Open Forum

New Delhi, 7 June 2007

Sorabjee’s Model Act

BLUEPRINT FOR A POLICE STATE

By Ashok Kapur, IAS (Retd)

 Arguably, the most fiercely burning issue facing the nation today is the crucial question of police reforms. Hardly a day passes when the national media does not report the unceasing sins of omission and commission committed by a force that is supposed to be the guardian of law.  In a perverse way, the police has become a page one fixture.

Of late, a new and disturbing feature of the daily atrocities habitually committed by the force has emerged. Earlier, most of the crimes that are a regular feature of the functioning of the police were reportedly ascribed to the “ranks”, i.e. the subordinate levels of police Inspectors and other NGOs.  The “senior officers”, meaning I.P.S. officers were mostly reproved for “lack of supervision or leadership”, or, even more simplistically, if not indulgently for ineffective “control”.

With the recent arrest of three senior I.P.S. officers of Gujarat police, for the cold-blooded murder of a hapless citizen, maybe even his innocent wife, the lid has been finally blown off. The entire police is now being described as a lawless force. If senior officers have turned so brazen, it would be a fatuous alibi merely to blame the “ranks”. It reveals a total lack of police accountability, which, in a manner of speaking, distinguishes a civil democracy from a police state.

The malady has become so intractable as to defy solution.  True, the absence of any reform is not for want of trying. Both the Government of India and the Supreme Court are concerned over the same. Numerous commissions and committees have been set up. However, there is no respite for the common citizen.

The main reason for the continuing helplessness of the Government is that these committees comprise mostly the police themselves. And, what is worse, they are serviced exclusively by the members of the force, although with a civilian gloss. A lawless force, which is a major part of the problem, is thus sought to be made a part of the solution. An elaborate exercise in futility, if not deception, even to begin with.

The latest Committee on the subject was headed by Soli Sorabjee, former Attorney General of India. As before, this Committee too was serviced exclusively by the members of the police force. It was mandated to suggest a model Police Act. For, it is being widely propagated, without any rationale though, that the current Police Act of 1861, is somehow “outdated”.

Shockingly, the Committee has failed miserably in the task allotted to it. It has not given any reason why the existing Police Act is considered “outdated”. There is no mention of any existing provision which stands in the way of efficient police functioning. Inexplicably, the Committee has failed to take note of the fact that the Police Act (of 1861) is merely an adjunct to the Criminal Procedure Code, 1860, enacted a year before the Police Act.

For almost a century and a half, the Cr. P.C., as also the Police Act have stood the test of time. When first enacted, the Cr. P.C. laid the foundation of a civilian democracy in pre-independent India. Contrary to popular belief, it is not merely procedural law but is also a substantive one. It is one of the finest criminal codes in any civilized democracy.

The Sorabjee Committee has virtually rewritten the Cr. P.C., an entirely unconstitutional exercise, Criminal law is a Union List subject. The Criminal Code has been adopted by Parliament after the coming into force of the Constitution. The Committee has suggested a “model” State Act, in substantive and in direct variance with a Central Act.

The role of civil magistracy has been virtually erased. After the separation of the executive from the judiciary, the Cr. P.C. was amended in 1973.  The executive magistrates continue to exercise supervisory authority over the police force under more than a dozen chapters of the Criminal Code.

The right of citizens to enjoy freedom of speech is a fundamental right.  The further right of citizens to “assemble peaceably and without arms” is merely a collective right to freedom of speech, an extension of the individual right. The Sorabjee Committee has suggested that this fundamental right shall be regulated by the police. Such a suggestion is contrary to the existing law on the subject, as laid down by the Supreme Court. Accordingly to the Court, such a right should be regulated by “superior administrative authorities”.

According to the settled law on the subject, a public prosecutor is defined as an officer of the court. His task has been delineated to assist the court in search of truth. The Sorabjee Committee has suggested that all public prosecutors shall instead be part of the prosecution agency, i.e. the police.

Under the Criminal code, “public nuisance” is treated for what it actually is a civil lapse. The Sorabjee Committee has suggested that a civil lapse would henceforth be treated as a cognizable offence. In other words, the police would enjoy the powers to arrest without warrant any citizen merely for a civil lapse or any act of carelessness or callousness.

Such a suggestion by the Sorabjee Committee is indeed extraordinary. The Constitutional Review Commission headed by the distinguished former Chief Justice of India, M.N. Venkatchaliah concluded in 2002 that the police all over India is grossly misusing its powers of arrest without warrant. Eighty per cent of the arrests made by the police have been found to be “unnecessary”. Hence, if anything, there is a compelling case for limiting the powers of the police to arrest without warrant. Incidentally, Sorabjee was a member of the said Constitutional Review Commission.

A large number of purely executive functions are sought to be entrusted to the police force. On the one hand, it is claimed by apologists for the police force is under-staffed, if not under-armed. On the other hand, the police force is to be burdened with such purely executive functions as organizing urban and rural citizens committees.

There is no suggestion whatsoever about the norms for criminal investigation by the force, which is its core function. This, inspite of the fact that several senior police officers were members of the Sorabjee Committee.

The accountability mechanism suggested leaves much to be desired. The establishment of police accountability boards comprising private citizens is mere eyewash. The presence of “eminent” citizens having no experience or knowledge of the criminal laws can hardly ensure police accountability. Besides, law does not define “eminence”.

A democratic government is a continuum.  The National Police Commission, which had equal number of senior policemen as members, had tellingly suggested that police officers should be barred from accepting any post-retirement public office, in order to maintain professional integrity and to insulate them from political influence.  Admittedly, it had come across several instances of police officers nearing retirement “hobnobbing” with ruling party members, in the expectation of “rewards” later. The sentiment was so strong that the Commission had suggested a legal ban.

The Sorabjee Committee has bypassed this suggestion altogether, without assigning any reason. Ostensibly, the entire exercise of “reforms” was to insulate the police from political interference.

In sum, the Committee report is a veritable blueprint for a police state and deserves to be consigned to the archives.----INFA

 (Copyright, India News and Feature Alliance)