LAW ENFORCEMENT
To serve and protect
The Government of India constituted the Police Act Drafting Committee in September 2005 to draft a new Police Act. This is proposed to replace the colonial-era Police Act of 1861 that is still the governing law. The Committee's six month duration comes to an end on 31 January 2006.
Arvind Verma
says much is at stake.
10 January 2006 -
The Home Minister, Shivraj Patil said in November 2005 at a passing out parade of the National Police Academy that the government is working towards a new Police Act. In September 2005, the Government of India had constituted the Police Act Drafting Committee in September 2005 to draft a new Police Act to replace the Police Act of 1861. The Home Ministry's website says that suggestions are invited by everyone for the new Police Act before 31 January 2006. The government's move to cannot but be appreciated as the existing Police Act was enacted in 1861! After 144 years it is time to change the laws governing police in the country.
The members of the Committee include Soli Sorabjee, former Attorney General, Government of India, N C Saxena IAS (Retd.), former Secretary to the Government of India, N R Madhav Menon, Director, National Judicial Academy, Bhopal, Prof. Ranbir Singh, Director, National Law Institute, Hyderabad, Ajay Raj Sharma, IPS (Retd.), Director General, Bureau of Police Research and Development and others. Joint Secretary (Police Modernisation) Harminder Raj Singh is the Convener of the Committee. U N B Rao, IPS, is the Secretary to the Committee.
However, before we begin drafting a new Police Act some pertinent questions need to be answered. Why do we need a new act? What is wrong with the old and existing one? What are the objectives of the new Police Act? What are the objectives of policing in India? What are the challenges facing police in the country and what limitations are being observed in the present police system? Many more such questions come to the mind and these need to be answered before a new Act is promulgated.
It needs to be remembered that The Police Act is a Central Act and ratified by the Parliament. It lays down the basic infrastructure of the police system in the country. The control and governance of policing remains a State subject and states are required to enact their own State Police Acts to give shape to the basic structure in accordance with their regional requirements. The objectives of policing, the powers of the police officers and their administration are all regulated by this Act. Hence, its consequences are far reaching. The state governments cannot violate the main provisions of the Police Act such as the organisational structure that places the IPS on top of the hierarchy and gives control to the DG cum IGP (Director General, Inspector General of Police) as the chief police administrator in
every state.
The 1861 Act - a Colonial model
By design, our Police system emphasises maintaining
order rather than providing service to the people.
This stands in sharp contrast to the principles enshrined in all modern police forces, which are 'to serve and protect' and to prevent crime by working with the people.
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Combating terror - London lessons
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A uniform betrayal
Let us consider the existing Police Act V of 1861. There is considerable evidence to suggest that this represents a colonial model where the objectives of policing are to serve the interests of ruling establishment. The police are 'so shaped in personnel, powers and procedures as to be a terror to the law abiding citizen'. The Police Act of 1861 completely ignored the basic principles of policing which are to be accountable to the citizens, beholden to judicial control and more significantly work for the prevention of crime by winning trust and cooperation of people they serve. In contrast, the colonial police are shaped as an instrument of coercive power of the establishment. The first Police Commission, appointed in 1860 to reorganize the Indian police, was not surprisingly told to bear in mind that the '...functions of police are either protective and repressive or detective', [and the] 'line that separates the protective and repressive functions of the civil police from functions purely military, may not, always, in India be very clear.' Even then the organizational set up was not conceived to last more than a short period of time. It is deplorable that even after 58 years of independence we have not changed the laws governing the police in India.
At this stage it is useful to understand the main provisions of Police Act V of 1861 and why it needs to be repealed. The principles defined in Section 23 lay down that the duties of officers are to promptly obey and execute all orders and warrants lawfully issued by any competent authority; to collect and communicate intelligence affecting the public peace; to prevent the commissioning of offences and public nuances; to detect and bring offenders to justice; and to apprehend all persons for whom sufficient legal grounds exist. The order of importance of these duties is significant - to obey orders of superiors and collect intelligence and then followed by prevention and detection of offences. Nowhere does the Act suggest giving service to the people and working closely to gain their trust.
This stands in sharp contrast to the principles enshrined in all modern police forces, which are 'to serve and protect' and to prevent crime by working with the people. There are other sections in the Act too that suggest a repressive nature of the police system. Section 15 provides for the stationing of additional punitive police in any part of the province found to be disturbed from the conduct of the inhabitants. More significantly, the Act provides that the costs of such additional police can be levied from the inhabitants through distress warrants and sale of confiscated property of the fugitives.
