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Seven Steps To Police Reform

Commonwealth Human Rights Initiative

November 2007

1.              Introduction

That systemic police reform is an imperative is undisputed. The Supreme Court ordered that reform take place in a judgment delivered in the Prakash Singh case on 22 September 2006.  On 11 January 2007, the Court considered the objections and concerns of the states and the union to its judgment and, while taking account of their objections and concerns said very firmly that the process of police reform must commence immediately.  What the Supreme Court says is law.  Not complying with its directions amounts to disobedience and can mean being charged with contempt of court.  On 9 April 2007, the Court set yet another date (30 April 2007) to look at applications for extension/modification.  On 23 August 2007, the Court dismissed all review petitions by the state and the central government, as it did not find any merit in them.  This means that the Centre, States and Union Territories will have to implement the Court's order. 

2.              Chronology : Prakash Singh & Ors. Versus Union of India & Ors

3.              What are the Supreme Court directives?

The seven directives provide practical mechanisms to kick-start reform.  They include recommendations from many of the commissions and committees on police reform that have sat in India over the last 25 years.  In a nutshell, governments are directed to:

1. Constitute a State Security Commission to (i) ensure that the state government does not exercise unwarranted influence or pressure on the police, (ii) lay down broad policy guidelines, and (iii) evaluate the performance of the state police;

2. Ensure that the Director General of Police is appointed through a merit based, transparent process and enjoys a minimum tenure of two years;

3. Ensure that other police officers on operational duties (including Superintendents of Police in-charge of a district and Station House Officers in-charge of a police station) also have a minimum tenure of two years;

4. Set up a Police Establishment Board, which will decide all transfers, postings, promotions and other service related matters of police officers of and below the rank of Deputy Superintendent of Police and make recommendations on postings and transfers of officers above the rank of Deputy Superintendent of Police;

5. Set up a National Security Commission at the union level to prepare a panel for selection and placement of Chiefs of the Central Police Organisations (CPO), who should also be given a minimum tenure of two years;

6. Set up independent Police Complaints Authorities at the state and district levels to look into public complaints against police officers in cases of serious misconduct, including custodial death, grievous hurt or rape in police custody; and

7. Separate the investigation and law and order functions of the police.

4.              What have states and union territories done?

On 11 January 2007, the states submitted affidavits to the Supreme Court setting out the steps that they had taken to comply with the judgment.  On 9 April 2007, the states and the union filed fresh affidavits to update the court on compliance. A graphic representation of the compliance status of all states and territories based on the information in their affidavits is set out below.

Compliance scorecard

Definition of categories

Compliant                      Have reported taking steps to implement all directives

Partially compliant         Have taken steps to comply with one or more directives, may have registered objections to some directives

Non compliant               Have registered strong objections to some or all directives and do not indicate any steps for implementing or;

Have stated that new police legislation is in the process of being drafted therefore no steps have been taken to implement directives or; Have sought extensions with no details on concrete steps towards compliance or;

Are Union Territories reliant on central government for compliance.

*States with asterisks indicate those that are drafting or have drafted new police legislation.

5.              What have the states said?

Many states have made statements that they support the spirit of reform behind the Court's directives.  However the states have made the following arguments against immediate implementation of the directives, particularly in their current form.

5.1.        Political interference in police administration is minimal

The need for a State Security Commission is questioned, as there is no unwarranted influence over the police. (Gujarat, Nagaland)

5.2.        Undermines the power of the elected government

Setting up a State Security Commission with binding powers is likely to undermine the power of a constitutionally established state over the state police, lead to the creation of a parallel body which is not accountable to the people of the state and would infringe the rights of the state.  (Andhra Pradesh, Gujarat, Uttar Pradesh)

5.3.        Fixed tenure will demoralise officers and limit the government's flexibility

A fixed two-year tenure for the DGP, irrespective of their superannuation date, will block opportunities for other eligible senior officers, who will be demoralised.  Further, the directives take away the right of the government to transfer police officers to meet administrative exigencies.  Similar arguments have been levelled against a fixed tenure for the IG, DIG, SP andSHO. (Andhra Pradesh, Uttar Pradesh, Gujarat, Nagaland)

5.4.        Involvement of the UPSC is neither practical nor necessary

Under existing law, there is no provision for empanelling three officers by the Union Public Service Commission to provide three names of candidates for DGP to the state government to appoint.  The involvement of the UPSC in this is neither practical nor necessary. (Gujarat, Karnataka)

5.5.        Fixed tenure is not important for good performance

Short tenure does not impact on efficient functioning. (Andhra Pradesh)

5.6.        Police Establishment Board will duplicate existing systems

A Police Establishment Board would run contrary to the democratic functions of the government and result in the creation of a separate power centre, comprising bureaucrats who are not answerable to the people, while also duplicating existing systems. (Gujarat, Uttar Pradesh)

