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Part -
I
Open Forum
Part-II
Police Reforms In India
PLEASE REVIEW JUDGMENT
By Ashok Kapur, IAS (Retd)
New Delhi, May 15, 2008
Equally of interest was the plea by the two
retired police officers to the Supreme Court that it should
direct the establishment of Central and State security
commissions to be headed by the respective Home Ministers. In
their day-to-day functioning, these commissions were to be
directly under the control of the Director General of Police.
Neither the Union nor the State Cabinet would have authority
to exercise any control, or ensure accountability. But the
Government would continue to be accountable to the respective
legislatures for their functioning. The security commission
would meet once a month, mainly at the pleasure of the chief
of police. What is more, the police chief would be accountable
to no one in particular under the commission’s mode of
functioning.
The Police Commission suggested that ‘policy matters”
pertaining to law and order would be decided by the security
commission, comprising, inter alia, citizens of “eminence”.
The elected cabinet would not have any role even in an
emergency. The policy directions issued by the state cabinet
would have to be “ratified” by the security commission! In
other words, the prerogative of the elected cabinet,
accountable to the legislature, even to frame policy would
stand transferred to the security commission, a parallel
cabinet, unelected and unaccountable.
The chief of police would enjoy a fixed tenure. He would not
be transferable, even if the State Government were to change
during this tenure. Or, even on grounds of incompetence or
under-performance.
In a democracy, elected ministers head departments, not
directorates. But the security commission would be a virtually
independent directorate. The Police Commission did suggest
that complaints against the police would be investigated by
the judiciary. A serving member of the district judiciary
would investigate the most serious offences by the police,
“assisted” by the police themselves! However, two of the most
heinous crimes in the nation’s penal code, death and rape in
police custody, were described by the Commission as
“misbehaviour” or “misconduct”. Investigation would commence
only after the victim, or his kin would first run around to
file an “affidavit”. The incriminating evidence would be kept
in the “safe custody” of police themselves!
The self-serving suggestion was risible. First, the accused
would, in effect, double up both as the investigator and as
the judge and jury. Secondly, dragging the neutral judiciary
with a very fair reputation in the functioning of the
executive would have been a violation of the principle of
‘separation of powers’. A basic feature of the Constitution.
The most glaring lapse on the part of the Police Commission
was to erase altogether the control of civil magistracy and
make no provision whatsoever for any accountability on the
part of the force. On this crucial issue, the Commission made
no concrete suggestion save a vague abstraction that the
police would be accountable to the people a meaningless
statement in context.
The recent Constitution Review Commission (2002), headed by
the distinguished former Chief Justice of India, Shri M.N.
Venkatchaliah, has reminded the government, pertinently, that
a basic ingredient of constitutionalism and the rule of law is
“control of the police”. Yet, the Police Commission wanted the
civil magistracy’s control over the police abolished.
That is not all. The Police Commission’s report was
self-contradictory. Shockingly enough, it had suggested that
every day common civil lapses like “pushing”, “shouting” or
“pressing” by a citizen would be treated as cognizable
offences – i.e., police would arrest without warrant! This,
despite the fact that the Commission had itself noted that the
Indian jails were “terribly overcrowded”.
Incidentally, the actual reason for massive overcrowding in
jails was discovered recently by the Constitution Review
Commission. Eighty per cent of the arrests made by the police
all over India were found to be “unnecessary”.
Under the Constitution, the Governor is the head of the
executive government in the states. All executive action is
taken in his name and under his authority. If say, a
delinquent police officer were to be punished under his
authority, it was suggested that a single appeal would lie to
the ‘security commission’. This suggestion was tantamount to
saying that if an accused were to be convicted, say by the
Supreme Court; a single appeal would lie to the district
judge!
Under the law of the land, a citizen is not culpable for
constructive criminal liability, only for constructive civil
liability – a universal norm and basic to the rule of law. The
Police Commission sought to turn this norm on its head. It
suggested that licensees of all places of public entertainment
would be criminally liable for the civil misdemeanours of
their employees and agents!
The nation’s Criminal Code provides that all licensing
functions, being executive in nature, would continue to be
exercised by civil magistrates even after the separation of
the Executive from the Judiciary. The provision was retained
in the Code on the recommendation of the Law Commission,
headed by a Supreme Court judge. The Police Commission instead
suggested that most of the licensing functions be transferred
to the police! Besides, it wanted the force to double up as
moral police. All cultural functions were to be subject to
clearance by the chief of the police!
In sum, a defunct report, which was self-contradictory,
virtually re-wrote the nation’s Criminal Code,
unconstitutional in many respects, can hardly from the basis
of reforms. Implementation of such a report can only deform
the democratic structure. The recent judgment of the
Honourable Supreme Court in context (Prakash Singh v/s Union
of India) needs to be reviewed urgently. --- INFA
(Copyright India News & Feature Alliance)
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