(Online Course) Pub Ad for IAS Mains: Chapter: 13 (Law & Order) - ARC Summary (2) (Public Order) (Paper -2)

ARC Summary (Public Order)

The Police Act gives the DM power of superintendence, direction & control over district police.

Against

The subordination of any agency to another is neither essential nor unescapable to being about healthy co-operation between the two agencies. Subordination presupposes the carrying out of orders & hence instead of there being any dialogue, discussion, the only implicit compliance is where one party performs under resentment & the other under apprehension. Therefore, subordination of police to DM is to be removed and it would bring about better co-ordination in a cordial & congenial atmosphere where identification of a common interest & orientation of action towards that interest would become automatic.

For

Governance requires Co-ordinated effort of various wings of govt. & this necessities the existence of a co-ordinating agency co-ordination becomes ineffective if the co-ordinating agency has no authority over the departments involved. As police remains the conceive power of the state, there is need to temper this power by a government functionary who can take a holistic new of the situation. There is need to achieve a balance between the imperative to use police force & the rights of citizens. This could be best achieved when balancing is done by an independent functionary. However, this control should not spill over to the operational matters for which the district police chief should have full authority.

Reforms in the Criminal Justice System

A strong & effective criminal justice system is a fundamental requirement of the rule of law. The criminal justice system comprises the police (Investigation), the prosecutor (Prosecution), the courts (trial) & the prison (punishment & reforms).

Facilitating Access to Justice – Local Courts

The law commission (1987) had recommended that no. of judges should be increased so that there are 107 judges million population by the end of year 2000.
• Gram Nyayalyas, FTC (Fast Track Courts), Lok Adalats are steps in this direction.

ICT

COURTNIC provides information through NIC’s network, on pending cases including case lists, status reports, daily cause list etc.

JUDIS (Judgement Information System) is an online case library containing all reportable judgments of SC from 1950 onwards.

The Indian Judiciary comprises of nearly 15,000 covets situated in approximately 2500 court complexes throughout the country. In 2005, a five year National Programme for computerisation of the Indian Judiciary was launched to be carried out in 3 places.

Increasing the efficiency of the trial courts will have a major impact on disposal of cases & will have a multiplier effect in terms of improving public order & instilling respect for the rule of law.
Virtual courts or e-courts without the physical presence of all the key participants viz. lawyers, accused, witnesses, judges etc. in the same place & real time multimedia transcripts to replace paper should be the ultimate goal.

Reforms in Investigation

State govts. have prescribed details police manuals which contain elaborate provisions regarding investigation procedures. These manuals are after no followed & repression & monitoring of Criminal investigation has also become ineffective.

A system has to be evolved in which registration of FIRs is totally transparent & instances of refused to registry FIRs are eliminated.

‘Aaraphi’ – Rajasthan taken no. is given.

‘e-cops’ – Andhra Pradesh

(CCTNS) Crime & criminal network tracking & system – Karnataka has been adopted the union government.

A complainant should have the option of registering complaints through various modes.

A good FIR contain the 6 Ws; What, where, when, who is against whom & why.

The message of keeping the crime situation under control has often been misinterpreted down the line & results in burking to keep the no. of case low. A more objective criteria needs to be evolved for evaluating the performance of the police station.

The provision in the CrPc that a statement made before the police shall not be signed by the person making the statement & that is could be used in the court only to contradict the witness & not the corroborate needs to be changed so that the statement could be used for both corroboration & contradiction in a court of law. The statements of all important witnesses should be audio/video recorded.

Section 25 of the Indian Evidence act provides that no confession made to a police officer shall be used against a person accussed of any offence except that portion of confession which leads to the discovery of material evidence.

This ban applies to recording of confession by a police officer irrespective of his rank.

Confession should be made admissible & all such statements should be video recorded & tapes produced before the count.

Prosecution

- The system of District attorneys should be implemented at the earliest.

Trial

We have a adversarial criminal justice system as opposed to the inquisitional system prevalent in countries such as France section 311 of CrPc empowers the courts to get additional evidence.
It is necessary to amend the section 311 of CrPc & impose a duty an every court to suo motu cause production of evidence for the purpose of discovering the truth. Suitable amendments to the IEA, 1872 may be made to facilitate this.

Right to silence: A central issue facing all criminal justice systems is to strike a balance between the extent to which an accused could be used as a source of info & info & his/her right against self ubcreimination.

Regarding grower offences like terrorism & organized crime, the court may draw an influence from silence. This may be provided by law.

