In a recent case Dr.T.P.Senkumar (IPS)VS Union of India & Ors Hon’ble Supreme on 24th April 2017 observed:
…“Before detailing the controversy before us it is necessary to refer to the decision of this Court in Prakash Singh v. Union of India and Ors. In that case, this Court dealt with the issue of police reforms in the context of the far-reaching changes that had taken place in the country after the enactment of the Indian Police Act, 1861. It was noted that no comprehensive review had been undertaken in this regard at the national level and therefore, the Government of India appointed a National Police Commission on 15th November, 1977 which recommended significant police reforms. It was also noted that subsequently, there were other half a dozen reports on the same or similar subject but no substantive reforms were brought about.”
In the course of its judgment, this Court referred to a research paper titled the Police “Political and Administrative Manipulation of the Police” published in 1979 by the Bureau of Police Research and Development. The research paper contained a caution to the effect that excessive control by the political executive and its principal advisers over the police had the inherent danger of making the police a tool for subverting the process of law, promoting the growth of authoritarianism and shaking the very foundations of democracy.
We may add that one of the findings in the research paper is “The present predicament of Police is that they have been exposed to a two pronged pressure vertically from the Administration and laterally from the politicians.” With these two pressures, the independent functioning of the police can and sometimes does get compromised at the hands of very important persons and those claiming proximity to very important persons.”
The crux of the police reform is to secure professional independence for the police to function truly and efficiently as an impartial agent of the law of the land and, at the same time, to enable the Government to oversee the police performance to ensure its conformity to the law. A supervisory mechanism without scope for illegal, irregular or mala fide interference with police functions has to be devised. The commitment, devotion and accountability of the police has to be only to the Rule of Law. The supervision and control has to be such that it ensures that the police serves the people without any regard, whatsoever, to the status and position of any person while investigating a crime or taking preventive measures. Its approach has to be service oriented, its role has to be defined so that in appropriate cases, where on account of acts of omission and commission of police, the Rule of Law becomes a casualty, the guilty Police Officers are brought to book and appropriate action taken without any delay.
In 1774 Warren Hastings introduced, for the first time under the company’s rule, several measures of police reform. These were the first of the reforms culminating in Act V of 1861, which gave the police of Bengal a modern shape and structure the need for a common pattern of police organization and properly trained and disciplined body of men exclusively devoted to the prevention and detection of crime police system on a provisional basis were employed Inspector General as the head of the provincial police administration provinces were divided into districts who were controlled by the Superintendents of Police who heads of the police administration under the control of Magistrates. Further improvements, recommendations of the Police Commission of 1902-03 enhanced their scope. Indian Police Service took time to acquire the designation 1890s and later known as the Imperial branch of the colonial police service – officers of the Imperial service wore shoulder badges of their Provinces: e.g., “P.P.” for Punjab, “B.P” for Bengal.
In the year 1907 the Secretary of State in London directed officers to wear the “I.P.” epaulettes to distinguish from the Deputy Superintendents of Police new rank, which could be stated as the starting point for Indian Police Service after a span of another 10 years they officially came to be known as the Indian Police Service. Referred for the first time based on designation in the year 1917 Islington Commission Report. Further enhanced their powers. 1932 ‘Service’ dropped from designation as demanded by the Indian Police Association and simpler designation “Indian Police” – again officially adopted – till independence. After independence Sardar Vallabhbhai Patel the first Union Home Minister stated that no democratic government effectiveness would be ensured without a proper, well-organized, well-educated, well-disciplined, well-paid and independent civil service to carry out its will and to advice it on how to give its policies concrete and practical shape – saw the importance of organizing the civil services on all-India basis. On October 10, 1949 Constituent Assembly wherein Sardar Patel emphasized the importance of having a ring of services to help the country remain intact under a Federal Constitution – “… the Union will go, you will not have a united India, if you have not a good All India Service, which has the independence to speak out its mind…” And after that the Indian Police Service had born as an All India Service, which can be stated as the successor service to the I.P.
Post Independence the Constitution of India became the fountain-head of power and the sovereign power was distributed amongst the three organs of the govt, it becomes imperative to understand the governing principle i.e.,the doctrine of separation, In Ram Jawaya v state of Punjab case Hon’ble Supreme court observed that ‘‘The limits within which the executive Government can function under the Indian Constitution can be ascertained without much difficulty by reference to the form of the executive which our Constitution has set up. Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State. The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State.
