INTRODUCTION The term police has been derived from the latin word politia which means the condition of a Polis or State. Accordin to O!ford dictionar"# dictionar"# the term police means means a s"stem of re$lation for the preservation of order and enforcement of law% the internal overnment of State. The term broadl" refers to p$rposef$l maintenance of p$blic order and protection of persons and propert"# from the ha&ards of p$blic p$ blic accidents ac cidents and the commission of $nlawf$l acts. It refers to civil f$nctionaries chared with maintainin p$blic order and safet" and enforcin the law incl$din the prevention and detection of crime' The d$ties of the police are specified in the Police Act of '()'# a remnant of colonial r$le that was desined to be hihl" militaris militaristic tic and a$thoritari a$thoritarian. an. Section Section *+ specifies that the police do not have $nfettered discretion to commit an" act# b$t onl" those acts that have been sanctioned b" law ,the $ltra-vires principle. Section */ specifies the eneral d$ties of the police officer .* Save for a brief section on nelect of d$t"# however# the Act Act does not disc$ss instances of civilian and political control over police when the latter has e!ceeded or ab$sed ab$ sed its power./ As mentioned above# the police are overned b" the state# so most of the re$lations will be fo$nd in state laws rather than central overnment laws. 0or e!ample# the Delhi Police Act of '12( specifies# in section '1# the powers held b" the commissioner of police. The Commissioner ma" ma3e re$lations reardin# amon others# the place of residence of members of the police force and re$lations for the p$rpose of 4renderin
1 Sonia Saini# Model Saini# Model Police Act Act 2006- an Analysis Analysis## available at sslawfirm.in# accessed on *(5+/5*+'6. 2 4It shall be the d$t" of ever" police-officer promptl"# to obe" and e!ec$te all orders and warrants lawf$ll" iss$ed to him b" b " an" competent a$thorit"% to collect and comm$nicate intellience affectin the p$blic peace% to prevent prevent the commission of offences offences and p$blic n$isances% n$isances% to detect and brin brin offences to 7$stice and to apprehend apprehend all persons whom he is is leall" a$thori&ed a$thori&ed to apprehend# and for whose whose apprehension s$fficien s$fficientt ro$nd e!ists% and it shall be lawf$l for ever" police-officer# police-officer# for an" of the p$rposes mentioned mentioned in this section# witho$t witho$t a warrant to enter and inspect# an" drin3in-shop# drin3in-shop# aminho$se or other place of resort of loose and disorderl" characters.8 3 Section 29 of the Police Act 1861
the police efficient and preventin ab$se or nelect of their d$ties8.9 The Act f$rther provides for p$nishments in cases of miscond$ct.6 :hile the vario$s police acts clearl" artic$late the powers the police forces en7o"# the" are less clear# indeed silent# on the processes that can be ta3en aainst police miscond$ct b" the arieved citi&enr". Tr$e# the police acts prescribe actions that can be ta3en aainst police officers in cases of dereliction of d$t"# b$t s$ch action is $s$all" bro$ht b" the officer;s s$perior# who also later assins the p$nishment# if an". The vario$s police acts do not set $p an" mechanism for effective political and civic control of the police force. There is no establishment of an instit$tion whose sole p$rpose and a$thorit" is to receive complaints from the p$blic# investiate the complaints# and brin the proper action after the investiation has ended. :hile the police have internal mechanisms to deal with disciplinar" infractions and the li3e# there is no clearl" established e!ternal mechanism that ma3es them acco$ntable to the p$blic which the" are in chare of protectin.
The need for police reforms in India is lon reconi&ed. There has been more than three decades of disc$ssion b" overnment created committees and commissions. :a" bac3 in '121 the National Police Commission ,NPC was set $p to report on policin and ive recommendations for reform. The Commission prod$ced eiht reports# do&ens of topic specific recommendations and also a
itiation ,PI> in the S$preme Co$rt as3in the Co$rt to direct overnments to implement the NPC recommendations. In the co$rse of the '+ "ear lon battle in Co$rt# the Co$rt set $p the Ribeiro Committee in '11( followed b" the Padmanabhaiah Committee in *+++ and event$all" the Police Act Draftin Committee ,PADC or Soli Sorab7ee Committee that drafted a new model police bill to replace the colonial '()' Police Act in *++).