• Perjury is considered a major factor in bringing down conviction rates in India from 64.8% in 1961 to 42.4% in 2005. The penalties provided under section 344 for those fund guilty of perjury after a summary trial should be enhance to a minimum of 1 year of imprisonment. This should be strictly enforced.

• Witness Protection: There is need to balance the right of an accussed to an open & fair trial with the need for fair administration of justice in which the victim & witness can depose without fear of danger for their lives or property or those of their close relatives.

• Victim protection: The victim of a crime is merely a witness in the entire proceedings since prosecution is a state monopoly with the victim having little say in the matter.

It shall be the duty of police & persecution to keep the victim updated about the progress of the case.
Victim should be given a hearing if she wants to oppose the bail application of the accused.

A victim compensation fund should be created by state governments.

Committal proceedings: (Magistrate – session court) should be reintroduced where the magistrate should have the powers to record the evidence of persecution witness.

A cognizable offence in one which the police can arrest a person without warrant. They are also authorized to start investigation into a cognizable offence on their own & do not need any order from a magistrate to do so. Reclassification of offences may be done to reduce burdenon police (Correctional rather than penal cases should be removed).

Prison reforms

The union & state governments should work out, find & implement at the earliest, modernization & reforms of the prison system as recommended by the All India Committee on Jail Reforms.
Rules regarding parole & remission need to be received.

Constitutional & Special Issues

Q. Should public order be included in the concurrent list?

For

A collapse of ‘public order’ has wide samification for national security, economic development & even on the legitimacy of the state. The absence of a clear cut role of the union govt. in such situation means that it is often powerless to intervene in a major crisis even when they threaten the social public & national security. As a result, the union govt. can either use the extreme provisions of Art. 356 are merely be a passive spectator till such time that the state governments seek its assistance. A statutory mechanism that provides for a more proactive role for the UG, short of Art 356, therefore appears necessary.

Another reason is that inter-state crime is on the increase. Differences in the legal & the administrative framework among the states can be easily exploited by organized criminal gangs. It can best be tackled by providing for a unified legal, administrative & operational framework for police forces across the country. This can be best undertaken if ‘Public order’ is in the concurrent list.

Against

The principle of subsidarity demands that these functions be exercised by state governments States in India are administered by responsible, by elected governments whose willingness to uphold public order & the rule of law should not be doubted. Any move to bring public order into the concurrent list would also amount to duality of responsibility which may be detrimental to the efficient handling of serious public order institutions.

In the era of democratic decentralization a move to being public order into the concurrent list would be a retrograde step & is likely to be resisted by state governments the size & diversity of our country is another reason why ‘Public Order’ & police have been kept in the state list so that state governments are in a position to enforce rule of law as per local requirements.

The existing provisions of the constitution maintain a very five balance between the responsibility of the state govt. to maintain public order & the overall responsibility of the union to ensure constitutional governance in each state. Therefore public order should continue to be in the state list. The union govt. should assist the state govt. in maintaining public order.

A law should be enacted to empower union to deploy its forces & to even direct such forces in case of major public order problems. Such deployment should only take place after the state concerned fails to act on a ‘direction’ issued by union under article 256. All such deployment should be only for a temporary period not exceeding 3 months which could be extended by parliament. The law should spell out the hierarchy of Civil Administration.

Armed Forces (Special powers) Act, 1958

In the wake of serious disturbance following partition, deployment of Armed Forces in large areas & over long periods became inevitable. It was also realized that the normal provisions of CrPc ( sec 130 & 131). Which exisaged that the officer incharge of the detachment of the Armed Forces present on the spot would use force & arrest members of an unlawful assembly, were not sufficient to control the situation. It was under these circumstance that the armed forces were given special powers with enactment of laws like the Bengal disturbed Areas (special powers of the Armed Forces) ordinance, 1947 & East Punjab Disturbed areas (special powers of the Armed Forces) ordinance, 1947 & East Punjab Disturbed Areas ordinance, 1947.

The arrangement made therein were deemed very useful for situations requiring deployment of the armed forces etc. for ‘internal security duties’ for prolonged periods. When deployment of the Army & the para-military forces in large numbers & for an indeterminate period to deal with the situation arising because of insurgency by the ‘Nagaland National council’ became necessary, a law on the lines of the 1947 enactments was also considered to be indispensably required. The result was Armed Forces (Assam and Manipur) special powers act, 1958. Following the organization of the NER in 1972 entailing, inter alia, the constitution of the state of Assam, the act was amended & renewed as the AFSPA.

