The police force is an instrument for prevention and detention of crime. Every State Government establishes its own police force, which is formally enrolled. The experience of the last 156 years since the passing of Police Act 1861 reveals that it fails to achieve its object and to meet the needs of 21st centaury. In this paper I would like to emphasise that, there is an urgent need of Police Reform with special reference to the Supreme Court’s judgment on police reforms, the reports of various commission, committee and views of experts.
(I)Introduction
The Police Act 1861 was legislated by the British in the aftermath of the Mutiny of 1857 or the First War of Independence. The British, naturally at that time wanted to establish a police force that would suit the purpose of crushing dissent and any movement for self government. This Act continues to this day in most states of India despite far reaching changes in governance and India’s transition from being a colonized nation to a welfare State. The government and its police today are obliged to respect political diversity and guarantee a climate of peace in which people feel secure in the exercise of their Rights and the protection of their freedoms. Because these sentiments are not reflected in the legislation governing the police, it has contributed to the police remaining outside the loop of prevailing democratic values. It is also the primary reason for the police being perceived by many as the handmaiden of the political elite rather than as an organization that provides essential services through ensuring peace and security to the people.[1]
(II) A Critical Appraisal Of Police Act 1861
The preamble of the act provides that the object of the act is “to re-organize the police and to make it amore efficient instrument for the prevention and detection of crime” Thus the object of the act is two fold i.e. prevention and detection of crime. However as compared to present status of the Police force maintenance of peace in the society and thereby establishing law & order is also one of the prime objects.
The act further provides that the pay and all other conditions of service of Members of the subordinate ranks of any police force shall be such as may be determined by the State Government.[2] The force consists of such number of officers and men as is constituted in such manner as the State Government may decide from time to time. The overall administration of Police in the entire State is vested in the Inspector-General of Police. The administration of police in every district vests in District Superintendent of Police under the general control and direction of District Magistrate who is usually collector of the district.[3] Every police officer appointed to the police force other than the Inspector-General of Police (or Deputy or Assistance Inspector-General of Police) and District Superintendent of Police receives a certificate in the prescribed form by virtue of which he is vested with power, function and privileges of a police officer. The certificate ceases to be effective and shall be returned forthwith when the officer ceases to be a police officer.[4]
State Government may, from time to time, make under this Act, the Inspector-General, Deputy Inspectors-General, Assistant Inspectors-General and District Superintendents of Police may at any time dismiss, suspend or reduce any police-officer of the subordinate ranks or may award anyone of the following punishments like one month’s pay, Confinement to quarters for a term not exceeding fifteen days with or without Punishment-drill, extra guard, fatigue or other duty etc to any police-officer [of the subordinate ranks] who shall discharge his duty in a careless or negligent manner, or who by any act of his own, shall render himself unfit for the discharge thereof,. [5]
.In the exercise of this power State Government transfer, dismiss or suspend at its will and even in some states the practice of offering bribe to politicians for favorable posting has been started.
According to Section 23 “it shall be the duty of every police-officer promptly, to obey and execute all orders and warrants lawfully issued to him by any competent authority; to collect and communicate intelligence affecting the public peace; to prevent the commission of offences and public nuisances; to detect and bring offences to justice and to apprehend all persons whom he is legally authorized to apprehend, and for whose apprehension sufficient ground exists; and it shall be lawful for every police-officer, for any of the purposes mentioned in this section, without a warrant to enter and inspect, any drinking-shop, gaming-house or other place of resort of loose and disorderly characters.” Thus the burden on the shoulders of the police is very heavy.
Every police-officer who shall be guilty of any violation of duty or willful breach or neglect of any rule or regulation of lawful order made by competent authority, or who shall withdraw from the duties of his office without permission, or without having given previous notice for the period of two months or who shall engage without authority in any employment other than his police duty, shall be liable, on conviction before a Magistrate, to a penalty not exceeding three months’ pay, or to imprisonment, with or without hard labor, for a period not exceeding three months, or to both.[6]
The punishment given in this section is very inadequate in comparison to loss, which the society suffers due to negligence in discharge of the duty by police officers.