4 Section 19(c) of the Delhi Police Act of 1978 5 section 19(h) of the Delhi Police Act of 1978
A decade later in *++) the Co$rt delivered its verdict. In what is pop$larl" referred to as the Prakash Singh case) the S$preme Co$rt ordered that reform m$st ta3e place. States and $nion territories were directed to compl" with seven bindin directives that wo$ld 3ic3 start reform.
THE SEVEN DIRECTIVES IN A NUTSHELL Directive One Constitute a State Security Commission (SSC) to?
,i @ns$re that the state overnment does not e!ercise $nwarranted infl$ence or press$re on the police ,ii >a" down broad polic" $ideline and ,iii @val$ate the performance of the state police Directive Two
@ns$re that the D=P is appointed thro$h merit based transparent process and sec$re a minim$m ten$re of two "ears Directive Three
@ns$re that other police officers on operational d$ties ,incl$din S$perintendents of Police inchare of a district and Station o$se Officers in-chare of a police station are also provided a minim$m ten$re of two "ears Directive Four
Separate the investiation and law and order f$nctions of the police Directive Five
Set $p a Police @stablishment Board ,P@B to decide transfers# postins# promotions and other service related matters of police officers of and below the ran3 of Dep$t" S$perintendent of Police and ma3e recommendations on postins and transfers above the ran3 of Dep$t" S$perintendent of Police Directive Six
Set $p a Police Complaints A$thorit" ,PCA at state level to in$ire into p$blic complaints aainst police officers of and above the ran3 of Dep$t" S$perintendent of Police in cases of serio$s miscond$ct# incl$din c$stodial death# rievo$s h$rt# or rape in police c$stod" and at
6 Prakash Singh and Ors v Union of India and Ors1 ;(2006) 8 SCC 1
district levels to in$ire into p$blic complaints aainst the police personnel below the ran3 of Dep$t" S$perintendent of Police in cases of serio$s miscond$ct Directive Seven
Set $p a National Sec$rit" Commission ,NSC at the $nion level to prepare a panel for selection and placement of Chiefs of the Central Police Oranisations ,CPO with a minim$m ten$re of two "ears These directives p$lled toether the vario$s strands of improvement enerated since '121. The Co$rt re$ired immediate implementation of its orders either thro$h e!ec$tive orders or new police leislation. Initiall"# the Co$rt itself monitored compliance of all states and $nion territories. owever# in *++( it set $p a three member
Comparison of the Police Act 181 an! "o!el Police Act# 181 $ 1%
&n the 'asis of scope of the Acts$ The Police Act '()' is not the sole or onl" law in relation
to police f$nctions. The maintenance of p$blic order and the criminal 7$stice s"stem are based on the Indian Penal Code ,IPC# Criminal Proced$re Code ,CrPC# Indian @vidence Act as well as a lare n$mber of special leislations incl$din special laws incl$din Preven tion of Terrorism Act ,POTA# now repealed or Unlawf$l Activities Prevention Act ,in which man" of the provisions of repealed POTA have been incorporated or Control of Orani&ed Crimes Act ,COCA as in
The pream'le of the Act$
The preamble of the Police Act of '()' states that enacted to
reorani&e the Police and to ma3e it a more efficient instr$ment for the prevention and detection
of crime.2 The preamble of the act ma3es it clear that the role of the police is 7$st as an instr$ment for prevention and detection of crimes. The police pla"s no role in preservin the rihts of the people and respondin to the democratic aspiration of the people. The role of the police is 7$st confined to the law enforcement f$nction. The preamble of the "o!el Act is wider in its ambit and its states? :@R@AS respect for an! promotion of the h(man ri)hts of the people# an! protection of their ci*il# political# social# economic an! c(lt(ral ri)hts# is the primar+ concern of the R(le of La,8-
AND :@R@AS# it is the constit(tional o'li)ation of the State to pro*i!e impartial an! efficient Police Ser*ice safe)(ar!in) the interests of *(lnera'le sections of societ+ incl(!in) the minorities# an! respon!in) to the !emocratic aspirations of citi.ens-
AND :@R@AS s$ch f$nctionin of the police personnel needs to be professionall" oranised# service oriented# free from e!traneo$s infl$ences and acco$ntable to law% AND :@R@AS it is e/pe!ient to re!efine the role of the police# its !(ties an! responsi'ilities# '+ ta0in) into acco(nt the emer)in) challen)es of policin) an! sec(rit+ of State# the imperati*es of )oo! )o*ernance# an! respect for h(man ri)hts-
AND :@R@AS it is essential to appropriatel" empower the police to enable it to f$nction as an efficient# effective# people-friendl" and responsive aenc"% NO:# T@R@0OR@# since it is necessar" for this p$rpose to enact a new law relatin to the establishment and manaement of the Police Service# it is hereb" enacted as follows?