Section 17 provides for the appointment of the residents as special police officers to assist the regular police and Section 19 provides powers to punish people refusing to serve as such. Selected citizens have been appointed as special police officers under section 17 to combat terrorists and naxalites, for example. Section 30 empowers the police to license the assemblies and processions of people that could be refused on grounds of threat to law and order. Furthermore, since Indians filled majority of subordinate ranks, provisions were made to keep their loyalty under constant supervision. Section 44 requires the maintenance of a general diary by the Station House Officer (SHO) to document movement of all officers. The officers could thus not only check the loyalty of subordinates but also wield considerable authority over the general people without direct accountability.
The police system was found to be unsatisfactory even by the British rulers themselves. A Police Commission appointed by Lord Curzon in 1902-03 found that 'the police force is far from efficient; it is defective in training and organization; it is inadequately supervised; [and] it is generally regarded as corrupt and oppressive'. The National Police Commission of 1978 (NPC) pointed that the police performance does not meet the expectations of citizens because of being constrained to function under an outmoded and 'politically more useful' system. It identified politically partisan performance, brutality, corruption and inefficiency as the clear perceptions of the police institution in the country.
Undemocratic by design
Apart from these historical antecedents there are three main design features that have adversely affected police performance in India. The prominent design feature is of maintaining order rather than providing service to the people. All the repressive sections described above shape police to be an order maintaining force rather than as one that serves the people by providing security and preventing crime. Accordingly, there is the continuing emphasis on armed policing within the system. Armed forces, no doubt, play an important role in the maintenance of order due to the volatile social, economic, ethnic, religious, and political conflicts in the country. But they cannot exercise any law enforcement powers, which are in the hands of regular police.
It is a lame excuse that we must establish order first before enforcing law. It is regular police work that defuses conflicts and helps maintain order. Moreover, short term objectives of maintaining order rather than looking into the underlying nature of problems is leading to dangerous situations. The strategies to deal with 'naxalism', political unrest and regional demands have generally used force to curb violence without letting police act as arbitrators. Consequently the police become the 'enemy' and a target of agitators. The police are then not seen as neutral agents of law but as those on the side of entrenched establishment.
It is a lame excuse that we must establish order first before enforcing law. It is regular police work that defuses conflicts and helps maintain order.
Further, maintaining order, especially in the democratic framework of the country involves discretionary judgments that have both political and social implications. Armed police, outside the purview of civilian scrutiny can and do affect sensitive political issues like elections, communal problems and center-state relations. The objectives that the police must safeguard in an independent India are based on democratic ideals and freedom. Armed police do not subscribe to these ideals and are not meant to do so either. The time to shed the reliance on armed police and develop the civilian model cannot be postponed further; how so ever threatening the order maintenance problems may appear to be.
The second feature is the system of dual control -- one exercised by the IPS and the other operated through the office of District Magistrate and the Home Ministry staffed by the IAS. Even though in the Police Act of 1861, control by the ICS was limited to the administration at the district level, the control mechanism grew geometrically. First it led to the establishment of the Home Ministry that began controlling the police organization, formulating its policies and controlling its budget. Furthermore, at every level of administration the police were subordinated to the corresponding civilian officer. Thus, the police ranges were made smaller units than revenue divisions and the Divisional Commissioner (a state government official) became the superior officer of the DIG. Indeed, in many states, even the Zonal IGs have been subordinated to the Divisional Commissioner. A much junior ranking IAS officer has been elevated to the rank of Home Secretary where he begins to dictate to the Chief of Police - the DGP, an officer who may be at least 10 years senior in rank. The present system has therefore ensured through various mechanisms to subordinate the police service to that of administrative service. This has prevented growth of professionalism in police and created a situation where people with little stake in the police organization make its policy and control its functions.
More troubling is the third design feature - the colonial cultural heritage that has not only alienated the police from the citizens but also promoted corruption and brutality. For the British, ostentatious pageantry and grandeur of the senior officers was an obvious, visible form of authority. The morning parade and salute to the commanding officer, the armed sentry at the Superintendents gate and armed escort on their tours were symbols that placed senior officers on a high pedestal. The Raj itself was symbolic, based upon an implied authority and total submission of the people. The slightest challenge to any official decree was taken seriously since it was felt that control would be impossible unless the people were totally subjugated. In this system, the people felt the power of the Raj through the daily humiliations and abuse meted out by the police personnel and submitted meekly to their extortion and corrupt practices.