Besides above mentioned functions of police the Act further provides that it shall be the duty of the police to keep order on the public roads, and in the public streets, thoroughfares, ghats and landing places, and at all other places of public resort, and to prevent obstruction on the occasions of assemblies and processions on the public roads and in the public streets, or in the neighborhoods of places of worship, during the time of public worship. Thus though the object of the Act is prevention and detection of crime, but maintenance law & order on roads, gats and landing places is essential for prevention of crime, so this provision strengthen the object.
(III) Causes for popular dissatisfaction with the police
What are the causes for popular dissatisfaction with the police and who is responsible for it? What follows are examples of popular discontent against the police. The issue is not whether all of these are absolutely true or not but whether they exist in the public mind and whether there is any justification for them.
1. Police are the principal violators of the law and they get away with impunity.
2. Some sections of the police are in league with anti-social elements. Consequently they indulge in selective enforcement of the law.
3. Police exhibit rude behavior, abusive language and contempt towards courts and human rights; they indulge in all forms of corruption.
4. Depending on the socio-cultural status, economic power and political influences of people who approach them, police adopt differential attitudes, violating equality and human dignity.
5. Police are either ignorant of the precepts of human rights or they deliberately disregard them in the matters of arrest, interrogation, searching, detention and preventive policing.
6. Given the dismal record of prevention and successful investigation of crimes, the police lack accountability in protection of life and property.
7. While crimes are getting sophisticated, the police are becoming less professional. There is no evidence of a collective desire within the police organization to redeem its public image.
8. The police are insensitive towards victims of violent crimes. They sometimes behave rudely with victims, as if they are responsible for their fate.
9. At least a section of policemen think of human rights as antithetical to effective law enforcement. They blame the law, lawyers and courts for their own inefficiency.
Of late, some policemen have publicly shown leniency towards fundamentalists and terrorists, manifesting a dangerous threat to security and constitutional governance enshrined in the constitution..[7]
(IV) Why we need reform in Police?
Experience shows how over the years the police has not only misused but also grossly abused its powers. Consider what the Third Police Commission had to say: "Sixty per cent of all arrests in the country under normal laws are unnecessary or unjustified and that unjustified Police action accounted for 43.2 per cent of the expenditure in jails." Thus, over the years not only have the police become more and more powerful but also less and less accountable. The rule of law expects that every one would be free and safe in the egalitarian society. Our constitution embodied the concept of welfare state, which not only requires individual’s freedom but also aims to provide atmosphere in which it could be exercised.[8]
The functions of police can be generally divided into four heads: -
· As a primary function to serve as an agency for prevention of crime.
· Investigation of crime.
· Maintenance of Law & Order.
· Any other special function assigned by the State Government.
With regard to primary function as an agency for prevention of crime, the department fails to achieve its object and it can be proved by the high incidence of crime record shown by National Crime Record Bureau.
As to the second function, the Police prove to be lacking and it can be understood by the help of conviction rate. Nowadays the high profile criminals, who had committed murder at public place, have been acquitted e.g. Jessica Murder Case the accused were initially acquitted. Why the rate of conviction is very high in a cases investigated by Central Bureau of Investigation (CBI) in comparison to cases investigated by ordinary Police?
As far as the third function is concern, it is not hidden from the public that Delhi, the capital of India is also designated as Rape Capital of India. It shows that the Police fail to maintain Law & order in society.
The Police also fails to perform effectively any special function assigned to it e.g. in Election it performs its function with the help of paramilitary forces and not on its own.
It is worthwhile to note that all the above functions cannot be look al isolated from each other. They are intermingled and complementary & supplementary to each other.
Umpteenth number of Commissions has been set-up over the years. From the Dharma Vira Commission, down to Julio Riberio Committee, Soli Sorabjee Committee and the Padmanabiah panel. All have zeroed in on the maladies of the 145-year-old Police Act of 1861 and drawn the same conclusions --stop political influence and change the mindset of the force, improve the public interface and image and prevent politicisation, criminalization and corruption in the police. The result: zilch.
