Reluctant move

Legal experts and activists describe the Tamil Nadu ordinance on police reforms as “a half-hearted attempt” that does not conform to the Supreme Court’s directives in letter and spirit.

The police lathi-charge contract teachers during a demonstration in Patna on March 5.

THE haste with which the Tamil Nadu government promulgated the Police (Reforms) Ordinance, 2013, especially when the Assembly was not in session, has caused consternation among civil society organisations and activists, who have been fighting for police reforms in the State.

There are no two views about the importance of the ordinance, which is a significant step in the right direction. But what is disturbing is the hurry with which it was pursued by the government and promulgated by the Governor.

It has set off an intense debate among activists, legal professionals and the general public, who believe that the ordinance has not served the primary objective of “freeing the police from the vile clutches of the political executive”. They claim that the whole exercise is shrouded in mystery.

The government, through an extraordinary gazette publication, dated September 11, 2013, claimed that since the Assembly was not in session, the “Governor of Tamil Nadu is satisfied that [the] circumstances [that] exist render it necessary for him to take immediate action” to promulgate the ordinance.

Campaigners for police reforms wondered “what the extraordinary, unforeseen and emergent circumstances are” that prompted the State to hurry with such an important ordinance when the legislature was not in session, that too without allowing a debate. Contrary to the popular belief that the ordinance will set the State on the path of police reforms, the activists claim that it has fallen short of the Supreme Court’s six directives in Prakash Singh vs Union of India, 2006 . The court had asked the States to adhere to the directives until the enactment of a comprehensive Police Act.

The directives include the formation of a State Security Commission; the establishment of a Police Board and the formation of a Police Complaints Authority at the State and district levels; drawing up norms for the selection and tenure of the Director General of Police (DGP), Inspectors General of Police (IGP) and other officers; and the separation of law and order from the investigation wing.

Tamil Nadu raised objections to these directives, but the court rejected them outright. The government then promulgated the ordinance facilitating the formations of the State Security Commission, the Police Establishment Board and the Police Complaints Authority, besides fixing the terms and conditions for the selection, appointment and tenure of the DGP, IGPs and other officers on operational duties.

Activists claim that the ordinance has been “watered down” and does not conform to the court’s directives in letter and spirit. “The State was forced to promulgate the ordinance in a hurry to mollify the court as it had insisted on total compliance of its directives. But what disappoints us is the manner in which the ordinance was drafted. Many of its provisions, including the composition of members on various boards and the terms and conditions of the tenure of the officers, do not conform to the court’s directions,” Ossie Fernandes, coordinator of the Campaign for Tamil Nadu Police Reforms and the Withdrawal of the Police Ordinance 2013, pointed out.

The campaign, by an association of rights bodies and non-governmental organisations, held a State-level round-table discussion involving activists, political leaders and legal experts in Chennai on October 20. Fernandes said that after the court dismissed its objections, Tamil Nadu issued four government orders, three in 2007 and one in 2010, all relating to the tenure and selection of the DGP and officers on operational duty, separation of law and order from the investigation wing, and the setting up of a Police Establishment Board. But these orders, the organisers claimed, were not in conformity with the court directives and remained only on paper. “This betrays the government’s desire to keep the police subservient to the political class,” Fernandes said.

The State government did make some feeble attempts to overhaul the police system. In 2008, the Tamil Nadu Police Bill was introduced and it was later referred to a select committee, which invited suggestions and views from the public. But the Bill lapsed following the change of government. The report of the K.T. Thomas monitoring committee, appointed by the Supreme Court, had slammed Tamil Nadu and other States for failing to comply with the court’s directives.

Police excesses Two incidents of police excesses had prompted the Supreme Court to act on police reforms. On March 4, 2013, personnel of the Punjab Police assaulted a 22-year-old woman when she and her aged father sought their help to save the girl from sexual harassment by a few local truck drivers. The incident took place in Tarn Taran district, some 300 kilometres from Chandigarh.

A bystander had recorded the incident on his mobile phone and the video was later aired by television channels, thus shocking the collective conscience of society. Three or four policemen were seen slapping and hitting the woman with batons repeatedly.

A similar incident of brutality took place in Patna on March 6. A strong posse of police lathi-charged hundreds of newly appointed and contractual schoolteachers who were staging a protest near the Bihar Assembly building demanding service regularisation, wage parity and a common school system.

The police maintained that the striking teachers had attempted to force their way into the Assembly building leading them to take preventive measures. The police used water cannons and lobbed teargas shells to disperse the protesters, who included women. Many teachers and police personnel were injured in the incident. The teachers, however, claimed that they were staging a peaceful protest when the police suddenly dragged away some women teachers and began beating them.

Taking cognisance of the two incidents that had “shocked the conscience of entire nation”, the court, suo motu , asked the Centre and the States to comply with its directives with immediate effect. But the report on the status of compliance, as of November 2012, presents a dismal picture.

Ten States have not passed any Act while eight States and four Union Territories have drafted new Bills, but have not placed them before their respective Assemblies or in the public domain for deliberations. In the rest of the States, the compliance ratio varies at different levels of implementation.

Given this situation, the court decided to hear the compliance status of each State individually. “At this juncture, Tamil Nadu promulgated the special ordinance, giving rise to speculations,” said Henry Tiphagne, a coordinator of the campaign and executive director of the Madurai-based People’s Watch.