Earlier only the Governor/Administrator was competent to issue such declaration, the 1972 amendment now rests a similar power with the union government.

The ‘Special powers’ under section 4 are:

• Power to use force including opening fire, even to the extent of causing death if prohibitory orders banning assembly of 5 or more persons or carrying arms & weapons etc are in force in the disturbed area.

• Power to destroy structures such as hideouts etc.

• Power to arrest without warrant.

• Power to enter & search premises without warrant to make arrest or recovery.

• Section 5 requires that person arrested by Armed Forces be handed over to the nearest police station ‘with least possible delay’.

• Section 6 gives members of the AF discharging duties under the act immunity from prosecution & other legal proceedings except with the provision sanction of union govt.

• A fine judge constitution bench upheld the constitutional validity of Act in 1998.

Suggestions

• State government should be consulted.

• The definition of terrorism in UAPA (1967) is quite comprehensive some additions are proposed.

• The forces so deployed should act in aid of civil forces.

• Grievance cell should be constituted in each district of the state.

• Finally, the act should be repealed.

Role of civil society, Media & Political parties

• Citizen should be involved in evaluating the quality of service at police stations & other police offices.

• Govt. should incentive citizen’s initiatives’.

• Formal mechanisms should be set up at the cutting edge level to involve citizens/citizen’s groups in vacious aspects of public order mgmt.

• The increasing exposure of the general public to audio-visual & print media influences people’s perception towards the capabilities of the state.

Technology has provided the media with 3 major attributes – Instantaneity, spontaneity & locality

Instantaneity has provided it with a singleside view, spontaneity has allowed it to cover events as they unfold & locality has provided it with power to bring the farthest corner of globe into a household.

This has also enhanced the reach & therefore the hold of electronic media over the viewers’ mind. It has, however, also given rise to a multiplicity of players in this field, with consequential concerns of accountability, responsibility & public good.

It is therefore necessary to ensure that the media is prompt, responsible, sensitive, accurate & objective in the presentation of news.

The administration must make facts available to the media at the earliest about any major developments.
To understand each other’s viewpoint, there should be interactions between media & administration. Administration should be trained for interaction with the media.

STATE RESPONSES

The Supreme Court required all governments, at centre and state levels, to comply with the seven directives by 31th December 2006 and to file affidavits of compliance by the 3rd of January 2007. Responses to the judgment vary tremendously from one state to another. Based on the affidavits, their positions are as follows:

• A number of states have fully or partially complied with the Supreme Court directives through executive orders:
  - Sikkim (full compliance, is also drafting a new Police Bill)
  - Jharkhand (compliance with some of the directives, wishes to comply with the other directives with some modifications)
  - Manipur (compliance with some modifications, established a police complaints authority only in the West District of Imphal)
  - Meghalaya (compliance with the directives, sought guidance from the central government regarding one of the functions of the Establishment Board, is finalising the constitution of a district level police complaints authority)
  - Mizoram (compliance with four directives, requests to establish only one Police Complaints Authority tor the entire state that would be headed by an IAS or IPS officer)
  - Tripura (partial compliance with two directives, is also drafting a new Police Bill to comply with the four other directives)
  - Uttarakhand (compliance with two directives, established a state level Police Complaints Authority, requested an extension to set up the Stale Security Commission)

• A number of states requested an extension to file their affidavits as they are in the process of drafting a new Police Bill.
  - Bihar (sought an extension of four months)
  - Himachal Pradesh (is drafting a new police bill based on the Model Police Act)
  - Rajasthan (a bill will be brought before the legislature at the end of February or the beginning of March 2007)
  - West Bengal (a bill will be brought before the legislature in April 2007)

•  A number of states requested an extension to file their aftidavits without further details as to how they will comply with the judgment.
  - Assam (sought six months extension)
  - Chhattisgarh (sought six months extension, is also drafting a new Police Bill) Goa (sought two weeks extension)
  - Jammu and Kashmir (did not specity any specific extension period)
  - Madhya Pradesh (sought one to three months extension)
  - Maharashtra (sought one month extension)
  - Orissa (sought six months extension)

• Andhra Pradesh, Gujarat and Uttar Pradesh expressed strong objections to almost all the directives and requested the Supreme Court to reconsider them- Karnataka (which is also drafting a new Police Bill) objected to the creation of a State Security Commission and a Police Complaints Authority. Nagaland (which is also drafting a new Police Bill) stated that all the directives need to be re-examined in light of its special context.