In India, as in England, the executive has to act subject to the control of the legislature; but in what way is this control exercised by the legislature ? Under article 53(1) of our Constitution, the executive power of the Union is vested in the President but under article 75there is to be a Council of Minister with the Prime Minister at the head to aid advise the President in the exercise of his functions. The president has thus been made a formal or constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet. The same provisions obtain in regard to the Government of States; the Governor or the Rajpramukh, as the case may be, occupies the position of the head of the executive in the State but it is virtually the council of Ministers in each State that carries on the executive Government. In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the council of Ministers consisting, as it does, of the members of the legislature is, like the British Cabinet, “a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part.” The Cabinet enjoying, as it does, a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them.’
Thus, Executive undoubtedly is the most powerful and influential organ of the Government.
Res extra commercium (“a thing outside commerce” is a doctrine originating in Roman law, holding that certain things may not be the object of private rights, and are therefore insusceptible to being traded. ) is a doctrine introduced by Chief Justice Das of the Supreme Court of India in the 1957 case, State of Bombay v. R.M.D. Chamarbaugwala, which has the effect of constricting the scope of fundamental rights by rendering as constitutional outcasts certain purportedly “immoral” or “noxious” activities. It does this by blocking these activities from falling within the purview of the protection of fundamental rights. it was the doctrine of “police powers” (the specific conception of the doctrine advanced by Justice Harlan of the U.S. Supreme Court in Mugler v. Kansas), which lies behind Chief Justice Das’s invocation of res extra commercium. Curiously, however, the police power doctrine, now masquerading, as the doctrine of res extra commercium has come to be well ensconced in the constitution law of India virtually unchallenged for over four decades now though it is incongruous with the scheme of the Indian Constitution.
Police power does not specifically refer to the right of state and local government to create police forces, although thepolice power does include that right. Police power is also used as the basis for enacting a variety of substantive laws insuch areas zoning, land use, fireand buildingcode, gambling, discrimination, parking, crime, licensing ofprofessionals, liquor, motor vehicles, bicycles, nuisances, schooling, and sanitation.Thus granting the Police ultimate authority and powers to lurge into every aspect of the life of the citizenary.
Obvious powers and tremendous avenues for ill-gotten money made law and order jobs hotly sought after posts. Politicians and people in power are the bestowers of these jobs on favourite few. Result is the desperate concours of police officials of all ranks to aggrace politicians and people in power to corner right spots. And The situation leads to law and order functions losing the edge of fairness and objectivity in efforts to keep right people in right side. This is how law and order police become law for themsleves or for their political masters against the raison d’etre of a law and order machinery. The situation breeds corruption and encourages partisan policing. Law and order duties being closely interlinked with the everyday life of the people, police on the duties come in contact with them everyday and present the image of the entire police force. The image, corruption, inefficiency, meekness before the mighty, insensitivity, arrogance and immanity to the hoi polloi, these are the cornerstones of the epinosic image, the law and order police spawned for the benefit of the Indian police.
People were forced to pursue illegal and unwholesome means in their dealings with the State and the police for survival. Laws as means of the state power became loathsome objects for the commonman.
But as goes the famous quote of Willink The Police have by long tradition a duty to befriend anyone who needs help, and they may at any time be called upon to cope with major or minor emergencies.
According to a study by the Bureau of Police Research & Development, Government of India, 90% of the Police Staff currently work for more than 8 hours a day. 68% of Officers report that their staff works for more than 11 hours a day and 28% report that the staff works for more than 14 hours a day. Nearly half of them report that they are called 8-10 times a month during their off period. To move to a shift system, 68% addition to the current sanctioned strength is needed. India’s current Police to Population ratio is 145 personnel per one lakh population, much below the UN prescribed ratio of 222 personnel per one lakh population.
Study also suggested that invariably most of the functionaries, especially constable, head constable, SubInspectors and SHOs at the police stations, opined that they are asked to put in consistently 16 to 18 hours of duty on a continuous basis. They also reiterated that fatigue caused by long hours of duty is reflected in their general behaviour towards public, thus affecting their public relations. Majority of the functionaries at the police stations have pointed out that they are being denied the weekly off as well. This may, perhaps, be due to shortage of manpower with reference to situations they have to deal with every day there is no provision of reliever, which is a normal practice in any shift operation. Poor physical facilities in all most all the police stations are one of the major areas of concern, which is also resulting in a variety of perpetual behavioural consequences of police personnel.Even in those police stations, which are housed in pucca buildings,as some have to manage in tents as well, the facilities such as toilets and drinking water are of sub-standard. In many places, many of the functionaries at the lower level do not have any office facilities. Even the furniture is inadequate and the stationery items were not provided to the police stations.
