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There is hardly a day when we do not hear about
police excesses, police failures, or police misbehaviour in this country.
Collectively as an organisation and individually as members of the organisation,
the police come in for severe criticism in the media, in the orders and
judgements of courts, in the accounts and reports of non-government
organisations and various organised sections of society. There are some States
in this country where the police are seen more as violators of law than as
servants of law(1). There are some States where they enjoy unbelievable impunity
for all misdeeds. On the whole, the police in India present a picture of being a
law unto themselves and not as part and parcel of a Criminal Justice System
committed to Rule of Law. Of course, it is not fair to brand all with the some
branding iron, and there are notable exceptions. But the rotten eggs spoil the
entire basket.
1.2. This phenomenon is not of recent origin; the police in India has been the
subject of devastating criticism ever since their inception in 1861 under the
Police Act enacted by the British on the recommendations of the Police
Commission of 1860. It may be recalled that this was just 3 years after the
great rebellion or the Indian Mutiny (1857) which forced the British Government
to take over the possessions held by the East India Company. The British
themselves subjected the working of the police they created under the Police Act
of 1861, to a scrutiny after four decades, in 1902 through the Frazer
Commission. The 1902-03 Commission did not have much good to say about the
functioning of the police in India. However, they did not go for any
comprehensive reforms of the police. It is obvious that while the police fell
short of being what it ought to be in a civilized society, it did serve the
limited purposes of the colonial administration viz, maintenance of order,
collection of revenue and the maintenance of the Raj. Further, the priority of
the colonial masters was to introduce uniformity in the police organisation of
the princely states to conform to the standards of police in the Presidencies
under their direct control. True, the struggle for national freedom was yet to
emerge as a challenge to law and order but the British perception of the rights
of the average Indian was not on par with their perception of their rights at
home or in India.
1.3 In the years that followed the 1902-03 Police Commission Report, the country
saw mass: upheavals, for freedom under the leadership of Gandhiji, whose unique
and unusual methods of struggle based on ahimsa and passive resistance threw up
unprecedented challenges to the skills and strength of the police everywhere in
India. What we see during these tumultuous years is a hardening of the reaction
of the foreign rulers, enactment of Draconian legislations and making the police
respond to the national struggle with fury and unbridled violence. Police
man-power increased with matching acquisition of arms for crowd control and
maintenance of order. The leadership of the police was vested in the Indian
Police (I.P.) officers which was by then a mix of Indian and English officers
while the District Magistrate - the predecessor in office of the present
District Collector - exercised general superintendence and control over the
police force of the District relegating the S.P. of police to an unequal status,
and in effect controlling the police management of order as a responsibility of
the District Administration, directly responsible to the Presidency/ State -
Head quarters. In every princely state the Political Agent or the British
Resident and the Dewan, a choice made with the approval of the British, set the
tone of administration, particularly police response to the national movement
for political freedom.
1.4 It was this set up, independent India inherited from the British when it
became free on August 15, 1947. Perhaps, in the wake of British Officers leaving
both the army and the police seeking retirement or opting for one of the two
newly independent countries - India and Pakistan - there was a break down of the
system and the chain of command which could be one of the reasons for the tragic
failure of the law and order machinery to control the orgy of violence let loose
by the Hindus and Muslims leaving Pakistan for India and India for Pakistan as
refugees. A notable change that was introduced while the Constitution of India
was being framed was to retain the remnants of the l.C.S and the I.P. and to
christen them Indian Administratives Service (IAS) and Indian Police Service (IPS)
and thus retain the familiar outline of the administrative apparatus. Even when
the Constitution provided for safe guards against violation of fundamental
rights and some of the more important political rights which form part of the
UDHRs, it did not attempt to alter the style of police functioning nor did the
Founding Fathers provide for a new Police Act. The benign provisions of the
criminal law which made inadmissible evidence tainted with torture, confessions
or admissions to police officers and other restraints on police use of force and
illegalities during investigation were retained in the criminal laws. However,
the gaping chasm between police practice and precepts, what subsisted on the
statute books and what was selectively ignored or applied were not taken serious
note of. Either the founding fathers where naive or roubustly optimistic to
believe that the leopard will change its spots under the new political
dispensation of a free country administering criminal justice to its own people.
