MADHAV GODBOLE

I

gone into the relevant issues and their reports have merely cluttered the archives of the state and central governments. As a last resort, some public spirited former police officers had filed a public interest litigation (PIL) in the Supreme Court. This too has not served any purpose with the PIL remaining pending for over six years.

New Police Act

The decision of the central government, dated September 20, 2005, setting up a committee to draft a new Police Act has to be seen against this background. Prima facie, taking up the drafting of the new Police Act would appear to be a big step forward but a closer examination will dispel the jubilation. The committee set up by the central government has some unique features and raises a number of issues. First, the committee has a convenor, a secretary and several members but no chairman! Perhaps the warring factions in the United Progressive Alliance (UPA) government could not agree on a name for the purpose. Second, the committee’s membership comprises three jurists, a retired IAS officer, who is a member of Sonia Gandhi’s Advisory Committee and six Indian Police Service officers (one retired and five serving). There are no representatives of civil society. As if the society at large has no stakes in the outcome of the committee’s deliberations. Third, the preamble of the order setting up the committee states, “Whereas the Government of India is of the opinion that it is necessary to replace the Police Act of 1861 in view of the changing role of the police due to various socio-economic and political changes which have taken place in the country and the challenges posed by modern-day global terrorism, extremism, rapid urbanisation as well as fast evolving aspirations of a modern democratic society...”. It is important to note what is missing in the preamble. There is no reference to the sharp deterioration in the functioning of the police and their public image and credibility, need to uphold the rule of law and giving functional autonomy to the police for the purpose, and to ensure that political interference in the working of the police is minimised to the utmost extent. Thus the issues which are most critical to the functioning of the police, their accountability and capability to perform have not even found a mention in the order setting up the committee. Fourth, though public order and police are subjects in the State List in the Constitution of India, there is nothing to indicate that the states had been consulted before setting up the committee. Neither are there any representatives of the state governments on the committee. When the centre had appointed a committee on right to information under the chairmanship of H D Shourie, the first question which had come up before the committee was whether the subject of right to information came under the purview of the centre. Soli Sorabjee, who was then the attorney general and a member of the committee, had given the opinion that the subject came in the legislative competence of the central government by virtue of the residuary powers vested in the centre and therefore, it was only the centre which was competent to legislate on the subject. This opinion is debatable and some, including this author, had argued that this needed to be challenged in a court of law. That apart, it was only after the committee was told that the subject matter was within the purview of the centre that it decided to proceed further with its deliberations. In the present case, police is a state subject and still the committee has been set up by the centre without consultation or involvement of the states. This will make the subject of police reforms a partisan issue.

Economic and Political Weekly March 25, 2006

It would be recalled that the report of the high-level Committee to Review the Working of the Constitution (CRWC) appointed by the National Democratic Alliance (NDA) government met with an ignominious fate. It was consigned to the archives even before the ink on its pages had dried. The UPA government is averse to even look at the report of the CRWC. The same is true of the reports of the four task forces appointed by the NDA government on issues pertaining to national security, following the Kargil fiasco. This was in spite of the fact that the subject matters of these reports were in the domain of the central government. Against this background, one should not be surprised if the report of the committee on drafting the new Police Act meets with the same fate since it would lack ownership by the states. A more imaginative approach could have been that which was followed in the case of evolving a national consensus on the value added tax (VAT). Since sales tax is a subject in the State List, the committee for the purpose was appointed under the chairmanship of a state finance minister with a few other state finance ministers as members, and the centre playing a supportive and facilitating role and providing highlevel secretariat. As was seen, this was eminently successful, with even BJP-ruled states now indicating their willingness to introduce VAT.