In present day India, the Raj lives on. Police misbehaves and terrorizes the citizens, and the lavish living style of the senior officers is still quite visible. Instead of tiger hunts there are New Year parties, picnics and official 'get togethers' with family and friends at Dak Bungalows and public buildings. The practice of glorifying senior officers still survives. In Uttar Pradesh and Bihar, senior officers are still addressed as 'Huzur Bahadur', or 'Kaptan Sahib'. The association and continuance of the British legacy is displayed with pride in all police offices where a 'succession list' maintains the links from the British to the present period.
The wide gulf between the 'rulers' and the ruled continues and the class hierarchy even within the force is strictly maintained. Constables and even middle level officers do not sit down in front of the Superintendent. India is unashamedly an elitist society but elitism within the superior bureaucratic services is scandalous. Blatant misuse of official resources and other corrupt practices, in the name of cultural traditions leads to a quiet acceptance of corruption within the organization. All this calls for a major transformation, of organizational structure, management practices, supervision procedures, decentralization of power, creation of local accountability system, even a change in role and functions of the police in the society.
Another reform opportunity - the Police Act Drafting Committee
As noted at the beginning, the Government of India constituted the Police Act Drafting Committee in September 2005 to draft a new Police Act to replace 1861 law. It is unknown if the committee has the full mandate to draft a new Act. The committee was given 6 months to submit its report and already considerable time has gone by. A number of questions remain unanswered. What work of the committee has been going on? Why are issues not being discussed in public and input from expert groups being publicly invited and debated? It is worth recalling that the National Police Commission [1978] had a peculiar membership and did not really initiate a public debate to draft a new Act. Its deliberations were largely held in isolation and enabled the then government to place all kinds of obstacles in its work, ultimately preventing any useful outcome.
Recommendations for the new Act
It is imperative that the present committee examines the Police Act from all perspectives and debates the changes being
contemplated. Here, based upon the extensive research and experience of modern policing, I am proposing a few fundamental
changes in the Police Act.
1. Democratic accountability
A system of local accountability through Citizen Boards as practiced in more advanced countries is advocated.
The Board should be constituted at the district (metropolitan city) level so that SPs and Commissioners of Police, who are directly administering the police in the field, are held accountable by citizens.
The new police should be designed to uphold democratic ideals where citizens control the police and are partners in safeguarding their interests. Accordingly, a system of local accountability through Citizen Boards as practiced in more advanced countries is advocated.
The Board should be constituted at the district (metropolitan city) level so that SPs and Commissioners of Police, who are directly administering the police in the field, are held accountable by the citizens. Further, all such Boards should have extensive powers to inquire complaints against police personnel and also evaluate performance at the district level. Citizen Boards can either hire police officers from different units on deputation or use private investigators, researchers for these tasks.
Citizen input would help check misuse of force and corrupt practices while at the same time strengthen the police leadership to experiment and keep pace with new demands. The Citizen Board could be elected or nominated but its functions have to be transparent and members should not be allowed to serve more than two terms. It is recommended that the constitution of these Boards incorporate close association with the media, NGOs and research institutions to ensure proper supervision and accountability over the police department. There is considerable research on the constitution and role of these Citizen Boards and it is imperative that the Committee takes note of these findings. (Examples: Complaints against the Police, Andrew J. Goldsmith (Ed.), Clarendon Press, Oxford. 1991; Police Accountability: The Role of Citizen Oversight, Samuel Walker, Wadsworth, Belmont, CA, 2001.)
2. Organisational control
The Police Act should also be modified to combine the powers of Home Secretary into the office of DGP. This will be a controversial step but it is imperative that the DGP functions as the CEO of organization while the Home Ministry should act similar to the Board of Directors. This will give more operational freedom to the police leadership and avoid the present system of dual control.
The office of the DGP is the operational wing of the Home Ministry and should be permitted to act in accordance with the policy guidelines. In any modern organization the operational activity needs to be separate from its evaluation. Indeed, the role of any ministry is policy planning and evaluation. The Home Ministry should really be the nodal point for policy design and accountability of the police department. The Ministry should develop benchmarks for proper evaluation and demand that specific targets and policy goals be achieved by the DGP. The DGP should be empowered to operate the police department while the Home Minister's office must evaluate the organization's performance and costs.
