Open Forum
Part-II
New Delhi, 13 May 2008
Police Reforms In India
PLEASE REVIEW JUDGMENT
By Ashok Kapur, IAS
(Retd)
Equally of interest was the plea by the two retired police
officers to the Supreme Court that it should direct the establishment of Central
and State security commissions to be headed by the respective Home Ministers. In
their day-to-day functioning, these commissions were to be directly under the
control of the Director General of Police. Neither the Union
nor the State Cabinet would have authority to exercise any control, or ensure
accountability. But the Government would continue to be accountable to the
respective legislatures for their functioning. The security commission would
meet once a month, mainly at the pleasure of the chief of police. What is more,
the police chief would be accountable to no one in particular under the
commission’s mode of functioning.
The Police Commission suggested that ‘policy matters”
pertaining to law and order would be decided by the security commission, comprising,
inter alia, citizens of “eminence”. The elected cabinet would not have any role
even in an emergency. The policy directions issued by the state cabinet would
have to be “ratified” by the security commission! In other words, the
prerogative of the elected cabinet, accountable to the legislature, even to
frame policy would stand transferred to the security commission, a parallel
cabinet, unelected and unaccountable.
The chief of police would enjoy a fixed tenure. He would not
be transferable, even if the State Government were to change during this
tenure. Or, even on grounds of incompetence or under-performance.
In a democracy, elected ministers head departments, not
directorates. But the security commission would be a virtually independent directorate.
The Police Commission did suggest that complaints against the police would be
investigated by the judiciary. A serving member of the district judiciary would
investigate the most serious offences by the police, “assisted” by the police
themselves! However, two of the most heinous crimes in the nation’s penal code,
death and rape in police custody, were described by the Commission as
“misbehaviour” or “misconduct”. Investigation would commence only after the
victim, or his kin would first run around to file an “affidavit”. The
incriminating evidence would be kept in the “safe custody” of police
themselves!
The self-serving suggestion was risible. First, the accused
would, in effect, double up both as the investigator and as the judge and jury.
Secondly, dragging the neutral judiciary with a very fair reputation in the
functioning of the executive would have been a violation of the principle of
‘separation of powers’. A basic feature of the Constitution.
The most glaring lapse on the part of the Police Commission
was to erase altogether the control of civil magistracy and make no provision
whatsoever for any accountability on the part of the force. On this crucial
issue, the Commission made no concrete suggestion save a vague abstraction that
the police would be accountable to the people a meaningless statement in
context.
The recent Constitution Review Commission (2002), headed by
the distinguished former Chief Justice of India, Shri M.N. Venkatchaliah, has
reminded the government, pertinently, that a basic ingredient of
constitutionalism and the rule of law is “control of the police”. Yet, the
Police Commission wanted the civil magistracy’s control over the police
abolished.
That is not all. The Police Commission’s report was
self-contradictory. Shockingly enough, it had suggested that every day common
civil lapses like “pushing”, “shouting” or “pressing” by a citizen would be
treated as cognizable offences – i.e., police would arrest without warrant!
This, despite the fact that the Commission had itself noted that the Indian
jails were “terribly overcrowded”.
Incidentally, the actual reason for massive overcrowding in
jails was discovered recently by the Constitution Review Commission. Eighty per
cent of the arrests made by the police all over India were found to be
“unnecessary”.
Under the Constitution, the Governor is the head of the
executive government in the states. All executive action is taken in his name
and under his authority. If say, a delinquent police officer were to be
punished under his authority, it was suggested that a single appeal would lie
to the ‘security commission’. This suggestion was tantamount to saying that if
an accused were to be convicted, say by the Supreme Court; a single appeal
would lie to the district judge!
Under the law of the land, a citizen is not culpable for
constructive criminal liability, only for constructive civil liability – a
universal norm and basic to the rule of law. The Police Commission sought to
turn this norm on its head. It suggested that licensees of all places of public
entertainment would be criminally liable for the civil misdemeanours of their
employees and agents!
The nation’s Criminal Code provides that all licensing
functions, being executive in nature, would continue to be exercised by civil
magistrates even after the separation of the Executive from the Judiciary. The
provision was retained in the Code on the recommendation of the Law Commission,
headed by a Supreme Court judge. The Police Commission instead suggested that
most of the licensing functions be transferred to the police! Besides, it
wanted the force to double up as moral police. All cultural functions were to
be subject to clearance by the chief of the police!
In sum, a defunct report, which was self-contradictory,
virtually re-wrote the nation’s Criminal Code, unconstitutional in many
respects, can hardly from the basis of reforms. Implementation of such a report
can only deform the democratic structure. The recent judgment of the Honourable
Supreme Court in context (Prakash Singh v/s Union of India) needs to be
reviewed urgently. --- INFA
(Copyright,
India News and Feature Alliance)
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