The question of police reforms is much more contentious with large vested political interests. The centre should have therefore treaded more cautiously. Perhaps, the effort of the UPA government was merely to take credit for setting up the committee in question. It is being argued that the centre will proceed ahead with the new Police Act for the union territories and that will act as a guidepost for the states. If this is true, the centre must be living in a fool’s paradise. Fifth, appointing a committee to draft a Police Act at this stage is like putting a cart before the horse. One must be clear first about what the new law is going to contain, what its approach is going to be, before undertaking the drafting of its provisions. With the influx of time and rapid deterioration in the political situation, several recommendations of NPC require a fresh look. But there is hardly any consensus, leave aside unanimity among political parties and civil society, on several major issues. In this light, it would have been much better if the committee had been asked to prepare an approach paper on the subject and to put it out for public debate and discussion, apart from the government discussing it in the interstate council and/or chief ministers conference. Thereafter, the drafting of the provisions of the proposed bill could have been left to the draftsman of the law ministry. The approach adopted by the centre creates doubt whether it is really serious about police reforms. Sixth, while police and public order should continue to be the state subjects, ideally, the new Police Act should be a central act applicable to the whole country. It will be counterproductive if each state has its own Police Act. It is significant to note in this context that efforts made by some states such as Punjab, Rajasthan, Madhya Pradesh and Andhra Pradesh to enact a new Police Act have not been successful.

Let us now turn to the provisions of the Constitution under which it is possible for Parliament to pass a law on a subject in the State List. Article 249 relates to the powers of Parliament to legislate with respect to a matter in the State List in the national interest. For this purpose, the Council of States has to declare by a resolution supported by not less than twothirds of the members present and voting that it is necessary or expedient in the national interest that Parliament should make laws with respect to any matter enumerated in the State List specified in the resolution. But, such a resolution can remain in force for such period not exceeding one year as may be specified therein. Such a law can be continued for a period of one year at a time by a specific resolution to that effect. Clearly, this provision will not be of any use in enacting a Police Act as with the shifting political alignments and fortunes, and the one-upmanship of successive coalition governments at the centre, the future of the act will be in doubt. The other provision which can be invoked is that of Article 252 under which two or more state legislatures have to pass a resolution asking Parliament to regulate the matters with respect to any subject on which Parliament has no powers to make laws for the states. As can be seen, by this process, to begin with, Parliament could enact the Police Act for a few states which pass such a resolution and thereafter it could be extended to other states as and when their legislatures make similar requests. This article was invoked by Indira Gandhi government during Emergency to

Economic and Political Weekly March 25, 2006

pass a central law on urban land ceiling but neither the Congress nor any other political parties have thought it imperative to enact a Police Act thereunder, though over the last 30 years, almost all political parties have been in power at the centre at one time or the other. This speaks volumes about the political will on the subject and what a minefield it is to resolve the contentious issues in this field. The objective of enacting a central Police Act for the country will not be achieved by unilateral, short-sighted and over-bearing actions on the part of the centre or making it a partisan issue. It is only by establishing a serious political dialogue with the states and creating a strong pressure of public opinion in favour of police reforms that any progress can be made in the matter.

