Towards better policing

Issues of superintendence, control mechanisms and politcal caprice.

DEBATES the world over traditionally focus attention on how to facilitate the maintenance of law and order by the police without giving it any licence whatsoever to violate human rights. Architects of the police in the form in which we know it today, including the indefatigable British Home Secretary Sir Robert Peel, who conceived the fabled London Bobby in the mid-19th century, and reputed American police chiefs of the 20th century such as O.W. Wilson and August Vollmer, who introduced professionalism into a force that was reeking of political patronage and corruption, were conscious of the perils of investing the police with too much authority. Empowering the police was, however, in their view, a necessary evil if the violence and corruption that had come to grip society were to be tackled effectively. They were nevertheless sensitive to the task of building a control mechanism that would check police excesses and ensure state intervention whenever warranted. In effect, they perceived the requirement as one of devising a system that would mesh autonomy with accountability. Different countries have gone about differently to bring about this delicate balance.

Robert Peel ushered in a system of Commissioners that comprise a military-like hierarchy with the emphasis on a strong leadership and an equally strong administration. The U.S. no doubt borrowed from the U.K. model but modified it to suit local genius and the local philosophy of enlightened federalism. This is why you find in the U.S. nearly 20,000 stand-alone police forces, each with a chief who, sometimes, heads just a ten-man strong department, smaller than an average rural police station in our country. While the U.K. has created a Local Police Authority that brings in community control over the police, the U.S. has put in place a system of civilian review boards and external auditors, besides strong judicial review to temper police excesses.

In India, we have one force for each of the 28 States and seven Union Territories. Forces are becoming increasingly centralised at State headquarters in total disregard of the contemporary management credo of decentralisation and delegation of powers. We have no civilian review worth its name. However, we do have a reasonably active and strong tradition of judicial review of police conduct. This is complemented by the less than ten-year old National Human Rights Commission (NHRC) which looks into complaints against the executive, especially the police. Unfortunately, the ambience is one in which the police has become very much an integral part of the political executive. The average recruit, be it a constable or an officer of the Indian Police Service (IPS) despite his initial desire to be professional and apolitical, quickly learns the wisdom of submitting himself or herself to political heavyweights and is therefore widely looked upon with contempt as a tool of those who run the government. We have also the comical sight of every political party crying foul when it goes into the Opposition after a spell of nearly untramelled authority over the police machinery.

It is the universal experience that every attempt to discipline the police so as to make it fall in line with a democratic polity has been seen as a ruse to erode its autonomy and convert it into a pliable political tool. The vital question is how to ensure that the police is provided an environment of professional autonomy while taking care that it does not conduct itself arbitrarily. This was the dominant theme at a workshop organised recently in Indore by the Commonwealth Human Rights Initiative (CHRI), New Delhi, in collaboration with the Madhya Pradesh Police.

The workshop was generated by a draft bill - the M.P. Police Vidheyak, 2001 - piloted by the State government. The bill has evoked widespread public interest. The workshop was in fact utilised to study it in the context of the Police Act 1861 and the Model Police Bill (1981) presented to the Union government by the National Police Commission(NPC). (The grievance of the police nationally is that this NPC masterpiece of drafting is yet to find favour with the Union government, what to speak of State governments. It is therefore that we have to make do with an 140-year old legislation conceived by an alien ruler.)

The M.P. Bill has triggered a major controversy. Its provision for the creation of Police Commissionerates has incensed the Indian Administrative Service (IAS) lobby who see it as an IPS ploy to totally delink itself from executive (read IAS) control. The officers of the IPS believe that the trend universally is one of professionalism which is possible only when freed from the age-old dominance of the executive magistracy (that is, the District Collector and Sub-Collector) who are innocent of the rudiments of modern police work.

The Indore proceedings were enlivened by the presence IAS and IPS officers, both past and present, and a generous sprinkling of politicians of different hues. The exchanges in fact carried a strong flavour of local politics, exactly what the police complain that they are subjected to, day in and day out.

The objective of the M.P. Police Vidheyak is to "provide for a uniform law for the regulation of the police force, the maintenance of public order and other matters connected therewith or incidental thereto." The bill is categorical that the "superintendence" of the M.P. Police "vests in and is exercisable by the State Government". It adds that the Director General of Police (DGP) of the State will have the powers of a Commissioner of Police throughout the State. The significant rider is that the DGP "shall exercise these powers subject to such limitations as may from time to time be imposed by the State government", a clear message that the State government does not countenance a wholly autonomous police force. Perhaps the most striking feature of the Bill is the competence of the State government to empower the Commissioner of Police and the Superintendent of Police to exercise the powers and duties of an Executive Magistrate.