Alas, it was a dream without even a trace of reality. The police continued as
they were and did not opt for any radical change or revision of style to qualify
them to be called the police of free India committed to serve fellow citizens.
In the period between 1947- 1956, ie., till the States were re-organized on
linguistic basis the police annals read like a record in continuity, without
hardly any data to show that the police had undergone a metamorphosis in free
India.
2.1 With the re-organisation of the States on linguistic basis we see several
States appointing Commissions for Police reform following the lead of Kerala
which appointed the Kerala Police Re-Organization Committee in Jan. 1959, with
such important members like Shri. N.C. Chatterjee, Senior Advocate, Supreme
Court, and Vice-President, Supreme Court Bar Association, Shri. S. Mohan Kumara
Mangalam, Senior Advocate, Supreme Court, Shri. S.Guru Swamy, President,
All-India Railway Men's Federation, Madras and Shri. P.N. Krishna Pillai,
Personnel Manager, Indian Aluminium Company, Calcutta, Shri. M. Krishna Menon
IP., IG. of Police, Kerala, was made the Member - Secretary. The Terms of
Reference (appended) was quite progressive, anticipating. the present times. It
dealt with very important issues like the role of the police in a welfare state,
the existing provisions of law and their adequacy to help, realise and secure
fulfillment of the objectives laid down in the Directive Principles of State
Policy and the public aspirations, and in particular in the sphere of employer -
employee, landlord - tenant, capital-labour relations, the duties of the police
in the context of the free exercise of civil liberties and political rights of
freedom of speech, of platform and association in a democracy consistent with
the paramount security of the State.(2) Unfortunately an agitation which came to
be known as 'Liberation Struggle' let loose by the political parties in
opposition in the State along with vested interests poised against a Communist
government, prevented the Commission from making a detailed study of all the
subjects in the Terms of Reference and submitting a complete report. The change
in the political set up of the State that emerged after the 'Liberation
Struggle' is seen to have cut the Terms of Reference short and forced the
Commission to submit a very brief report on some of the' subjects of the Terms
of Reference.
2.2 The other States which followed the state of Kerala to appoint Police
Commissions, were West Bengal in March 1960, Punjab in 1961-62, Maharashtra in
May 1962, Assam in May 1969, Tamil Nadu in December 1969, and Uttar Pradesh in
May 1970. Kerala went for another Police Commission - from 1984-88 but the
output suffered still-birth, though it had survived attempts at abortion.
2.3 However it may be observed here that not one of these Commission did have in
its Terms of Reference issues and problems, which were referred to the Kerala
Police Re- Organisation Committee. Further, it is also seen that the membership
of the Commission slipped from the array of such brilliant lawyers and public
men like the members of the Kerala Police Re-Organisation Committee to the hands
of retired bureaucrats and judges. This is very significant when we see that
these Commissions submitted Reports which at the most very generally reviewed
the existing police system, the training they received, their pay and allowance,
their uniform, vehicles, promotion prospects, discipline and control etc. and
did not dare to approach the police neither with academic insight nor political
foresight, to wean them from their past and to shape them for the future, or
examine such sensitive areas like basic freedoms and police functioning, police
response to the demands of the emerging Human Rights jurisprudence, the rapidly
altering socio-economic balance in society, social justice commitments in the
Constitution, freedom of expression and freedom of the media etc. These Reports
are therefore, more in the shape of glorified annual administration reports of
the police and home departments and did not go beyond the very obvious. Perhaps,
what they achieved, where rarely they were implemented, was modernization of the
police administration and not reform. This is not to concede that the Reports of
these Commissions were accepted in any State with enthusiasm or their
recommendations fully implemented with sincerity, or a sense of purpose.
