While the draft of a new Police Act is in the pipeline, this article emphasises the need to strengthen the role of the police in upholding the rule of law and to make them the protectors of the weaker sections of society. It argues that there is a need to evolve a broad political and civil society consensus on the complex and vital issues involved in the policing of the country. Without adequate public debates on these issues, it is futile to draft a new law.
[ Some excerpts from his article in EPW online]
In this land in which even the transfer of power from British hands had to be effected at midnight on the advice of the astrologers, it has not yet been possible to find an auspicious time to replace the Police Act, 1861.
We all know that things move slowly in this country but it is shocking that, nearly 60 years after independence, something as basic as the functioning of the police has continued to be governed by this colonial act which is 145-year old.
New Police Act
The decision of the central government, dated September 20, 2005, setting up a committee to draft a new Police Act has to be seen against this background. Prima facie, taking up the drafting of the new Police Act would appear to be a big step forward but a closer examination will dispel the jubilation. The committee set up by the central government has some unique features and raises a number of issues. First, the committee has a convenor, a secretary and several members but no chairman! Perhaps the warring factions in the United Progressive Alliance (UPA) government could not agree on a name for the purpose. Second, the committee’s membership comprises three jurists, a retired IAS officer, who is a member of Sonia Gandhi’s Advisory Committee and six Indian Police Service officers (one retired and five serving). There are no representatives of civil society. As if the society at large has no stakes in the outcome of the committee’s deliberations. Third, the preamble of the order setting up the committee states, “Whereas the Government of India is of the opinion that it is necessary to replace the Police Act of 1861 in view of the changing role of the police due to various socio-economic and political changes which have taken place in the country and the challenges posed by modern-day global terrorism, extremism, rapid urbanisation as well as fast evolving aspirations of a modern democratic society…”. It is important to note what is missing in the preamble. There is no reference to the sharp deterioration in the functioning of the police and their public image and credibility, need to uphold the rule of law and giving functional autonomy to the police for the purpose, and to ensure that political interference in the working of the police is minimised to the utmost extent. Thus the issues which are most critical to the functioning of the police, their accountability and capability to perform have not even found a mention in the order setting up the committee. Fourth, though public order and police are subjects in the State List in the Constitution of India, there is nothing to indicate that the states had been consulted before setting up the committee. Neither are there any representatives of the state governments on the committee. When the centre had appointed a committee on right to information under the chairmanship of H D Shourie, the first question which had come up before the committee was whether the subject of right to information came under the purview of the centre. Soli Sorabjee, who was then the attorney general and a member of the committee, had given the opinion that the subject came in the legislative competence of the central government by virtue of the residuary powers vested in the centre and therefore, it was only the centre which was competent to legislate on the subject. This opinion is debatable and some, including this author, had argued that this needed to be challenged in a court of law. That apart, it was only after the committee was told that the subject matter was within the purview of the centre that it decided to proceed further with its deliberations. In the present case, police is a state subject and still the committee has been set up by the centre without consultation or involvement of the states. This will make the subject of police reforms a partisan issue.
The question of police reforms is much more contentious with large vested political interests. The centre should have therefore treaded more cautiously. Perhaps, the effort of the UPA government was merely to take credit for setting up the committee in question. It is being argued that the centre will proceed ahead with the new Police Act for the union territories and that will act as a guidepost for the states. If this is true, the centre must be living in a fool’s paradise. Fifth, appointing a committee to draft a Police Act at this stage is like putting a cart before the horse. One must be clear first about what the new law is going to contain, what its approach is going to be, before undertaking the drafting of its provisions. With the influx of time and rapid deterioration in the political situation, several recommendations of NPC require a fresh look. But there is hardly any consensus, leave aside unanimity among political parties and civil society, on several major issues. In this light, it would have been much better if the committee had been asked to prepare an approach paper on the subject and to put it out for public debate and discussion, apart from the government discussing it in the interstate council and/or chief ministers conference. Thereafter, the drafting of the provisions of the proposed bill could have been left to the draftsman of the law ministry. The approach adopted by the centre creates doubt whether it is really serious about police reforms. Sixth, while police and public order should continue to be the state subjects, ideally, the new Police Act should be a central act applicable to the whole country. It will be counter-productive if each state has its own Police Act. It is significant to note in this context that efforts made by some states such as Punjab, Rajasthan, Madhya Pradesh and Andhra Pradesh to enact a new Police Act have not been successful.