• The Central Government is reviewing the Model Police Act with a view to adopting new legislation applicable to the Union Territories in the current year. It has also set up a National Security Commission with a modified membership (called the Committee on National Security and Central Police Personnel Welfare) but expressed reservations with regard to some of the functions assigned to this body by the Supreme Court- It sought three months extension from the Court to finalise the matter.

• Most Union Territories stated in their aftidavits that (i) the Model Police Act is under close examination by the Ministry of Home Atfairs and that once a new Police Act is framed tor the Union Territories, it-will cover most of the Supreme Court's directives, (ii) given the size and speciticities of Union Territories, adjustments need to be made to some of the directives, and (iii) they have or will partially comply with the judgment.

A hearing before the Supreme Court was held on 11 January 2007 to monitor compliance. After listening to the oral arguments of more than fen counsels, the three member bench passed a strict order, casting away the objections raised by the states. The Supreme Court stated that there could be no review of its 22nd September judgment and that it needs to be complied with as if is. Regarding the timing for compliance:

The Supreme Court ordered that all self-executing directives (i.e. appointment and security of tenure of the Director General of Police, security of tenure of other police officers, constitution of a Police Establishment Board) must be complied with immediately through executive orders: "Insofar as these three directions are concerned, they are self-executory arid no question of grant of further time, therefore arises_ Whatever steps have to be taken should be taken forthwith and, in any case, not later than four weeks from today."

The Supreme Court granted an extension of three months to comply with the four other directives (i.e. constitution of a State Security Commission, constitution of a Public Complaints Authority, separation of investigation and law and order police and constitution of a National Security Commission), which require more thorough considerations to be implemented. These directives must be complied with no later than 31" March 2007. States must file affidavits of compliance by 10 April 2007.
In addition, the Court stated that elections in a state are not a valid ground for non-compliance with the directives in the time-frame mentioned above.

The coming months are crucial for the future of police reform in India. The Supreme Court judgment and the Model Police Act provide state governments with a unique opportunity to commit to reform. What is now required is strong political will to ensure that compliance with the Court's directives brings about long-lasting reform and not only cosmetic changes.

Part- I Functional Autonomy

Policing is an essential public service and it is the duty of every state to provide its people with the best police service possible. Good policing is what the public wants but does not have. Good policing is policing that protects everyone's person, property and rights. Good policing is designed to work in an impartial and efticient manner for the benefit of all, and not meant to be in service of just the elite few. In order to function even-handedly and in service of all, the police must be able to do their work free from extraneous pressures while at the same time being accountable in various forums for individual actions, overall performance and any misdeed. This requires that the police be given clear direction and role, and then be allowed to perform without fear or favour. Since it is the State's duty to ensure the safely and security of all ifs peoples, good policing also requires that the political executive's role be carefully defined so that it can direct the outcomes of policing without interfering unduly in its institutional and operational functioning.

In India today, illegitimate political interference in policing is routine. Some trends include manipulating police recruitment, promotion and transfer practices to suit political purposes, bringing political elements info crime control and investigation, or using the strong hand of the police to endanger communal harmony in the worst cases. The result is intense public dissatisfaction and a demonstrable deterioration in safety and security. This needs to change. Yet, there is a danger that too much autonomy can lead to blatant abuse of power, while too little can create a police that is pliant to the polifical/partisan interests of a powerful few.

Across the world, best practices have created mechanisms by which greatest police effectiveness is ensured through maintaining a delicate balance between functional or operational autonomy and oversight of the police by the political executive. Best practices are designed to ensure that operational autonomy is coupled with strengthened accountability while overall oversight is retained by the political executive. This results in effective, efficient and responsive policing that works within constitutional norms.

A majority of the Supreme Court's directives seek to address these endemic problems of over and under control and strike the balance that will provide the people of India with reformed policing. The details of the related directives are explained below.

1. State Security Commission

Supreme Court directive:

"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 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. The recommendations of this Commission shall be binding on the State Government. The functions off theState 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."

To shield the police from the undue interference of politicians and ensure appropriate policy directions, the Supreme Court requires the establishment of a State Security Commission. The following features have been provided by the Court

Composition

- Chair: Chief Minister or Home Minister
- Secretary: Director General of Police
- Other members: They need to be chosen in a way that ensures the Commission functions independently from government control. In terms of the selection process and criteria used to select the "other members", the Court gives the option to choose from the models proposed by the National Police Commission (1979-1981), the Ribeiro Committee (1998-1999) or the Sorabjee Committee, i.e. the Police Act Drafting Committee.

