POLICE REFORMS IN INDIA: A NEED OF THE HOUR
– Kush Kalra
Pursuing LLM,Kurukshetra University
– Bhanu Tanwar
Pursuing LLB, NLU Delhi
Look at the top cops who have been arrested in the Telgi fake stamp paper scam. It includes some of the top police officials including a former Commissioner of Police of Mumbai. The man who planned the murder of Delhi journalist Shivani Bhatnagar is Ravikanth Sharma, an IPS officer in the rank of an IG. So deep is the rot. Top postings today are decided not by merit or experience but based on the political leanings of the officers, their proximity to the powers that be, their caste affiliation and more importantly their readiness to bend the law to help those in power. No wonder whenever there is a change of government in a state the police officers too are shuffled based on the above qualifications.
No wonder that more than fifty percent of complaints received by the National Human Rights Commission (NHRC) of India every year are against police personnel.
The major public complaints against police personnel are1 :
• They are brutal and lawless;
• They are highly corrupt;
• They are partisan and politicized; and
• They lack professional competence
This despite India having one of the finest selection processes for IPS officers which is backed by excellent training at the National Police Academy in Hyderabad. Unfortunately the same cannot be said of the selection system at the state level where officers below the ranks of DSPs are recruited. Favoritism, corruption and casteism play a major role in this process and an upright, competent candidate should consider himself lucky if he gets selected. The leak of question papers for the selection of constables in Tamil Nadu proves how corrupt forces attempt to influence the selection process of the guardians of the society.
Once selected the police officials jockey for cushy and profitable postings. Aseries of articles in The New Indian Express recently laid bare how inspectors and their subordinates bribed their superiors to get posted in select police stations in Chennai that are considered to be quite profitable. When making money is the main motive for being posted in a particular station will the police official have any interest in tackling law and order or fighting crime?
NATIONAL POLICE COMMISSION2
Considering the far reaching changes that had taken place in the country after the enactment of the Indian Police Act, 1861 and absence of any comprehensive review at the national level of the police system after independence despite radical changes in the political, social and economic situation inthe country, the Government of India, on 15th November, 1977, appointed a National Police Commission (hereinafter referred to as ‘the Commission’). The commission was appointed for fresh examination of the role and performance of the police both as a law enforcing agency and as an institution to protect the rights of the citizens enshrined in the Constitution.
The terms and reference of the Commission were wide ranging. The terms of reference, inter alia3, required the Commission to redefine the role, duties, powers and responsibilities of the police with special referenced prevention and control of crime and maintenance of public order, evaluate the performance of the system, identify the basic weaknesses or inadequacies, examine if any changes necessary in the method of administration, disciplinary control and accountability, inquire into the system of investigation4 and prosecution5, the reasons for delay and failure and suggest how the system may be modified or changed and made efficient, scientific and consistent with human dignity6, examine the nature and extent of the special responsibilities of the police towards the weaker sections of the community and suggest steps and to ensure prompt action on their complaints for the safeguard of their rights and interests. The Commission was required to recommend measures and institutional arrangements to prevent misuse of powers by the police, by administrative or executive instructions, political or other pressures or oral orders of any type, which are contrary to law, for the quick and impartial inquiry of public complaints made against the police about any misuse of police powers. The Chairman of the Commission was a renowned and highly reputed former Governor. Aretired High Court Judge, two former Inspector Generals of Police and a Professor of TATA Institute of Special Sciences were members with the Director, CBI as a full time Member Secretary.
The Commission examined all issues in depth, in period of about three and a half years during which it conducted extensive exercise through analytical studies and research of variety of steps combined with an assessment and appreciation of actual field conditions. Various study groups comprising of prominent public men, Senior Administrators, Police Officers and eminent academicians were set up. Various seminars held, research studies conducted, meetings and discussions held with the Governors, Chief Ministers, Inspector Generals of Police, State Inspector Generals of Police and Heads of Police Organizations. The Commission submitted its first report in February 1979, second inAugust 1979, three reports each in the years 1980 and 1981 including the final report in May 1981.
In its first report, the Commission first dealt with the modalities7 for inquiry into complaints of police misconduct in a manner which will carry credibility8 and satisfaction to the public regarding their fairness and impartiality and rectification of serious deficiencies which militate against their functioning efficiently to public satisfaction and advised the Government for expeditious examination of recommendations for immediate implementation. The Commission observed that increasing crime, rising population, growing pressure of living accommodation, particularly, in urban areas, violent outbursts in the wake of demonstrations and agitations arising from labour disputes, the agrarian9 unrest, problems and difficulties of students, political activities including the cult of extremists, enforcement of economic and social legislation etc. have all added new dimensions to police tasks in the country and tended to bring the police in confrontation with the public much more frequentlythan ever before. The basic and fundamental problem regarding police taken note of was as to how to make them functional as an efficient and impartial law enforcement agency fully motivated and guided by the objectives of service to the public at large, upholding the constitutional rights and liberty of the people. Various recommendations were made.
