POLICE REFORMS in India after Prakash Singh v. Union of India Case

Published by Divyesh Pratap on

“The master’s tools will never dismantle the master’s house”
Audre Lorde

Police reforms in India  has always been a subject of debate , even the Supreme court of India has to come into picture and has issued directives to initiate police reforms in a PIL filed by former DIG of Police Prakash Singh. The aspects explored are the reluctance of states in implementation of those issued directives by Apex court in Prakash Singh’s Case. This paper also deals with what happened to the issued directives, and what are its implications on various institutions including the institution of police itself.

The Supreme Court of India issued directions regarding control and structural mechanism of police in Praksh Singh’s Case but one of the major aspects, which is not taken into consideration by the Apex court of India while framing the directions of the police is as in the words of August “Gus” Vollmer, which I would like to quote for Indian police

“The policeman is denounced by the public, Criticized by preachers, ridiculed in the movies, Berated by the newspapers and unsupported by prosecuting officers and judges.
He is shunned by the respectable condemned while he enforces the law and dismissed when he does not.
He is supposed to possess the qualification of a soldier, doctor, lawyer, diplomat and educator with remuneration less than that of a daily labourer”

More or less the above mentioned quote is able of showing the true picture of what is the present scenario of policing in India, and such a high threshold limit of expectations, in pity remuneration, is destined to be shattered. The resultant of which is apparent on the day to day behaviour of which, each of us is a witness. It has been suggested by many committees in their reports that forthwith compliance of the directive issued by Supreme Court is needed in order to make policing pro-people and accountable to law. But still after eight years of the passing of the judgment, police structure and functioning show no such
different scenario as was the expected by the Apex court.

Chronology of further developments in compliance of Directives:

  • 11 Jan 2007:  Supreme Court Hearing on compliance. Request for extension by states. Six states file separate review petitions. Supreme Court rejects review petitions and orders immediate compliance of directives 2, 3 & 5 while extending deadline for compliance of directives 1, 4, 6 & 7 by three months.
  • 23 Aug 2007: Prakash Singh files contempt petitions against six states – Gujarat, Punjab, Maharashtra, Karnataka, Tamil Nadu, Uttar Pradesh.
  • 14 Dec 2007:  Hearing on contempt petitions filed by Prakash Singh. Court makes no ruling on merits and grants a further extension of six weeks to all states and union territories to file affidavits of compliance.
  • 16 May 2008:  Supreme Court passes an order to set up the MC and Supreme Court hearing declines to rule on contempt before MC’s report back.
  • 21 July 2009:  Supreme Court hearing declines to rule on contempt, CJI stating:
    “Not a single state government is willing to cooperate. What can we do?”
  • Aug 2010:  Monitoring Committee sends its final report to the Court
  • 8 November 2010:  Supreme Court issues notice to four states- Maharashtra, Uttar Pradesh, Karnataka and West Bengal for total non compliance.

Police reforms in India

Discussing Directives in Detail:

Now we will discuss each of the directives in details, as to what are the directives, what are the objections raised by the states and their present status of compliance.

Directive One:

Constitute a State Security Commission (SSC) 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

Objections Raised by states:

As for Directive No. 1, States sought clarification of the Hon’ble Court on the variations in the composition of the Commission, between the recommendations of the Soli Sorabjee Committee and the text in the Hon’ble Supreme Court’s judgment, specifically on the issue of inclusion of a retired High Court Judge in the State Police Board / State Security Commission and so also the mention of DGP being as ex-officio Secretary and not Member Secretary of the State Police Board / State Security Commission. Further, it has been found that a common SSC has been set up for all the seven Union Territories including Delhi, with the Union Home Secretary as its Chairman. States urged Supreme Court to clarify whether a separate SSC is required for each
Union Territory.

Status of Implementation:

In the executive orders issued by many States as well as in the new police legislations passed
by some States, the composition of the State Security Commission (Directive No. 1) reflects deviation by way of exclusion of either the Leader of the Opposition or the judicial element or both. Even in the matter of the ratio between the official and non-official members, we noticed the numerical majority in many cases being kept in favour of officials over non-officials.

Directive Two:

Ensure that the DGP is appointed through merit based transparent process and secure a minimum tenure of two years.

Objections Raised by states:

Implementation of the Directive to involve UPSC in the empanelment process (for the post of DGP) is beyond the scope and authority of the state governments.
Regarding the direction to provide a minimum tenure of two years to DGP, irrespective of the date of superannuation, the state governments projected their inability in its implementation on the ground that the said subject belongs to the domain of the All India Service Rules, which are framed by the Union Government. The Supreme Court may examine this issue.
The management of IPS Cadre in some of the small States, like Goa, Arunachal Pradesh and Mizoram, is administered through a Joint Cadre Authority under the Union Home Ministry. Thus, the state government in such States cannot, on their own, fully comply with the Directive to accord minimum tenure to the officers (those belonging to IPS) and in the selection of DGP.