While some of the police stations have got housing facilities, these are not available to most of the police personnel. Inadequate housing facilities coupled with low compensation and insufficient House Rent Allowance forces them to hire houses at far away places, which create a serious commutation problem. During the Workshop, especially with the Constables and Head Constables, it was pointed out that the Department also takes advantage of such a situation by continuously putting them on longer hours of duty. This affects their normal family life to a great extent and results in behavioural consequences. 6.4 Inadequate Growth Opportunities Majority of the police personnel joining at the Constable level either retire as Constable or Head Constable. Very few reach the level of Sub-inspector or Inspector, this has got serious repercussions on motivation level of police personnel and works as a hindrance factor in discharge of their normal duties.
It is a fact that most of the police personnel are expected to perform a variety of duties pertaining to maintenance of law and order in different situations. Of late, deployment of police personnel on VIP security and bandobust duties especially in Cities result in too frequent changes in the nature of duties which not only brings the constraint on them but also affect their normal discharge of duties at the police stations.
TRAINING- RELATED CONCERNS
Mismatch between Training and Job Responsibility During our interactions, time and again as well as our perception the present training approach is more militaristic in nature having less compatibility with the job responsibilities of the police personnel, particularly in the context of civic society. Also, it was pointed out that the present training especially in certain areas is far short and is unable to keep pace with the type and nature of modern crime taking place in the society. The existing curricula have not been able to effectively address these prime issues. For example, the use of the latest weapons in crime, computer related crime, financial crime and other white collared crimes are not adequately covered in the existing induction training.
The National Police Commission (NPC) was appointed by the Government of India in 1977 with wide terms of reference covering the police organisation, its role, functions, accountability, relations with the public, political interference in its work, misuse of powers, evaluation of its performance etc. This was the first Commission appointed at the national level after Independence. The Commission produced eight reports between 1979 and 1981, suggesting wide ranging reforms in the existing police set-up.
- In 1995, Prakash Singh, former DGP of Uttar Pradesh filed a PIL regarding police reforms in India.
- This led to the government constituting a new committee under the chairmanship of Julio Ribeiro, and the Julio Ribeiro Committeewas formed in 1998.
- This was followed by further committees like Padmanabhaiah, Malimath committee, Soli Sorabjee committee.
- In 2006, since there were no movements in the direction of reforms, the Supreme Court made the police reforms a mandatory reformto be taken up by the central and state governments .
The Court put on record the deep rooted problems of politicization, lack of accountability mechanisms and systemic weaknesses that have resulted in poor all round performance and fomented present public dissatisfaction with policing. The directives can be broadly divided into two categories: those seeking to achieve functional responsibility for the police and those seeking to enhance police accountability. The order states;
“…the following directions to the Central Government, State Governments and Union Territories for compliance till framing of the appropriate legislations : State Security Commission (1) 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, which are as under:
NHRC Ribeiro Committee Sorabjee Committee
- Chief Minister/HM as Chairman.
- Minister i/c Police as Chairman
- Minister i/c Police (ex- officio Chairperson.
- Lok Ayukta or, in his absence, a retired Judge of High Court to be nominated by Chief Justice or a Member of State Human Rights Commission.
- Leader of Opposition.
- Leader of Opposition.
- A sitting or retired Judge nominated by Chief Justice of High Court.
- Judge, sitting or retired, nominated by Chief Justice of High Court.
- Chief Secretary
- Chief Secretary
- Chief Secretary
- DGP (ex-officio Secretary)
- Leader of Opposition in Lower House.
- Three non-political citizens of proven merit and integrity.
- Five independent Members.
- DGP as ex-officio Secretary.
- DG Police as Secretary.
The recommendations of this Commission shall be binding on the State Government.
The functions of the State 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. Selection and Minimum Tenure of DGP:
(2) 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 he is otherwise incapacitated from discharging his duties.
Minimum Tenure of I.G. of Police & other officers: (3) 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 in 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.
Separation of Investigation:
(4) 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. Police Establishment Board:
(5) There shall be a Police Establishment Board in each State which shall decide all transfers, postings, promotions and other service related matters of officers of and below the rank of Deputy Superintendent of Police. The Establishment Board shall be a departmental body comprising the Director General of Police and four other senior officers of the Department. The State Government 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.
Police Complaints Authority:
(6) There shall be a Police Complaints Authority at the district level to look into complaints against police officers of and up to the rank of Deputy Superintendent of Police. Similarly, there should be another Police Complaints Authority at the State level to look into complaints against officers of the rank of Superintendent of Police and above. 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 concerned authority. National Security Commission:
(7) 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 them and that the forces are generally utilized for the purposes they were raised and make recommendations in that behalf. The National Security Commission could be headed by the Union Home Minister and comprise heads of the CPOs and a couple of security experts as members with the Union Home Secretary as its Secretary.”