Legal experts pointed out that the court’s intervention was sought when none of the States came forward to implement the recommendations of the National Police Commission. As a consequence, Prakash Singh and N.K. Singh, former DGPs, filed a public interest petition in the Supreme Court.

Besides, committees such as the Ribeiro Committee (1998), the Padmanabhaiah Committee (2000) and the Police Act Drafting Committee (the Soli Sorabjee Committee), 2000, were formed to look into the various aspects of police reforms and the need to repeal the Police Act, 1861.

The Supreme Court had in one of its observations stated that the States should rise to the occasion and enact a new Police Act “wholly insulating the police from any pressure whatsoever, thereby placing in position an important measure for securing rights of the citizens under the Constitution, treating everyone as equal and securing an efficient and better criminal justice delivery system,” Fernandes said.

Describing the Tamil Nadu ordinance as “a half-hearted attempt”, he surmised that to escape the scrutiny of the court, the State had “abused the ordinance-making power enshrined in Clause (1) of Article 213 of the Constitution, a rare and unique right of a State, essentially to meet any urgent situations”. Promulgation of ordinances, he pointed out, was purely an executive decision not open to criticism and debate. “Hence, promulgating an ordinance should be based on a sound, conscientious decision when legislative options are minimal,” he said.

The Tamil Nadu ordinance, activists said, contained several ambiguous references. Section 3 (3) (e) on the “Term of Office of the Director General of Police (DGP) and other Police officers”, dealing with the selection, appointment and tenure of the DGP, states that the DGP can be relieved of his or her responsibilities for various reasons, besides on “other administrative grounds”. This, they said, was liable to abuse and would lead to the premature removal of officers.

The composition of the State Security Commission, formed under Section 5(1), also violates the court’s directive. The court wants it to be headed by the Chief Minister or the Home Minister with the Leader of the Opposition as one of its members and the DGP as its ex-officio secretary.

The other members should be chosen in such a manner that it is able to function independent of government control, for which the court has identified three models suggested by the National Human Rights Commission, the Ribeiro Committee and the Sorabjee Committee. The States could choose any one of these three, the court said.

These committees had suggested that besides the above-mentioned persons, the commission should have one member from the judiciary in addition to members from the executive and the police, besides independent nominees. But the ordinance stipulates that the chairpersons of the Tamil Nadu Public Service Commission, the State Human Rights Commission, the State Women’s Commission and the State Minorities Commission, the Chief Secretary and the Secretary in charge of the Home Department as its ex-officio members.

The State has chosen to ignore independent civil society and non-official nominees and also members from the judiciary. The nomination of heads of various State commissions, activists opined, was not advisable. This, they felt, would create another layer of bureaucracy. They urged that the composition of the commission be suitably amended as per the court’s directives.

Civil society groups, including the Commonwealth Human Rights Initiative (CHRI), a rights body that works for police reforms at the national level, maintain that the composition of the State Complaints Authority, to be formed under the Secretary in charge, Home Department, and the District Complaints Authority, with the Collector as its head, under Sections 10 and 14, also violates the court’s instructions.

The court, according to the CHRI, has directed that the State Complaints Authority should be chaired by a retired judge of the High Court or the Supreme Court chosen by the government from a panel of names suggested by the Chief Justice of the respective High Courts.

At the district level, it should be headed by a retired district judge selected from a panel of names proposed by the High Court Chief Justice or a High Court judge. But the present ordinance is silent on the nomination of judges as members.

Activists criticise the clause that insists on complaints being received as sworn affidavits, duly attested, at both State and district levels. This, according to them, will burden the complainants. The clause further notes that complaints with “prima facie satisfaction” alone will be taken up for scrutiny, which, it is feared, will lead to distrust among the complainants.

Stating that the police should be kept under the control of the government, D. Ravikumar, a Dalit theoretician and a former legislator of the Viduthalai Chiruthaigal Katchi (VCK), said the Supreme Court judgment laid stress on the freedom and accountability of the police force. “Intervention of the political class is condemnable but at the same time the police should not be given full autonomy. The Tamil Nadu ordinance has failed to comply with the court’s directives,” he said.

“The basic recommendation of various committees on police reforms is that the police should be freed from any interference, including political. No government would be willing to lose its grip on the police. Hence, civil society should exert strong pressure on the policymakers and urge them to table a comprehensive Bill after ensuring a detailed debate,” said G. Nanjil Kumaran, a former ADGP.

Henry Tiphagne said the State government should be told to maintain transparency while drafting such important ordinances. “The views of civil society representatives should be taken into account before finalising the ordinance’s provisions,” he said. The round-table discussion, he said, had also brought to light the anomalies in the ordinance and exposed the State’s intention to circumvent the judicial edicts.

Other panellists at the conference maintained that the ordinance was a visionless document and that it should be overhauled on the basis of the Model Police Act.

A. Ramesh and P.V. S. Giridhar, senior advocates of the Madras High Court, and R. Narayanan, social worker, urged the campaign managers to highlight the ordinance and its shortcomings to the people who were not aware of its existence. Some activists asked for legal intervention, but it was turned down as “not feasible”. It was decided to submit a memorandum to Chief Minister Jayalalithaa, who holds the Home portfolio, on the need to table a new Bill which should “not only liberate the police from the political class but ensure 100 per cent compliance of the apex court’s directives on police reforms”.