The control over recruitment, promotion, transfer and postings of officers, acting as spokesperson and controlling all financial matters are examples of actions that should be handled by the DGP rather than the Home Secretary. At present, these roles are blurred and as seen in many states, the Home Secretary gets directly involved in operational matters. A ministry should not get involved in operational matters directly.
Thus, the police department should run as a modern goal oriented organization with planned budget, resources and personnel and then be held responsible for meeting its targets. Obviously, behaviour of personnel, especially misuse of force and corruption would be benchmarks that would be focal targets of evaluation. Furthermore, security of life and property, action against professional criminals and prevention-investigation-prosecution of crimes will be other areas where police will be held accountable.
It needs to be mentioned that the Home Ministry in the U.K. functions differently from that in India. In U.K. it is engaged in policy planning, development of specific guidelines, performance evaluation and research. Situational Crime Prevention, a major technique of policing was conceived and promoted by the British Home office. The Committee should incorporate the restructuring of the role of the Home Ministry also that has largely blocked police reform in the country.
3. Organisational structure
The structure of police organization needs to be flattened. As recommended by the NPC there must be only two entry points - one at constable level and the other at the IPS level. This will provide opportunities for constables to rise to the ranks of investigator and supervisors. Accordingly, constables will have to be college educated and better trained. This will help raise their status and necessarily improve their working conditions. Further, with enhanced promotion opportunities they will have to be conscious of better performance and behaviour as this would otherwise jeopardize their career. The continuance of IPS cadre should be supported since it attracts the best college graduates in the country and there by injects fresh thinking at the leadership levels. However, a system of local accountability for the IPS and the police by giving extensive powers to the Citizen Boards needs consideration.
4. Changing the police culture
As pointed above, the existing system operates as a colonial model where the organizational culture places police officers, especially the IPS leadership at an elevated level that breeds class hierarchy and working style inconsistence with democratic ideals. By flattening the organizational structure and adopting modern management practices that makes the police function as a public service system, the present mindset of officers will slowly undergo desirable changes. When privileges and perks of offices are replaced by financial rewards commiserate with service and performance, the misuse of office, discretion and corrupt practices are likely to be controlled.
The Police Act should mandate for careful selection, training and continuous learning on part of officers. It must lay down principles that officers will not be assured of promotion and spoils of office simply on the basis of seniority and political connections. The Police Act should therefore also lead to changes in the All India Services structure. IPS officers should not be divided into State cadres but serve on the basis of their specialization. A large number of young technocrats - engineers, managers, doctors, economists, social scientists and with other skills are joining the IPS. After providing them experience of district police the organization should make use of their special knowledge in running the police of the country. Any modern and effective police organization needs inputs in a variety of disciplines. It is time to reinvent the IPS - to make it a pool of experts that can serve in various capacities and bring new dynamism to the organization. At present, it is extraordinary that the Indian police have the best qualified leadership in the world and yet remains a disreputable organization.
In 1861, it made sense to bring young university graduates to provide leadership to the district police. In the twenty-first century, the Indian police have to deal with cyber crimes, enforcement of socio-economic laws, terrorism, rapid development, urbanization, migration, highway traffic management, large sports and cultural gatherings, volatile political mobilization and democratic functioning of more than a billion increasingly informed and educated people. Surely, the police leadership needs restructuring; specialists rather than generalists in meeting these challenges. Organizational culture takes time to change and it is expected that with a new mission, purposeful leadership, citizen accountability and performance evaluation, the existing cultural norms will slowly die out as a modern Indian police system evolves.
Conclusions
The new Police Act must lay down principles of service to the people under democratic norms and within legal parameters. It should provide for adequate resources both in terms of trained personnel and technology. But it should also lay down a system where the police are an open system, beholden to the people, meeting the targets and accountable for its performance. The police should work with the people, make research its core tool of operations. It should create a police for the twenty-first century that can meet the formidable challenges of terrorism, cyber crimes and participate in the development of the nation, a nation 'where the mind is without fear and the head is held high'.
Finally, it needs to be reiterated that any policy changes in a democratic society must be openly debated. Changes in the
police are desperately needed but these should not be designed behind closed doors. The Police Act Drafting Committee and the Home Minister should welcome new ideas and invite citizen input rather than limit it to the deliberations of a selected few. As citizens, we demand participation in the deliberations of this Committee. There is an urgent need to organize seminars in major cities so that input can at least be made to the members. The draft Act should also be circulated for wider dissemination and discussion before its adoption by the government.
