ARC report summary – Public Order-Part 2 – Police reforms #8

Why the Public is dissatisfied with the Police and Administrative Machinery:-

• Reasons For dissatisfaction :-
  • extraneous influence in public order management
  • the root causes of problems not being addressed by the administrative agencies
  • absence of attempts to find long-term solutions to problems
  • administrative decisions being guided by political expediency
  • inadequate involvement of civil society, NGOs and social workers in public order management
  • lack of an institutional mechanism defining the roles and responsibilities of the various stakeholders in conflict resolution
  • lack of empowerment of junior ranks at the cutting edge levels of administration to effectively deal with problems at the nascent stage
  • lack of appropriate training
  • lack of modern technology & equipment
  • absence of centralized digital databases on criminal, anti-social and anti-national elements;
  • lack of specialised, well-trained wings
  • ineffective performance monitoring systems
  • Lack of cohesion between different organisation
  • lack of accountability of the police and administration to the public

Status-quo : The existing police system :-

• ‘Public order’ and ‘Police’ figure as Entry 1 and 2 respectively, in List II (State List) in the Seventh Schedule of our Constitution, thereby making State Governments primarily responsible for maintaining public order.Invariably, police, which is a part of the civil administration, is at the forefront in maintaining law and order.
• Broken Window Syndrome:-
  • If a window in a building is broken and left unrepaired , people walking by will conclude that no one cares and that no one is in charge . One unrepaired window is an invitation to break more windows and lawlessness spreads outward from buildings to streets to entire community.Similarly when one witnesses when justice is delayed or inaction of police , one looses faith in them and i.e. exactly one of the undercurrent running in  Indian society. Public cynicism is the testament to this fact.
• Article 355 of the Constitution enjoins upon the Union to protect every state against external aggression and internal disturbance and thereby to ensure that the government of every state is carried on in accordance with the provisions of the Constitution.
• The Police Act, 1861 is still the basic instrument governing the functioning of the Indian police.

People’s Perception of Police:-

• State’ as an organisation that has a “monopoly on the legitimate use of physical force” – MaxWeber
• The police are the instrument of physical force of the State. They have to bear the burden of failure of other instruments of governance as well. Thus the police always has to be at the  forefront and face the wrath of the public even for the failure of other instruments of governance.
• The police have faced and continue to face many difficult problems. In a country of India’s size and diversity, maintaining public order at all times is indeed a daunting task. It is to the credit of the police that despite many problems, they have by and large been successful in maintaining public order. Despite this, the police are generally perceived to be tardy, inefficient, high-handed and often unresponsive or insensitive.
• In the perception of the people, the egregious features of the police are politically oriented partisan performance of duties, partiality, corruption and inefficiency, degrees of which vary from place to place and person to person.
• The lack of professionalism in an overburdened, under-funded and poorly-skilled police force, coupled with undue interference has led to lower level of trust in law enforcement

Problems faced by Police force:-

The problems faced by police force is not only fault of the police fore with in , it amalgamation of social discontent arising out of multiple institutions of government.

• Problems related to general administration:-
  • Poor enforcement of laws and general failure of administration
  • Large gap between aspirations of the people and opportunities with resultant deprivation and alienation
  • Lack of coordination between various government agencies.
• Problems related to police:-
  • Unwarranted political interference
  • Lack of empowerment of the cutting edge functionaries;
  • Lack of motivation at the lower levels due to poor career prospects, and hierarchical shackles
    • Nearly 87% of all police personnel are constables .The constable is the lowest level at which recruitment takes place. The educational requirement for selection of a constable is a school leaving certificate. A constable can generally expect only one promotion in a life time and normally retires as a head constable.
    • A constable devoid of dignity, lacking opportunities for vertical mobility, constantly pilloried by superiors and politicians, often derided by the public and habituated to easy recourse to violence and force cannot generally be expected to sustain his/her self-esteem or acquire the professional skills to serve the citizens
  • Lack of modern technology/methods of investigation
  • Obsolete intelligence gathering techniques and infrastructures
  • Divorce of authority from accountability
• Problems of organisational behaviour:
  • Inadequate training
  • Entrenched attitudes of arrogance, insensitivity and patronage
• Problems of stress due to overburdening :-
  
