The country’s 17 lakh police personnel have been governed by archaic laws having roots in the Police Act of 1861. The functioning, structure and organization of state police forces have virtually remained unchanged for the past 153 years, making them susceptible to political interference and misuse, leading to disillusionment and dissatisfaction amongst citizens.
It was only due to a public interest litigation filed by two retired Director Generals of Police (DGPs) Prakash Singh and N K Singh in 1996, and directives of the Supreme Court (SC) in 2006, that many states were forced to comply with seven binding directives, that would kick start reform in the police force, redefine the scope and functions of police, and provide for its accountability to the law of the land.
Only 15 states including Maharashtra have taken steps towards complying with the SC order. In June the Maharashtra Government after procrastinating for over eight years, cleared the Maharashtra Police (Amendment) Bill 2014, which it claimed complied with the SC directive. However, there have been complaints that the Bill was moved in a tearing hurry by the state government which did not allow detailed discussions in the State Assembly and severely diluted and subverted the recommendations of the Supreme Court.
THE NEED FOR POLICE REFORMS AND ITS HISTORY
Like all other states in the country, the 1.8 lakh policemen in Maharashtra are governed by the Maharashtra Police Act, 1951, an Act which heavily draws inspiration from the Indian Police Act of 1861. Despite the rapid changes in the country’s economic, social and political landscape, this law largely remained untouched and was blamed for weakening the force due to the high degree of political interference that it allowed.
Over a period of time, the relationship between the police and politicians turned into what the National Police Commission called “degeneration into different forms of intercession, intervention and interference with mala fide objectives unconnected with public interest”. There were also rising instances of misuse of powers by the police, by administrative or executive instructions and also rising political pressures.
It was only in 1977 that the government set up a National Police Commission to examine the role and performance of the police both as a law enforcing agency and as an institution to protect the rights of the citizens.
The Commission subsequently submitted eight reports suggesting large scale reforms in the police force. However, these recommendations were never accepted by the polity which, it is alleged, was afraid of losing its control over the police force.
In 1996 after the failure of the central and the federal governments to incorporate any of these changes, two former DGPs Prakash Singh & N K Singh, filed a PIL in the Supreme Court asking the court to direct the state to form a new Police Act. “Since the misuse and abuse of police has reduced it to the status of a mere tool in the hands of unscrupulous masters and in the process, it has caused serious violations of the rights of the people, it is contended that there is immediate need to re-define the scope and functions of police, and provide for its accountability to the law of the land, and implement the core recommendations of the National Police Commission,” the 1996 PIL states.
After the failure of states to bring in any changes, a miffed SC in 2006 asked them to comply with seven directives that it was giving in the field of police reforms. States including Maharashtra delayed implementing these recommendations, and subsequently faced contempt proceedings from the SC.
Scared of being reprimanded by the SC, the Maharashtra government promulgated an ordinance called the Maharashtra Police (Amendment) Ordinance, 2014 on Feb 1, 2014 a day before the SC was to hear a contempt hearing on the case. It subsequently turned the Ordinance into a bill in June this year with severely diluted provisions.
“The Bill fails to follow the scheme as laid down by the Apex Court. Every direction has been systematically diluted or subverted and the Bill, in our view, formalises the bad practices of the years which has been illegitimate political interference that erodes the chain of command and destroys the day to day management of the police by its leadership,” Maja Daruwala, Director of the Commonwealth Human Rights Initiative, said in a letter written to the Maharashtra Governor opposing the Bill.
THE SC DIRECTIVES AND THE STATE GOVERNMENT’S RELUCTANCE
Setting up of a State Security Commission: The SC wanted the state to set up a State Security Commission (SSC) to ensure that the State Government does not exercise unwarranted influence or pressure on the State police. Its functions are to lay down policing policy, indicate performance criteria and keep police performances, challenges and its needs under review.
This watchdog body was to be headed by the Chief Minister or home minister as Chairman and have the DGP of the State as its ex-officio Secretary. A sitting or retired High Court judge and an independent panel was to be appointed for selecting five non-official members.
In the Bill that it cleared, the Maharashtra government has ensured that there is no judge or selection panel for the five non-official members. The recommendations of this Commission are also not binding in nature, which many feel has made it a toothless body. In its defence, the state has claimed that under the Constitution, it is responsible for maintaining law and order and it cannot surrender control of this activity.
“Under the Constitution, the state is responsible for maintaining law and order. We cannot have a system where the government is responsible for maintaining law and order, but the agency which maintains law and order is completely independent of the state government,” Home Minister R R Patil said.