In the second report, it was noticed that the crux of the police reform is to secure professional independence for the police to function truly and efficiently as an impartial agent of the law of the land and, at the same time, to enable the Government to oversee the police performance to ensure its conformity to the law.Asupervisory mechanism without scope for illegal, irregular or mala fide10 interference with police functions has to be devised. It was earnestly hoped that the Government would examine and publish the report expeditiously so that the process for implementation ofvarious recommendations made therein could start straight away. The report, inter alia, noticed the phenomenon offrequent and indiscriminate transfers ordered on political considerations as also other unhealthy influences and pressures brought to bear on police and, inter alia, recommended for the Chiefof Police in a State, statutory tenure ofoffice by including it in a specific provision in the Police Act itself and also recommended the preparation of a panel of IPS Officers for posting as Chiefs of Police in States. The report also recommended the constitution of Statutory Commission in each State the function of which shall include laying down broad policy guidelines and directions for the performance of preventive task and service oriented functions by the police and also functioning as a forum of appeal11 for disposing of representations from any Police Officer of the rank of Superintendent of Police and above, regarding his being subjected to illegal or irregular orders in the performance of his duties.
With the 8th and final report, certain basic reforms for the effective functioning of the police to enable it to promote the dynamic role of law and to render impartial service to the people were recommended.
10 Meaning of Malafide: Undertaken in bad faith
11 Meaning of Appeal: In law, an appeal is a process for requesting a formal change to an official decision. Very broadly speaking there are appeals on the record and de novo appeals. In de novo appeals, a new decision maker re- hears the case without any reference to the prior decision maker. In appeals on the record, the decision of the prior decision maker is challenged by arguing that he or she misapplied the law, came to an incorrect factual finding, acted in excess of his jurisdiction, abused his powers, was biased, considered evidence which he should not have considered or failed to consider evidence that he should have considered
Besides the National Police Commission (1977–1981), various other high powered Committees and Commissions have examined the issue of police reforms, viz. (i) National Human Rights Commission12 (ii) Law Commission13 (iii) Ribeiro Committee (iv) Padmanabhaiah Committee and (v) Malimath Committee on Reforms of Criminal Justice System.
In the case of Prakash Singh and Ors. Vs. Union of India (UOI) and Ors., 2007(1)ALT(Cri)30 the Supreme Court issued the following directions to the Central Government, State Governments and Union Territories for compliance till framing of the appropriate legislations:
State Security Commission
(1) The State Governments were directed to constitute a State Security Commission in every State to ensure that the State Government does not exercise unwarranted influence or pressure on the State police and for laying down the broad policy guidelines so that the State police always acts according to the laws of the land and the Constitution of the country. This watchdog body shall be headed by the Chief Minister or Home Minister as Chairman and have the DGP of the State as its ex-officio Secretary. The other members of the Commission shall be chosen in such a manner that it is able to function independent of Government control. For this purpose, the State may choose any of the models recommended by the National Human Rights Commission, the Ribeiro Committee or the Sorabjee Committee, which are as under:
Ribeiro Committee Sorabjee Committee
1. Chief Minister/HM as Chairman
1. Minister i/c Police as Chairman.
1. Mimker i/c Police (ex officer Chairperson).
2. Lok Ayuktaor, in his absence, aretired Judge of High Court to be nominated by Chief Justice or a Member of State Human Rights Commission.
2. Leader of Opposition.
2. Leader of Opposition.
3. Asitting or retired Judge nominated by Chief Justice of High Court. 3. Judge, sitting or retired, nominated by Chief Justice of High Court
3. Chief Secretary.
4. Chief Secretary.
4. Chief Secretary.
4. DGP (ex officio Secretary).
5. Leader of Opposition in Lower House.
5. Three non-political citizens of proven merit and integrity.
5. Five independent Members.
6. DGP as ex officio Secretary.
6. DG Police as Secretary.
The recommendations of this Commission shall be binding on the State Government. The functions of the State Security Commission would include laying down the broad policies and giving directions for the performance of the preventive tasks and service oriented functions of the police, evaluation of the performance of the State police and preparing a report thereon for being placed before the State Legislature.
Selection and Minimum Tenure of DGP
(2) The Director General of Police of the State shall be selected by the State Government from amongst the three senior-most 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. And, once he has been selected for the job, he should have a minimum tenure of at least two years irrespective of his date of superannuation14. The DGP may, however, be relieved of his responsibilities by the State Government acting in consultation with the State Security Commission, consequent upon any action taken against him under the All India Services (Discipline and Appeal15) Rules or following his conviction16 in a court of law in a criminal offence or in a case of corruption, or if he is otherwise incapacitated from discharging his duties.
