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Open Forum
Part - I
Police Reforms In India
A CURE WORSE THAN THE DISEASE
By Ashok Kapur, IAS (Retd)
New Delhi, May 14, 2008
A recent judgment by the Honourable Supreme
Court on the burning issue of police reforms needs to be
reviewed urgently. Otherwise, its ramifications may seriously
impact democracy and the rule of law in India.
On the urgent need for police reforms, there can hardly be two
opinions. To be fair to the judiciary and to the Government,
the lack of reforms is not for want of trying. All attempts
have ended up in smoke. The reason is not far to seek. Police,
which are a major part of the problem, are sought to be made
part of the solution.
Two retired police officers recently petitioned the Supreme
Court through a PIL seeking implementation of the report of
the first (defunct) National Police Commission, 1981. The
report was examined in detail, by the Centre and States a
quarter century ago. It was deservedly rejected in the light
of collective wisdom borne out of experience of the Union
Government in consultation with the State Governments.
To recall briefly, the report was a veritable blueprint for a
police State. The Commisison comprised, nominally, a civilian,
a judge, an academic and equal number of policemen. It was
serviced exclusive by the police themselves.
The rejection was unanimous. The fine print had camouflaged
many suggestions violative of the universal norms of rule of
law. Most disconcertingly, the report was downright
unconstitutional. Let alone the Executive, even Parliament
would not have countenanced a report violative of the basic
structure of the Constitution. Ironically, the basic structure
doctrine was outlined almost a decade earlier by the Supreme
Court in the celebrated case of Keshavananda Bharti.
Shockingly, the senior police members of the Commission,
showed complete innocence of the basic norms of Constitutional
functioning and the rule of law.
The police officers who approached the Supreme Court were
economical with relevant facts. The first condition laid down
by the Court itself is that a petitioner must approach it with
clean hands. This was not done. The petitioner’s first
contention was that the Police Act of 1861 was “outdated”,
enacted by the British in the context of the Revolt of 1857.
The Act had placed the police under civil magistracy without
defining its role. Though buttressed by an affidavit, the plea
was false.
The Police Act was a logical follow-up of the report of the
Torture Commission of 1855, set up at the instance of the
British Parliament. Reports had reached London that the Indian
police force in India, headed by the dreaded “Daroga” was
habitually inflicting unspeakable atrocities on hapless
citizens. The populace was largely without redress. The police
force was not supervised by any external authority and was
accountable to no one.
The Torture Commission sought to bring the police under the
control of the civil magistracy for the first time in India.
Importantly, the Police Act, 1861 was not a ‘stand-alone’
legislation. It was a brief adjunct to the Criminal Procedure
Code, enacted a year earlier --- again for the first time. The
Code, contrary to popular impression, is not merely
procedural. It is substantive law too, and laid the
foundations of a civil democracy and the rule of law. The
Code, was re-enacted and adopted by India’s Parliament after
the Constitution came into force and is now the law of the
land.
No specific reason was advanced by the petitioners how the
Police Act was “outdated”. Or, how it was at variance with the
Criminal Procedure Code, arguably the finest criminal code
anywhere in the world. The petitioners conveniently bypassed
the Criminal Code, whereby the police derive their formal
investigative powers only under the overall control of the
magistracy. This is all the more disconcerting, considering
that the main function of the police under the Constitution is
the prosecution of offences under the Criminal Code.
Somewhat self-rightly, the Police Commission had heaped blame
on all the other agencies involved in the criminal justice
delivery system, inspite of the admittedly serious
malfunctioning of the force described as “cancerously corrupt”
and “brutal”. Thus, the Commission criticized the judiciary
for dilatory tactics (it “decides nothing”), the legal
community for constant adjournment-mongering, the
‘bureaucrats’, so-called, for not letting the police function
properly and the political executive for “interfering”.
Had the two petitioners turned the searchlight inwards, in the
memorable words of Mahatma Gandhi, they would have discovered
that police officers themselves quietly sabotaged the report
when it was found to be ‘inconvenient’ to them. The sole
worthwhile suggestion by the Commission was to bar senior
police officers from seeking post-retirement appointments. The
Commission had noted that officers nearing retirement
“hobnobbed” with ruling politicians in the expectation of
rewards later. The sentiment was strong and the Commission
suggested a legal ban on the posting of the police officers to
any public office after retirement.
The ostensible purpose of the PIL was to minimize “political
interference” in the functioning of the police. But the irony
of what has come to pass is too stark to ignore. More and more
retired police officers are being appointed under the
Government since the submission of the report. Today, retired
police officers are increasingly occupying even Constitutional
posts, an unhealthy development in any democracy.
Recently, our police force has been found to be the most
corrupt public agency in India, by Transparency International.
Incredibly enough, cent per cent of the several thousand
respondents testified so. Would the petitioners have the
Honourable Court believe that this is so because of “political
interference”!
The petitioners’ next target was “bureaucrats”, implying civil
servants. This betrays a complete innocence of the basic norms
of administrative law. Bureaucracy is an attribute not of any
cadre or service but of size. The police are as much a part of
the overall bureaucracy of the State, a fact acknowledged by
the Police Commission itself!
It is common knowledge that the most meritorious candidates in
the combined all-India examination join the civil service. The
less meritorious, or those who fail, join the police service.
The petitioners should have known this fact from their own
example. The so-called ‘bureaucrats’ are trained and
experienced civil magistrates. Even after the separation of
the Judiciary from the Executive, the executive magistrates
exercise authority under more than a dozen chapters of the
Criminal Code.
Curiously, the petitioners failed to point out that the
Commission’s report was unconstitutional in many respects. It
had suggested posting and promotion of senior police officers,
permanently assigned to the State Governments, by official
committees comprising a majority of Union Government
representatives. Under the Constitution, the ‘police’ are in
the State List. This was a violation of the federal principle,
a basic feature of the Constitution. ----INFA
-------To be continued tomorrow
(Copyright India News & Feature Alliance)
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