Selection and Minimum Tenure of Director General of Police: The SC had directed that the DGP should be selected by the State Government from amongst the three senior-most officers of the Department empaneled by the Union Public Service Commission, and once selected, should have a minimum tenure of at least two years irrespective of his date of superannuation.
The Bill passed by the Maharashtra government, however, gives a tenure of two years subject to superannuation, and states that the DGP will be appointed at the sole discretion of the state government. “The two year cap, irrespective of superannuation, will cause frustration amongst junior officers as it will lead to blocking of promotions, as the person will be holding up a position,” a former Maharashtra home department official involved in the drafting of the state’s law said. Detractors of the state’s move, however, claim that this is state government’s ploy to pick up favorable men for the post.
Police Establishment Board: The SC had directed that the state should set up Police Establishment Boards (PEBs) at different levels, which would decide all transfers, postings, promotions and other service related matters of officers of and below, the rank of Deputy Superintendent of Police. The PEBs were to be “departmental’’ bodies comprising police officers, with the PEB at the highest level comprising the Director General of Police and four other senior officers of the police department.
The State Government could interfere with decisions of the PEBs in exceptional cases, only after recording its reasons for doing so. The PEB comprising the DGP and senior officers was also authorized to make appropriate recommendations to the State Government regarding the posting and transfers of officers of and above the rank of Superintendent of Police, and the state government was expected to give due weight to these recommendations and normally accept it.
The main idea of these Boards was to stop political interference in transfer and functioning and return the functioning and administration of the force back to the police. However, in the Bill that was passed by the state, it has ensured that people from outside the police department have been appointed on these PEBs, allowing the state to have a say on how these boards function. It has also given itself the powers to announce mid-term transfers and ensured that it would not have to go to the PEBs for ratifying such decisions.
“The assumption while making these rules seem to have been that the political class was the villain while the police force was completely clean. You see how many illegalities the police commit. There is a need to keep a check on them. You cant allow the police to function as per their own whims without having checks and balances. It would be detrimental to society if police are given a free run as suggested by the Courts,” a former Maharashtra Home Department official countered.
Police Complaints Authority: In an attempt to keep a check on delinquent policemen, the SC had suggested the setting up of a Police Complaints Authority (PCA) consisting of a retired Judge and independent members selected from a panel prepared by the State Human Rights Commission. This Authority would investigate complains against policemen, and their findings and directives would be binding on the state government.
The Bill that has been passed, however, ensured that serving police officers are made members of the PCA. The Bill also allows the government to reject the findings of the PCA which will not be binding on the state. “This erosion of the binding nature of their recommendations weakens their effectiveness as accountability mechanisms,” Dolphy D Souza, Convenor Police Reforms Watch said.
Former bureaucrats, meanwhile, feel setting up a PCA is a futile exercise as there is already a State Human Rights Commission (SHRC) in place which has been mandated to look into complaints of police excesses. The SHRC has, however, largely been rendered toothless and the head of its investigation wing recently complained that there was no work for him.
“The state by disregarding the SC’s directives regarding how to select the PCA members has made the body toothless. Secondly, it also exposes the complete lack of application of the state and how it takes efforts in fooling people. It presently has a body to take care of complaints against the police which is the State Human Rights Commission. The government has however made it toothless and has created a parallel system which will be equally ineffectual,” a former state bureaucrat said.
POLITICAL INFLUENCE ON POLICE FORCE TO CONTINUE?
“Police today are protectors of the Establishment rather than guardians of the law. Instead of addressing this concern and creating conditions where police will have the freedom to implement the law, this new law is meant to maintain the status quo where politicians will have dominance over the police,” Independent MLA Vivek Pandit said.
Pandit, a keen proponent of police reforms and the only MLA who spoke for more than 40 minutes opposing the state government’s Bil,l has claimed that instead of giving freedom for the police to be custodians of law, the new act makes them subservient to the political elite of the state.
Detractors of the Bill claim that the entire legislation has been drafted keeping in mind the political class’ urge to run the police force in the state. “They do not want to leave the power of appointing policemen. They want to run the police force which they realize is a source of making money and patronage,” said former IPS officer, Julio Ribeiro, who served as Mumbai Police Commissioner and Punjab DGP.
In the 60s, Ribeiro claimed, senior officers were appointed by the government in consultation with the DGP. While the transfer of junior officers were done by officials of the rank of the Superintendent of Police. “Now the politicians want to control the transfers of even constables. This has created a huge problem in the capability and functioning of the force,” Ribeiro added.
Ribeiro has, meanwhile, said that he is contemplating filing a writ petition to challenge the move by the state in passing the severely diluted law. “There is a need to speak out against such behavior otherwise at the end of the day, it will be the public that will suffer because of this politicization of the police force,” Ribeiro said.
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