Status of Implementation:

Regarding the selection of DGP (Directive No. 2), notwithstanding the afore-mentioned difficulty in involving the UPSC for empanelment of officers, most of the States have been sticking to the earlier-existing procedure of selection, without even laying down any merit-based, transparent criteria for the same. As for the tenure of DGP, most States have side-stepped the core of the Supreme Court directive.

Directive Three:

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

Status of Implementation:

There was near uniformity among all the States in not following Directive No. 3, which relates to provision for a fixed tenure for certain categories of police officers, in the manner envisaged by the Supreme Court.

Directive Four:

Separate the investigation and law and order functions of the police

Status of Implementation:

As for Directive No. 4 (separation of investigation from law & order), provision has, albeit, been made in the executive orders, in most of the States, but those remain only on paper so far. No concrete steps seem to have been taken to implement the directive on the ground level. Indeed, such separation would involve some augmentation of police manpower and this has been projected as a ‘difficulty’ by some state governments. Some others have, on the other hand, taken steps to sanction additional manpower and promised that the separation would be effectively implemented once the new manpower is in place after recruitment and training.

Directive Five:

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 Deputy Superintendent of Police and make recommendations on postings and transfers above the rank of Deputy Superintendent of Police

Status of Implementation:

The Police Establishment Boards (Directive No. 5) have been created in most of the States but their effectiveness has been persistently questioned by the civil society groups in their representations made before the Committee. The ground-situation of transfers in the four States where sample checks were made (UP, Maharashtra, Karnataka and West Bengal) was found to be suggestive of uncertainty of tenures in the transfers and postings of police officers.

Directive Six:

Set up a Police Complaints Authority (PCA) at state level to inquire into public complaints against police officers of and above the rank of 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

Objections Raised by states:

Practical difficulties were expressed by some of the states of smaller size for establishing separate district level Police Complaints Authorities, referred to in Directive No. 6 in the main judgment. According to those states, a single Authority at the state level would be good enough for all districts also. Looking at it from the governmental angle; this difficulty may look genuine in some cases. But people living in distant regions in the State, far away from the state capital, may find it difficult to voice their grievances by undertaking a journey to such capitals. Some States, particularly Uttar Pradesh, put forward the view that the existing multiplicity of authorities for Police accountability (such as National Human Rights Commission, State Human Rights Commission, SC/ST Commission, Women’s Commission and Minorities Commission etc.) obviates the necessity of having one more separate mechanism for police accountability, in the form of Police Complaints Authority, envisaged in Directive No. 6. The civil society representatives, on the other hand, expressed the view that all those multiple authorities did not have binding powers and also that there was need to have a body solely focusing on police misconduct, as envisaged in the Supreme Court directive. It is for the Supreme Court to consider whether any further clarification is needed in the matter.

Status of Implementation:

The Police Complaints Authorities (Directive No. 6) have not been created in most of the States so far. Civil society groups have represented that even in the States which have claimed compliance to this directive, the said Authorities have yet to be put in place at the ground level.

Directive Seven

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.
As regarding the implementation of this directive, Home ministry of central Government has taken some significant steps, but more or less they are as ineffective as it is with the situations of other 6 directives.

 

Compliance of the Directives by Union Territories:

In March 2010, four years after the Apex Court judgment, the Union Government finally took some steps towards implementing the Supreme Court’s directives. The Ministry of Home Affairs (MHA) issued two memoranda, the first setting up a single Security Commission to cover all the Union Territories (UTs), and the second setting up Police Complaints Authorities (PCAs). The proposed model for the Security Commission suggests that there would be one SSC for all the UTs. The composition is not along the lines suggested by the Court, powers are not binding and no credible process for the selection of its members has been laid out. In fact the model is weak, defeating the entire purpose of setting it up. Regards the Complaints Authority, a single authority was envisioned for looking into the complaints from Daman & Diu, Dadra & Nagar Haveli, and Lakshadweep; another to handle Andaman & Nicobar Islands, Chandigarh and Puducherry, and a third Authority set up at the state level would look into complaints in Delhi. Eight months after the passage of that memorandum, save in Chandigarh and Puducherry, these authorities had not been set up. None of these functional authorities accurately follows the Court’s directive in terms of composition and selection process, and both are hugely inhibited by its weakened powers. The authority in Puducherry was initially headed by a retired judge of the Madras High Court, Justice P. Shanmugam. However, he resigned from the post in June 2011. Recommendations have been given to the Chief Minister to appoint a new Chairperson, but no appointments have been made so far and the Authority continues to be temporarily headed by a serving government official of Secretary Rank.