Simultaneous with this debate on the bill came the information that the M.P. government desires to create a number of Commissionerates all over the State, a move that has not exactly pleased the IAS brethren. The latter are more than convinced that by raising the bogey of professionalism and linking it with the Commissioner system, the IPS officers were pushing for unfettered and capricious policing. The conflict is reminiscent of the vociferous opposition to the creation of a Commissionerate in the nation's capital in the late 1970s. It was in the teeth of opposition, especially from the bureaucracy, that the Janata government went ahead and we now see the wisdom of it. Even its worst detractors would admit that, despite its shortcomings and failings, the Delhi Police has evolved into a strong professional body that delivers focussed policing.

The issues raised by the M.P. Police Bill are two-fold. Is State 'superintendence' of the police consistent with the need to bring about a professional, autonomous and apolitical police force? Secondly, assuming that such superintendence is inescapable because of the compulsions of a democratic and constitutional polity rooted in the rule of law, should the police be subjected to magisterial control of the variety introduced by the alien ruler for reasons best known to him? (Incidentally, was this subordination of the police owing to the fact that the District Magistrate/Collector was invariably an Englishman, whereas his police counterpart was not always his compatriot?)

'Superintendence' an all-pervasive expression which defies a definition that is acceptable to all. Section 3 of the Police Act 1861 no doubt vested 'superintendence' over the police force in the government, but did not choose to elaborate how exactly this was to be done in the field. The NPC spent a lot of time on this contentious feature. It was obviously unhappy that the vagueness of 'superintendence' promoted active extraneous influence over police decisions. It categorically recommended in its Second Report (1979) that "The power of superintendence of the State Government over the police should be limited for the purpose of ensuring that police performance is in strict accordance with law." Its clear stand was that everything should be done to prevent the police from being used to serve narrow political ends.(" ... the basic role of the police is to function as a servant of the law and not as a servant of the government in power."). The NPC felt the need to introduce transparency in the manner IN which the State exercised its supervisory role so that the police is insulated from unwarranted executive directions contrary to law. It therefore proposed the creation of a State Security Commission which would perform this role.

Perhaps for the first time - in 1997 to be specific - the apex court threw adequate light on 'superintendence' insofar as it applied to the police. This was in the famous Vineet Narain case (otherwise known as the Jain hawala Case) when it examined the legal validity of the so-called Single Directive of the Union government under which the Central Bureau of Investigation (CBI) was denied suo motu cognisance of complaints against officers of the rank of Joint Secretary and above. (In each such case, the CBI was required to approach the government for concurrence to register a regular case. Thanks to the Vineet Narain judgment, this power has been restored to the CBI, thereby enhancing its effectiveness in tackling corruption in high places.) The Union government claimed that the directive was in exercise of the power of superintendence over the CBI conferred on it by Section 4(1) of the Delhi Special Police Establishment Act, 1946. The court, however, discountenanced this broad definition.("The general superintendence over the functioning of the Department... would not include within it the control of the initiation and the actual process of investigation, i.e., direction", nor would it "permit supervision of the actual investigation of an offence by the CBI contrary to the manner provided by the statutory provisions.")

The apex court was thus forthright in laying down the law that governed the police. In describing what 'superintendence' was not, the court made it amply clear that state authority was confined only to facilitating the police charter and could not, on any account, extend to directing the police how to fulfil such a charter. The court was apparently satisfied that there were enough legal safeguards which would take care of any mala fide in police conduct. In essence, the court believed that we could have an 'accountable' police that was not subordinate to but was 'autonomous' from political control.

To a lay reader, this may seem to be an exercise in hairsplitting and semantics. That this is not so would be revealed by a study of how well the U.K. and Japan have insulated the police from political vicissitudes. The police in both countries has remarkably merged into a democratic polity without losing its identity and is therefore highly respected for its clinical neutrality and efficiency. In contrast, there is the almost daily criticism of our police being a handmaiden of the ruling party. The situation being grave highlights how the powers of 'superintendence' need to be defined in clear terms in accordance with the apex court's ruling in the hawala case. But how much political perceptions are at variance with the Supreme Court's philosophy is revealed by the near-consensus that is said to prevail among a wide spectrum of parties in favour of the revival of the single directive struck down by the Supreme Court. Does this not clearly cut at the roots of the movement which pleads for an autonomous police?