As per Seventh Schedule, ‘Police’ and ‘Public Order’ are State subjects under the Constitution, and as such the primary responsibility of prevention, detection, registration, investigation and prosecution of crimes, including the reforms lies with the State Governments and Union Territory Administrations. But Supreme court in its directives have already addressed that issue ,which can form the baseline or the necessary skeletal but as David H. Bayley points out in “Democratizing the Police Abroad: What to Do and How to Do it” there are four general principles that ought to be used to establish a democratic police force. These four principals are (quote):
- Police must give top operational priority to servicing the needs of individual citizens and private groups
- Police must be accountable to the law rather than to the government
- Police must protect human rights, especially those that are required for the sort of unfettered political activity that is the hallmark of democracy
- Police should be transparent in their activities. This has been a problem that institutional design alone cannot deal with effectively. The Police system reflects the criminal justice system in any country and so it is essential that this agency of the State can deliver to the best of its potential, so that it can fulfill the purpose of its formation. In conclusion, we contend that it is a right time for the policy makers to take any strong step for Police reforms in India.
For understanding the urgency of bringing forth the necessary reforms in Police and Policing it is imperative to understand the purposes of Policing and the relationship between Policing and Government .As Cohen and Feldberg put it :”Police work is a form of Public Science…in a modern society, providing police service is a fundamental duty of Government…the moral basis of Police work can be found in the moral basis of Government itself.”
If we analyse there are four broader dimensions of the relationship which are essential part of any consideration of the formal mission of Policing.
- POLICING AND THE SOCIAL CONTRACT:
Many authors have seen the morality of policing springing from the lockean concept of the social contract. Locke contrasted the state of nature with that of state of civil society. In the former ,whilst man was free from the constraints of Government, he was also at the mercy of others and beset by such inconveniences as would prompt any rational being to choose the latter. In the civil society ,a legislature, a judiciary and an executive supplement the law of nature. The individual consents to these three as long as they protect life, liberty and property. The executive in particular must only restrict the individual’s liberty as far as is absolutely necessary to secure those rights for all. The three key, inter related concepts that remain highly relevant are those of contract, consent and balance, particularly the balance between state power and freedom. Good policing, in this dimension ,is carefully controlled and respectful of rights.
- POLICING AND THE OPEN SOCIETY:
Locke’s ideas have been crucial in liberal ideas and government. So are the ideas of Karl Poppers in underlining social democratic thinking. Popper advocated an “open society” which is pluralistic and within which incompatible views are expressed and conflicting aims pursued, in which everyone is free to propose solutions to problems and governments are open to criticism and to change in the light of criticism. From popper one can draw three significant principles: beneficial intervention; problem solving, with an implied reliance on evidence based methods; and tolerance. Good policing involves using evidence to intervene and solve problems, but doing so in a way that is tolerant and unintrusive.
- POLICING AND SOCIAL CONTROL:
As Reiner puts it ,which provides a limited view of policing, as ‘an aspect of social control processes involving surveillance and sanctions intended to ensure the security of the social order’. Role of Policing is, therefore, an essentially conservative one. This view emphasizes the fact that the policing is not the exclusive province of the police, but a much broader concept embracing individual, collective, private and state policing. Good Policing is therefore, minimal policing-minimally intrusive and carefully controlled in its use of force. Policing has clear moral overtones embedded in the idea of good policing meaning balanced and diverse policing.
- POLICING, DEMOCRACY AND THE CITIZEN:
The dimension which is critical for defining policing is the relationship between police and citizen. This relationship is the cornerstone of democracy. In the totalitarian states of former Soviet eastern bloc, the prime purpose of the police was to protect the government from the population. In modern democracy the police are both the symbolic of the state’s authority and responsible for protecting individual and collective freedoms and the principles of equity; appropriate service delivery; responsiveness; distributed power; openness of information; redress; participation are the guiding forces.
These four dimensions are rather like the faces of a prism. Each provides a view and the importance of the relationship of policing and the state to ensure that the rights and freedoms of citizens guaranteed by the constitution are upheld.
Would like to conclude with the words of Prakash Singh IPS (Retd.), Person who is fighting for the cause, The state and central police forces are bearing the brunt of insurgents’ onslaught. It is essential therefore that the police have the resources, the capability and the motivation to deal with these challenges. Unfortunately, however, the state police are in shambles. They are saddled with a colonial structure and are completely under the thumb of the executive. The political directions have to be carried out, right or wrong, lawful or unlawful. Transfers have become an industry. Discipline has taken a nose-dive. Morale has touched the nadir. The institution has degenerated into an instrument at the disposal of the political masters to further their agenda. As David Bayley said, “The rule of law in modern India, the frame upon which justice hangs, has been undermined by the rule of politics”.