Police reforms in India – Findings of Justice KT Thomas Committee:

For checking of ground realities of implementation of the directives, the Committee took up the task in respect of four States located in four different geographical zones. UP, Maharashtra, Karnataka and West Bengal. It can be seen from the report that the level of compliance of the Supreme Court directives in these States is ranging from total non-compliance to partial or marginal compliance to mere paper implementation. Committee recommended that The Supreme Court, to begin with, may, therefore, initiate action as deemed appropriate, against these States.
It also recommended, As for the remaining States, it is for the Supreme Court to decide on the course and modalities of such verification, to assess the exact level of compliance of the directives by them, before deciding on the action to be taken in respect of them. Committee stated that “Proper functioning of police forces is crucial for the rule of law to prevail in any society. It is also a critical requisite for ensuring the Fundamental Rights of the people enshrined and guaranteed under our Constitution. The indifference of the State Governments to the issue of police reforms and non-compliance of the Directives of the Supreme Court in this regard, despite the tenacious efforts made by the Committee within the boundaries of its limited mandate, have to be viewed in that perspective.”

Police reforms in India- Justice J.S. Verma Committee recommendation to implement SC’s Directive in Prakash Singh Case:

Justice J.S. Verma committee constituted in 2013 also recommended the implementation of the directives issued in Prakash Singh’s Case,
We believe that if the Supreme Court’s directions in Prakash Singh are implemented, there will be a crucial modernization of the police to be service orientated for the citizenry in a manner which is efficient, scientific, and consistent with human dignity. The Committee believes that this will be reflective of the need of society today and not that of control or suppression as in the colonial era.
The committee takes the view that in line with Prakash Singh, implementation of the Supreme Court directions need not await the framing of a new Police Act. Until an Act, on the lines of the Model Police Act, proposed by the Sorabjee Drafting Committee, or that which is annexed to the 8th report of the National Police Commission, is passed by Parliament and implemented across the country, the seven directions in Prakash Singh must be complied forthwith.

Police reforms in India-Role of High Courts :

Whilst the Supreme Court has failed to play a crucial role to protect its own judgement several persons have knocked on high courts to asking for relief in the wake of violation of the directives or sheer non compliance. In Uttar Pradesh around 751 police personnel, posted in various districts petitioned the Allahabad High Court challenging their transfer, saying the same had not been effected by the Police Establishment Board set up by the state government in pursuance of the Supreme Court directive in the Prakash Singh case. The state government in response stated that getting approval for every transfer from the Establishment Board was not possible “looking at the strength of the police personnel in the state”. Allowing the petition, the Court in October 2010 set aside the transfers of hundreds of police personnel across the state on the grounds that they were illegal as “they were not in consonance with the judgement of the Supreme Court”.
In its October 8 judgment in 2010, the Madras High Court had similarly quashed the appointment of Letika Saran as DGP of Tamil Nadu on the grounds that the Supreme Court guidelines in the Prakash Singh judgement which lay down the process of selection of the DGP had not been followed. The Court directed the state government to forward the names of all eligible officers in the rank of DGP to the UPSC in order for them to prepare the panel of officers for selection. Once the UPSC had forwarded the panel the state government was to select the new DGP. The state government however chose to appeal the order of the High Court before the Apex Court. The Apex Court has refused to stay the order of the High Court thus giving the message to states that its time to start complying with the orders passed in the Prakash Singh case.

Conclusion:

It is imperative that more needs to be done than mere structural changes within the system. It is essential to now look at the police as a service organization meeting those needs of the society that are essential for safety, security, quality of life and peace. Community involvement, problem oriented policing and proactive policing strategies need to be adopted in the changing scenario of society.

The position of Police reminds me of a famous Aesop’s Fable “The blind men & the Elephant” which says:

And so these men of Indostan
Disputed loud and long
Each in his own Opinion Exceeding stiff and strong
Though each were partly in the right,
And all were in the wrong.

Further Readings on Police reforms in India:

Umrinerkar, JY (First Ed.) Police Reforms in India: A Sisyphean saga; Aameya Inspiring Books, Pune, India.
Seven Steps to police Reforms ; Commonwealth Human Rights Initiative (CHRI) Report. (Available At : http://www.humanrightsinitiative.org)
Status of Compliance with the Supreme Court’s Directives on Police Reform in the Prakash Singh case (as on February 2014). (Available At : http://www.humanrightsinitiative.org)

Author : Subhav Bhatia & Divyesh Pratap


Divyesh Pratap

Divyesh Pratap

Divyesh did his Masters in Law in Access to Justice from TISS Mumbai and Graduation in law from Banaras Hindu University, He is currently researching about impacts of Strengthening TPM's on protection of Intellectual Property Rights in digital medium.

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