Contentious Issues

We shall now turn to some of the more contentious issues. The position taken by some persons, including some activists and civil society institutions, on a few of these issues can be highly problematic and would, in fact, make it impossible to have a new Police Act in the foreseeable future. The foremost of these issues is the demand that police and public order should be made concurrent subjects. The past experience of states which were under president’s rule from time to time and in Delhi, wherein law and order has always been the responsibility of the centre, hardly justifies such a touching faith in the central government. In all these cases, political interference by the centre in police matters was as rampant as by the state governments. It is also necessary to remember that the distribution of powers and functions under the Constitution, which is heavily weighed in favour of the central government, will get further skewed against the states by making police and public order concurrent subjects. The states will oppose such a move irrespective of their political alignments. This is in no small measure due to the misuse of the powers given under the Constitution to the centre. For example, Article 356 of the Constitution has been blatantly misused by the centre on nearly a hundred occasions to dismiss the state governments belonging to political parties other than those which were ruling at the centre at the given time. It is only by the intervention of the Supreme Court, starting with the Bommai case, that some semblance of propriety is being observed. But, the “unconstitutional” dissolution of the Bihar legislative assembly in 2005 and the strictures passed by the Supreme Court thereon have brought out once again how power corrupts and absolute power corrupts absolutely. Thus, there is a serious credibility crisis so far as the centre is concerned. It is for this reason that, in spite of repeated efforts made by the centre to persuade the states by holding discussions in the interstate council and chief ministers conferences, it has not been possible to enact a separate law for the Central Bureau of Investigation (CBI) and create a federal police force with all India jurisdiction to deal with major crimes having interstate and international ramifications. Blatant misuse of CBI by successive central governments, to whichever political party they belonged, has had serious adverse impact on the centre-state relations so far as crime prevention and investigation is concerned. It is important to note that, under the present constitutional dispensation, paramilitary forces can be stationed by the centre in any part of the country but they can be deployed on law and order duties only when asked by a state government and in that case they have to be placed at the disposal of the state government for a specified period. This position will change radically if police and public order are made concurrent subjects. Implications of such a step in a fractious, multiparty, polarised and unprincipled political system in India can indeed be frightening, with the state police and paramilitary forces confronting each other.

Functional Autonomy

The most critical issue in police reforms is that of granting functional autonomy to the police. However, no political party is prepared to even look at the issue, leave aside understanding its pros and cons. Upholding the rule of law and rigorous implementation of laws must be squarely recognised as the responsibility of the police and they must be made answerable to the courts of law and other statutory and constitutional authorities for the purpose. Any dereliction of duty in this regard must lead to severe punishment. Ways need to be found to reconcile the demand for grant of functional autonomy with the answerability of the government to legislatures and Parliament. It has to be accepted that the latter has been carried too far in India with the government effectively deciding, in certain cases formally and several others informally, which cases are to be investigated, in how much depth, whether prosecution should be sanctioned, whether appeals be filed, whether cases are to be withdrawn from courts and so on. This has meant negation of the rule of law. The experience of even the apex court supervising the investigation of cases such as havala and Bofors has been far from encouraging. Unless major institutional and systemic changes are effected in the functioning of the police, the oft-repeated peroration by ministers “law will take its course” would continue to be a subject of derision and ridicule.

Autonomy without accountability would be a recipe for high-handedness, and perpetuation of the regime of atrocities by the police. The composition and charter of the institutions such as police accountability commission or independent police complaints agencies need closer and critical examination as they could become counter-productive and self-defeating. These fora cannot be on the lines of consumer courts, or inquisition chambers with representatives of political parties as its members. Facile comparisons with similar fora in other countries can often be misleading. Their transplantation and blind imitation, without due regard to the conditions and ethos in this country, could create more problems than solving any. It needs to be noted that the working of even consumer courts has often come in for unsavoury comments. The police is a uniformed service and its discipline and chain of command must not be permitted to be compromised in any way. It is equally important that enquiries into actions by the police must be made in a transparent manner and by persons who have held high judicial positions. It must also be remembered that there are already far too many constitutional and statutory authorities, both at the central and state levels, which have been empowered to call for reports on the allegations of wrongdoings and excesses committed by the police and to comment thereon. These include the state and the national human rights commissions, minorities commissions, women’s commissions, scheduled castes commission, scheduled tribes commission, and, the last but not the least important, the Lokayuktas. Over and above these, if it is considered necessary, one or more ombudsman can be created for each state to specifically look into the complaints against the police. The ombudsman should be a serving or retired judge of the high court with one or more deputy ombudsmen of the rank

Economic and Political Weekly March 25, 2006 of district and sessions judges. It could also be laid down that the recommendations made by the ombudsman should normally be binding on the government and if, for any reasons, the state government does not find it possible to accept any recommendation, it must issue a “speaking order” and a copy thereof must be laid on the table of the legislature at its very next session.

