Make police accountable if bulldozer justice is not to become the norm
S.K. Sood
Besides being an important part of the criminal justice system, the police is the only visible symbol of the state’s authority to a common person to whom they can approach for help in times of need. But more often than not, the police have been found wanting in fulfilling their expectation.
“The police force is far from efficient, it is defective in training and organisation, it is inadequately supervised, it is generally regarded as corrupt and oppressive, and it has utterly failed to secure the confidence and cordial cooperation of the people,” said AHL Fraser, chairman of the Second Police Commission in his report in 1902.
Little appears to have changed since Fraser made the statement. The Police Act of 1861 still governs our police. The colonial mindset of the police and the distrust people had for it in British India continues to date as the Indian police continues to behave like a ruler’s force created by the British to control the natives so that they can continue to rule and enjoy at the expense of Indians. Only the rulers are now our own. Seventy five years of independence have failed to transform the police into a people’s police meant to serve them.
That the police needs urgent reforms is beyond doubt. But they are like a dead horse which everyone, be they politicians, police leadership (except for some honourable exceptions), and the elite of civil society, keep flogging. The politicians are happy to control and misuse the police to serve their political interests while most of the police leadership behaves like an active ally for their own parochial interests, such as a comfortable posting.
To be fair, many police leaders who do not compromise with their principles either opt for a posting outside the police system or are consigned to insignificant non-operational assignments. The rot that the system suffers from is clear from the fact that a training assignment is considered a punishment posting. Policemen feel side-lined by such assignments and special incentives have to be doled out to attract talent for this extremely important function. Policemen given this role mark their time in training institutions till being brought back into mainstream policing. The common people, too busy dealing with daily struggles of life to care for these reforms, prefer to remain away from the police unless absolutely inevitable.
Instant Justice
Massive delays in our criminal justice system and increasing communalisation of society has created a constituency within the civil society which has become admirers of bulldozer justice, encounters and encounter specialists so long it does not directly impact them personally. Votaries of such instant justice are fast on the rise and actively support atrocities by the police, especially if directed against the people of the minority community or the downtrodden.
Historically speaking, even the Indian state has encouraged such blatant violation of the law and constitutional rights. Instances of mass killings of Maoists in West Bengal and Andhra Pradesh can be sited, which have been documented by the Bhargava Commission and the Tarkunde Commission. Yet the guilty were never punished citing national interest. Similarly, death squads were raised in Punjab to control militancy and the perpetrators are eulogised as hero.
This state of affairs, if allowed to continue, will lead to absolute lawlessness and anarchy. It is therefore necessary to reform police functioning so that it truly becomes a service that it is meant to be. But reforming just the institution of the police is not adequate. Reforms have to simultaneously take place in the criminal justice system so that there is no incentive for the people and law-enforcing agencies to take law into their own hands.
The necessity for reforms in the police functioning has been discussed for many years without any meaningful progress being achieved. As many as eight reports were submitted by the National Police Commission (NPC) set up in 1979, including one on replacing the British Era Police Act of 1861 with a Model Police Act. Most of the recommendations remained unimplemented, prompting some retired police officers to approach the Supreme Court in 1996 with a Public Interest Litigation (PIL). The PIL wanted the top court to direct the state and central governments to implement the recommendations of the NPC. The court set up different committees, like the Ribeiro Committee and the Padmanabhaiah Committee, for recommending reforms in the police functioning besides setting up the Police Act Drafting Committee headed by Soli Sorabjee to draft a new model police bill to replace the colonial 1861 Police Act.
Court Verdict
The Supreme Court delivered its verdict in 2006 in what is known as the Prakash Singh case. The court ordered all states and Union Territories to ensure compliance of its seven directives to initiate reforms. Various initiatives taken since 1979 were included in these directives for implementation either through executive orders or new legislation. In 2008, the court set up a monitoring committee to monitor and periodically report the compliance to the court. But hardly any steps were taken to improve the police functioning or to implement the recommendations of the committees set up by the Supreme Court during the long pendency of the PIL in the court.
The directives issued by the Supreme Court mostly address the structural issues and the question of who should exercise control of the police. But this is not all that is there to police reforms. The reforms must focus on delivery of service and therefore, they must aim to transform the values, culture, policies and practices of police organisations so that the police can perform their duties while ensuring respect for democratic values, human rights and the rule of the law. Police reforms should also aim to improve police interaction with other arms of the criminal justice systems, such as the courts and correctional institutions like jails, besides the executive authority.
Many of the other aspects of police reforms need to be addressed by the state while a large number relating to operational functioning and administration can be addressed by the police leaders themselves.
Large Vacancies
One very important aspect of police reforms is making resources available for effective policing, including manpower and equipment. The police is heavily overburdened. The state police forces have large vacancies. As per reports there was about 24 per cent vacancies (about 5.5 lakh) in the police in January 2016. While the sanctioned police strength was 181 policemen per one lakh persons in 2016, the actual available strength was only 137. The United Nations’ recommended standard is 222 policemen per one lakh. The situation is further worsened by the withdrawal of a large number of policemen from core policing functions for activities such as VIP security, escorting prisoners or even escorting senior police officers.