The Sorabjee Committee model is the most suitable as it provides for the greatest number of non-political members. Their membership provides a direct entry point for the voice of the public in policing and allows the State Security Commission to have a diverse and balanced composition- In addition to the Chair and the Secretary, the Draft Model Police Act provides for the following composition:

1. Leader of the Opposition in the state assembly

2. Chief Secretary

3. Five non-political persons of proven reputation for integrity and competence froni the fields of academia, law, public administration, media or non-government organisations to be appointed on the recommendation of a Selection Panel composed of 5:
   
   (i) A retired judge of a High Court to be nominated by the Chief Justice of the High Court as its Chairman;
   
   (ii) The Chairperson of the State Human Rights Commission, in the absence of a state Commission, a person nominated by the Chairperson of the National Human Rights Commission, and
   
   (iii) The Chairperson of the State Public Service Commission.

Functions

The functions of the State Security Commission are to

• Ensure that the state government does not exercise unwarranted influence or pressure on the police.

• Lay down broad policy guidelines. The Draft Model Police Act provides that these policy guidelines are aimed at "promoting efficient, effective, responsive and accountable policing, in accordance with the law"°.

• Give directions' for the performance of the preventive tasks and service oriented functions" of the police.

• Evaluate the performance of the state police and prepare a report on police performance to be placed before the state legislature.

The Draft Model Police Act provides a very useful template with regard to the performance evaluation function of the State Security Commission. It states that the Commission should first identify objective indicators against which police performance will be evaluated and that these indicators shall include. "operational efficiency, public satisfaction, victim satisfaction vis-a-vis police investigation and response, accountability, optimum utilisation of resources, and human rights record' 8. The Draft Model Police Act also states that the State Security Commission will review arid evaluate organisational performance of the police service in the state as a whole, as well as district-wise against (i) the Annual Policing Plan", (i) performance indicators as identified and laid down by the State Police Board, and (iii) resources available with and constraints of the police.

Moreover, the Draft Police Act sets out that the state government may establish an inspectorate of Performance Evaluation to assist the State Security Commission in its task of performance evaluation". This Inspectorate would be headed by a retired police officer of the rank of Director General of Police, who would be assisted by the following categories of staff: serving or retired police officers, social scientists, police academics and crime statisticians.

At present, there is no well-established system of performance evaluation. Within the police hierarchy, the commonly used parameters for assessing performance are crime and "preventive measures" statistics. Judging police performance mainly on the basis of increase or decrease in crime statistics, is wholly inadequate. It has given rise to the practice of 'burking' or refusing to record and investigate crime, failing to give a true picture of police response and performance. The new system aims at providing consistent and holistic evaluation of the police as an organisation. which is key to shaping effective policing. The use of such systems to drive improvements is being promoted in many Commonwealth police organisations, although as a relatively recent phenomenon. This looks at the police in terms of the results they deliver. It is increasingly becoming a key factor in police reform programmes: sometimes simply as an internal management tool, and sometimes, by publishing performance data, as a means of shaming under performers into improvement For This terminology is borrowed from the Second Report of the National Police Commission which had divided police tasks into three categories: (i) investigative: (il) preventive: and (iii) service oriented Preventive tasks include preventive arrests, arrangement of beats and patrols, deployment of police fort as a preventive measure when breach of peace is threatened, etc. Service-oriented functions include rendering service of a general nature and providing relief to people in distress.

India, the heavy investment in information technology and other sophisticated technologies required to replicate these systems could be difficult.

Nevertheless, the principles on which they are based - transparency, a relentless focus on key results, and a willingness to reward and punish for good and poor performance respectively - can be transplanted to less resourced areas and are critical to police accountability.