(V)The areas, which needs special attention
After accepting the need for police reform, a peculiar question arises that in which areas we need reform, what are the parameter while considering the reforms and what are the hurdles in implementing these reforms. For better understanding we can divide the areas in the following heads: -
(a) Inadequate no. of Police Personals: - The Population of India as for the Census 2001 is concerned is 102.8 crores. In 2005 it reached up to 109.0 crores. In comparison to such a vast population the no.of policeman is not sufficient. At All-India level the no. of people per policeman was 712 on01.01.2005. Thus one can imagine that how can a policeman manage such a big population. This ratio is 1:28 in Russia, 1:290 in United Kingdom, 1:334 in USA & even in Pakistan it is 1:625.
An area looked after by a policeman is about 2.07 sq. km. on01.01.2005.Is it possible for one man to control such a huge area?
Thus there is an urgent need to raise the no.of policeman countrywide.
(b) Structural Inherent Deficiency: - As for as the selection procedure of Police is concern it is well at higher level because the candidates are selected by one central authority i.e. UPSC. But the problem comes into picture at State level. The highest rank selected by State Service Commission is DSP & Sub- Inspector. Constable and Sipahi are at lower rank. As far as criteria of selection for Sub-Inspector is concerned, besides Graduation as an educational qualification the other requirements are related to physical aspects like height, weight, chest, eye etc. When we analyze these requirements for the law & order maintenance task, it sounds good. But when we come to other task like investigation, interrogation etc we need specialized personal. For example the investigation provides skeleton to the case of prosecution on which success of the prosecution depends that is why the rate of conviction in cases investigated by CBI is high in comparison to ordinary police because CBI has professional & skilled personal for it. Thus the selection procedure should be changed and there is a need to include persons having science background or having forensic knowledge because it will be helpful during investigation. Besides this there should be two separate branches in the department: one for general task & other for investigation.
(c)Political Interference: - From the experience of the past 60 years after independence, we can easily say that Police usually servers the ruling political party. There are various reasons for it like quick transfer, unreasonable interference in work, fear of suspension etc. The Police Act 1861 gives power to the state for transfer, removal and suspension with the object that State as a custodian of the masses exercise these powers with keepingin mind the interest of the State but unfortunately it is run by the whims and fancies of the Legislature particularly the ruling Political Party. Thus there is a need to remove this interference and give an atmosphere to the police in which it can perform its functions without any fear. This can be further supported by the views of Kiran Bedi given in an interview. She observed that “Transfers, promotions and the urge for medals is the reason behind their so-called insensitivity. Can the common man give them these? The obvious answer is NO; therefore they start serving the interests of those who can give them all these benefits. Let us remember that police is being controlled by political masters and influenced by the rich. Since their masters are someone else, how can they be faulted for having an indifferent attitude towards the poor?”[9]
Therefore there should be fixed tenure for policeman and some security in the matter of unreasonable suspension.
(d) Infrastructural Development: - There is also a need for Infrastructural development in Police Department like weapons, communicating devices, vehicles for patrolling, modern technologies. With the old outlook how can we expect from Police that they will cope up in present scenario. Now the criminals are becoming high-tech and incidences of cyber crime is increasing so some kind of special training should be given to the Police. The demand of online trail has been raised which saves time and money both, but it require additional equipment. The overall budget allotted for police should be increased to fulfill these demands.
(d) Inadequate Salary &Facilities: - The nature of job done by the Police requires more financial security and benefits. The condition of present residential and hospital facilities provided to the police are not in a good condition. There should be some limitation of working hours. These things should be reformed because without considering their problems one cannot expect better work from them.
(VI)Steps taken by Government
The Government of India after 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 in the country, 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.
(a)National Police Commission- The Chairman of the Commission was a renowned and highly reputed former Governor. A retired 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.
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 in August 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 modalities for inquiry into complaints of police misconduct in a manner which will carry credibility 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.
In the second report, the commission recommends that 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. A supervisory mechanism without scope for illegal, irregular or malafide interference with police functions has to be devised. 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 appeal 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 and a draft new Police Act incorporating the recommendations was annexed as an appendix.
(VII)Initiative taken by Apex Court
On 23 September,2006 the Supreme Court in its historic judgment in Prakash Singh & Ors vs. Union of India and Ors , ordered drastic changes in the police administration to make it more accountable and to protect it from political interference. Virtually overhauling the outdated, 156-year-old Indian Police Act outdated, the court directed the Centre and the States to implement its seven-point directive.
