Towards a new Police Act

The draft Police Act that was submitted to the Home Ministry in 1981 is a fount of wisdom on policing. While its fate is not clear, the government has, surprisingly, formed a committee to prepare another draft.

GOVERNMENTS the world over are fond of forming committees to tackle fundamental problems of administration that cry for swift executive decisions rather than group deliberations and recommendations. In fairness to the present government in New Delhi, it is merely following a tradition that has become entrenched in the system. So I am not surprised that it has chosen to constitute a committee to draft new legislation that will replace the much-maligned Police Act of 1861.

The proposed committee will be headed by no less than Soli Sorabjee, the former Attorney General who is known for high integrity and clear thinking. My association with him has been a pleasure, not only because of his incisive insights into many a knotty problem that I had posed to him, but also because of his hospitality, humility and inimitable sense of humour. Another member is Ajay Raj Sharma, a former Delhi Police Commissioner with an excellent track record. Other appointments are in the offing. I am sure they will be as good as the first two.

I am, however, appalled that North Block has chosen to form this committee for a purpose that has already been well served by a draft that the National Police Commission (1977-81) headed by Dharm Vira produced, and which is gathering dust in the Home Ministry. The only rationale for inaction that I can think of is that somehow the NPC became associated with the Janata Party government that gave birth to it.

The NPC reports (eight volumes) are a fount of wisdom on policing that would compare favourably with any dished out by similar bodies in any part of the world. Legendary policemen like K.F. Rustamji, N.S. Saxena and C.V. Narasimhan were associated with it. Nowhere can you find a collection of such eminent policemen who knew the intricacies of policing like the back of their hand. The final report of that commission created an outstanding draft of a new Police Act. If you ask the Home Ministry about the fate of that draft, its officials will merely tell you that `policing' is a State subject, and that they forwarded the draft to State governments for further action. It is true that the Ministry has brought this up at several meetings with Chief Ministers, but nothing has happened because of the deplorable lack of political will.

We hear ceaselessly those in the establishment and outside it complaining that we are still governed by an antiquated Police Act given to us by an alien ruler, and so it has to be replaced. If you ask any of them what that Act says and how important it is to policing, only a handful would give you reasonably intelligent responses.

It is quite possible that if someone in the Ministry cares to read this, he or she will say that the NPC's draft Police Act has become obsolete and that new thinking on the issues of policing is called for. If I were in the Ministry, I would probably say the same thing, as official responses have to cover up blatant political decisions that are otherwise untenable.

However, my stand is that the Police Act deals mainly with the philosophy of policing, and only incidentally with the nitty gritty of police administration. This is why, even if the focus of policing has changed from one of maintaining law and order to one of tackling terrorism, the objectives and concepts of policing remain unchanged the world over. The NPC draft of 1981 is still very much relevant, and it holds good for adoption in toto, provided those in power in the States want to do so and New Delhi will bring enough persuasion to bear on them.

There is a lot of misconception about the Police Act of 1861, but not many readers would have had the opportunity to get hold of its text. Here is an outline of its contents. It begins with a preamble: "Whereas it is expedient to re-organise the police and to make it a more efficient instrument for the prevention and detection of crime, it is enacted... "

The preamble reflects a clinical approach to policing, and the service element of the profession hardly receives a mention. The British ruler left no doubt in the minds of any citizen as to who was in charge of the police. Since there were no democratic pretensions, and the King could do no wrong, Section 3 categorically states that the "superintendence" of the police will be exercised by the government, and no one else.

This is executive control at its worst. When a Congress government took over the reins of office in 1947, it was extremely pleased to retain this arrangement conceived by the British, which served an alien ruler's interests admirably well. This is why one saw no reform effort until 1977, when the Congress was ousted from power at the Centre and the Janata Party government was installed.

Further evidence of a desire and an anxiety to keep the police on a tight leash is available in Section 5, which is emphatic that the Inspector General of Police (IGP), who is to be a Magistrate for the whole State, shall exercise such powers within "limitations as may from time to time be imposed by the government".

Section 23 lays down the duties of police officers, the chief of which is to "promptly obey and execute all orders and warrants lawfully issued to him by any competent authority". Of course, the section has a positive side to it in that it authorises police officers to collect intelligence and also prevent commission of offences.

Section 29 prescribes the penalties for police officers guilty of neglect of duty. The tenor, therefore, of the whole legislation is one of controlling and regulating police work. Distrust of policemen is writ large, and this is not surprising because the law was written by a foreign ruler mainly with a view to perpetuating rule through misuse of the official machinery. The State governments that came into being after 1947 have, from time to time, brought in a few amendments, but these have not been very significant.