Minimum Tenure of I.G of Police & other officers
(3) Police Officers on operational duties in the field like the Inspector General of Police-in- charge Zone, Deputy Inspector General of Police-in-charge Range, Superintendent of Police- in-charge district and Station House Officer-in-charge of a Police Station shall also have a prescribed minimum tenure oftwo years unless it is found necessary to remove themprematurely following disciplinary proceedings against them or their conviction in a criminal offence or in a case of corruption or if the incumbent17 is otherwise incapacitated from discharging his responsibilities. This would be subject to promotion and retirement of the officer.
Separation of Investigation
(4) The investigating police shall be separated from the law and order police to ensure speedier investigation, better expertise and improved rapport with the people. It must, however, be ensured that there is full co-ordination between the two wings. The separation, to start with, may be effected in towns/urban areas which have a population often lakhs or more, and gradually extended to smaller towns/urban areas also.
Police Establishment Board
(5) There shall be a Police Establishment Board in each State which shall decide all transfers, postings, promotions and other service related matters of officers of and below the rank of Deputy Superintendent of Police. The Establishment Board shall be a departmental body comprising the Director General of Police and four other senior officers of the Department. The State Government may interfere with decision of the Board in exceptional cases only after recording its reasons for doing so. The Board shallalso be authorized to make appropriate recommendations to the State Government regarding the posting and transfers of officers of and above the rank of Superintendent of Police, and the Government is expected to give due weight to these recommendations and shall normally accept it. It shall 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.
Police Complaints Authority
(6) There shall be a Police Complaints Authority at the district level to look into complaints against police officers of and up to the rank of Deputy Superintendent of Police. Similarly, there should beAnother Police Complaints Authority at the State level to look into complaints against officers of the rank of Superintendent of Police and above. The district levelAuthority may be headed by a retired District Judge while the State levelAuthority may be headed by a retired Judge of the High Court/Supreme Court. The head of the State level Complaints Authority shall be chosen by the State Government out of a panel of names proposed by the Chief Justice; the head of the district level Complaints Authority may also be chosen out of a panel of names proposed by the Chief Justice or a Judge of the High Court nominated by him. These Authorities may be assisted by three to five members depending upon the volume of complaints in different States/Districts, and they shall be selected by the State Government from a panel prepared by the State Human Rights Commission/Lok Ayukta18/State Public Service Commission. The panel may include members from amongst retired civil servants, police officers or officers from any other department, or from the civil society. They would work whole time for theAuthority and would have to be suitably remunerated for the services rendered by them. The Authority may also need the services of regular staff to conduct field inquiries. For this purpose, they may utilize the services of retired investigators from the CJD, Intelligence, Vigilance or any other organization. The State level ComplaintsAuthority would take cognizance19 of only allegations of serious misconduct by the police personnel, which would include incidents involving death, grievous hurt or rape in police custody. The district level Complaints Authority would, apart from above cases, may also inquire into allegations of extortion20, land/house grabbing or any incident involving serious abuse of authority. The recommendations of the Complaints Authority, both at the District and State levels, for any action, departmental or criminal, against a delinquent police officer shall be binding on the concerned authority.
National Security Commission
(7) The Central Government shall also set up a National Security Commission at the Union level to prepare a panel for being placed before the appropriate Appointing Authority, for selection and placement of Chiefs of the Central Police Organizations (CPO), who should also be given a minimum tenure of two years. The Commission would also review from time to time measures to upgrade the effectiveness of these forces, improve the service conditions of its personnel, ensure that there is proper co-ordination between them and that the forces are generally utilized for the purposes they were raised and make recommendations in that behalf. The National Security Commission could be headed by the Union Home Minister and comprise heads of the C.P.Os. and a couple of security experts as members with the Union Home Secretary as its Secretary.
Court further directed that the above directions shall be complied with by the Central Government, State Governments or Union Territories as the case may be.
The first and foremost reform in our police force should be in recruitment, posting and transfers. For this the lawmakers need not go through the elaborate exercise of appointing another police commission. Even today the recommendations made by the NationalPolice Commission twenty years ago, aimed at insulating the police from illegitimate outside control, pressure and interference remain unimplemented till today.
This is due to a deep-seated and strong resistance to the idea of police reforms among politicians and bureaucrats who have developed a great vested interest in retaining control over the police organization.
Again in September 2006 the Supreme Court outlined a series of reforms to be implemented by all the states by March 30, 2007. These are
• Set up a State Security Commission to ensure that state government does not exercise unwarranted influence or pressure on the police.
• DGP to be selected by state from three senior most officers empanelled for promotion by UPSC; DGP should have a minimum tenure of 2 years.
• 2-yr minimum tenure for IGP, DIG, SP and Inspectors or Station House Officers.
