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Police Reforms In India:PLEASE REVIEW JUDGMENT, by Ashok Kapur, IAS (Retd), 13 May 2008 Print E-mail

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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