The primary institution on which the state relies for the maintenance of law and order is the police. In order to achieve this objective, the police are empowered to use limited coercive power thereby creating conditions for realization of human rights . The constitution itself and the international treaties and covenants ratified by India  cast a duty on the state to protect and promote human rights. Article 2(3)(a) of the International Covenant on Civil and Political Rights mandates every state party to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity. By virtue of being born a human, everybody has human rights which are inalienable and indivisible.
Human rights are core values which the police have a moral as well as a legal duty to uphold. This is the essential difference that distinguishes good policing from bad. While discharging their duty, police have to confront human rights. In order to ensure the security and safety of the common mass, police cannot belittle the rights of an individual or a marginalized community. They have to maintain the delicate balance between protecting human rights and preserving the security of the people, which though difficult, is not impossible to achieve. Unfortunately, Indian police choose the easy way out.
THE NEED FOR REFORM
Police in India, until recently, was governed by the colonial Police Act of 1861 enacted by the British. This statute did not meet the tripartite standards of accountability, transparency and equity. It was meant for subjects not for the free citizens of a democracy. A global survey showed that at best, the Police are inactive; at worst they “actively harass, oppress and brutalise” . As for example on the morning of 10th June 2008, the media reported that a 25-year-old woman who was allegedly raped by two policemen at the station house committed ‘suicide’ at the Haryana police headquarters in panchkula after two months of struggle for justice. Police would not register her complaint, and instead intimidated her to keep quiet. Unfortunately, the redressal machinery swung to action only when she paid for it with her life . This is merely a glimpse of the grim picture that pervades the country.
The reports of the National Human Rights Commission provides a clear picture of the situation pervailing in the country. A total of 85,661 cases disposed of in 2004-2005; 38,448 were dismissed ‘in limini’, while 21,465 were disposed of with directions to the appropriate authorities for remedial measures. 766 complaints related to custodial deaths, 46 cases pertained to encounter deaths and 24,936 other cases were also disposed of after calling for reports from the concerned authorities. In the latter group, 24 cases pertained to alleged disappearances, 1086 cases related to illegal detention/ illegal arrest, and 1213 cases were of alleged false implication. There were, in addition, 16 cases of alleged custodial violence, 84 cases of alleged ‘fake encounters’, 6833 instances of failure to take appropriate action and 6488 complaints related to other alleged police excesses .
In a study on the “Image of Police in India”, over 50% of the respondents mentioned ‘non registration of complaint’ as a pervasive malpractice in police stations . The Law Commission of India examined the subject and recommended the insertion of a specific provision in the Indian Penal Code. The commission recommended that any officer who refused or without reasonable cause failed to record an FIR  be subject to imprisonment for a term of one year or fine or both . However the government blatantly refused to accept this recommendation which could have been a potent armour in the hands of citizens against police harassment.
The National Police Commission (hereinafter referred to as “NPC”) correctly observed that the nexus between financially powerful groups and political power existing in India has a direct link to inequitable policing practices. Malafide exercise of power at different levels in the police is induced by such links. The problem of police corruption cannot, therefore, be satisfactorily tackled unless these links are broken . The fundamental problem regarding the police today is how to make them function efficiently and impartially motivated and guided only by the objectives of the service to public at large, upholding the constitutional rights and liberty of the people .
Another aspect adding to the unfortunate plight of Indian citizens are the impunity provisions of the Code of Criminal Procedure (“CrPC”). Section 197 and 132 of the CrPC require the prior sanction of the government before prosecuting public servants for any offence alleged to have been done in discharge of their official duty. The object of the section is to guard public servants against vexatious proceedings and to secure the well-considered opinion of a superior authority before their prosecution . However the blatant misuse of this provision concretizes itself in the form of police excesses which go unchecked.
Moreover the internal departmental enquiry mechanism whereby a superior official adjudges a complaint about his subordinates is an impediment to proper accountability due to the inevitable solidarity and fellowship among officers which impedes objectivity. Departmental enquiries do not always bring out the truth and are mostly biased in the favour of the policemen . The inquiry officer is obsessed by a feeling that the exposure of the misconduct of any of his subordinates will be deemed as a stigma on his own administration and is, therefore, inclined to suppress a full exposure of the alleged misconduct .
THE ROAD AHEAD
Reforms in policing began with formation of the NPC on 15th November 1977. One among the many terms of reference of the Commission required it to recommend measures and institutional arrangements to ‘prevent misuse of powers by the police and misuse of police by administrative or executive instructions, political or other pressure, or oral orders of any type, which are contrary to law . The NPC tabled eight reports before the government between of 1979-1981. However its recommendations were not implemented by the government of India.
In 1996, the two former Director Generals of Police filed Public Interest Litigation (PIL) in the Supreme Court of India to direct the centre and the state governments to take measures for improving the quality of policing in India and to make the police more accountable. The decision of the court in 2006 noted that having regard to the ‘gravity of the problem’ and ‘total uncertainty as to when police reforms would be introduced’, further waiting was not be possible and the stage had come for issuing appropriate directions for immediate compliance to be operative until such time a new legislation is enacted .
Article 141 declares that directions issued by the Supreme Court are binding on all courts in India and Article 144 of the Constitution of India mandates that all authorities civil or judicial shall act in the aid of the Supreme Court. This entails that judgments and interpretations of the Supreme Court have the force of law and failure to comply with court guidelines amounts to Contempt. Policing being a state subject in India, the Supreme Court gave a deadline of March, 2007 to all states for compliance with its directives and a monitoring committee has been set up to review its implementation.