If truly given the necessary independence, State Security Commissions can act as strong 'buffer bodies' between politicians and the police. There are several "best-practice" examples of this kind of body in the Commonwealth. Variously named arid with differing mandates and composition, these bodies have all been created with a view to insulating the police from unwarranted influence, through policy guidance, public input, and objective evaluation of police organisation. For instance, Nigeria's Police Service Commission is one of the most potentially powerful new Commissions in the world. Established in 2001, much of its value derives from its wide and representative membership, which includes women, human rights advocates, representatives of business, the media, as well as a retired Justice of the Superior Court. In Northern Ireland, during the 30-year internal conflict, the police was a puppet of the Ministry of Home Affairs and blatantly partisan. Developed in response to this long history of conflict, Northern Ireland's Policing Board is responsible for delivering an efficient and impartial police service. Like the envisaged Security Commissions, the Board has a significant "policy-making" role and cannot interfere in police operational matters. Illustratively, for the Board, policy guidance to the police involves setting objectives and targets for police performance and monitoring progress against these, monitoring trends and patterns in crimes committed in Northern Ireland, facilitating public-police cooperation to prevent crime, and providing policing advice. These broad policy areas direct policing to focus on the public's concerns and safety needs.

In India, this type of pro-active, participatory policy-making is sorely absent, rendering policing purely reactive. The Security Commissions, if well staffed and equipped, can fill this gap.

2. Director General of Police (DGP)

Supreme Court Directive

"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. 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 Appeal) Rules or following his conviction in a court of law in a criminal offence or in a case of corruption, or if lie is otherwise incapacitated from discharging his duties."
To ensure that there is no arbitrariness in the appointment of the highest ranking police officer, the Supreme Court has laid down the procedure for selecting the Director General of Police (DGP).

Selection

The state government should select the DGP from amongst the three senior-most officers empanelled by the Union Public Service Commission (UPSC) for the post The UPSC should make_ its choice on the basis of the candidate's: (i) length of service, (ii) very good record, and (iii) range of experience. In complying with this directive, it is important that state governments give more detailed selection criteria. The Draft Model Police Act provides details12, for example it describes the components of a 'very good record":

• Assessment of the performance appraisal reports of the previous 15 years of service by assigning weight to different grading, namely 'outstanding", "very good", "good" and "satisfactory",

• [Absence of] indictment in any criminal or disciplinary proceedings or on the counts of corruption or moral turpitude, or charges having been framed by a court of law in such cases;

• Due weight to award of medals for gallantry, distinguished and meritorious service.

Minimum Tenure

Once objectively chosen, the DGP is assumed to enjoy the trust of the political executive, the police service and the public. It would be anomalous to retain the ability of the executive to remove the head of police at will. The Supreme Court provides for a minimum tenure of two years for the DGP_ In practice, this does not mean that erring DGPs cannot be removed, it only makes removal consequent on laid-down grounds in law:

• An action taken against her/hire under the Discipline and Appeal section of the All India Services Rules;

• A conviction in a court of law for a criminal offence or a case of corruption; or

• Being otherwise incapacitated from discharging duties.

3. Minimum tenure for other police officers

Supreme Court directive:

"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 of two years unless it is found necessary to remove them prematurely following disciplinary proceedings against them or their conviction in a criminal offence or an a case of corruption or if the incumbent is otherwise incapacitated from discharging his responsibilities. This would be subject to promotion and retirement of the officer."

Security of tenure is similarly important for other police officers on operational duties in the field. In order to help them withstand undue political interference, have time to properly understand the needs of their jurisdictions and do justice to their jobs, the Supreme Court provides for a minimum tenure of two years for the following categories of officers:

• 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)

• Station House Officer (in charge of a Police Station)

Besides cases of promotion or retirement, premature removal of the above-mentioned officers will be possible only consequent upon:

• Disciplinary proceedings,

• Conviction for a criminal offence or a case of corruption; or

• Being otherwise incapacitated from discharging duties.

In addition to the above-mentioned grounds given be the Supreme Court, the Draft Model Police Act suggests that in exceptional cases, officers may also be removed before the expire of tenure on the grounds of inefficiency and ineffectiveness. When an officer is removed under these exceptional cases, the Draft Model Police Act sets out two types of safeguards. (i) the authority which orders the transfer must inform the next higher authority and the Director General of Police of the grounds for the premature transfer in writing and (ii) the aggrieved officer may approach the Police Establishment Board (see section 4 below) to submit a representation against his/her premature removal. The Board shall consider the merits of the case and make appropriate recommendations to the government.

4. Police Establishment Board

Supreme Court directive:

"There shall be a Police Establishment Board in each Slate 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 Govemment may interfere with decision of the Board in exceptional cases only after recording its reasons for doing so. The Board shall also 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."

To counter the prevailing practice of subjective appointments, transfers and promotions, the Supreme Court provides for the creation of a Police Establishment Board. In effect, the Board brings these crucial service related matters largely under police control. Notably, a trend in international best practice is that government has a role in appointing and managing senior police leadership, but service related matters of other ranks remain internal matters 14 Experience in India shows that this statutory demarcation is absolutely required in order to decrease corruption and undue patronage, given the prevailing illegitimate political interference in decisions regarding police appointments, transfers and promotions.