Functional autonomy for the police can be a reality only if political interference in their work can be done away with. This would be facilitated if all personnel matters pertaining to the police are taken out of the purview of political masters. There are sharp differences not just among the political parties, but also among the retired and serving police officers, administrators, non-government organisations (NGOs) and the civil society as to how this should be achieved. The recommendation of the NPC or the Rebeiro Committee to set up a state security commission is highly debatable and problematic. Two issues in this behalf require careful consideration. The first pertains to the composition of the commission. Inclusion of the leader of opposition and representatives of political parties, MLAs/MPs would create innumerable problems and further politicise the police. Ideally, all service matters pertaining to the police must be entrusted to police establishment boards at the district and state levels. For the reasons brought out in the preceding paragraph, the composition of the boards must be totally apolitical with one or two highly respected persons from civil society and senior police and administrative service officers as members. The second issue is whether the boards should be set up by executive orders or they should be statutory. The experience of the central establishment board and senior selection board in the central government for personnel matters pertaining to the civil services is far from encouraging. The third question is whether their recommendations should be advisory or binding on the government. Here too the experience of the civil service boards in the central government is relevant. The recommendations of these boards are set aside by the government time and again in an opaque and arbitrary manner, making a mockery of the objective of setting up the boards. The police establishment boards at the district and state levels must, therefore, be statutory and their recommendations must be binding on the government. If the state government, in its wisdom, decides to take a decision overruling the establishment board, it must be obligatory on the government to pass a “speaking order” and to place a copy thereof on the table of the legislature at its next session.

Attention must be invited in this context to the larger question of the plight of All India Services (AIS) which were created at the insistence of Sardar Vallabhbhai Patel and given a special protection in the Constitution. The manner in which the protection has been undermined and the AIS politicised has been responsible, in no small measure, for the shabby state of governance in this country. The deplorable deterioration in the functioning of the police is a part of this larger problem. Unless these critical issues are addressed and resolved, merely providing for fixity of tenure of two to three years for the head of the police force is not going to solve

Economic and Political Weekly March 25, 2006

the problem. Equally important, if not more, is the manner in which the top posts are to be filled. As has been seen time and again, the very criteria for selection of persons for manning the top posts in the police have been changed, on a case to case basis, in total contravention of the AIS rules. Loyalty to the “first family” of the country or the leader of one political party or the other has become the deciding factor in filling up the top posts. The rot has gone so deep that even with the very high level selection committees, selection of some members of even statutory and constitutional bodies such as the National Human Rights Commission and the Election Commission has been made on this basis. The time has come to seriously reflect on these concerns. The new Police Act must provide adequate safeguards against such selection procedures and practices. Since there is a total disinclination in the government to remedy these basic ills affecting the governance of the country, this author had filed a PIL in the Supreme Court with a prayer to recognise good governance as a fundamental right, and ensure independence and uprightness of the civil services for its translation in reality through a package of measures suggested in the PIL. Unfortunately, the Supreme Court, in its wisdom, declined to even admit the writ (EPW, March 13-19, 2004).

Police and Civil Society

The interface of the police with the civil society needs to be institutionalised. At present, there is no forum at the district or state level for the purpose. It is suggested that Police Advisory Committees be established for the purpose. The charter of these committees should not however extend to personnel matters or making enquiries into complaints or allegations against the police. These matters will have to be left to the appropriate fora suggested earlier. At the state level, the chief minister/home minister should be the chairman of the committee and the leader of opposition, representatives of the civil society, NGOs, media and others could be appointed as members. The chief secretary, home secretary and director-general of police should be ex-officio members of the state level committee. The district level committee should be presided over by the minister in charge of the district and have three to four MLAs and MPs by rotation, and representatives of NGOs and media as members. The president of zilla parishad and mayors of municipal corporations should also be members of the districtlevel committee. The collector/deputy commissioner and district superintendent/ commissioner of police should be exofficio members. These committees should meet at least once in six months.