  • Multiplication of functions, with crime prevention and investigation taking a back seat
  • Shortage of personnel and long working hours
  • Too large a population to handle
• Problems related to ethical functioning:-
  • Corruption, collusion and extortion at different levels
  • Insensitivity to human rights
  • Absence of transparent recruitment and personnel policies
• Problems related to prosecution:-
  • Best talent not attracted as public prosecutors
  • Lack of coordination between the investigation and the prosecution agencies
  • Mistrust of police in admitting evidence
• Problems related to the judicial process/criminal justice administration:-
  • Large pendency of cases
    • Judge-population ratio is of the order of 11 to 1 million,  whereas in many developed democracies it is of the order of 100 to 1 million, or nearly ten times that of the strength of the Indian judiciary.
    • The pendency of over 25 million cases is a testimony to this.It is therefore not surprising that people, particularly the poor and vulnerable, have little faith in the system’s capacity to deliver justice or enforce their rights.
    • The case of Machan Lalung who was released in 2005 at the age of 77 from a jail in Assam after 54 years in prison for an IPC offence, for which the maximum sentence is
      not more than 10 years, puts a human face to the statistics mentioned above. The fact that over 65% of our prison population comprises undertrial prisoners (with the undertrial
      population reaching 90% in the states of UP, Manipur and Meghalaya) means that there could be a large number of comparable cases where similar injustice is being meted out to
      individuals by an impersonal and sometimes cruel criminal justice system
  • Low conviction rates
  • No emphasis on ascertaining truth
  • Absence of victims’ perspective and rights
• Miscellaneous Problems:-
  • One of the major problems impeding police reforms stems from the traditional approach of clubbing a variety of disparate functions in a single police force and concentrating all authority at one level. A single, monolithic force now discharges several functions: maintaining law and order, riot control, crime investigation, protection of State assets, VIP protection, traffic control, ceremonial and guard duties, service of summons and production of witnesses in courts, anti-terrorist and anti-extremist operations, intelligence gathering, bandobast30 during elections, crowd control and several other miscellaneous duties. Often,even fire protection and rescue and relief are treated as police functions.
  • Aggregation of all these functions in a single police force is clearly dysfunctional for four reasons:-
    • Core functions are often neglected when the same agency is entrusted with
      several functions.
    • Accountability is greatly diluted when duties cannot be clearly and unambiguously stated and performance cannot be measured and monitored.
    • The skills and resources required for each function are unique and a combination of often unrelated functions undermines both morale and professional competence.
    • Each function requires a different system of control and level of accountability. When a single
      agency is entrusted with all functions, the natural propensity is to control all functions by
      virtue of the need to control one function.
  • Emphasis on brawn rather than brain in most situations tend to brutalise and dehumanise policemen.
• Inherent Impedements :-
  • Lateral entry to the police is not feasible, as rigorous training, experience, expertise and knowledge of peers and colleagues are vital to the police service. Since this is a sovereign function, no agency or experience outside government prepares outsiders for police work. At the same time, incentives for performance within the police agencies are feeble.

Police Reforms:-

Supreme Courts- Prakash Singh judgement on Police reforms-

• Learnings from Past :-
  • The indigenous system of policing in India was carried out through the village headman or Zamindar in early days.
  • British relieved the zamindars of their liability for police service and their place was taken over by the Magistrates in the district.
  • First major step was the constitution of the Police Commission of 1860:-
  • At the national level, the Gore Committee on Police Training (1971-73) was set up to review the training of the police from the constabulary level to IPS officers.
  • The Government of India constituted in September 2005 a Police Act Drafting Committee (PADC) with Shri Soli Sorabjee as Chairman, to draft a new Police Act to replace the Police Act of 1861 , whose core recommendation as long as principle is concerned is:-
    