%
Control an! S(per*ision of Police $
Under the Police Act '()'# the s$perintendence of the police vests in the State =overnment and it is e!ercised b" the State =overnment to which the Police Officer is S$bordinate1. The admistration of the Police accordin to the act vests in the Inspector-=eneral of Police and in
7 Preamble, Police Act 1861 8 Preamble !o"el Police Act, 2##6 9 Section 3, Police Act, 1861
s$ch Dep$t" Inspectors-=eneral and Assistant Inspector-=eneral# as the State =overnment considers fit.'+ :hereas in the
s$pervisin the f$nctionin of the police at all levels% appointment to s$bordinate ran3s ,all officers below the ran3 of Dep$t" S$perintendent of Police% deplo"ment% transfers and disciplinar" action $p to and incl$sive of the ran3 of Inspector of Police% and advisin the overnment on the placement of officers of and above theran3 of Assistant5Dep$t" S$perintendent of Police.
23
Pro*ision for State Police 4oar!
The Police Act '()' does not provide for the formation of a State Police Board whereas the
a
the >eader of the Opposition in the state assembl"%
b
a retired ih Co$rt 7$de nominated b" the Chief F$stice of the ih Co$rt%
c
the Chief Secretar"%
d
the ome Secretar"%
e
the Director =eneral of Police as the member secretar"% and
f
five non-political persons of proven interit" and competence from the fields of academia# law# p$blic administration# media or nonovernment
The State Police Board wo$ld perform the followin f$nctions accordin to the act'2? a
frame broad polic" $idelines for promotin efficient# effective# responsive and acco$ntable policin%
b
select and prepare a panel ,on the basis of seniorit" and merit see belowof three senior most police officers for promotion to the post of Director =eneral of Police%
c
identif" performance indicators for police eval$ation% and
d
Cond$ct orani&ational performance eval$ation.