One comes across instances of excessive deployment of the police for what is known as bandobast duties. These long duty hours in conditions exposed to the vagaries of the weather sap the energies of policemen. This more often than not happens because of the zero error syndrome and risk averse nature of the police leadership, which prompts them to take the easy route of deploying in numbers without proper analysis of the situation and briefing. An average policeman thus ends up having very long working hours and heavy workload, negatively affecting his efficiency and performance.
The police leaders must focus on preparing standard operating procedure (SOPs) for such frequent and routine duties like bandobast, mob control and investigations. This will go a long way in reducing the workload on policemen.
The police also suffer from lack of budget to procure essential resources for normal policing and modernisation. The concept of modernisation in the police is mostly confined to acquiring swanky vehicles, mostly for senior officers, or computers. The use of latest technology like surveillance through drones will facilitate faster movement and deployment of the police to likely trouble spots. The government will have to provide adequate budget for modernisation while the police leadership will have to visualise the emerging challenges and submit well-reasoned proposals.
New Technologies
Then implementation of the Crime and Criminal Tracking Network & Systems (CCTNS), which aims to create a comprehensive and integrated system for enhancing effectiveness of policing through adopting the principle of e-governance and creation of a nationwide networking infrastructure, is a very good initiative started in 2009 for modernisation of police functioning.
When completely implemented, it will ensure that the police maintains all its data through an online system and provide citizens access to police service online in a hassle-free manner. The implementation of the system has been uneven across the states mainly because of resources and connectivity issues. The union home minister recently stated that all 16,995 police thanas have been connected with the CCTNS. Proper implementation of the CCTNS has scope of bringing in lot of transparency in police functioning.
Besides, acquiring modern technology, the police leaders need to ensure that the average policeman is adequately trained to handle modern equipment. An average policeman has to be thoroughly familiarised with the use of modern investigative techniques and give up old methods of using third degree to extract confessions. The training, besides focusing on familiarising a policeman with legal provisions, drill and physical fitness, also must focus on attitudinal change and not treat the public as serfs. Policemen must be trained in soft skills so that they can treat the public and complainants with compassion, understanding and dignity. They must learn aspects of human and constitutional rights of citizens. A large number of police personnel carry their religious, caste and gender biases to their workplace. The training of policemen must also address this aspect and impress upon them to act in an unbiased manner to uphold their constitutional and legal obligations.
These are certain reforms which are well within the realm of police leaders for which no state support is required. The average policeman lacks motivation because of lack of avenues for growth and promotion, besides working conditions. Keeping a police constable motivated while continuing in the same rank for over three decades or a young sub inspector for two decades is a tough task. Additionally, the lack of proper accommodation, transport facilities and even a workplace are further demotivating factors. Many of the thanas other than those in major towns or designated as model ones, especially in remote areas, lack many basic facilities. Hopefully, things would have improved with a larger budget being allocated to Maoist insurgency-affected states in the shape of security related expenditure (SRE).
Some amount of frustration is also caused by improper working conditions and opportunities of career growth. This frustration is taken out on the common man leading to a bad image of the police. An unpleasant truth is that policemen are often treated badly by their own leadership because of a sense of entitlement and privilege prevalent amongst the police leadership. This is a remnant of the pre independence feudal mindset. This attitude needs to be corrected through training of officers, besides carrying out reforms in the recruitment process, which has focus on educational excellence and not on attitude towards public service. The process adopted in the United Kingdom to select police leaders can perhaps be useful in selecting leaders.
Accountability Needed
Finally, a very important aspect of police reforms is to bring accountability. The police has to be accountable to the law and the constitution. But there are several provisions in the law that are detrimental to this objective. The removal or modification of such provisions was the subject of the eighth volume of the PRC report.
But neither the government nor the Supreme Court order in the Prakash Singh case talks about these. They had recommended the removal of Section 197 of the Indian Police Act, 1861, which provide for immunity to police officers against prosecution. The same provisions were extended to several special laws like the Armed Forces Special Power Act, which gives protection to security forces personnel from legal proceedings unless cleared by the centre. The Act applies not only to the three armed forces but also to paramilitary forces such as the Central Reserve Police Force (CRPF) and the Border Security Force when operating in areas where the Act has been notified.
Similar provisions were there in the Terrorist and Disruptive Activities (Prevention) Act, which was in operation between 1985 to 1995. But abysmal the prosecution rate in TADA cases prompted the government to modify the provision of immunity while notifying the Prevention of Terrorism Act in 2002. This act provided that sanction may not be necessary for prosecution of police personnel guilty of malicious prosecution of innocent persons. This provision was once again removed when the amended Unlawful Activities (Prevention) Act (UAPA) was notified in 2019 and the immunity clauses restored in original.
Mandatory Compensation
Another reform that needs to be considered in all seriousness is to give mandatory compensation to the accused for denial of liberty if acquitted. We have several instances where the accused keep languishing in jails without trial, which may be caused because of delay in completion of investigation.