Order of Supreme Court: -
In discharge of our constitutional duties and obligations having regard to the affronted position, the Supreme Court issue the following directions to the Central Government, State Governments and Union Territories for compliance till framing of the appropriate legislations:
(1) State Security Commission
The State Governments are 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 and giving directions for the performance of the preventive tasks and service oriented functions of the police so that the State police always act according to the laws of the land and the Constitution of the country. The Chief Minister or Home Minister as Chairman and have the DGP of the State as its ex-officio Secretary shall head this watchdog body. The recommendations of this Commission shall be binding on the State Government.
(2) Selection and Minimum Tenure of DGP:
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 superannuation.
(3) Minimum Tenure of I.G. of Police & other officers:
Police Officers on operational duties in the field like the IG, DIG, SP and Station House Officer in charge of a Police Station shall also have a prescribed minimum tenure of two years unless it is found necessary to remove them prematurely following disciplinary proceedings against them or their conviction in a criminal offence.
(4) Separation of Investigation:
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 coordination between the two wings. The separation, to start with, may be effected in towns/urban areas, which have a population of ten lakhs or more, and gradually extended to smaller towns/urban areas also.
(5) Police Establishment Board:
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.
(6) Police Complaints Authority:
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 be another Police Complaints Authority at the State level to look into complaints against officers of the rank of Superintendent of Police and above. A retired Judge of the High Court /Supreme Court may head the State level Authority, while District level Authority may be headed by a retired District Judge. 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.
(7) National Security Commission:
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 coordination 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 CPOs and a couple of security experts. The Central Government, State Governments or Union Territories shall comply with the aforesaid directions, as the case may be, on or before 31st December, 2006 so that the bodies afore-noted became operational on the onset of the new year. Members with the Union Home Secretary as its Secretary.
In its second order on 11Jan2007 the Supreme Court further extend the time for compliance to 31st March 2007.
(VIII)Conclusion
Despite the clear cut order of Supreme Court there are various problems in implementing the directions of Apex Court though the Court prescribed time limit but the State Governments appears to be not willing to implement the judgment and in its observation made on 11Jan, 2007 the Court held that some States have complied with some direction, but no State except Sikkim has complied with all direction.
Though the Government of India (GOI) emerges reasonably well in the whole transaction; the real difficulty is only with regard to State police forces, which, everyone knows, have unabashedly been converted into handmaidens of State governments (ruling party). While a few governments told the apex court that they had initiated the required measures, the majorities were not all that forthcoming. Some sought a little more time to act. The others pointed out difficulties in ushering in the prescribed reforms.
The stand taken by States was that appointment of a Director-General of Police (DGP) from a panel prepared by the Union Public Service Commission (UPSC) of officers fit for promotion to that rank was not acceptable, as such a prescription encroached on a State's right to appoint an officer of its choice.. No doubt not every Indian Police Service (IPS) officer can get into that panel, as standards of eligibility are high.
The affidavits filled by states went on to allege that the Leader of the Opposition and other independent members of the SSC could push their own agenda and politicize the proceedings of the body with a view to embarrassing the State government.
The lack of financial resources is another hurdle for implementation. As pointed out by S.S.A.Aiyar “The Supreme Court can decree many things, but cannot decree that additional revenue should fall out of the sky. So, lack of finance will be the Achilles’ heel of police reform.”[10]
We can hope that States will not fall beyond the line of 31st March 2007 provided by Supreme Court and implement the directions because the nation is waiting for such a reform in Police, which is inevitable for democracy, and strengthen it.
* Mayank Pandey, LL.M.2nd Year, Faculty of Law, Delhi University.
[1] Joshi, M.D & Daruwala,M., Police Act, 1861: Why we need to replace it? CHRI, July 2005
[2] Section 2
[3] Section 4
[4] Section8
[5] Section 7
[6] Section 29
[7] Menon N.R.M., Police reform: The imperative for efficiency in criminal justice (www.article2.org visited on 14 Feb, 2006)
[8] Poonam.I.K. Police Reform: Who should control the police? Central Chronicle 25 Oct,2006.
[9] Dilip/Dil Deka “Kiran Bedi and Police Reform” Mon, 15 Jan 2007 20:06:44 –0800 All India Radio
[10] Aiyar, S.S.A., One and a half cheers for police reform
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