53
Pro*isions re)ar!in) Director 6eneral of Police$
The Police Act# '()' does not contain an" provision reardin the appointment of Director =eneral of Police b$t $nder the
Sec(rit+ of Ten(re$
The Police Act# '()' does not contain an" provision reardin the sec$rit" of ten$re. It provides that the Inspector =eneral# Dep$t" Inspector-=eneral# Assistant Inspector-=eneral and District S$perintendents of Police ma" at an" time dismiss # s$spend or red$ce an" police officer of
17 Section 48, !o"el Police Act,2##6 18 Section 6, !o"el Police Act, 2##6
s$bordinate ran3s whom the" thin3 remiss or nelient in the dischare of d$t" # or $nfit for the same'1. On the other hand the
Transfers$
Under the Police Act '()'# there is no specific provision reardin transfers. The police bein $nder the State =overnment is alwa"s s$b7ect to fre$ent transfers on the wishes of the State =overnment. Under the
19 Section 7, Police Act 1861 2# Section 13, !o"el Police Act,2##6 21 Section 54(4) of the Draft Police Act, 2##6 22Section 53(5) of the Draft Police Act, 2##6
officers within a district on the recommendations of a committee made $p of all the Additional# Dep$t" and Assistant S$perintendents of Police in a district. 83
Promotion $
Under the Police Act '()'# there is no specific provision for promotion. The Draft Police Act# *++) la"s down specific provision reardin promotion which has to be eval$ated b" a $alif"in e!amination and a performance eval$ation*/. The act f$rther la"s down that the $nion overnment m$st frame the eval$ation criteria for officers of the Indian Police Service*9. The Director =eneral of Police shall frame the eval$ation criteria for the remainin officers in the relevant state ,with the approval of the state overnment*6. The
Appointment
The Police Act# '()' states that appointment of the police officers is s$b7ect to article /'' of the constit$tion and s$ch r$les as the State =overnment ma" from time to time ma3e $nder the act*2. Accordin to the
to the Indian Police Service thro$h the Union P$blic Service Commission*1%
b
to Dep$t" S$perintendent of Police thro$h the State P$blic Service Commission/+% 23 Section 26(2) of the Draft Police Act, 2##6 24 Section 54(Pro$iso) of the !o"el Police Act,2##6 25 Section 54 of the !o"el Police Act,2##6 26 Section 54 of the !o"el Police Act,2##6 27 Section 7 of the Police Act, 1861 28 Section 4 of the !o"el Police Act, 2##6 29 Section 4(3) of the !o"el Police Act, 2##6 3# Section 4(3) of the !o"el Police Act, 2##6
c
and direct recr$itment to non-a&etted ran3s thro$h a state-level Police Recr$itment Board. This Board created $nder the
193 Stren)thenin) police in*esti)ations
Under the Police Act# '()' the preamble clearl" states that 4whereas it is e!pedient to reorani&e the Police and to ma3e it a more efficient instr$ment for the prevention and detection of crime/6. The Police Investiation cond$cted are overned b" the provision of Code of Criminal Proced$re and there are no specific section in the Police Act# '()' which provides for it. On the other hand
chain of command. Specialised crime investiation wins and departments m$st be e$ipped with ade$ate facilities# scientific aids# and $alified and trained h$ man reso$rces/). At the state level# a Criminal Investiation Department/2 m$st be created to investiate inter-state and inter-district crimes# as well as other serio$s crimes either notified b" the state overnment or allocated to the Department b" the Director =eneral of Police. A Dep$t" Inspector =eneral of Police shall head the Department/(. The Department m$st have speciali&ed $nits for investiatin c"ber crime# orani&ed crime# homicide# economic offences and an" other offences that re$ire specific investiative s3ills ,and are specificall" notified b" the state overnment. The act f$rther provides that a Special Crime Investiation Unit shall be created at the police station level in all $rban and crime-prone r$ral areas/1. A S$b-Inspector or a more senior officer shall head the Unit9+. The Unit m$st investiate offences s$ch as m$rder# 3idnappin# rape# dacoit"# robber"# dowr"-related offences# serio$s cases of cheatin# misappropriation and other economic offences that are notified b" the Director =eneral of Police or allocated b" the District S$perintendent of Police9'. All other crimes shall contin$e to be investiated b" other officers in the police station9*. Officers in the Special Crime Investiation Unit and in the Criminal Investiation Department at the state level shall have a minim$m ten$re of three "ears ,with a ma!im$m ten$re of five "ears9/. Officers posted to the Special Crime Investiation Unit cannot