In many instances, especially in UAPA cases, the filing of charge sheet is deliberately delayed because of lack of evidence or some other reasons in order to keep the accused confined to jail. Such cases fit the criteria for compensation to the accused. Such a right to mandatory compensation is prevalent in many countries around the world. Provisions for mandatory prosecution of police official for malicious and false prosecution and mandatory compensation to victims will ensure improvement in quality and quantity of investigation thereby reducing the burden of pendency in the courts. This will also prevent the process from becoming a punishment for the common people.
The internal disciplinary mechanism in the police, too, needs to be looked into and reformed. But the seniors generally tend not to initiate action against subordinates in cases where the erring police official is otherwise efficient. The police leadership is often inhibited by the system itself. They are too engrossed in resolving day-to-day problems, leaving no time for thinking long term. Coupled with this is the proliferation of ranks in the higher supervisory leadership to the detriment of adequate availability of officers for operational level posts. The senior officers having little or no work tend to get involved in day-to-day operational matters thus snubbing the initiative of subordinates. With the political leadership breathing down the necks of police officers, the people and their rights tend to become the last priority
Civil Society
The civil society therefore has to be more vigilant in highlighting malpractices in order to ensure accountability. It will help if a citizen’s movement compels political parties to make police reforms an election agenda. It needs a kind of public outcry which compelled the government to do away with the requirement of government sanction for prosecution (even though short lived) under the Prevention of Terrorism Act in 2002. The civil society must not succumb to jingoism of celebrating illegal action by the police and the media should not promote such toxic masculinity.
The principle of criminal jurisprudence that someone is innocent till proven guilty has to be emphasised during training to ensure proper investigation. The police must give up the attitude that their job is restricted only to apprehend the accused, extract a confession and produce them before the courts. They must be made accountable by the percentage of conviction their investigation has been able to achieve. Conviction is not the responsibility of the courts, which base their orders on the quality of evidence produced before them. A separate prosecution wing like the crown prosecution service in the UK, without whose vetting a case cannot be produced in a court of law, will help improve the quality of investigation.
Police personnel must scrupulously follow the provisions of human rights. This must be reinforced during training and in the field by sensitising them towards ensuring human dignity, respect for constitutional and human rights. They must be sensitised to follow the due process of the law as provided in Article 21 of the constitution.
The judiciary similarly has to be more proactive not only by taking suo motto notice of blatant violation of the law by police personnel but also taking strong punitive action against errant personnel.
The police is an extended hand of the government and if not reformed we might soon turn into a police state. For these reforms to be effective, simultaneous judicial, prisons, prosecution and political reforms are important.
Box
Summary of the directives issued by the Supreme Court
Directive 1: Constitute a state security commission to:
(i) Ensure that the state government does not exercise unwarranted influence or pressure on the police;
(ii) Lay down broad policy guideline; and
(iii) Evaluate the performance of the state police
Directive 2: Ensure that the DGP is appointed through a merit-based transparent process and secure a minimum tenure of two years
Directive 3: Ensure that other police officers on operational duties (including Superintendents of Police in-charge of a district and Station House Officers in-charge of a police station) are also provided a minimum tenure of two years
Directive 4: Separate the investigation and law and order functions of the police
Directive 5: Set up a Police Establishment Board (PEB) to decide transfers, postings, promotions and other service-related matters of police officers of and below the rank of a Deputy Superintendent of Police
Directive 6: Set up a Police Complaints Authority (PCA) at the state level to inquire into public complaints against police officers of and above the rank of a Deputy Superintendent of Police in cases of serious misconduct, including custodial death, grievous hurt, or rape in police custody and at district levels to inquire into public complaints against the police personnel below the rank of Deputy Superintendent of Police in cases of serious misconduct
Directive 7: Set up a National Security Commission (NSC) at the union level to prepare a panel for selection and placement of chiefs of the Central Police Organisations (CPO) with a minimum tenure of two years.
Clearly, these directives focus mostly on the aspect of command and control of police. The implementation of these directives will result in reducing political interference in police functioning to a great extent, which is good for police functioning.
Implementation of Directive 4 regarding separation of investigative and law and order functions will also have a positive impact as it will drastically reduce the workload and thus result in better conviction rates. In fact, the Second Administrative Reforms Commission has made similar recommendations and identified as many as 22 functions which do not require any special knowledge of policing. These functions if outsourced to other agencies will go a long way in reducing the burden on police and focus on core function.
The Commonwealth Human Rights Initiative notes that compliance of these directives by states has been lackadaisical. Efforts at implementing reforms remain slow and piecemeal. Not even one state or Union Territory is fully compliant. The new Police Act brought in by some states bears little resemblance with the recommended one. The fact that none of the Union Territories are compliant indicates that even the central government is not complying with the directives. As regards the security of tenure is concerned, very few states have provided for that. Similar is the status of instituting the internal mechanism on transfers and postings of state police officers without political interference.