Sunday, August 1, 2010

Resistance to reform: Key to better policing

Resistance to reform: Key to better policing

The Supreme Court’s slew of directives notwithstanding, the implementation of police reforms has proved to be an uphill task. The Chief Ministers are reluctant to enforce them as they don't want to lose their hold over the police.  How can the police be insulated from political interference and improve governance? An in-depth study

By Maja Daruwala

The problem with policing is too well known to be rehashed. More important is the solution. In democracies, the relationship between the police and the political executive is always close. Both are bound in the common enterprise of preventing and investigating crime, maintaining law and order and ensuring that society has a well provisioned, well functioning essential service that protects life, liberty and property.

The key to better policing lies in defining clearly the roles and responsibilities of the political executive (i.e. the bureaucracy and the people's representatives) and the police and making them know their limits of power.

Those who fear losing their death grip over the police sometimes deliberately like to create the impression that any rein on the unfettered exercise of will over the police will create an entirely independent and out of control police force. Ironically though, today's dysfunctional police-executive relationship has given us a force with very few limits on its power.

There is no question but that the political executive must always be paramount. But the relationship has to be symbiotic, not parasitic or dependent.

A suggested model for defining this relationship would read: “Responsibilities and independence of State Police Chief”

The supervision, direction and control of the police throughout the state shall, be vested in an officer of the rank of Director General of Police (DGP) designated as the state police chief.

A) The DGP shall be responsible to the Minister for

i) carrying out the functions and duties of the police;

ii) the general conduct of the police;

iii) the effective, efficient and economical management of the police;

iv) tendering advice to the Minister;

v) giving effect to any lawful ministerial directions.

B) The DGP shall not be not responsible to, and must act independently of, the Minister regarding:

i) the maintenance of order in relation to any individual or group of individuals; and

ii) the enforcement of the law in relation to any individual or group of individuals; and

iii) the investigation and prosecution of offences; and

iv) decisions about individual police officers.

C) The Minister may give the DGP directions on matters of government policy that relate to

i) prevention of crime;

ii) maintenance of public safety and public order;

iii) delivery of police services; and

iv) general areas of law enforcement.

D) No direction from the Minister to the DGP may have the effect of requiring the non-enforcement of a particular area of law

n The Minister must not give directions to the DGP in relation to the following:

i) enforcement of the criminal law in particular cases and classes of cases

ii) matters that relate to an individual or group of individuals

iii) decisions on individual members of the police

E) If there is dispute between the Minister and the DGP in relation to any direction under this section, the Minister must, as soon as practicable after the dispute arises,

i) provide that direction to the DGP in writing; and

ii) publish a copy in the gazette; and

iii) present a copy to the legislature

True, present Acts are hazy about how the police is to be 'supervised' and seemingly do not explicitly condition the political executive's powers. But underlying police manuals specify exactly how and by whom administrative powers will be exercised. Similarly, there is clear law that prohibits any interference in police investigations from any quarter. But all this is observed in the breach.

Judicious supervision has degenerated into bossism and the power to transfer, appoint, promote or suspend police officers is too often used as punishment and reward to bend the police until today 'control and supervision' has become something entirely different from what was originally intended.

Nevertheless, willy-nilly we are in the era of police reforms. After 30-odd years, the National Police Commission's recommendations have been dusted off. Multiple committees have spent endless hours culling out priorities. Under the chairmanship of Soli Sorabjee, the Ministry of Home Affairs has drawn up a brand new Model Police Bill for the benefit of lawmakers across the country. Civil society has polished it and is begging policy makers to pay attention.

Union Law Minister Veerappa Moily's Administrative Reforms Commission has added more suggestions to change the police force into a reliable and trusted police service. The ruling party's manifesto has recognised "the imperative of police reforms" and said "a clear distinction between the political executive and police administration will be made."

Even the Supreme Court has spoken and laid out a road map for reform. Its directions came nearly five years ago. Since then, every government has avoided compliance. Some have gone through the motions change while going about business as usual on the ground. Others have created stunted institutions designed to defeat intention. Yet others have legislated their way out from under the weight of obedience. And some have simply done nothing at all.

Meanwhile, everyday, in the absence of honest and law abiding policing, the security situation for country and individual is worsening. At the root of rotten policing lies the degree to which raw political power has been able to gain control over it. Weak leaderships have bowed low before illegitimate interference in the everyday running of the force and allowed informal but powerful influences to gain a large footprint in all police work. If policing is ever to improve this has to be rectified. The solutions are there. We need the political will.

The writer is Director, Commonwealth Human Rights Initiative, New Delhi


Cosmetic changes won’t do

Sankar Sen

THE demand for meaningful police reforms in India is an old one. Successive governments created many committees and commissions for nearly three decades. In 1979, the National Police Commission (better known as the Dharam Vira Commission) made a number of practical recommendations for police reforms which are relevant today.

