State governments unwilling to relinquish control

Large sections of the police in India have come to believe that the only way to perform their role of peace-keepers and protectors of common citizens, is to meet violence against the state with violence against the perpetrators, with all the weaponry at their command. So much so that torture or so-called third degree method is resorted to as a matter of course to make not only criminals open their mouth but also to make hostile witnesses reveal details about wrong-doers. Many such episodes result in custodial deaths.

In the policemen's eagerness to prevent anticipated violence or to ensure that justice is meted out to criminals, terrorists or even alleged anti-state activists, which they fear may not be possible through long drawn out court cases, they often feel that taking the law into their own hands and eliminating such persons in kidnappings and ‘fake encounters’ helps maintain peace and quickens the administration of justice. Worse is when such ‘preventive measures’ are aimed at persons who later turn out to have been innocent. All this may happen due to a policeman’s misplaced effort at ‘saving the nation’ from supposed dissidents, secessionists, ultras, etc.

Illustration: Farzana Cooper

It is well documented that the police often act on behalf of the powers-that-be or the ruling elite to maintain the status quo of discrimination and oppression against the exploited and powerless and quell their struggle for human rights by using violence against them. Worst is when the police become handmaidens of fundamentalist communal or religious forces, hidden within the political forces controlling the state - or are themselves motivated by communal or religious biases - and deliberately become participants in sectarian riots and attack innocent citizens, women and children, to ‘teach them a lesson’ for imagined wrong-doings.

All this and more has made it very necessary to bring in police reforms in India – to free them from political interference, make them accountable to an independent body and enable dispassionate enquiries to be conducted against their abuse of power and violations of human rights.

Directives for reform and the states' responses

On 22nd September 2006, the Supreme Court of India delivered a historic judgment, in Prakash Singh and Others Vs Union of India and Others, laying down six practical directives to kick-start the police reform process. The Court’s directives are binding on all state governments to frame appropriate legislation. The most important directives of the Supreme Court are Directives 1 and 6 on setting up State Security Commissions and Police Complaints Authorities. “These two directives constitute the most important and significant steps towards bringing a more reliable, functional and responsible police force,” says Shobha Sharma of the Commonwealth Human Rights Initiative (CHRI), which is conducting an awareness campaign on the reforms process.

Separate from the push coming from the Supreme Court, the Manmohan Singh government had set up a Police Act Drafting Committee (PADC) to draft a new Model Police Act, commonly known as the Soli Sorabjee Committee. The committee's work and its model Act also provides a sound legislative guide for state governments to follow in forming their own Acts.

Many states are under the process of drafting new Police Acts while some have already passed them. Many states have made statements that they support the spirit of reform behind the Court’s directives, but have made several arguments against immediate implementation of the apex court's directives, particularly in their current form. A point to note is the complete lack of transparency, community consultation or civil society input in this process by most states. In many states, members of the public are completely unaware that their state government is in the process of reforming the police laws.

The first directive of the Supreme Court on the police reform process is that States should constitute a State Security Commission to ensure that the State government does not exercise unwarranted influence or pressure on the police. The State Security Commission is also expected to lay down broad policy guidelines and evaluate the performance of the state police. In determining the composition of this Commission, governments may choose from any of the models recommended by the National Human Rights Commission, the Ribeiro Committee or the Sorabjee Committee.

According to analyses made by CHRI, Gujarat and Nagaland have questioned the need for a State Security Commission (SSC) as they claim that political interference in police administration is minimal and there is no unwarranted influence over the police. Andhra Pradesh, Gujarat and Uttar Pradesh have opined that setting up an SSC and giving it binding powers is likely to undermine the power of a constitutionally-elected government over the State police, lead to the creation of a parallel body which is not accountable to the people of the state and would infringe the rights of the state.

In an affidavit filed before the Supreme Court of India on 4 April 2007, the Chief Secretary of Karnataka State has mentioned that the state is in the process of bringing out its own Amendment Bill based on the Soli Sorabjee Model Police Act with certain changes and has filed a review petition before the Supreme Court requesting certain modifications in its directives.

The Amendment Bill of Karnataka has proposed the following composition of the State Security Commission: the Home Minister as Chairperson, and as members: the leader of the Opposition in the Legislative Assembly, the Chief Secretary to Government, the Principal Secretary, Home Department, a retired Judge of the High Court nominated by the Government, and two non-official members of known integrity nominated by the Government, out of whom one shall be a woman. The Director-General of Police is to be the Member-Secretary.

Shobha Sharma of the CHRI says that the Soli Sorabjee MPAD recommended five independent members in the SSC which have been reduced to two in the State's affidavit. The two non-official members are to be nominated by the government instead of getting nominated through an independent selection panel. The tenure of the non-official members is neither specified nor guaranteed. The retired judge in the committee’s formulation is to be nominated by the Chief Justice of the High Court in the Soli Sorabjee Model, but here the nomination is to be done by the government. There is a provision in the Soli Sorabjee Model, but no provision in the State Bill, to include the minorities, Dalits and backward classes as non-official members of the SSC. There is also no provision in the State Bill to have non-official members from NGOs.