Composition

To ensure that decisions related to career advancement are not made by just one officer, the Police Establishment Board will be composed of the Director General of Police and four other senior officers of the police department. The Draft Model Police Act clarifies the fact that the tour other officers should be the “four other senior-most officers working within the police organisation".

Functions

The Police Establishment Board will have the following functions:

• Decide all transfers, postings, promotions and other service related matters for police officers of and below the rank of Deputy Superintendent of Police.

• Exception: in exceptional cases, the state government will be allowed to interfere with the decision of the Board after recording its reasons for doing so.

• Make recommendations to the state government on postings and transfers of officers above the rank of Deputy Superintendent of Police.

• Impact: the state government is expected to give due weight to these recommendations and normally accept them.

• Be a forum of appeal for disposing of representations from officers of the rank of Superintendent of Police and above regarding: (i) their promotion or transfer, (ii) disciplinary proceedings against them, or (iii) their being subject to illegal or irregular orders

• Generally, reviewing the functioning of the police in the state.

5. National Security Commission

Supreme Court directive:

"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 Organisations (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 then 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 as members with the Union Home Secretary as its Secretary."

The Supreme Court directs the central government to establish a National Security Commission.

Composition

- Chair: Union Home Minister
- Secretary : Union Home Secretary
- Members: Heads of the Central Police Organisations (CPOs) and security experts

The CPOs can be divided in two groups: the armed police organisations, known as the Central Para-Military Forces (CPMF)16, and the other central police organisations". The Supreme Court does not specify whether it refers to the CPMF, to the other central police organisations or to both. However, when describing the National Security Commision's functions, the Court does refer to the CPOs as "forces" which seems to indicate that only the CPMF are covered.

Functions

The National Security Commission will have the following functions.

• Prepare a panel for the selection and placement of Chiefs of the CPOs, who should be given a minimum tenure of two years;

• Review measures to upgrade the effectiveness of the CPOs; Improve the service conditions of CPO personnel,

• Ensure that there is proper coordination between the different forces; and

• Ensure that the forces are utilised for the purposes they were created.

The Commission will also have the power to make recommendations with regards to the above.

PART II: ACCOUNTABILITY

Functional autonomy must be coupled with responsibility to ensure high standards of policing. Armed with the power to use force against ordinary people, the police must be accountable for all of their actions in the course of duty, from minor infractions to serious rights violations.

Unfortunately, at present, there is little demonstrable accountability for wrongdoing. Rather, there is a general perception that neither the internal disciplinary mechanisms, nor the existing external oversight agencies, nor the criminal justice system are able to properly and consistently address police misconduct. Far too many officers are getting away-without having to fully account for wrongful acts of omission and commission.

Internal disciplinary mechanisms do not hold public trust and confidence for a variety of reasons. In addition to a lack of transparency, the camaraderie in the ranks makes it difficult to indict a fellow officer. Tolerance for routine bad behaviour is also high. In addition, the desire to protect the police image also allows strict accountability to slide. Finally, the feeling that disciplinary action will lower the morale of the force and blunt its edge in dealing with special situations, like militancy or organised crime, also plays a part in fostering impunity.

The criminal justice system has also proved to be inadequately equipped to address police misconduct. Firstly, every act of police misconduct may not necessarily fall within the ingredients of a criminal offence to be tried by the courts. Secondly, registering a criminal case against a police officer involves a long and cumbersome process. It requires complainants to overcome the fear of going to a police station to register a case against a police officer, and the likelihood of facing refusal by the officer in charge to register a First Information Report (FIR) against a colleague. Finally, Sections 132 and 197 of the Code of Cominal Procedure, 1973 require prior sanction from the government before police officers can be prosecuted for offences committed in the course of their official duty. In practice, because such sanction is sparingly granted, Sections 132 and 197 amount to de facto immunity.

Special commissions, including human rights commissions have been set up to fill this "accountability gap".- To date, these commissions have not been effective, and have failed to develop a human rights culture across the country. A number of inherent weaknesses explain this lack of effectiveness: human rights commissions can only make recommendations to the government and do riot have any binding power, the procedure for appointing commissioners is inadequate as it is entirely in the hands of politicians; the independence of the commissions is often compromised by their dependency on the government for staff; and commissions are often left with insufficient funds.

