendations, such as recruitment of more Sub-Inspectors than constables, without a comprehensive view of the entire organisational structure, were debatable, to say the least. However, the Committee did emphasise the fact that without a comprehensive criminal justice reforms, no police reforms would be meaningful.
Not surprisingly, almost around the time that the Padmanabhaiah Committee was appointed, the Malimath Committee for the review and reform of the Criminal Justice System was also appointed. The Malimath Committee addressed the principles of the Criminal Justice System, investigation, prosecution, judiciary, crime and punishment and made 158 observations and recommendations. There are 55 major recommendations of which 42 have to be implemented by the Union Government and 26 by the State governments. The report has been heavily criticised by human rights organisation and legal experts for its suggestion of changing the burden of proof.
It is a matter of coincidence that when the Soli Sorabji Committee has been at work to draft a new Police Act, the Apex Court judgment compelled the Union Government to speak to the States for implementing the guidelines for police reforms. The Committee put its draft on the Ministry of Home Affairs’ website for comments by one and all. The draft it has put forward is a comprehensive one which, aside from suggesting changes in the structure, puts considerable emphasis on accountability structures within the organisation.
In directing the Government of India to bring about police reforms within a time frame, the Apex Court has taken into account the suggestions made by the Sorabji Committee too. Based on the exercises carried on by various committees, it made a seven-fold recommen-dation aimed at ensuring accountability, responsiveness and loosening of political control in order to spur depoliticisation of the police organisation. First, appointment of a State Security Commission ‘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 Apex Court gave freedom to the State governments, for whom it made its directive binding, select one of the following models for the Commission:
Second, it recommended selection of the Director General of Police of the State from amongst the three seniormost officers of the Department who have been empanelled for promotion to that rank by the Union Public Service Commission on the basis of their length of service, very good record and range of experience for heading the police force with a minimum tenure of at least two years irrespective of his date of superannuating. The State Government can take disciplinary action, if required, acting in consultation with the State Security Commission and under the All India Services (Discipline and Appeal) Rules.
Third, the Apex Court also recommended a fixed tenure of two years for police officers on operational duties in the field like the Inspector General of Police in-charge of a Zone, Deputy Inspector General of Police in-charge of a Range, Superintendent of Police in-charge of a district, and Station House Officer in-charge of a Police Station unless it was found necessary to remove them prematurely following disciplinary proceedings against them or their conviction in a criminal offence or in a case of corruption or if the incumbent is otherwise incapacitated from discharging his responsibilities.
Fourth, the Court recommended phased separation of the investigating police from the law and order police to ensure speedier investigation, better expertise and improved rapport with the people, but with full coordination between the two wings.
Fifth, establishment of a Police Establishment Board, a departmental body comprising the Director General of Police and four other senior officers of the Department, in each State was recommended to decide on all transfers, postings, promotions and other service related mattes of officers of and below the rank of Deputy Superintendent of Police. Apart from making appropriate recommendations to the State Government regarding the posting and transfers of officers of and above the rank of Superintendent of Police, which the government would be expected to give due weight to, it would also function as a forum of appeal for disposing of representations from officers of the rank of Superintendent of Police and above regarding their promotion/ transfer/ disciplinary proceedings or their being subjected to illegal or irregular orders and generally reviewing the functioning of the police in the State.
The sixth recommendation was to constitute a Police Complaints Authority each at the district level, to look into complaints against police officers of and up to the rank of the Deputy Superintendent of Police, and at the State level, to look into complaints against officers of the rank of Superintendent of Police and above. Even the composition of these bodies has been suggested by the Apex Court in its directives.
Finally a National Security Commission at the Union level, headed by the Union Home Minister and comprising heads of the Central Police Organisations (CPOs) and a couple of security experts as members with the Union Home Secretary as its Secretary, was suggested to prepare a panel for being placed before the appropriate Appointing Authority, for selection and placement of Chiefs of the CPOs, who should also be given a minimum tenure of two years and for reviewing the service conditions of the CPO personnel.
