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Monday, August 15, 2022

The good cop

Bibek Debroy writes: It's time to nudge states towards implementing measures for police reform directed by the Supreme Court in its landmark Prakash Singh verdict

Written by Bibek Debroy
Updated: May 12, 2022 1:04:17 pm
Police is, indeed, in the State List -- largely so. The Union List mentions the armed forces of the Union, CBI and some reasons for preventive detention. (C R Sasikumar)

“The station-house officer will sometimes bush up a case on payment of his terms; he will receive presents from parties and their witnesses… Suspects and innocent persons are bullied and threatened into giving information they are supposed to possess. The police officer, owing to want of detective ability or to indolence, directs his efforts to procure confessions by improper inducement, by threats and by moral pressure.” No, this is not a quote from yet another committee on police reforms — from a belated follow-up to the Supreme Court’s Prakash Singh judgment of 2006. The quote is from the report of the 1902-03 Indian Police Commission, which was also not the first of its kind. There were committees in states as well as the 1860 Police Commission that led to the Police Act of 1861. Since then, down the years, there have been several Committees/Commissions — some directly on the police (the National Police Commission and the Ribeiro and Padmanabhaiah committees), others alluding to police reforms indirectly (the Malimath Committee and the Second Administrative Reforms Commission). Obviously, matters weren’t satisfactory. Otherwise, we wouldn’t have had the Supreme Court’s 2006 judgment.

The court’s directives covered seven domains: State security commissions; the appointment and tenure of DGPs; the tenure of other police officers; the separation of investigation from law and order; police establishment boards for transfers, postings and promotions; police complaints authorities; and the National Security Commission.

Subsequently, in 2006, a draft Model Police Act was framed. In July 2015, we were told, “As per information available, so far 15 States — Assam, Bihar, Chhattisgarh, Haryana, Himachal Pradesh, Kerala, Maharashtra, Meghalaya, Mizoram, Punjab, Rajasthan, Sikkim, Tamil Nadu, Tripura and Uttarakhand — have formulated their State Police Act and another two states — Gujarat and Karnataka — have amended their Police Acts. Thus, a total of 17 state governments have either formulated their state police acts or amended the existing one.” In January 2019, we were told, “The Government has reviewed the Model Police Act, 2006 and accordingly, a draft Model Police Bill, 2015 has been prepared and placed on the website of BPR&D. Further, as ‘police’ is a state subject, falling in List II of the Seventh Schedule of the Constitution of India, it is primarily the responsibility of the state governments to formulate a new Police Act or amend their existing Act on the lines of the draft Model Police Bill prepared by the Central Government.” Thereafter, the pandemic got in the way.

Police is, indeed, in the State List — largely so. The Union List mentions the armed forces of the Union, CBI and some reasons for preventive detention. The State List has public order and police. The Concurrent List has criminal law and procedure and some reasons for preventive detention. Because of this dichotomy, the home ministry has two police divisions — Police-I and Police-II. The latter has, under its ambit, central armed police forces. In 2016, the Niti Aayog published a paper on building smart police. Taking stock of what the states had done on the 2006 judgment, among other things, it suggested moving police to the Concurrent List. Since that July 2015 statement and Niti Aayog’s paper, all states have complied with the seven directives, ostensibly. Compliance can mean the letter of the law, or the spirit. For instance, the mere setting up of a State Security Commission is compliance. But the more pertinent questions are about the composition of such a Commission, its powers and the extent to which its recommendations are binding. Once one does this sifting, compliance is less convincing. The story is similar with respect to the other six directives as well. The states do not comply and do not wish to comply. Only a handful are keen to even initiate partial reform. Broadly, those directives are about transparency and reducing discretion. That may be desirable for improving police efficiency. But who wants to give up discretion voluntarily? This should be interpreted as contempt of court. Indeed, there is such a petition by Harish Salve. As far as I know, it is still pending. Perhaps the Supreme Court feels that there will be reform in the future.

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Meanwhile, the structure varies across states. Differences between provinces were actually among the concerns of the Police Commissions of 1860 and 1902-03. In terms of that variation, we haven’t progressed much in 2022. Perhaps because of the resultant inefficiency, states often readily request the central armed police forces whenever there is a problem. A few years ago, the Vidhi Centre for Legal Policy did an analysis of the Seventh Schedule and recommended the retention of police in the State List. The State List versus Concurrent List idea is a red herring. Any isolated movement of an entry from the State List to the Concurrent List will be perceived as hampering rights of States and interpreted as greater centralisation. A complete overhaul of the Seventh Schedule is a big-ticket idea, into which, public order and police also fit. This doesn’t mean there is no way out of the impasse other than action by the Supreme Court. If two or more states so desire, Article 252(1), does allow Parliament to legislate.

In tracking compliance across states, while it is true there is no state which is fully compliant with the seven directives, it isn’t difficult to think of at least two states that are largely compliant. At the risk of some subjectivity, one can think of Andhra Pradesh, Arunachal Pradesh, Karnataka, Kerala, Manipur, Mizoram, MP, Nagaland, Tamil Nadu and Uttarakhand. If one follows the 252(1) route, the prospects don’t seem that dismal. Now that the pandemic is out of the way, it is necessary to bring police reforms back on the agenda. The country deserves to move on from 1861.

This column first appeared in the print edition on May 12, 2022 under the title ‘The good cop’. The writer is chairman, Economic Advisory Council to the PM. Views are personal

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First published on: 12-05-2022 at 04:00:19 am
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