The new Police Act will have to provide for an independent annual evaluation of the work of the police at the tehsil/taluka, district and state level. Such an evaluation must be made on a scientific basis through qualified consultants, social scientists and experts. Among others, representatives of NGOs working for the welfare of the weaker sections of society and minorities should be actively associated with the evaluation. The criteria for evaluation need to be laid down clearly with a provision that they may be amplified and refined from time to time. The evaluation reports must be made public as soon as they are ready and should also thereafter be placed for discussion in the Police Advisory Committees.

The new Police Act will have to address the question of rampant corruption in police. Rigorous provisions for the purpose will need to be incorporated in the act. These could include confiscation of ‘benami’ property, giving wide publicity to the annual movable and immovable property returns filed by officers, making it mandatory for officers to record reasons wherever discretionary actions are taken and so on. As a part of this effort, the serious problem of nexus between the police, politicians and the underworld, which has been pushed under the carpet all these years, will have to be addressed in the new legislation.

A separate section needs to be incorporated in the act to deal with custodial crimes. Such crime against defenceless persons, who have been held in custody, cannot be justified on any grounds whatsoever. Among other provisions, the Police Act should provide for making an open magisterial enquiry in each case of custodial crime, making the enquiry report public, casting the burden of proof on the person holding custody of the victim to prove that he is not responsible for the crime, and finally making the person in charge of the custody of the victim personally responsible to pay compensation, in full or part, from his own pocket. This author had made an attempt to have such a central law enacted in 1992 when he was union home secretary but the proposal met with stiff resistance from the states, both at the administrative and political levels, and had to be shelved. It has not been revived since then.

Other Provisions

The new Police Act must cast its net wide and take a fresh look at some of the provisions of the other enactments which have led to undermining the rule of law in the country. Illustratively, a reference may be made to just a few of these provisions. The powers vested in the state government to sanction prosecution for violation of section 153A or 153B of the Indian Penal Code pertaining to actions, by speech or writings, which lead to communal violence, etc, have been grossly misused for political purposes. As a result, these provisions have remained a dead letter. There is no reason why the police should not be empowered to file such cases directly in the court. It should be left to the courts to decide if the police have misused their powers. The power of the state government to ask for withdrawal of cases from courts too has been grossly misused for political ends and has brought the law into ridicule. Third, the questionable provision under section 438 CrPC for anticipatory bail, which is being grossly misused by those with political and financial clout, needs to be done away with to strengthen the hands of the police in the investigation of cases. The courts themselves have observed that interrogation and investigation by police can be more effective when the accused is in custody. There are very few countries in which such a provision for anticipatory bail obtains. Fourth, the powers to appoint and remove police and public prosecutors too need to

UNITED NATIONS AND EIGHTY COUNTRIES

An autobiographical experience 1925-2005 by S Nanjundan Pp 600 Rs 480

A frank, sincere, lucid and eminentlyreadable retrospective of a life spanning 80 years. The book also includes essays, critical and constructive suggestions, onthe United Nations, UNIDO, small industry, Indo-USA relations, secularism, Hindutva, moral rearmament, reforms, and the Sangamam of body, mind, heart and soul. Included are anecdotal notes on 80 countries the author has visited.

The book is available at a discounted price of Rs 350 from:

B-5/64 Safdarjang Enclave, New Delhi 110 029

Economic and Political Weekly March 25, 2006 be entrusted to the high courts to do away with politicisation of this important instrument of upholding the rule of law. After all, the police/public prosecutors are expected to work as officers of the court.

