The Centre seeks modification of the apex court order on police reforms, while several States have refused to comply with the directives.
THE much-awaited police reforms, which appeared achievable after a 10-year-long legal battle, are once again threatened, owing primarily to the Centre's refusal to accept the Supreme Court's directive on the constitution of a National Security Commission. Many States, especially the bigger and politically important ones, have also refused to follow the Supreme Court directives.
On September 22, 2006, the Supreme Court delivered a landmark judgment in Prakash Singh & Others vs Union of India & Others and set a January 3, 2007, deadline for the Central and State governments to comply with a set of seven directives. Of the seven directives, six concerned the States while one directed the Centre to set up a National Security Commission. The verdict, aimed necessarily at improving the service conditions and effectiveness of the Central paramilitary forces, was pronounced on writ petition No. 310 of 1996.
As per the order, the National Security Commission, headed by the Union Home Minister and with the Union Home Secretary as its Secretary, should comprise the heads of the Central Police Organisations (CPOs) and security experts and its functions would be to prepare a panel for the selection of chiefs of CPOs, who should be given a minimum tenure of two years; review measures to upgrade the effectiveness of the CPOs; improve the service condition of CPO personnel; ensure proper coordination among various CPOs; and ensure that the forces were utilised for the purpose they were created.
Instead of complying with the order, the Central government, on January 2, constituted a Committee on National Security and Central Police Personnel Welfare, headed by the Home Minister and having the National Security Adviser; the Cabinet Secretary; the Union Home Secretary; and the Director, Intelligence Bureau; as members. The Centre told the apex court that the functions stipulated for the National Security Commission would be carried out by the committee and that other mechanisms were already available to do the functions meant for the Commission. The Supreme Court overruled this submission, and on January 11 maintained that the said committee was not in accordance with its directives and asked the Centre to set up the National Security Commission by March 31.
Refusing to comply, the Centre filed an application in the apex court on February 12 seeking a modification of the court order. The application categorically stated that setting up the National Security Commission and its related directives were not acceptable to it on the following grounds:
The nomenclature of the National Security Commission implied a wider connotation than coordination among Central paramilitary forces; hence, it required a change as it did not connote its function properly;
The court direction of making chiefs of CPOs members on this commission required to be changed because different CPOs had different roles and there was not much in common;
It was not acceptable to include heads of CPOs on the commission because while empanelling officers for the chief post, some of these officers could themselves be in the zone of consideration;
For all other functions mentioned for the Commission there already existed bodies; and
Fixed tenure could not be given to the heads of CPOs, keeping in view the exigencies of the service and the morale of the senior officers and the utilisation of special experience in specific circumstances.
The fact that the Centre's submission for a modification of its order has been accepted by the Supreme Court, which has fixed the next hearing for April 30, has alarmed the petitioner and human rights activists as this contradicts the court's earlier order. In its order dated January 11, the court had ruled out any review/modification of its 2006 order in the following words: "At the outset we wish to make it clear that by indirect method or in the garb of filing affidavits... we cannot permit review of our judgment and order dated 22nd September 2006. There is a proper procedure for seeking review on permissible grounds only. In this connection, it becomes important to again note that the matter was heard for days and practically no State government/Union Territories objected to the suggestions contained in various reports." While rejecting the prayers for review/modification, including that of the Centre, the court stated that "insofar as other reliefs are concerned, the applications are dismissed since we have already noted that review of a judgment cannot be ordered in the garb of modification of the order".
The court's acceptance of the Centre's request for a modification of its order is bound to start another protracted legal process. "Modification or review of an order is a lengthy process, which may take years and years to come to the final stage. It is distressing that the concerned governments are so unwilling to reform the police forces. Their aim seems to be to keep the police on a tight leash and not give them the functional autonomy which the Supreme Court order aims to give," says the petitioner Prakash Singh, a retired Director-General of the Border Security Force and a former police chief of Uttar Pradesh.
Indeed, the compliance record of various States substantiates his point. The 2006 order, further reiterated on January 11, 2007, has two main objectives: give functional autonomy to the police forces and enhance police accountability. The directives dealing with functional autonomy are as follows:
Constitute State Security Commissions to ensure that State governments do not exercise unwarranted influence or pressure on the police; lay down broad policy guidelines and evaluate the performance of State police;
Ensure that the Director-General of Police is appointed through a merit-based, transparent process and enjoys a minimum tenure of two years;
Ensure that all police officers on field duty, including Inspectors-General, Deputy Inspectors-General, Superintendents of Police and Station House Officers have a minimum tenure of two years;
Set up Police Establishment Boards, which will decide all transfers, postings, promotions and other service-related matters of police officers of and below the rank of Deputy Superintendents of Police and make recommendations on postings and transfers;
Set up a National Security Commission at the Union level to prepare a panel for selection and placement of chiefs of Central Police Organisations, who should also be given a minimum tenure of two years; and
Set up a Police Complaints Authority at the State and district levels to look into public complaints against police officers in cases of serious misconduct, including custodial deaths, grievous hurt, or rape in police custody; and separate the investigation and law and order functions of the police.