NOT all that unconnected with the demand to free the police from political caprice is the police desire to be delinked from day-to-day magisterial control. Such control is almost unique to India. The original mischief was that of the 1861 Act which states (Section 4): "The administration of the police throughout the local jurisdiction of the Magistrate of the district shall, under the general control and direction of such Magistrate, be vested in a District Superintendent and such Assistant District Superintendents as the State Government shall consider necessary." Thus was established a system of dual control of the district police, which are, control by the Inspector-General/Director-General and also by the District Magistrate/Collector. (It was my experience, by and large, that the latter was usually an enlightened soul who lent tremendous administrative and moral support to the police. But here and there one had to contend with freaks who were bent upon pulling their rank and who expected servility from the District Superintendent of Police.)

This was an arrangement which had its merits in years past when policing was a relatively uncomplicated task that did not call for special skills, such as protecting VIPs, countering terrorism, investigating economic crime and solving cyber crime. These are subjects of which the present-day District Collector is innocent, if not totally ignorant. Modern policing calls for swift and unified action that does not brook either delayed action or a divided command. This is the rationale for the creation of Commissionerates. It is worth recalling that even under the British, the Presidency towns of Bombay, Calcutta and Madras had a Commissioner of Police who reported directly to the government in many matters (circumventing the Inspector-General who headed the force then). The three cities did not have a Superintendent who would have been accountable to two authorities.

The Commissioner of Police enjoys limited magisterial powers which help quick police operations to tackle really dynamic public safety situations. It is not exactly megalomania or an ego problem that induces the police to demand more Commissionerates. It arises from a concern that obstacles and irritants in the way of providing a responsive and meaningful policing should be removed. A Commissioner of Police is directly and totally accountable to the Executive for his performance. The buck stops with him. He cannot shift the blame to a District Magistrate, as some District police chiefs do under trying circumstances. This is the main merit of the proposal of the M.P. government. Both Tamil Nadu and Maharashtra have been resourceful in creating quite a few Commissionerates outside the State capital, thus paving the way for a genuinely unified command. Actually, the trend all over the country is towards creating more Commissionerates and there is no political or public support for reversing it.

Those present at the Indore workshop were in fact more exercised over how to depoliticise the police, and, at the same time, make it accountable for shortfalls in performance. Most of the police officers pleaded for the acceptance of the NPC's recommendation in favour of a State Security Commission (SSC). Unfortunately, there is a lot of ignorance on what the NPC said on the subject. The case for the SSC could not have been better explained to the Indore gathering by anyone other than C.V.Narasimhan, former CBI Director and Member-Secretary of the NPC. He, almost single-handedly, drafted all the eight reports of the NPC.

The SSC's main function will be one of laying down broad policy guidelines and directions to the police in its preventive and service-oriented tasks. The Commission will also evaluate police performance and present an annual report to the State Legislature. Most importantly, it will serve as a forum of appeal for Superintendents of Police and those above that rank regarding grievances related to their promotion and against illegal or irregular orders received during the discharge of their duties. The Commission will have the Chief Minister or the Home Minister as its chairman. There will be six other members who will include two members of legislative assembly, one each from the ruling party and the Opposition, to be nominated by the Speaker. The other four, nominated by the government, will be from the ranks of academicians, former members of the judiciary or senior administrators known for their political neutrality. The DGP will be the ex-officio secretary of the Commission. The NPC desired that the SSC should be accorded statutory recognition and therefore incorporated this recommendation in the Model Police Bill annexed to its concluding report.

The State Security Commission may not be a panacea for all the ills of the police. Nevertheless, it is an innovation that is worth a trial, especially in the context of the mounting criticism that the police has become an adjunct of whichever party is in power. Right thinking political leaders owe it to those who have elected them to Parliament and State legislatures to launch this experiment early so as to make the police more acceptable to the common man. Both the Union and State governments will have to act in unison. Against this backdrop, the Indore workshop was a laudable effort at building public opinion and winning political support for the NPC recommendations, especially the setting up of a State Security Commission which could bring about greater police neutrality and accountability.