The NPC started operating under the shadow left behind by the Emergency. The Commission was aware of how the police machinery was misused in those years to instil fear in the minds of citizens. The police had acquired a sordid image all over the country, and something had to be done to retrieve the situation. Its radical recommendations to free the police from excessive State control - such as a fixed tenure for the Director General of Police (DGP) and a State Security Commission that would offer protection to officers who had been under pressure to submit to illegal orders - required statutory recognition. This is why the NPC came out with a draft Act that would embody these recommendations.

It also felt that the 1861 Act's emphasis on compliance and maintenance of law and order was anachronistic in a democratic set-up, where the focus should be on the citizen's need, and the motto of all government functionaries should be one of service. While peace in the community had to be maintained, it was equally necessary that the police did public service rather than merely consider themselves as part of a force. It is this assessment of the situation that persuaded the NPC to come out with a draft Police Act that would establish a balance between service and regulation.

The preamble to the draft made it clear that the endeavour was to make the police force "professional and service-oriented" and rid it of extraneous influence, without diluting its accountability.

The strongest feature of the draft Act was an entire chapter that dealt with the duties, powers and responsibilities of the police. More precisely, the draft remarkably widened the duties of a police officer, so that he or she acquired a service orientation, without being bogged down with nothing but soulless law and order tasks. Some of the duties listed included aiding those who faced severe threats from bullies, counselling and resolving conflicts and affording relief to those in distress.

Perhaps more striking was the chapter on the proposed Security Commission, headed by the Minister in charge of the Police and consisting of two Members of the State Legislature and four others nominated by the Chief Minister. Significantly, the draft laid down that the power of superintendence of the State government over the police was to be exercised through the Security Commission. Also, such authority was to be restricted to "ensuring that police performance is in strict accordance with law".

Thus, "superintendence" was possibly of the kind that the apex court exercises over High Courts. Just as the former does not direct in what manner a matter before the High Court should be disposed of, the Security Commission would have little say on how an investigation of a case had to proceed. This is the sort of "superintendence" that is demanded by right thinking social activists and opinion-makers as one which should govern the executive-police relationship. This is how they believe policemen can be insulated from direct external interference in day-to-day police work. The proposed Security Commission had an obligation to protect officers who refused to execute questionable orders. The latter had a right to represent to the Security Commission against "being subjected to illegal or irregular orders in the performance of his duties".

Another important provision of the draft Act was the provision of a tenure of four years in office for the DGP, who could be removed before such tenure ended only upon being punished under the All India Services Rules, suspended for any misconduct or promoted to a higher position, either in the State or at the Centre.

In sum, the NPC draft was focussed on doing everything that was possible to create an environment of freedom and obedience only to law, which alone would confer real autonomy on the police, without at the same time diluting the authority of a democratically elected government.

There is nothing that has happened since 1981, when the draft was submitted to the Home Ministry, which would make it obsolete or redundant. This is why it is incomprehensible that a new committee is being asked to take a fresh look at the subject.

Interestingly, the whole matter of implementing the NPC report is before the apex court on a public interest petition filed by former Border Security Force Director-General Prakash Singh. It would have been more logical and appropriate for the Home Ministry to move the court for early disposal of the petition, instead of appointing a new body to go through the exercise once more.

Readers will be dismayed to know that at the end of it all, the whole matter of enacting a new Police Act and implementing other NPC recommendations will be at the mercy of State governments. `Police' being a State subject, the Home Ministry can at best send a draft of the legislation to the States and recommend its adoption. The attitude of almost all the States towards the creation of a State Security Commission has been negative. The utmost distance travelled by any State was in Andhra Pradesh, where Chief Minister N.T. Rama Rao created a State Security Board, which was given an advisory role. This was set up through an executive order and not by legislation. More than a decade later, the Telugu Desam Party government led by N. Chandrababu Naidu gave its blessings to the Andhra Pradesh (Police) Bill 2001, which also aimed at a body similar to the Board that NTR had formed. The Bill is reported to be languishing in the Law Department.

Otherwise, I am not aware of any positive activity in the States in favour of the Security Commission. This is a clear indication of what fate awaits the labours of Soli Sorabjee and company.

I am not being cynical, just realistic. Police reforms with a view to upgrading police performance are a very low priority in our country. If in spite of this unconcealed determination of the political class to stifle police initiative our policemen have given a reasonably good account of themselves, it is because of their sense of duty and spirit of public service. It is for the community to nurse these qualities before they become extinct.