//FORCING A CHANGE

FORCING A CHANGE

The suggestions of the new committee on police reform will remain a dead letter unless the states implement them, writes Tarunabh Khaitan

Policing in India is still organized largely on the basis of a 145-year old colonial legislation. The Police Act was passed in 1861, with the memory of the revolt of 1857 still fresh in British minds. The most defining feature of this legislation is the absolute control of the political authority it establishes over the police. Section 3 of the act declares that superintendence of the police throughout a general police-district shall vest in and be exercised by the state government. The executive magistrate is vested with the power to provide general control and direction to the local police. This was but expected, given the political need to use the police force for the maintenance of the raj. In particular, this ensured that the police response to the rising national movement for independence was dictated by political objectives, and not merely by the need to maintain law and order.

Almost everything — from the goals of policing to the nature of the state — has changed in the intervening century-and-a-half. Democracy demands fidelity of the police to the law and the civil liberties enshrined in the Constitution, not to the whims of politicians. Reorganizing the colonial police structure to make it responsive to the needs of a democratic country should have been one of the first tasks of the Constitution-makers and any government of independent India. That did not happen. It was probably because of their misplaced optimism about the political leadership of independent India, that the Constitution-makers imported the entire administrative and police bureaucracy of the raj into democratic India, lock, stock and barrel. Not only that, they also put policing as a subject exclusively in the domain of the state government, with the Centre having no say whatsoever in its operation. This disempowerment of the Central government would later become an excuse for inaction.

To be fair, many state governments, including Kerala, West Bengal, Punjab, Assam, Uttar Pradesh, Maharashtra and Tamil Nadu, did set up police commissions to review the functioning of the police. Most of these were set up in the first two decades after independence, though none of them came up with far-reaching suggestions for structural reforms. Even the recommendations hardly got implemented. The first serious attempt to make structural changes was made by the National Police Commission, set up by the Janata government after the Emergency. This commission did make recommendations which could have gone a long way to transform the face of Indian police. However, before they could be implemented, Indira Gandhi was back in power and used the excuse of the Centre having no power to legislate on matters relating to policing to kill the initiative.

It took another quarter of a century for the government to wake up to the need for reforms which were long overdue. The United Progressive Alliance government set up yet another committee — which includes the former attorney-general, Soli Sorabjee, members of the academia and representatives of the police organization — in September 2005 to draft a new legislation. The committee has been granted a time frame of six months to come up with a draft act.

While this initiative is welcome, it will face the same constitutional hurdle that the first commission had to grapple with. The parliament has no power to pass a new police act, unless of course it amends the Constitution itself. In all probability, the committee will come up with a model police act and urge the state legislative assemblies to adopt it individually. How many states’ political leadership will be willing to give up the enormous powers it enjoys because of its nexus with the police administration is anybody’s guess.

Assuming there is political will, what shape should a reformed police organization take? The prime minister, Manmohan Singh, has said time and again that security of tenure for senior police officers is a sine qua non for professional independence of the police organization. But more needs to be done to make the organization free of political control and management. The appointment process of senior police officers, including the director general, commissioners and superintendents of police, needs to be made bipartisan. The leader of opposition in the state legislative assembly must have a consultative role in these appointments to make the process impartial. Any removal, suspension or other punitive action against a police officer should be taken only on specific grounds mentioned in the legislation itself, and must be subject to scrutiny by a quasi-judicial body. All transfers and promotions of senior officers must be made with their consent. These and other similar measures may go a long way to ensure that the symbiotic relationship between the police and the politician is divorced.

While organizational independence is necessary for a professional police force, policing in any democracy must also be responsible. This is possible by strengthening the rights of suspects and complainants who have to deal with the police, and making policing more transparent. Accredited human rights NGOs could be given the right to visit and interview detainees in any police station. A state and national level police complaints authority is long overdue. Its membership may include members of the state and national human rights commissions, representatives of human rights NGOs, journalists, lawyers and police officers. Police officers have to be made individually responsible for every illegal arrest, detention, use of torture, illegal deaths and failure to discharge his or her duty. Criminal prosecution must be the norm, not an aberration. Presently, the consent of the state government is required to prosecute a police officer. This must be done away with.

The role played by the Gujarat police during the pogrom of 2002 also brings to attention the social relations of the police force. Special emphasis must be given to adequate representation of vulnerable sections like the religious minorities, Dalits, tribals and women to ensure diversity in the police force. This should be a general policy instead of recruiting these officers for special cells alone. For example, women police officers should be allowed to deal with all cases and not just cases involving women. The details of caste, community and gender-wise break-up of the police force, along with the positions held by them in the police hierarchy, should be made public. An express provision should prohibit the police force generally, and individual officers specifically, from discriminating on any of the grounds mentioned in Article 15 of the Constitution. Complaints of such discrimination may be made to the police complaints authority, which may award compensation or make other remedial orders.

The citizens of India have waited too long for a humane police force which respects rather than violates rights. It is likely that the report of the committee set up by the Central home ministry will become another document of good intentions, unless some states take up leadership roles on the issue. Will ‘progressive’ Bengal show the way?

http://www.telegraphindia.com/1060214/asp/opinion/story_5805122.asp