Despite general agreement on the urgency for police reform, the opinion has been divided on the directive given by the Supreme Court. Some experts have raised objection to the multi-level accountability structure, which might not make the police so much efficient and apolitical, as tied up in too many knots for functional autonomy. Would it be possible to find so many apolitical and non-partisan persons at different levels? Would it not create another set of interests that would like to be benefited from the proximity with the police? Would the politicians not find ways of getting around such persons by providing them with certain sets of benefits? There has been an agreement for a fixed tenure for the State Police chief for some time. However, a fixed tenure at each level, particularly at the thana level, could be questioned from the perspective of principles of public administration. These are only some of the questions being asked on the directive of the Supreme Court which appears to have been taken in by its crusade against decades of role abdication by the executive in several fields due to political considerations.
States Object
MANY of the States predictably objected to the Apex Court directive. The States felt that it was too simplistic to blame political interference for decline in working of the police. They appeared opposed to any move, like the role of the UPSC in the selection of the DGs, that would undermine their authority and bring in the influence of the Union Government. They were also against fixed tenures for the police officers on operational duties like the SHO, which they felt would create ‘monsters’ in police stations. They also claimed to have accountability structures and fresh ones would add to the cost. Some non-Congress Chief Ministers even accused the Union Home Minister of playing politics with police reforms.
This has created a situation of contest and confrontation on the issue of police reforms, with the hardening of attitudes of the Apex Court and of the State governments. India’s federalised polity has weakened Central initiatives in national politics and policy arenas and, therefore, it also creates contestation between the Union Government and some of the States on this crucial issue. While the State governments could have a valid point or two on the recommendations made by the Supreme Court, it is imperative that they need to be circumspect on their objections. This situation has come because once the State initiatives failed by mid-1970s, the main discourse on police reforms has been located on the turf of the Union Government. The Supreme Court too did not find it anomalous to direct the Union Government, rather than the State governments, to implement police reforms, though it did stress that the recommendations were binding on the State governments too.
Therefore, the resistance of some of the Chief Ministers during their meeting with the Union Home Minister on January 2, 2007 on federal grounds is constitutionally and politically untenable. The States were given the initiative to initiate police reforms in the 1960s and 1970s, but the exercise remained fruitless or mechanical exercises despite some of the State Police Commissions giving useful recommendations from social and political perspectives, limitations imposed by the 1861 Act notwithstanding, which they could not alter. Though some of the States appointed two Commissions between the 1960s and 1980s, most of them ignored a large part of the recommendations by their respective Commissions. Moreover, the NPC as well as all the post-1998 initiatives were taken by non-Congress governments and most of the leaders and parties, objecting to the Apex Court directed UPA initiative, have been part of it. Given the urgent need for it, they all need to put police reforms above their political compulsions and come to a national political consensus on the nature of police reforms.
A careful look at the Constitution of India suggests that entries 1 and 2 of List II read with Entry 2A of List I (Union List) in the Seventh Schedule do not preclude the role of the Union Government in internal security, of which the police is just an instrument. Entry 2A was inserted by the controversial 42nd Amendment by Mrs Indira Gandhi during the Emergency, but it was not undone by the 44th Amendment authored by the Janata Government. Indeed, the argument that the Centre must not interfere with the day-to-day maintenance of law and order is unexceptionable. But the need for a new Police Act and the place of the police in the larger criminal justice system creates a leader’s role for the Union Government in this exercise, which must be accepted by all the States, beyond partisanship. Indeed, it is equally unexceptionable that the Union Government too needs to look at its leadership role in a coordination mode.
Conclusion
THE criminal negligence by the UP Police in Noida’s Nithari village has once again highlighted the urgent need for police reforms, which cannot be ignored either by the Union or the State governments. The strategy of the State governments and political parties should therefore be of circumspection, with contestation with the Centre positively directed on objectives and details rather than on its leadership role. The Supreme Court directive indeed has some gaping holes on administrative principles, which deserve to be countered with persuasive arguments of a detailed plan of action. Organisational autonomy of the police and the question of political control, for example, are matters that deserve serious discussion. Police reforms are imperative for a stable internal security environment which must not be lost due to political bickering which will leave no winners.
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