Problems of policing begin with the outmoded thinking and policies pertaining to the recruitment of police constables. The minimum educational qualification of eighth standard, which has been prescribed in most states, needs to be reviewed. In urban areas, it ought to be increased to twelfth standard to enable the constables to deal with the variety and complexities of crime and criminals. Psychological tests of the mental make-up of the candidates ought to be an integral part of the selection process. The syllabi for induction training as also refresher training need to be redesigned to make the police aware of the diversity and complexity of modern day crime, and scientific tools which can be used in investigation. Communalisation of police has become an overwhelming problem. Sensitisation of police to human rights, injustices suffered by weaker sections and minorities and, the fundamental rights such as secularism, rule of law and equal protection of law guaranteed by the Constitution require special emphasis in training and moulding the police. It is needless to emphasise that without adequate grounding in ethical values, it will be impossible to change the present image of the police as an exploitative and rent-seeker arm of the government.

Something as basic as the crime statistics put out by the ministry of home affairs itself need a closer look. Reluctance of the police to register crime, or the tendency to register even a serious offence as a noncognisable offence has led to underestimation of crime. Social scientists and others have, from time to time, suggested several steps to refine the collection and collation of crime statistics. While most of the major issues discussed above need to be dealt with suitably in the new Police Act, some others can be appropriately incorporated in the rules.

To sum up, the new Police Act must be looked at holistically to strengthen the role of the police in upholding the rule of law, and to make police the protectors of the downtrodden and weaker sections of society. There is need to evolve a broad political and civil society consensus on the complex and vital issues involved in the policing of the country. Without adequate public debate and discussion of these issues, it is futile to draft a new Police Act. It is important to bear in mind that in the ultimate analysis it will be only through the relentless pressure of public opinion that political parties can be made to see reason beyond their narrow and vested political interests. Any talk of welfare of the ‘aam aadmi’ and ‘Shining India’, ‘Resurgent India’ will be futile without rule of law in the country. And without police reforms even rudimentary good governance will just be ‘Mungerilal ke Sapne’.

EPW

Email: madhavg@vsnl.com

ADVERTISEMENT FOR THE “DEVELOPING AUSTRALIA’S CAPACITY IN SOUTH ASIA” (DACSA) SCHOLARSHIPS sponsored by AUSAID and the Australian Research Council’s ASIA PACIFIC FUTURES RESEARCH NETWORK, administered by LA TROBE UNIVERSITY

Applications are invited for up to six scholarships to write a PhD at an Australian university on a developmental topic related to South Asia (i.e., Bangladesh, Bhutan, India, the Maldives, Nepal, Pakistan, Sri Lanka). Specified fields of research are:

– provision of basic services (e.g, education, girls’ education, health care, water and sanitation)

– good government (e.g., institution-building, local government, anti-corruption)

– achievement of sustainable growth

– HIV/AIDS

– security and conflict as they affect development

– natural disasters and their mitigation

– social exclusion and disadvantage

– long-term higher-education scholarships as a way of providing developmental aid

Applicants will probably have a higher degree (MA or M.Phil.), some field experience and a demonstrated capacity to write and research. Applicants must be citizens of one of the South Asian countries noted above.

The scholarships include a full living allowance and tuition fees. They are tenable normally for three years. Applicants must be prepared to study at the university where they are assigned by the program managers and to participate in regular activities associated with the South Asia Development Scholarships program.

To apply, candidates should write a letter of no more than two pages in which they

– explain their reasons for undertaking a PhD in a development-related area – outline the topic they wish to research

– show why their previous experience equips them for the proposed program

– indicate the date on which they could take up the scholarship

– give details (including phone numbers and email addresses) of three referees

Applicants should also include a curriculum vitae of up to three pages, which will include their academic and work history, publications and other achievements. Shortlisted applicants may be asked for further documentation and will have to undergo the normal procedures for student entry to Australia.

Deadline: 28 April 2006 Applications can be emailed to t.lee@latrobe.edu.au or posted to: Tracy Lee, Project Officer, School of Social Sciences, La Trobe University, Victoria 3086, Australia.

Economic and Political Weekly March 25, 2006