As a Matter in the State List
Let us now turn to the provisions of the Constitution under which it is possible for Parliament to pass a law on a subject in the State List. Article 249 relates to the powers of Parliament to legislate with respect to a matter in the State List in the national interest. For this purpose, the Council of States has to declare by a resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest that Parliament should make laws with respect to any matter enumerated in the State List specified in the resolution. But, such a resolution can remain in force for such period not exceeding one year as may be specified therein. Such a law can be continued for a period of one year at a time by a specific resolution to that effect. Clearly, this provision will not be of any use in enacting a Police Act as with the shifting political alignments and fortunes, and the one-up-manship of successive coalition governments at the centre, the future of the act will be in doubt. The other provision which can be invoked is that of Article 252 under which two or more state legislatures have to pass a resolution asking Parliament to regulate the matters with respect to any subject on wh
ich Parliament has no powers to make laws for the states. As can be seen, by this process, to begin with, Parliament could enact the Police Act for a few states which pass such a resolution and thereafter it could be extended to other states as and when their legislatures make similar requests. This article was invoked by Indira Gandhi government during Emergency to pass a central law on urban land ceiling but neither the Congress nor any other political parties have thought it imperative to enact a Police Act thereunder, though over the last 30 years, almost all political parties have been in power at the centre at one time or the other. This speaks volumes about the political will on the subject and what a minefield it is to resolve the contentious issues in this field. The objective of enacting a central Police Act for the country will not be achieved by unilateral, short-sighted and over-bearing actions on the part of the centre or making it a partisan issue. It is only by establishing a serious political dialogue with the states and creating a strong pressure of public opinion in favour of police reforms that any progress can be made in the matter.
The most critical issue in police reforms is that of granting functional autonomy to the police. However, no political party is prepared to even look at the issue, leave aside understanding its pros and cons. Upholding the rule of law and rigorous implementation of laws must be squarely recognised as the responsibility of the police and they must be made answerable to the courts of law and other statutory and constitutional authorities for the purpose. Any dereliction of duty in this regard must lead to severe punishment.
Ways need to be found to reconcile the demand for grant of functional autonomy with the answerability of the government to legislatures and Parliament. It has to be accepted that the latter has been carried too far in India with the government effectively deciding, in certain cases formally and several others informally, which cases are to be investigated, in how much depth, whether prosecution should be sanctioned, whether appeals be filed, whether cases are to be withdrawn from courts and so on. This has meant negation of the rule of law.
Autonomy without accountability would be a recipe for high-handedness, and perpetuation of the regime of atrocities by the police. The police is a uniformed service and its discipline and chain of command must not be permitted to be compromised in any way. It is equally important that enquiries into actions by the police must be made in a transparent manner and by persons who have held high judicial positions.
Functional autonomy for the police can be a reality only if political interference in their work can be done away with
Police and Civil Society
The interface of the police with the civil society needs to be institutionalised. At present, there is no forum at the district or state level for the purpose. It is suggested that Police Advisory Committees be established for the purpose.
The new Police Act will have to provide for an independent annual evaluation of the work of the police at the tehsil/taluka, district and state level. Such an evaluation must be made on a scientific basis through qualified consultants, social scientists and experts. Among others, representatives of NGOs working for the welfare of the weaker sections of society and minorities should be actively associated with the evaluation.
The new Police Act will have to address the question of rampant corruption in police. Rigorous provisions for the purpose will need to be incorporated in the act. These could include confiscation of ‘benami’ property, giving wide publicity to the annual movable and immovable property returns filed by officers, making it mandatory for officers to record reasons wherever discretionary actions are taken and so on. As a part of this effort, the serious problem of nexus between the police, politicians and the underworld, which has been pushed under the carpet all these years, will have to be addressed in the new legislation.
A separate section needs to be incorporated in the act to deal with custodial crimes. Such crime against defenceless persons, who have been held in custody, cannot be justified on any grounds whatsoever. Among other provisions, the Police Act should provide for making an open magisterial enquiry in each case of custodial crime, making the enquiry report public, casting the burden of proof on the person holding custody of the victim to prove that he is not responsible for the crime, and finally making the person in charge of the custody of the victim personally responsible to pay compensation, in full or part, from his own pocket.
Communalisation of police has become an overwhelming problem. Sensitisation of police to human rights, injustices suffered by weaker sections and minorities and, the fundamental rights such as secularism, rule of law and equal protection of law guaranteed by the Constitution require special emphasis in training and moulding the police.
To sum up, the new Police Act must be looked at holistically to strengthen the role of the police in upholding the rule of law, and to make police the protectors of the downtrodden and weaker sections of society. There is need to evolve a broad political and civil society consensus on the complex and vital issues involved in the policing of the country. Without adequate public debate and discussion of these issues, it is futile to draft a new Police Act. It is important to bear in mind that in the ultimate analysis it will be only through the relentless pressure of public opinion that political parties can be made to see reason beyond their narrow and vested political interests.