• Set up Police Establishment Board to decide on transfers, postings, promotions of officers of and below rank of DSP.
• Police Complaint Authority at district level to look into complaints against police officers up to the rank of DSP.
• Another such authority at the state Level to look into complaints against officers of the rank of SP and above.
• Centre should set up National Security Commission to prepare panel for selection and placement of Chiefs of Central Police Organizations with minimum tenure of two years.
• Another major reform that requires immediate attention is modernization of our police force. Indian police remains one of the most ill equipped in the world in spite of our country among the worst to suffer due to terrorism. Our police lack fast vehicles, communication equipment and even proper weapons. Theyappear like comical figures carrying their outdated .303 rifles whereas their adversaries are armed with AK 47s.
• Forensic tools to fight crime and technology to tackle the growing instances of cyber crime are urgent needs for an effective policing in these modern times.
• The postings of the officers should be left to the department instead of being dictated from the political bosses.
• The wide discretion given to police at lower level in the matter of arrest and bail has to be controlled by issuing guidelines and close supervision of senior ranks.
• Redressal of complaints against police has to be made more effective.
• Composition of the police. The representation of women in police is dismal and stands at less than 1%. This is particularly worrisome in view of the increasing crime against women.
It is well recognised that in crimes such as rape, molestation, dowry deaths, kidnapping and so on, victims would be more forthcoming if questioned by women police. The same is true of the representation ofreligious minorities, SCs, STs, and other weaker sections. It must be our endeavor to ensure that the composition of the police reflects, as closely as possible, that of the society itself. It is unfortunate that no serious effort has been made so far to change the profile of the police to remedy these deficiencies.
Training of police personnel is another major reform that is urgently required. Crime by police officials and in police stations has been increasing with cases about custodial deaths and rape of women detainees making headlines. Often victims of crime or even riots are treated with utter contempt as if they deserved what they had undergone. This is mainly due to the lack of awareness of human rights among policemen. Even during their basic training policemen need to be sensitized about human rights and how to handle sensitive cases.
Interpretation of laws has been another weak point in the Indian police system, especially when its concerns those like Sub-inspectors and constables. For example the law on obscene display in public places is conveniently misinterpreted by them even to harass boys and girls spending some time together in a public place. In the name of moral policing even law abiding citizens are made to appear like criminals by some overzealous cops. There should be constant up gradation of knowledge and skills.
The creation of women police stations is a positive development since issues like domestic violence, dowry harassment and child abuse now invariably end up at police stations and women police by their nature are better equipped to take a sympathetic approach. Still our police, especially those manning the police stations, need to be taught people skills and sensitized about handling complainants who are already traumatized due to mishap, which brings them to the police station in the first place.
Another important element in police reforms is adequate manpower. Most state police departments are woefully understaffed with a large number of vacancies. Fresh departments for anti-terrorism cell, VIP security, cyber crime and human rights are created but are not manned by the right people.
The bandobust duty during VVIP visits puts enormous strain on an already overworked and understaffed police force. The enormous increase in vehicular traffic has not been matched by the increase in number of police doing traffic duty. Here again many are transferred from other departments with little or no idea of traffic management.
Another major reform that requires immediate attention is modernization of our police force. Indian police remains one of the most ill equipped in the world in spite of our country among the worst to suffer due to terrorism. Our police lack fast vehicles, communication equipment and even proper weapons. They appear like comical figures carrying their outdated .303 rifles whereas their adversaries are armed with AK 47s.
Forensic tools to fight crime and technology to tackle the growing instances of cyber crime are urgent needs for an effective policing in these modern times.
Another major flaw in policing in India is the absence of forceful laws to back our policemen. Outdated laws, judicial loopholes and adequate legal safeguards for witnesses have resulted in manya confirmed criminal walking free without conviction.
The most important arm of the police force- the constabulary, which not only forms the bulk of the force but also plays the all important role ofinteracting with the public, remains the most neglected lot. In an open letter to former President Abdul Kalam the former CBI director
R.K. Raghavan had this to say “Nearly 90 per cent of the police forces in the country is comprised of the constabulary. Unlike in the past, more and more educated men and women are voluntarily joining the police at this entry level, in expectation of a satisfying career. This precious resource will have to be protected. This is not possible under the existing state of affairs, where obedience and servility to the senior officers and the political masters are the main criteria for advancement and placement in meaningful jobs within the police. Ifprofessional excellence has to be nurtured, even at the level of the much-maligned constabulary, we owe them the right working conditions in which they can give of their best. Such an ambience cannot come about without implementing the most crucial National Police Commission recommendations that are gathering dust in North Block and in State Secretariats.” (Source: Frontline August 17-30, 2002)
So, the prescription for carrying out police reforms already exists in the form of findings of various police commissions, judicial pronouncements and advice of retired police officers. Only the political will is woefully lacking.