2.4 Financial constraints always intervened and stood against reforming the
police. But what is much more evident today is that the I.A.S. as a class was
never in favour of reforming the police. The fate of the Reports of the First
Police Commission in independent India, (commonly known as the Dharmavira
Commission) is an instance in point. This Commission appointed by the first
non-Congress government at the centre, the Janatha Government under Morarji
Desai, after the Emergency, was a well meaning initiative, and it had an
elaborate Terms of Reference and adequately qualified talent in the Commission
to report on the same. Yet when the Congress came back, to power, on the very
tenuous ground of the Centre lacking jurisdiction as police and law and order
were State subjects and such other lame excuses, the Reports were condemned to
the stifling recesses of police archives. Even the enthusiasm with which the
Report of the Committee on Police Training, known as the Gore Committee Report
was received did not come forth in respect of the Reports of the National Police
Commission.
2.5 With hindsight it seems quite logical to conclude that it was the contents
of the recommendations that inhibited the political executive both at the State,
and the Centre in implementing them.
2.6 It may be recalled that the gravamen of the recommendations of the National
Police Commission was to make it accountable to law, insulate it from
interference by political leaders / system or partisan benefits and to use it to
further their political fortunes, strengthen the police leadership, remove the
yoke of the District Magistrate which was a sure conduit for political
interference and on the whole make it part of an accountable and efficient
criminal justice system. While it provided for security of tenure for the police
chief it had also provided for a Security Commission to ensure accountability.
The Report also had suggested a New Police Act and amendments to the Criminal
Laws.
2.7 After several years and several Home Ministers, an effort was made by
Inderjit Gupta, of the C.P.I, when he was Home Minister, in the I.K. Gujaral
Ministry to implement the recommendations. It could achieve little as the
ministry was short lived. Today, the Reports await intervention by the Supreme
Court to resurrect it from the morgue of police reform reports, on the
initiative of some superannuated members of the IPS. One of the present authors
as Member - Secretary of the Kerala Police Commission 1984-88, has first hand
experience of the lack of political will and sincerity in Kerala to reform the
police, even in making them behave with some difference in certain select areas
of their functioning like investigation of crimes, prevention and control of
crimes and disorder and maintenance of police records etc. Obviously, there are
interests who are afraid of a reformed police.
3. It has been observed earlier that practically every section of the clientele
is dissatisfied with police performance. It is obvious that the system in all
its entirety require a close look for revision or replacement. Such an effort
necessarily will have to touch upon the legal structure of the police, the
manner in which they exercise the powers given to them, the sufficiency of their
tools, equipments and techniques, their accountability, transparency at all
stages, since their actions curb basic rights and a strict audit of their
performance. It would also involve providing for checks and balances and
adequately effective arrangements for policing the police. It will also have to
redefine its relations with other segments of the Criminal Justice System, the
beneficiaries of the police delivery system and finally their role in a society
committed to pluralism secularism and social Justice. In short, 'police reform'
will have to look into the police organization, their mandate, their functional
dynamics, the mechanism to oversee their performance for course correction as
well as for ensuring realization of their mission-objectives and their none too
simple role in a community on the threshold of rapid development appropriating
the gains of science and technology. The reform process has to touch all ranks
and has to be all inclusive and nothing should be left out. It may be pointed
out here that such an exercise calls for a commitment and sense of purpose from
the political executive since what is involved is basically a re-determination
of policy. It would be easy to modernize the police which often State
governments and the Union government do by increasing the strength of the
different ranks, enhancing the size of support organizations and facilities like
vehicles, computers, sophisticated riot gear, arms and accoutrements. It has to
be clarified that this is not police reform but just a face-lift for short term
benefits. What is necessary to the make the police acceptable to the society at
large is therefore the central issue of any police reform effort.
4. It is of interest to refer here to an experiment launched in Kerala under the
present Congress ministry led by A. K. Antony. The C.M., who is looking after
the Home Dept. also, has taken a bold decision not to interfere in police
functioning and not to use the system of transfers and postings to coerce
officers into subservience. This experiment has given the police considerable
amount of freedom to act according to the law and not at the whim and fancy of
the political executive and its minions. The experiment is over two years old.