5.7.        Complaints Authorities will duplicate existing efforts and be a financial burden

National and State Human Rights Commissions, the Minorities Commission, the Scheduled Castes & Schedules Tribes Commission, the Central Vigilance Commission, State Vigilance Commissions and Lok Ayuktas are already in place to deal with complaints about the police. Creating new District and State Complaints Authorities would duplicate the work of existing fora and would be a financial burden. (Gujarat, Uttar Pradesh, Andhra Pradesh, Karnataka, Tamil Nadu)

5.8.        No demonstrated need for Complaints Authorities

Uttar Pradesh argued against the need for State and District Complaints Authorities based on a statistical argument comparing the current number of complaints against the police and the number found to be incorrect or unsubstantiated.  Nagaland maintained that the commission of excesses by the police is a very rare occurrence.

5.9.        Complaints Authorities will demoralise police 

The establishment of District and State Complaints Authorities may lead to the police being demoralised, failing to  implement various laws and becoming ineffective out of a fear of being prosecuted by yet another agency. (Andhra Pradesh)

Moving the directives from paper to reality

The urgent resolve for police reform ordered by the Supreme Court must galvanize action.  Any central or state government decisions including the appointment and removal of DGPs, the removal of IGs, DIGs, SPs and SHOs, transfers and promotions of other police and serious complaints against police, must, from here on, be viewed in the context of the directives.

Already, instances have emerged of state governments violating their own notifications of compliance.  In both Arunachal Pradesh and Manipur, DGPs have been removed from their post, ahead of the two-year tenure assured to them by executive order, without any explanation for the grounds of removal, as required under the law.

The Special Secretary, issued an order dated 28 December 2006 declaring the selection procedure and minimum tenure for the DGP[i]. In terms of granting minimum tenure to the DGP, the order states:

            2. The Governor of Manipur is further pleased to order that the DGP will have a minimum tenure of two years except in those conditions where the officer is to retire within less than two years. The Director General of Police may be relieved of his responsibilities by the State Government in consultation with the State Security Commission consequent upon any action taken against him under the All India Service (Discipline and Appeal) Rules or following his conviction in a court of law in a criminal offence or in a case of corruption or if he is otherwise incapacitated from discharging his duties".

In a unilateral move, the Manipur government removed the DGP, AK Parashar.  The government has not stipulated the reasons for his removal and has not given a lawful basis for his removal (action taken under the All India Service (Discipline and Appeal) Rules, conviction in a court of law in a criminal offence or case of corruption or incapacity). The manner in which his removal has taken place absolutely defies the state government's own order!

6.              New police legislation

It is widely accepted that it is untenable to continue to police the citizens of India under the Police Act of 1861, which was drafted by the colonial authorities close on the heels of the first War of Indian Independence in 1857.   

The National Police Commission in its 8^th and concluding report of 1981, submitted a new Police Act for India. The Ministry of Home Affairs constituted the Police Act Drafting Committee (PADC) in 2005 to draft a Model Police Bill for India.  The PADC submitted its draft to the Ministry on 31 October 2006.  This draft bill was also circulated among all state governments.  The Union Home Minister had stated that the union government will enact the new law for police in Union Territories in the 2007 budget session of Parliament or the next.  However, what remains to be seen is whether the version of the draft bill that is tabled before Parliament is substantially weaker than the one the PADC submitted to the Ministry in October 2006. It is hoped that state governments will enact their own police legislation whilst drawing on the best elements from the PADC's Model Police Act, the National Police Commission's Model Police Act and the Supreme Court directives on Police Reform. 

The following 21 states (out of a total of 28) have either recently passed new police legislation or have commenced work to draft new police legislation. A point to note is the complete lack of transparency, community consultation or civil society input in this process by most states. In many states members of the public are completely unaware that their state government is in the process of reforming the police laws.  Communities are the main beneficiaries of good policing and the main victims of bad policing – community and civil society participation in the process is essential if the police are going to be efficient, effective and accountable.

It is positive that state governments are choosing to draft new police legislation. It is also a cause for enormous concern that the community is not involved and is not aware of the process.  State governments must publicise their initiatives to redraft police legislation widely, using a range of methods.  Publishing this information will educate the public and strengthen democracy.

State governments can take the following types of action:

·         Allowing and requesting civil society and community input in police act drafting committees;

·         Advertising the membership of any existing committee;

·         Inviting public submissions on the type of police service and police law the community would like to have;

·         Inviting police at all levels to make submissions about the type of police service and police law they would like to be part of;

·         Holding focus groups with police at all levels, particularly at the DySP rank and below on their views;

·         Holding public forums and meetings to generate a community voice on policing and to take into account this voice;

·         Compiling the outcomes of public forums and distributing them through print and electronic media as the 'voice of the people'; and

·         Ensuring the draft legislation that goes before State Assemblies and Parliament is in the public domain and has been made available for comment under proactive disclosure provisions in Section 4(1)(c) of the Right to Information Act, 2005.