Open Forum

Part – I

New Delhi, 12 May 2008

Police Reforms In India

A CURE WORSE THAN THE DISEASE

By Ashok Kapur, IAS (Retd)

A recent judgment by the Honourable Supreme Court on the burning issue of police reforms needs to be reviewed urgently. Otherwise, its ramifications may seriously impact democracy and the rule of law in India.

On the urgent need for police reforms, there can hardly be two opinions. To be fair to the judiciary and to the Government, the lack of reforms is not for want of trying. All attempts have ended up in smoke. The reason is not far to seek. Police, which are a major part of the problem, are sought to be made part of the solution.

Two retired police officers recently petitioned the Supreme Court through a PIL seeking in the main the implementation of the report of the first (defunct) National Police Commission, 1981. The report was examined in detail, by the Centre and States a quarter century ago. It was deservedly rejected in the light of collective wisdom borne out of experience of the Union Government in consultation with the State Governments.

To recall briefly, the report was a veritable blueprint for a police State. The Commission comprised, nominally, a civilian, a judge, an academic and equal number of policemen. It was serviced exclusively by the police themselves.

The rejection was unanimous. The fine print had camouflaged many suggestions violative of the universal norms of rule of law. Most disconcertingly, the report was downright unconstitutional. Let alone the Executive, even Parliament would not have countenanced a report violative of the basic structure of the Constitution. Ironically, the ‘basic structure’ doctrine was outlined almost a decade earlier by the Supreme Court itself in the celebrated case of Keshavananda Bharti. Shockingly, the senior police members of the Commission, showed complete innocence of the basic norms of Constitutional functioning and the rule of law.

The police officers who approached the Supreme Court were economical with relevant facts. The first condition laid down by the Court itself is that a petitioner must approach it with clean hands. This was not done. The petitioner’s first contention was that the Police Act of 1861 was “outdated”, enacted by the British in the context of the Revolt of 1857. The Act had placed the police under civil magistracy without defining its role. Though buttressed by an affidavit, no less, the plea was false.

The Police Act was a logical follow-up of the report of the Torture Commission of 1855, set up at the instance of the British Parliament. Reports had reached London that the Indian police force in India, headed by the dreaded “Daroga” was habitually inflicting unspeakable atrocities on hapless citizens. The populace was largely without redress. The police force was not supervised by any external authority, and was accountable to no one.

The Torture Commission sought to bring the police under the control of the civil magistracy for the first time in India. Importantly, the Police Act, 1861 was not a ‘stand-alone’ legislation. It was a brief adjunct to the Criminal Procedure Code, enacted a year earlier again -- for the first time. The Code, contrary to popular impression, is not merely procedural. It is substantive law too, and laid the foundations of a civil democracy and the rule of law. The Code, was re-enacted and adopted by India’s Parliament after the Constitution came into force and is now the law of the land.

No specific reason was advanced by the petitioners how the Police Act was “outdated”. Or, how it was at variance with the Criminal Procedure Code, arguably the finest criminal code anywhere in the world. The petitioners conveniently bypassed the Criminal Code, whereby the police derive their formal investigative powers only under the overall control of the magistracy. This is all the more disconcerting, considering that the main function of the police under the Constitution is the prosecution of offences under the Criminal Code.

Somewhat self-righteously, the Police Commission had heaped blame on all the other agencies involved in the criminal justice delivery system, inspite of the admittedly serious malfunctioning of the force described as “cancerously corrupt” and “brutal”. Thus, the Commission criticized the judiciary for dilatory tactics--it “decides nothing”, the legal community for constant adjournment-mongering, the ‘bureaucrats’, so-called, for not letting the police function properly and the political executive for “interfering”.

Had the two petitioners turned the searchlight inwards, in the memorable words of Mahatma Gandhi, they would have discovered that police officers themselves quietly sabotaged the report when it was found to be ‘inconvenient’ to them. The sole worthwhile suggestion by the Commission was to bar senior police officers from seeking post-retirement appointments. The Commission had noted that officers nearing retirement “hobnobbed”  with ruling politicians in the expectation of rewards later. The sentiment was strong and the Commission suggested a legal ban on the posting of the police officers to any public office after retirement.

The ostensible purpose of the PIL was to minimize “political interference” in the functioning of the police. But the irony of what has come to pass is too stark to ignore. More and more retired police officers are being appointed under the Government since the submission of the report. Today, retired police officers are increasingly occupying even Constitutional posts, an unhealthy development in any democracy.

Recently, our police force has been found to be the most corrupt public agency in India, by Transparency International. Incredibly enough, cent per cent of the several thousand respondents testified so. Would the petitioners have the Honourable Court believe that this is so because of “political interference”!

The petitioners’ next target was “bureaucrats” implying civil servants. This betrays a complete innocence of the basic norms of administrative law. Bureaucracy is an attribute not of any cadre or service but of size. The police are as much a part of the overall bureaucracy of the State, a fact acknowledged by the Police Commission itself!

It is common knowledge that the most meritorious candidates in the combined all-India examination join the civil service. The less meritorious, or those who fail, join the police service. The petitioners should have known this fact from their own example. The so-called ‘bureaucrats’ are trained and experienced civil magistrates. Even after the separation of the Judiciary from the Executive, the executive magistrates exercise authority under more than a dozen chapters of the Criminal Code.

Curiously, the petitioners failed to point out that the Commission’s report was unconstitutional in many respects. It had suggested posting and promotion of senior police officers, permanently assigned to the State Governments, by official committees comprising a majority of Union Government representatives. Under the Constitution, the ‘police’ are in the State List. This was a violation of the federal principle, a basic feature of the Constitution. ----INFA

 -------To be continued tomorrow

(Copyright, India News and Feature Alliance)