Interestingly, only four States have reported full compliance of the directives: Arunachal Pradesh, Sikkim, Meghalaya and Himachal Pradesh. Kerala has reported full/partial compliance with modifications. Andhra Pradesh, Jharkhand, Karnataka, Uttarakhand, Manipur, Mizoram, Madhya Pradesh, Puducherry, Bihar, Andaman & Nicobar Islands, Assam, Lakshadweep, Delhi and Rajasthan have reported partial compliance while registering objections to some directives. West Bengal, Chhattisgarh, Goa, Gujarat, Jammu and Kashmir, Dadra and Nagar Haveli, Maharashtra, Daman and Diu, Orissa, Nagaland, Uttar Pradesh, Tamil Nadu, Tripura and Punjab have raised objections against most of the directives and have not complied at all. While Chhattisgarh, West Bengal, Gujarat, Jammu and Kashmir, Punjab, Tamil Nadu and Tripura have unwillingly started drafting new legislation, others have refused to do anything about them. Uttar Pradesh has not even bothered to file any affidavit this time.
The objections raised by the States are an eye-opener: Nagaland, for instance, has objected to the setting up of a Police Complaints Authority saying that "commission of excess by the police is a very rare occurrence" and "the community is a very conscious watchdog over the police".
Andhra Pradesh has objected to the setting up of a State Security Commission, saying that it will weaken the government's power of superintendence. On the directive on fixed tenure for the DGP, the State said it would demoralise officers whose chances of promotion were adversely affected. Besides, a fixed tenure would not be good for good governance, it maintained. Refusing to set up a Police Complaints Authority, Andhra Pradesh said it would adversely affect the working of the police.
Gujarat, which has only partially complied with the directive to give fixed tenure to the DGP and others, is not in favour of setting up a State Security Commission since it feels there is no unwarranted influence on the police. Besides, such a body will have powers without accountability and undermine the jurisdiction and power of the State government, the State maintains. Karnataka has objected to the setting up of a complaints authority saying this will not be accountable to the legislature.
Madhya Pradesh has half-heartedly complied with the directive, with modifications, but has made no effort to set up the security commission or the complaints authority. Maharashtra has objected to the security commission saying it will become another power centre influencing the working of the police. As for the complaints authority, the State says it will result in multiple proceedings and subject the police to contradictory orders.
Tamil Nadu maintains that there is need to ensure that the State Security Commission will not compromise the intelligence and security aspects of the police force. It says there is no need for a complaints authority because it will only act as a parallel authority to the mechanism that is already in place. The State has objected to fixed tenures for officers, saying it may lead to practical difficulties in carrying out transfers under genuine and emergency circumstances and that the State government will not be able to use officers with special skills for specific needs.
Uttar Pradesh says a security commission will directly infringe the rights of the State government and dilute its powers.
In a nutshell, the States have been found to be unwilling to let the control of the police go out of their hands. West Bengal has begun the process of drafting a Model Police Act and sought time till April 30 to put the necessary legislation in place. Surprisingly, Bihar, expected to be among the defaulters, has complied with most of the directives, putting in place interim measures, and has adopted a Model Police Act, the effect of which, however, is still to be known.
Human rights activists find it disturbing that there is so much political resistance to reform the forces.
"It is distressing that we are still governed by the archaic Police Act of 1861, which came into force in the wake of India's first war of Independence. It is high time the police were freed from the stranglehold of political control and given the right amount of autonomy along with accountability so that they can perform their duties properly," says Swati Mehta, counsel for Commonwealth Human Rights Initiative. The CHRI is a co-petitioner.
The petitioner, Prakash Singh, had his own reasons to begin this battle. He cited two events in his writ petition filed on July 30, 1996: the 1984 riots in Delhi and the demolition of the Babri Masjid in 1992. In both cases the police and the paramilitary forces were paralysed by the hooligans affiliated to the ruling party.
"There is nothing personal in this battle. I am aware this is going to be a long-drawn-out battle because the ruling class will not let go of the control it has over the police and the paramilitary forces. But I am not the one to give up either," he said.
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