36 Section 99(b) of the !o"el Police Act, 2##6 37 Section 16 of the !o"el Police Act, 2##6 38 Section 16(2) of the !o"el Police Act 2##6 39 Section 122 of !o"el Police Act, 2##6 4# Section 122 of !o"el Police Act, 2##6 41 Section 125(1) of !o"el Police Act, 2##6 42 Section 125(2)of !o"el Police Act, 2##6 43 Section 124of !o"el Police Act, 2##6
be iven an" other d$t"# e!cept $nder e!ceptional circ$mstances and with the written permission of the Director =eneral of Police. The act also considers that despite the separation of investiation and law and order f$nctions# the Station o$se Officer shall contin$e to s$pervise all officers in the Police Station incl$din those posted in the Special Crime Investiation Unit. In addition to the Station o$se Officer# an Additional S$perintendent of Police at the district level m$st s$pervise these investiations as well. The Additional S$perintendent shall report to the District S$perintendent. 113 Acco(nta'ilit+ for performance
The Police Act# '()' totall" fails on the ro$nds of an" acco$ntabilit" of the acts of the Police. The police $nder this act hold no acco$ntabilit" to an"one. Under the
44 Section 4# (1)(a) of !o"el Police Act, 2##6 45 Section 4#(2) of !o"el Police Act 2##6 46 Section 181 of !o"el Police Act, 2##6
Police miscond$ct and the fail$re to effectivel" respond to sit$ations are $nderminin p$blic confidence in the s"stem. These are iss$es whose ravit" is not bein addressed in an" reall" serio$s wa". The widespread belief that the police f$nctions with imp$nit" and officers are rarel" held to acco$nt for their acts of omission and commission is brea3in the faith of the p$blic in the police. 0$rther# Sections '/* and '12 of the Code of Criminal Proced$re ,CrPC prevent co$rts from ta3in cases of alleed offences in the dischare of official d$t"# for vario$s cateories of p$blic servants incl$din police officers# witho$t the prior sanction of the overnment. This sanction is sparinl" ranted which e!plains the overwhelmin reliance on internal disciplinar" mechanisms which $nfort$natel" do not inspire p$blic tr$st and confidence. =eneral p$blic distr$st stems from a variet" of beliefs s$ch as an innate desire for the department to protect its imae% some $estionable practices findin widespread acceptance within the police% in$ir" officers not wishin to be seen as t$rncoats and inimical to the feelin of camaraderie% the feelin that disciplinar" action will lower the morale of the force and bl$nt its ede in dealin with special sit$ations li3e militanc" or oranised crime% and the li3elihood of the person $nder scr$tin" bein personall" 3no wn to in$ir" officer5s. The Police Act '()' is silent on Police
47 Section 159 of !o"el Police Act, 2##6 48 Section 167 of !o"el Police Act, 2##6
The Commission shall be made $p of five members that have a credible record of Interit" and commitment to h$man rihts. Of the five members# at least one m$st be a woman# and not more than one sho$ld be a police officer. The members m$st incl$de91? a.
retired ih Co$rt 7$de as the Chairperson%;
b.
a retired police officer of the ran3 of Director =eneral of Police from a different state cadre%
c.
a person with a minim$m of ten "ears e!perience either as a 7$dicial officer# p$blic prosec$tor# practisin advocate# or a professor of law%
d.
a person of rep$te and standin from civil societ"% and
e.
a retired officer with e!perience in p$blic administration from another state. The state overnment m$st also p$t in place District Acco$ntabilit" A$thorities 6+ in each police district or ro$p of districts in a police rane to monitor internal in$iries into cases of police miscond$ct that incl$de an" wilf$l breach or nelect b" a police officer of an" law# r$le# or re$lation that adversel" affects the rihts of an individ$al. To increase the acco$ntabilit" $nder the Act# The police are $nder a d$t" to send $arterl" reports6' detailin the complaints received aainst police officers and the action ta3en b" the police orani&ation ,where the case involves a member of the p$blic. If a complaint relates to a Dep$t" S$perintendent ,or more senior officer# the reports shall be sent to the Commission at the state level% for other officers# the reports m$st be sent to the A$thorit" at the district level. If the Commission or A$thorit" believes that there has been a dela" dealin with a complaint# it ma" direct the police to e!pedite the in$ir". If a complainant is not satisfied with the o$tcome of an in$ir" and believesthat the principles of nat$ral 7$stice have not been followed# the Commission or A$thorit" ma" direct the police to instit$te a fresh in$ir" b" a different officer.
13 Police &ffences $
The list of offences committed b" a police officer $nder the Police Act# '()' incl$des wilf$l breach or nelect of an" r$le or re$lation or lawf$l order% withdrawal from d$ties of the office or bein absent witho$t permission or reasonable ca$se% enain witho$t a$thorit" in an" 49 Section 16# of !o"el Police Act, 2##6 5# Section 173 of !o"el Police Act, 2##6 51 Section 167(3) !o"el Police Act, 2##6
emplo"ment other than police d$t"% cowardice% and ca$sin an" $nwarrantable violence to an" person in her5his c$stod". The penalt" for these offences is fine $p to three months; pa" or imprisonment $p to three months or both6*. Under the
The Police Act# '()' needs to be replaced with leislation that reflects the democratic nat$re of India;s polit" and the chanin times. The Act is wea3 in almost all the parameters that m$st overn democratic police leislation. The Act has made it easier for others to ab$se and mis$se the police orani&ation. It has been possible for people in positions of power to do so beca$se of the followin reasons? i
The Act ives the overnment# the a$thorit" to e!ercise s$perintendence over the police#
witho$t definin the word S$perintendence or prescribin some $idelines to ens$re that the $se of power will be leitimate ii
The Act does not establish an" instit$tional and other arranements to ins$late the police from
$ndesirable and illeitimate o$tside control# press$res and infl$ences iii
The Act does not reconi&e the responsibilit" of the overnment to establish an efficient and
effective police force. iv
The Act does not ma3e it necessar" to o$tline ob7ectives and performance standards# nor does it
set $p independent mechanisms to monitor and inspect police performance. v vi
The Act is anti$ated in its charter of d$ties# which is narrow and limited. The Act does not mandate the police to f$nction as a professional and service oriented
orani&ation
52 Section 29 of the Police Act, 1861 53 Section 199 an" Section 2## of !o"el Police Act, 2##6
vii The Act is not in consonance with the re$irements of democratic policin. These re$irements insist on the e!istence of a police force that? ,a is s$b7ect to the r$le of law# rather than the whims of a powerf$l leader or part"% b can intervene in the life of citi&ens onl" $nder limited and controlled circ$mstances% and ,c is p$blicl" acco$ntable. Criticism of the "o!el Police Act# :99$
'.
The first concerned e!pressed is that some of the words and phrases $sed in the
*.
Secondl"# rave reservations are e!pressed reardin the incl$sion of Section ** in Chapter II of the
/.
Thirdl"# the concern e!pressed is reardin the police presence in r$ral India which contin$es to be minimal. The r$ral policin s"stem advocated b" the Committee in Chapter KII is based on assistance from local villaers who are appointed as Killae =$ards and Killae Defense Parties. Their f$nctions broadl" incl$de? ,a preventive patrollin% ,b sec$rin and preservin scenes of crime% ,c remainin alert and sensitive to an" information abo$t an" s$spicio$s activit". s$ch information to the police% ,d ma3in arrests and handin arrested people to the police witho$t
dela". It has been observed that these provisions have vast scope for ab$se. L$estions li3e# 4who are s$spicio$s personsM8# and 4what is s$spicio$s activit"M8 are bo$nd to arise. A$thori&in Killae =$ards to arrest and hand over a s$spect to police is also an iss$e. Concern has been e!pressed reardin the absence of an" provision re$irin the Killae =$ards to hand over the s$spect within twent"-fo$r ho$rs of arrest# which is the eneral standard followed in the Cr.P.C. It miht res$lt in a concentration of power in the hands of the dominant ro$ps within villaes that miht be steeped in ender# caste or reliio$s bias. The scope for ab$se is vast% especiall" iven the fact that most villaers wo$ld not be aware of the ambit of powers of the Killae =$ard and Defense Part" or of their rihts vis--vis these power str$ct$res within the villae. Apart from the rave daners of ab$se of power# lac3 of appropriate s3ills# e!perience and trainin wo$ld also mean inefficient# ineffective and $nresponsive policin in r$ral areas. Do$bts have been raised abo$t the s3ills of a villaer while preservin and sec$rin crime scenes or in preventive patrollin. It has also been observed that there is no e!c$se for the fail$re to provide re$lar police cover to villaes where the ma7orit" of Indian pop$lation resides. Tho$h the