Recently, the Director General of Police, Kerala has said that the present
experiment which is receiving national attention can be sustained only through
statutory changes.(3) It is obvious that the head of the police dept. in Kerala
is apprehensive of a reversal of policy at the hands of the successors of the
present Chief Minister. The Government of Kerala has appointed a Commission -
The Police Performance and Accountability Commission with Justice K. T. Thomas,
formerly of our Supreme Court as Chairman with a very limited brief to evaluate
police performance in the investigation of crimes in the last two years. It was
in response to the criticism that the police were left unbridled and their
accountability suffered as a result of the newly given freedom. In Kerala, there
is a vocal section which clamours for the right of the political activists to
interfere in police functioning, as they are of the view that the police cannot
be given such an independence in their functioning and that political
interference would be necessary in public interest.(!) Thus, we have a situation
in Kerala where the Chief Minister was bold enough to trust the police with
functional independence and did not hesitate to desist from frequent transfers
and postings which operated as punishments, while there are people in his party
as well as among the coalescing partners who feel that the present policy has to
be reversed. The Police performance and Accountability Commission is infact seen
by many as a defensive response by the C.M., an attempt to assess the impact of
his policy change, perhaps to silence his detractors. Yet, what emerges as
urgent is the plea of the Director General of Police that such changes must be
backed by appropriate changes in the statute. In other words, it is conceded
that the need of the day in Kerala is police reform. Those who cry for Police
reforms even today demand implementation of the National Police Commission
Report; they forget that even the latest volume is about 25 years old, and India
of 1977 -80 is not the India of 2004. Both the problems and solutions are
different.
5. It is now accepted by all concerned that order and development have to go
hand in hand. There can be no development without order. Order also is necessary
to ensure that benefits of development reach those for whom they are intended.
Development has also a social justice dimension. Disorder denies the fruits of
development to those who deserve them most.
6. As we face the 14th General Elections, we obviously find considerable
emphasis given to development achieved, development denied and development
deferred. Yet it is surprising that there is not even a whisper from the ruling
coalition of political parties or the political parties in opposition that there
would be an effort on their part to reform the police which is in truth a
deferred national commitment. It is also surprising that there is no demand from
either other political movements or non-governmental organisations or even the
police themselves, that the new Government to take office should take police
reforms as part of their agenda of administration. The silence of all concerned
on this vital issue is to say the least, baffling. Development is not more
roads, rails, canals or buildings. They are only means towards development. True
development is seen as significant alterations in the social justice process of
the country and means nothing more or nothing less than liberation and
empowerment of the least, the last and the lost. It would be very unrealistic to
think that such a shift in social equations in our country can be managed
without a reformed police organisation accountable to law. The wealth of
material on Human Rights jurisprudence has to go into the mandate of the police.
The spirit of the Preamble of the Constitution, Part - IV, Directive Principles
of State Policy and the Fundamental Rights and the guarantees thereto, have also
to be firmly embedded in the police functional framework. State security
concerns and the conflicts they generate in relation to enjoyment of fundamental
rights is an issue on which a national debate cannot be delayed. The burgeoning
crimes and the new forms of crimes – from cyber crimes to crime against
geriatrics and women - as well as the involvement larger and larger numbers of
young people in senseless violence are issues that call for serious discussions.
The functioning of the State Human Rights Commissions has come in for criticism
in some States. The performance of the lower judiciary- a Gujarat Magistrate
issuing warrants against V.V.I.P.S. on receiving a bribe Telgi and the nexus of
politicians - police officers and criminals it unfolds, Tehelka, Chattisgarh and
the persisting stink of political corruption, Bofors and the belated finding of
the Delhi High Court, the revenge prosecutions in some States under the
Prevention of Corruption Act and the misuse of adhoc legislations like POTA the
long delay in the disposal of cases by the courts, the treatment of prisoners
and under trials in jails, inept prosecution of cases in the courts, which
result in massive acquittal all indicate that we are paying the prize for
ignoring police reforms and consequent reforms in the criminal justice system.
7. It is apparent that this issue has now to be taken up as a people's agenda.
The need of the hour is to generate a ground - swell spearheaded by those who do
not crave for political power, but would like to have the system cleansed, like
Human Rights activists, N.G.O.'s and other such committed people and mobilise
public opinion and media support for police reforms. Police reforms have to be a
priority agenda, because, among other reasons, it affects as all.
_________
(1) The criticism of the Police in Gujarat by the Supreme Court is a recent
instance.
(2) This issue is hotly debated even today. It deserves to be debated.
(3) See The Hindu, Trivandum, February 14, 2004
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