    • The two most important functions of the police in addition to crime prevention are investigation of crime and maintenance of law and order. These two functions are quite
      distinct requiring different capabilities, training and skills. More importantly they require different types of accountability mechanisms and different degree of supervision from the
      government.
• Police Reforms Required:-
  • Revamping the Police functions:–
    • Crime Investigation should be separated from other policing functions.A Crime Investigation Agency should be constituted in each state.
    • This agency should be headed by a Chief of Investigation under the administrative control of a Board of Investigation, to be headed by a retired/sitting judge of the High Court
    • The Chairman and Members of the Board of Investigation should be appointed by a high-powered collegium, headed by the Chief Minister and comprising the Speaker of the Assembly, Chief Justice of the High Court, the Home Minister and the Leader of Opposition in the Legislative Assembly. The Chief of
      Investigation should be appointed by the State Government on the recommendation of the Board of Investigation
    • The following provision should be incorporated in the respective Police Acts:-
      “It shall be the responsibility of the State Government to ensure efficient, effective, responsive and accountable functioning of police for the entire state. For this purpose, the power of superintendence of the police service shall vest in and be exercised by the State Government in accordance with the provisions of law”
  • Accountability of Law and Order Machinery – A State Police Performance and Accountability Commission should be constituted.
  • Police Establishment Committees – A State Police Establishment Committee should be constituted. It should be headed by the Chief Secretary . The Director General of Police should be the Member Secretary and the State Home Secretary and a nominee of the State Police and Accountability Commission should be the Members. This Committee should deal with cases relating to officers of the rank of Inspector General of Police and above..
  • Competent Prosecution and Guidance to Investigation:-A system of District Attorney should be instituted. An officer of the rank of District Judge should be appointed as the District Attorney.
  • Local Police and Traffic Management:-A Municipal Police Service should be constituted in Metropolitancities having population of more than one million. The Municipal  Police should be empowered to deal with the offences prescribed under the municipal laws.The function of Traffic control (along with traffic police) may be transferred to the local governments in all cities having a population of more than one million
  • Reducing Burden of Police – Outsourcing Non Core Functions:- Outsourcing of non core functions like – Traffic management,patrolling streets ,surveillance domestic violence response disposal of dead bodies forensic service  etc.
  • Welfare Measures for the Police:-Rational working hours should be strictly followed for all police personnel.Welfare measures for police personnel in the form of improved working
    conditions, better education facilities for their children, social security measures during service, as well as post retirement should be taken up on priority.
  • Independent Complaints Authorities:-A District Police Complaints Authority should be constituted to enquire into allegations against the police within the district
  • Improvement of Forensic Science Infrastructure – Professionalisation of Investigation :- There is need to set up separate National and State Forensic Science
    Organisations as state-of-the-art scientific organizations
  • Strengthening Intelligence Gathering:-Intelligence agencies should develop multi-disciplinary capability by utilising services of experts in various disciplines for intelligence
    gathering and processing. Sufficient powers should be delegated to them to obtain such expertise.
  • Training of the Police:-Deputation to training institutions must be made more attractive in termsof facilities and allowances so that the best talent is drawn as instructors.  The Chief of Training in the state should be appointed on the recommendation of the Police Performance and Accountability Commission
  • Gender Issues in Policing:-The representation of women in police at all levels should be increased through affirmative action so that they constitute about 33% of the police.
  • National Security Commission:- There is no need for a National Security Commission with a limited functionof recommending panels for appointment to Chiefs of the Armed Forces  of the Union. There should be a separate mechanism for recommending the names for appointment as Chief of each one of these forces, with the final authority vesting in the Union Government 
    
  • Measures to be Taken during Peace Time:-
    • The administration should be responsive, transparent, vigilant and fair in dealing with all sections of society. Initiatives such as peace committees should be utilised effectively to ease tensions and promote harmony
  • Security Proceedings:-The use of preventive measures in a planned and effective manner needs to be emphasized. Training and operational manuals for both Executive Magistrates and police need to be revised on these lines.
  • Regulating Processions, Demonstrations and Gatherings
  • Accountability of Public Servants Charged with Maintaining Public Order:-The State Police Complaints Authority should be empowered to identify and fix responsibility in cases of  glaring errors of omission and commission by police and executive magistrates in the discharge of their duties relating to the maintenance of public order
  • Adoption of Zero Tolerance Strategy:-All public agencies should adopt a zero tolerance strategy towards crime, in order to create a climate of compliance with laws leading to maintenance of public order
  • Citizen Friendly Registration of Crimes
  • Confessions before Police:-Confessions made before the police should be admissible. All such statements should be video-recorded and the tapes produced before the court. Necessary amendments should be made in the Indian Evidence Act.
  • Perjury:-The penalties provided under Section 344 CrPC for those found guilty of perjury after a summary trial should be enhanced to a minimum of one year of imprisonment
  • Witness Protection:-A statutory programmme for guaranteeing anonymity of witnesses and for witness protection in specified types of cases, based on the best international models should be adopted early
    
  • Victim Protection
  • Classification of Offences:-There is need to re-examine certain offences which have inter-state or national ramification and include them in a new law.The following offences may be included in this category:
    i. Organised Crime
    ii. Terrorism
    iii. