Democratic Policing- The Concept and Reality

Justice A. B. Pal, Former Judge of the Gauhati High Cour

Democratic Policing: In a democratic polity modern policing must be people friendly and based on people's support and co-operation. Police should be the protector of human rights-the right to life, liberty, equality and dignity- apart from the onerous duties to maintain law and order, prevent, detect and investigate crimes, provide individual and social security. Police is the visible arm of state and the first gate to enter the temple of criminal justice. In order to uphold the rule of law which is based on the principles of righteousness and justice police has been vested with enormous powers. But powers have always a tendency to breed arrogance, misuse and abuse of power and so is the great need for a strong regulatory and accountability mechanism. In view of the complexity and dimension of crimes today, modern policing should be inclusive, pro-active and democratic. Without active and meaningful participation of people policing in today's context is bound to fail. People friendly attitude, respect for human rights, independent and impartial enforcement of law and a spirit of service are essential for reorientation of colonial police legacy into democratic policing.

Police image: Unfortunately, even after 70 years of independence there exists huge distance and distrust between police and people. The Supreme Court in Arnesh Kumar Vs State of Bihar observed "There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the criminal procedure code. It has not come out of its colonial image despite six decades of independence. It is largely considered as a tool of harassment, oppression and surely not a friend of public"

In 1997 the Union Home Minister, in a letter to all the Chief Ministers stressed that a clean break from the colonial system of policing was needed. He pointed out that the popular perception all over the country appeared to be that many of the deficiencies in functioning of the police had arisen largely due to (i) unhealthy political interference at various level starting from transfer and posting of police officers of different ranks, misuse of police for partisan purpose and political patronage quite often extended to corrupt police personnel; (ii) a poor public police relationship; (iii) inadequate accountability of police performance; (iv) increasing level of police misconduct; (v) poor state of police leadership and discipline; (vi) ineffective public grievance redressal mechanism. These were the most important factors ailing police.

Colonial Heritage: The Indian Police Act 1861 was enacted by British rulers soon after Sepoy Mutiny in 1857 to raise a strong police force to ruthlessly oppress Indians and protect the rulers. Unfortunately, this oppressive black law was allowed by the indigenous rulers to remain in force for more than sixty years after independence. As a result the police force also remained oppressive, anti people and undemocratic.

There was no comprehensive review of the old police system though radical changes had taken place in the political, social and economic situations after independence and the constitution had given to the people certain fundamental rights including right to life, liberty, equality and dignity which are the basic tenets of human rights. No conscious attempt was made after independence to review and replace British Police law and bring about changes in the police psyche to respect and protect human rights to serve people and seek support and co-operation of people in policing.

Because of the apathy of the political leaders the police system came to be afflicted by corruption, misuse and abuse of powers, violation of human rights by non enforcement of law and discretionary application of law, illegal arrest, unauthorised detention, custodial violence, harassment of mostly disadvantaged persons and fabrication of evidence. The basic and fundamental problem regarding police was how to make them functional as an efficient and impartial law enforcement agency fully motivated and guided by the objective of service to the people at large upholding the constitutional rights of the people.

Police Reforms: The public outcry for police reforms led to formation of the National Police Commission in 1977 which submitted report in 1981 suggesting radical measures to reform police system which was modelled under the British law, the Police Act of 1861. No recommendation of the commission was adopted by any state government. This persuaded two former Director General of Police (DGPs) in 1996 to file a public Interest Litigation (PIL) in the supreme court asking the court to direct the government to implement NCP recommendations. In the course of the 10 years long battle in court, the supreme court set up the Riberio committee in 1998 followed by Padmanabhaiah committee in 2000 and eventually the Police Act drafting committee (Soil Sorabjee Committee) that drafted a new model police bill to replace the colonial Police Act 1861. Meanwhile very little was done on the ground to improve policing or implement the recommendations put forth by any of these committees or commissions.

In 2006, after a decade, the court delivered its verdict. This case is popularly known as Prakash Singh case. The supreme court gave seven binding directives to the Union and the states to comply for police reforms.

The Directive One: Constitute a state security commission. There is no law or convention at present limiting political supervision and control over police. As a result there has been unfettered and undue interference by politicians in the everyday functioning of the police, which disrupted the supervisory authority and obscured command responsibility of the police.

The state security commission (Police Board in Tripura) is made up of the Home Minister, the leader of the opposition, experts and credible members of the civil society. Its functions are to lay down policing policy, indicate performance criteria and keep police performance, challenges and its needs under review.

At present there is no well established system of performance evaluation except the parameters for assessing performance on the basis of increase or decrease in crime statistics. This has led to the practice of refusing to register cases and disguising statistics.

Directive Two: Ensure that the DGP is appointed through a merit based transparent process and secure a minimum tenure of two years appointment.

DGP must be selected from amongst the three senior most officers empanelled by the Union Public Service Commission (UPSC) for the post. The selection should be made on the basis of the candidates (i) Length of service (ii) service record and (iii) range of experience. This is necessary to prevent arbitrariness and personal preference in the appointment.

Directive three: Ensure that other police officers on operational duties including superintendent of police and officer in charge of the police station are also provided a minimum tenure of two years.

The intention behind this direction is to prevent frequent and arbitrary transfers taking place at the behest of influential third parties. This ensures security of tenure for police officers on operational duties in the field and allows them to withstand undue political interference.

Directive Four: Separate the investigation from law and order functions of the police.

Both investigation and law and order are vital police functions. Investigation needs highly trained, legally educated and specialised police officers. If the same officer is burdened with investigation and law and order duties he cannot concentrate on technical and legal aspects of the criminal cases under investigation and cannot complete job within statutory time frame. Delay in criminal investigation leads to delay in justice delivery which amounts to denial of justice. Quality of investigation by inadequately trained and unspecialized police officer is responsible for very poor rate of conviction. Separation is intended to improve quality of investigation.

Directive Five: Set up a Police Establishment Board (PEB) to decide transfer, postings, promotions and other service related matters of officer of and below the rank of Deputy Superintendent of Police and make recommendations on posting and transfer above the rank of Deputy Superintendent of Police.

The Board is made up of the DGP and four other senior officer of the department to decide on matters of internal police administration independently without any interference of political executives and other influential persons. Experience shows that their statutory demarcation is absolutely required in order to decrease corruptions and undue patronage given the prevailing illegitimate political interference in decisions regarding police appointments, transfers and promotions.

Directive Six: Set up a Police Complaint Authority (PCA) at state level to inquire into pubic complaints against police officers in case of serious misconduct including custodial death, grievous hurt or rape in police custody. After inquiry the PCA can recommend disciplinary or criminal action against erring personnel.

Directive Seven: Set up a National Security Commission (NSC) at the union level to prepare a panel for selection and placement of chiefs of the Central Police Organisation (CPO) with a minimum tenure of two years.

Resistance to reforms: - The Vohra Committee set up in 1997 by the Union Home Ministry made a very astute analysis of the resistance to reforms. The committee observed that the suggestions for police reforms by NPC, particularly the need for setting up state security council were not acceptable to most of the state governments. The obvious reason was that the Executive Authority which comprises a section of the political leadership, a section of bureaucracy and the police feared loss of power in case their decisions and actions were scrutinized by a separate commission.

The resistance to police reforms was so strong that even today the seven directions of the supreme court in Prakash Singh rendered in 2006 are yet to be implemented by majority of the states. Only Assam, Tripura, Kerala, Karnataka, Uttarakhand, Goa and some union territories have made half-hearted attempts to bring about changes in the police system. They have not followed the directions in letter and spirit. Some of them interpreted differently and diluted the directions to suit their own purpose of retaining powers they hold in traditional and colonial system of policing.

But it seems to be quite possible to identity areas of police functions where resistance or external influence is almost absent in ordinary course of police-public encounters. If the police leaders have strong convictions in the declared way of police reforms, the numerous forms of police misconduct, abuse and misuse of powers, corruption and violation of human right at cutting edge level which happen mostly from old habit and systemic arrogance can be brought down substantially by setting up and enforcing strong internal accountability mechanism.

Police Reforms in Tripura: In order to reform police system in Tripura the Tripura Police Act 2007 was enacted. Under section 20 of the said Act the State Security Council naming it as State Police Board has been constituted. The composition of the Board has been constituted. The composition of the Board is significant in as much as it is headed by the Home Minister with Director General of Police as the Member-Secretary and Chief Secretary as one of the members. The Political leadership, the bureaucracy and the police have strong and dominant presence in the body. This being the position the fear of loss of power by the executive authority seems to be totally unfounded. It is therefore, not intelligible why majority of the state resisted state security council as observed by the Vohra Committee.

Police guidelines: The Police Board in Tripura has done a splendid job. It is the only such body in the country which has laid down ten important policy guide lines to ensure police works properly with complete commitment, devotion and accountability only to the Rule of law. The general policy guidelines state that the purpose of the reforms would be (i) to modernise the state police; (ii) cultivate motivation to serve the people; (iii) bring about transparency in police functioning; (iv) insulate police function from extra legal interference; (v) Provide for legal education and training of police; (vi) develop police-public relations; (vii) eradicate corruption, misuse and abuse of powers; (viii) ensure professional freedom; and (ix) Punish erring police officer. The Board then framed ten specific policy guidelines on arrest, non registration of complaints, illegal detention, custodial violence, police-public relations, attitudinal changes, community policing, professional freedom, victim compensation and training in legal education.

Guideline on arrest: Of all the powers of police the most important is the power to arrest which impinges upon the right to liberty and dignity. The police is required to provide and preserve public order, identify problems and situations that are likely to result in commission of crimes, effectively reduce the opportunities for commission of crimes by preventive measures, investigate crimes and arrest the offender where necessary. The task is, therefore, difficult calling for dispassionate and impartial exercise of power of arrest with full respect for human dignity. In view of the National Police Commissions observation that 60% of the arrests in the country are unnecessary, the guidelines on arrest state that police should essentially bear in mind the principle of law that no arrest should be made without a reasonable satisfaction reached after some investigation about genuineness and bonafide of a complaint and a reasonable belief both as to person’s complicity and the need to arrest. No external pressure or interference should be allowed to dilute the principle.

Protection of Police: It is, therefore to be remembered that every action that a policeman takes is bordering on a thin legal line. Every arrest is wrongful restraint, every raid in somebody's premises is wrongful trespass and death by firing is murder unless procedurally justified. Every time police has to justify his actions. His protection is that he is on the right side of the law and has taken the action in the discharge of his duties as empowered by law, No doubt the police is allowed by law to use force and that authority cannot be taken away when the situation warrant it. To tell the police not to use force under any circumstance is to tie his hands behind his back and throw him into troubled water. Police usually combat miscreants not by genuine use of force but by the threat of such use in proportion to the violence. If that threat is taken away it will be free for all.

Legal Education: As the only defence of police for his action is to remain on the right side of the law it is absolutely necessary for the police to undergo legal education and training at regular interval. One of the Tripura Police guidelines contains such a provision which reads:-

Legal illiteracy and intellectual inadequacy are no mean problem which often creates mass of a situation. Law is changing, so also its interpretation. Today's good law is overruled or modified tomorrow. There has been a paradigm shift over the years in the laws related to crimes against women and the law of evidence in its application to such crimes. In the large canvas of criminal justice administration a competent police force, well trained and well versed in laws figures prominently. Flawed investigation by incompetent police is a prime reason for collapse of prosecution.

Social responsibilities of Police: The Tripura Police Act has redefined the role of police and their social responsibilities in section 28 and 29. Section 28 states that the first and foremost function of police shall be to uphold and enforce the law impartially and to protect life, liberty, property and dignity of the members of the public. Section 29 ordains police to behave with public with due courtesy and decorum, help and guide poor, indigent, handicapped, old, women and children. Chapter V of the Act provides for rural policing and village police system. All these provisions are designed to bridge the police-public divide by promoting people friendly activity. The new role if played well will win over the people and enlist their active support and co-operation in policing. The clear message is that police must be tough but not rough in performing their functions.

External Accountability Mechanism: There is however, serious misconception about the need or efficacy of an external accountability mechanism such as police accountability commission in Tripura or Police Complaint Authority in some other states. A study has shown most of the State Police Authority in states have resented and resisted such measure viewing it an intrusion in their exclusive domain. They argue that police is a most discipline force and that their internal accountability mechanism is robust to handle misbehaviour. But it has been widely acknowledged in public domain that this is only a myth. The truth is that the internal accountability procedures is veiled, slow paced and uncertain in outcome. Too frequently, the complainant cannot sustain the grievance and remain dissatisfied.

Even where internal accountability procedures are adequate, well structured and properly resourced, by their very nature they are susceptible to bias. There is always a strong temptation to protect their own. Apart from arrogant and rude behaviour for which hardly any action is taken departmentally, there is simmering anger among the Indian population at the impunity the police seemingly enjoy. From too many illegal arrest and detention to refusal to register case and downright criminal behaviour- the level and extent of police misconduct remains alarmingly high.

This being the reality the need for an external accountability mechanism as provided in section 58 of the Tripura Police Act is very high. This is virtually a mechanism in addition to the existing internal mechanism. As an oversight body the commission will only assist the police authority by bringing to its notice the cases of serious police misconduct to enable it to enforce accountability internally. It has no power to punish police person found to be guilty of misconduct. The punishment part exclusively remains with the police leadership. There is thus no intrusion in the exclusive domain of the police jurisdiction. A careful study will show that police commission is enjoined to secure professional freedom of police keeping at bay external interference in police functioning and keep police activities within the bounds of law. As regards reforms in police system it has to be realised that none but the police should be the actual players. If reforms mean to modernise the police, cultivate motivation to serve people, bring about transparency in police functioning, develop police-public relation, eradicate corruption, misuse and abuse of power, train and educate police and punish earring police persons none but police only can make it happen.

Conclusion: When a member of Parliament declares in public that he would himself shoot and eliminate his rivals, let loose his boys to rape women of the opposition parties and the police looks the other way the politicization of police is complete. When police arrests a poor man from his own house without warrant only because he was found drunk or when police went to arrest a person and failing to get him, forced an innocent family member to come to police station where he was detained and tortured it is definitely bad and undemocratic policing and clear violation of human rights.

The question now staring at police leadership and looming large is whether they are mentally ready to embrace the reforms following the court directives for a transparent, responsive and democratic policing, encourage tough but not rough, strong but not insensitive policing. To quote Shakespeare "It is excellent to have giants power but dangerous to use it like a giant." Is it possible for the police to ensure their giants powers are not used like giants? If that is possible nothing more will be required to reform police system for transition to democratic policing.

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