"This is a point to be seriously noted by NGOs and other organisations and taken up with the State government. The Government needs to be pressed to increase the number of non-official members, fix their tenure and bring about a wider representation of various classes and categories in the formation of the State Security Commission," says S Akbar, Treasurer, Forum for Democracy and Communal Amity – Karnataka (FDCA), which is lobbying for a better Bill in Karnataka.

The second and third directives require the Director-General of Police to be appointed through a merit-based, transparent process. He and some other police officers are also to have a minimum tenure of two years. Andhra Pradesh, Uttar Pradesh, Gujarat and Nagaland have argued that a fixed two-year tenure for the DGPs, irrespective of their superannuation date, will block opportunities for other eligible senior officers, who will be demoralised. Further, the directives take away the right of the government to transfer police officers to meet administrative exigencies, they feel. Fixed tenure is not important for good performance and short tenure does not result in inefficient functioning feels Andhra Pradesh.

The fourth directive is that investigation and law and order functions of the police should be separated. The fifth directive stipulates that a Police Establishment Board be set up, which will decide all transfers, postings, promotions and other service-related matters of police officers of and below the rank of Deputy Superintendent of Police and make recommendations on postings and transfers of officers above the rank of Deputy Superintendent of Police. A Police Establishment Board will duplicate existing systems, would run contrary to the democratic functions of the government and result in the creation of a separate power centre, comprising bureaucrats who are not answerable to the people, say Gujarat and Uttar Pradesh.

States don't want Police Complaints Authorities

The sixth and last directive is very significant as it calls for the setting up of independent Police Complaints Authorities (PCA) at the State and district levels to look into public complaints against police officers in cases of serious misconduct, including custodial death, grievous hurt or rape in police custody. It is necessary especially to look into the role of the police during communal and religious violence. According to the Soli Sorabjee Model, the State-level PCA is to be chaired by a retired judge of the High Court or Supreme Court, to be chosen by the State government out of a panel of names proposed by the Chief Justice. It must also have three to five other members (depending on the volume of complaints) selected by the State government out of a panel of names prepared by the State Human Rights Commission, the Lok Ayukta and the State Public Service Commission. Members of the PCA may include members of civil society, retired civil servants or police officers or officers from any other department. Similar authorities are to be constituted at the district-level to be chaired by a retired district judge.

Nagaland initially maintained that the commission of excesses by the police is a very rare occurrence. Andhra Pradesh has opined that the establishment of Complaints Authorities may lead to the police being demoralised, failing to implement various laws and becoming ineffective out of a fear of being prosecuted by yet another agency. Gujarat, Uttar Pradesh, Andhra Pradesh, Karnataka and Tamilnadu feel that creating new District and State Complaints Authorities would duplicate the work of existing fora and would be a financial burden. It would cost over Rs.40 crores to the exchequer, says Karnataka.

Karnataka also states that there are five different independent institutions like the Lok Ayukta, SC & ST Commission, Backward Classes Commission, Women’s Commission and the Minorities Commission, which look into the grievances against the police personnel apart from the departmental committees headed by an IGP (Human Rights & Grievances) and that these state institutions “effectively and fully meet the sprit behind the directives issued by the Hon’ble Court regarding police complaints” and the government has already initiated steps for constituting the State Human Rights Commission. Never mind that all these existing bodies are toothless with only recommendatory and no binding powers.

In total negation of Directive 6 on the State-Level Complaints Authority, Karnataka has submitted that it shall consist of only currently serving officers, namely: the Chief Secretary to the Government as Chairperson, the Principal Secretary, Home Department, the Director General of Police, and a police officer nominated by the Government not below the rank of Inspector-General of Police as members and the Inspector-General of Police (Grievance Cell) as the Member-Secretary.

“As one can see, this is a total negation of the directive of the Supreme Court. The very basis of constituting an Independent Police Complaints Authority has been nullified,” says Shobha Sharma of CHRI.

On the proposal of Karnataka on Directive 6, members of the FDCA-Karnataka feel, that various organisations need to immediately approach the Supreme Court to oppose the review of this directive sought by Karnataka and compel the state government to form an independent Police Complaints Authority. “It is also necessary to implore the Supreme Court to issue a directive that no State government can deny an independent investigation into police action citing a national security operation or any other excuse. The orders of the independent PCA will have to be binding on the State government,” says Rafi Ahmed, General Secretary, FDCA.

Civil society groups recommend that the independent PCA should be manned by retired judges of the High Court/Supreme Court/ and members of NGOs. “It is also important to impress upon the Supreme Court to direct the State Government to either replicate the oversight agency in England called the Independent Police Complaint Commission, or establish a better one,” says Sheema Mohsin, Secretary, FDCA.

“Communities are the main beneficiaries of good policing and the main victims of bad policing - community and civil society participation in the process is essential if the police are going to be efficient, effective and accountable,” says Shobha Sharma of the CHRI.

Silver lining

The Supreme Court has recently dismissed petitions from five states that sought to review its directives. It has hence maintained its earlier firm stance on the states implementing police reforms. Furthermore, earlier in April this year, Nagaland changed its original stance significantly. The state had said in its first affidavit to the apex court that police excesses are minimal and it also queried the rationale for setting up a State Security Commission. In its most recent affidavit of 10 April 2007, Nagaland attached copies of government orders on implementing every single one of the directives.