Many Commonwealth countries have sought to balance internal accountability mechanisms with some system of external, non-police (civilian) oversight- With one system complementing and reinforcing the other, this approach creates a web of accountability in which it becomes increasingly difficult for police misconduct to take place without consequences- Some of the most successful police reform initiatives across the Commonwealth have created independent accountability mechanisms to address serious cases of police misconduct, including South Africa, Northern Ireland, and certain Australian states. Generally known as external or civilian oversight agencies, they provide a channel for public complaints against police officers to be investigated independently of the police- While they vary in size and mandate across different countries, the factors that determine the success of independent oversight bodies are the same independence, adequate powers, sufficient resources, and the authority to follow up on their recommendations.

6. Police Complaints Authority

Supreme Court directive:

"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 took into complaints against officers of the rank of Superintendent of Police and above. The district level Authority may be headed by a retired District Judge while the State level Authority 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 Ayukta/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 the Authority 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 CID, Intelligence, Vigilance or any other organization. The State level Complaints Authority would take cognizance 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 extortion, 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 concemed authority."

The Supreme Court sets out an independent accountability mechanism in the form of a Police Complaints Authority to be established both at the state and the district levels. Their mandate is to look into public complaints against police officers in cases of serious misconduct.

a) State level

Composition

- Chair: Retired judge of the High Court or the Supreme Court to be chosen by the stale government out of a parcel of names proposed by the Chief Justice.
- Other members. Three to five members (depending on the volume of complaints in the state) selected by the state government out of a panel of navies prepared by the State Human Rights Commission, the Lok Ayukta, the State Public Service Commission. Members of the authority may include retired civil servants, police officers or officers from any other department, and members from civil society.

Function

The role of the Police Complaints Authority at the state level will be to inquire into cases of misconduct by police officers of and above the rank of Superintendent of Police in cases of serious misconduct, which includes incidents involving (i) death, (ii) grievous hurt, or (iii) rape in police custody.

b) District level Composition

- Chair: Retired District Judge to be chosen by the state government out of a panel of names proposed by the Chief Justice of the High Court or a High Court Judge nominated by him or her.
- Other members: Three to five members selected according to the same process as members of the state level Police Complaints Authority (see above).

Function

The role of the Police Complaints Authority at the district level will be to inquire into cases of misconduct by police officers of and up to the rank of Deputy Superintendent of Police in cases of serious misconduct, which includes incidents involving:

1. Death;

2. Grievous hurt;

3. Rape in police custody;

4. Extortion;

5. Land/house grabbing; and

6. Any incident involving serious abuse of authority.

The Supreme Court has provided for a number of features common to state and district level Police Complaints Authorities:
- Membership in the authority must be a full time occupation
- The members of the authority should be provided suitable remuneration
- The members of the authority can use the assistance of regular staff to conduct field inquiries. Such staff can be composed of retired investigators from the Criminal Investigation Department, Intelligence, Vigilance or any other organisation.
- The recommendations of the authority for any action, both disciplinary and criminal, shall be binding. In practice, this implies that the inquiry conducted by the Complaints Authority replaces the internal disciplinary inquiry. Once the inquiry is completed the Complaints Authority can recommend a suitable disciplinary punishment to the appointing authority, which will be bound by it. The Complaints Authority can also recommend the registration of a FIR against the erring police officer.

It is essential to prevent police complaints authorities from being vulnerable to capture and expedience- The following factors are key to increase the likelihood of their becoming effective specialised monitors of police actions:
• Independence of members;
• Capacity building of members and staff, in particular with regards to investigative skills and techniques;
• Adequate funding and infrastructure,
• Cooperation between complaints authorities and the police department; and
• Proper coordination between human rights commissions and police complaints authorities and sharing of expertise and experiences.

7. Separation of investigation and law and order police

Supreme Court directive:

"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."

The Supreme Court judgment seeks to enhance police performance by directing separation of investigation and law and order functions of the police in towns and urban areas to "ensure speedier investigation, better expertise and improved rapport with the people". The Court has ordered a gradual implementation of this separation, starting with towns and urban areas with a population of one million or more.

Both investigation and law and order are vital and specific police functions, which must be streamlined separately to run concurrently At present,- it often happens that investigations are stalled if there is a pressing law and order situation, or investigations divert officers' attention from law and order concerns. The judgment does not specify how the separation should take place in practice but only specifies that there must be full coordination between the two wings of the police.

  Go Back To Main Page