The Supreme Court in this case gave directives which were to be followed till the states come up with their police acts.
Second, the directives provide for a minimum fixed tenure of two years for the Chief of Police and four other police officers  on operational duties in the field. The court expressed its shock over the frequent transfer of Superintendents of Police for whimsical reasons and observed that this trend leads to demoralization of the police force.
Third, the directives call for the separation of investigation from law and order which was also recommended by the Law Commission of India in its 154th report. This would ensure faster, accurate and fairer processes so that rule of law is maintained. Presently, law and order is prioritized over investigation work which leads to loss of material evidence crucial for the case under consideration.
Fifth and the most important, the judgment directs to set up Police Complaints Authority in states to inquire into allegations of complaint of public against the men in uniform. This is supposed to be an independent body comprised of civil society members to ensure that justice is done without prejudice to any party. However states are trying to dilute the neutrality of the complaint authority by increasing the number of policemen on the Complaint Authority in the guise of independent members . This would annul the efficacy of having a complaint authority.
The Supreme Court’s directives are a welcome step however some of the areas are still open to misuse. They do not in any way effect the impunity provisions in the CrPC, the misuse of which is a major cause of harassment to the citizens. The institution of police must function according to the rule of law and not according to the rule of politics. Policing must not be partisan in anyway towards people with clout ignoring the voice of the marginalized. Police is to be a service oriented institution composed of professionally trained officers where there is no dilution in command and responsibility. Only then can we imagine a democracy with equity pervading throughout.
However, the states have been reluctant to implement the directives of the Supreme Court. Most of the states have or are trying to pass the new Police Acts but have diluted the directives leaving lacunae in place for police to act discretionarily and facilitating entrenchment by the political executive. This is a significant blow to all civil society members who turn to state and the police to protect their human rights. The entire campaign towards reform has been compromised by those who want to protect their narrow and partisan interests.
The Supreme Court has set up a monitoring committee to review the implementation of its directives. As members of civil society, we can only hope that Supreme Court will take cognizance of the situation and address the urgent need to protect human rights by ensuring the proper implementation of its directives.
- The eighth report of the NPC recommended that protection available to the police officers from prosecution under section 132 and 197 of the Code of Criminal Procedure which mandate prior sanction of the government in order to prosecute any public servant including police official for any act done in discharge of his official duty be withdrawn or that a proviso be added to the section to initiate automatic judicial enquiry in every refusal to prosecute. This recommendation must be implemented. Making the police more accountable would deter police officials from harassing citizens.
- There should be an independent board composed of civil society members with no police officials on-board which should enquire into any allegations of complaints against police officials. This would ensure that every victim of human rights violation has a platform for redressal, making the police accountable.
- The law in books must be put to practice and this can only be ensured by imparting human rights education. Principle and practice should not differ and therefore training in human rights laws should be made compulsory for all police officials. This will sensitize and inculcate respect for human rights in them and also improve police-public relations.
- If any violation of human rights has been committed by a subordinate officer and subsequently the superior officer, even after the incident came to his knowledge, does not institute disciplinary action against him then there should be a presumption about his complicity in executing the incident.
- The author is a second year law student at Chanakya National Law University, Patna.
- Section 99 of the Indian Penal Code, 1860
- Section 2(1) (d) of the Protection of Human Rights Act, 1993 defines human rights as, “rights relating to life, liberty, equality and dignity of the individual guaranteed by the constitution or embodied in the international covenants and enforceable by the court in India.
- On 10th July 1979, India ratified the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, the two primary international covenants on Human Rights.
- “The World Bank: Can anyone hear us? Voices from 47 countries, December, 1999” cited in “Police Practices: Obstruction to Poor People’s Access to Justice”, G. P. Joshi, (Commonwealth Human Rights Initiative Publication, 2003) , p. 7 para 1
- “Alleging rape by cops who held husband for theft, woman ends life at police head quarters” found on http://www.indianexpress.com/story/320887.html visited on 10th June 2008
- Annual Report of the National Human Rights Commission for the year 2004-2005, at para 4.5
- The National Police Commission, Government of India, Fourth Report, June 1980, p. 1
- First Information Report is the earliest information received by the police about the commission of a cognizable offence. This sets the Criminal Justice system in motion.
- Law Commission of India, Eighty Fourth Report, April 1980, p. 20
- The National Police Commission, Government of India: Third Report, January 1980, p. 27
- As noted in the Preamble to the First Report of the National Police Commission, (Feb, 1979)
- R.R.Chari v. State of U.P AIR 1962 SC 1573.
- The National Police Commission, Government of India: First Report, February 1979, p.58 para 10.7
- The National Police Commission, Government of India: First Report, February 1979,p. 59 para 10.11
- Government of India’s resolution no. VI-24021/36/77-GPA.I, 15 November 1997, Term of Reference No. 10 (i) and (ii).
- See Prakash Singh and others v. Union of India (2006) 8 SCC 1 at para10
- These include the Inspector General of Police in-charge zone, the Deputy Inspector General in-charge of a range, the Superintendent of Police in-charge of a district and the Station House Office in-charge of a Police Station.
- As for example The Chhattisgarh Police (Amendment) Act, 2008 deleted Section 40(c) of the Chhattisgarh Police act which prevented serving and recently retired police official to members of the Police Complaint Authority.
Information about the author
Shantanu is presently a third year student pursuing B.A.LL.B (Hons.) at Chanakya National Law University, Patna. His area of interests includes writing articles thereby contributing to the present legal discourse.