In 1996, two former DGPs filed a PIL before the Supreme Court asking the court to direct the states to implement the Dharam Vira Report. But after a decade, the Supreme Court had given clear directives to the Centre and the states to implement the core reforms recommended by the NPC to insulate the police from extraneous pressures and influence. Despite these unambiguous orders, the state governments are dragging feet and betraying unwillingness to lose their stranglehold over the police.

The majority of the states have said that they support the spirit of reforms but objected to many of the directives of the court. Initially, the states, one after another, filed petitions in the Supreme Court asking for more time to implement the directives. On January 11, 2007, the Supreme Court considered the objections and concerns of the states, but said firmly that the process of police reforms must commence immediately. Unfortunately, the process of implementation of police reforms is still not visible in most states.

States like Gujarat, Nagaland, Uttar Pradesh, Karnataka and Andhra Pradesh have questioned the raison d' etre of State Security Commissions. They have brazenly stated that no unwarranted influence is at all exercised over the state police. They have also expressed the view that setting up a State Security Commission with binding powers will lead to the creation of a parallel body which is not accountable to the people of the states.

Further, a fixed two-year tenure for DGP, irrespective of the superannuation date, will block opportunities for promotion of other senior eligible officers who will feel demoralised. Most states have not also complied with the directives of the Supreme Court regarding the establishment of independent Police Complaints Authority at the state and district levels to look into public complaints against police misconduct. The state governments' stand is that the establishment of PCA will demoralise the police personnel and adversely affect their working.

The Soli Sorabjee Committee submitted its draft report to the government on October 31, 2006. But no meaningful steps have been taken so far by the Centre to enact a new law for the police in the Union Territories.

Many states have enacted new police Acts. A number of them have submitted in the Supreme Court that they are in the process of framing new police laws. On the surface, they appear encouraging. But a reality check on the ground will reveal that what is being attempted in many states is contrary to the spirit of instructions issued by the Supreme Court.

The new police Acts that have been passed and the Bills that have been readied have diluted the core systemic reforms stipulated by the Supreme Court. Some states have set up State Security Commissions and packed them with yes men and excluded the Leader of the Opposition. To retain political control over the police, they have made some cosmetic changes and not meaningful systemic reforms.

A three-member Monitoring Committee was set up by the Supreme Court with Justice K.T. Thomas, a former Supreme Court Judge, as its chairperson. It is mandated to examine the affidavits filed by the states. It will also examine the new police Acts passed by the states after the Supreme Court judgment of 2006 and find out if the Acts are in keeping with the letter and spirit of the apex court's directives.

The committee has not yet submitted its final report. Thus, meaningful police reforms in the country are stalled. But the reforms brook no delay. The country needs an apolitical, efficient and revamped police force to take on the forces of disruption and destabilisation. Tomorrow will be too late.

The writer, a former Director-General, National Human Rights Commission, is Senior Fellow, Institute of Social Sciences, New Delhi

Status of Supreme Court’s directives

n Not a single state has managed to fulfil all the criteria prescribed by the Supreme Court with regard to the State Security Commission (SSCs). Most states have set up SSCs that do not reflect the court's criteria with regard to the composition, function and powers. States such as Tamil Nadu, Orissa, Madhya Pradesh, Jammu and Kashmir and Andhra Pradesh are in complete non-compliance with this directive.

n Arunachal Pradesh, Meghalaya, Mizoram and Nagaland are the only states that have adopted the court's prescribed criteria with regard to the selection, tenure and removal of the Director-General of Police. A few states have only partially incorporated these criteria whilst several states such as Karnataka, Jharkhand, Haryana, Kerala and Andhra Pradesh are not compliant with this directive.

n Andhra Pradesh, Madhya Pradesh and the north-eastern states of Arunachal Pradesh, Meghalaya, Manipur, Mizoram and Nagaland are in full compliance with this directive which provides for a fixed tenure for officers on operational duties. While a few states have partially satisfied the criteria set by the Supreme Court, it is notable that the majority are not in compliance with this directive.

n Several states such as Assam, Arunachal Pradesh, Haryana, Himachal Pradesh, Karnataka and Sikkim have complied with the Supreme Court's directive to separate the law and order police with the investigation police. However, a majority of states have not fully implemented this directive.

n Most states have established a Police Establishment Board, but only Arunachal Pradesh and Goa are in full compliance with all the court's stipulated criteria in this regard. In contrast, Bihar is the only state which has taken no steps towards complying with this directive.

n No state government has established Police Complaints Authorities at both district and state level that fully comply with the Supreme Court's orders. Many states have established Authorities which only partially comply with the court's directive in terms of the composition, mandate and powers.

Many states — Uttar Pradesh, Tamil Nadu, Punjab, Mizoram, Madhya Pradesh, Karnataka, Jammu and Kashmir and Andhra Pradesh have completely ignored this directive.

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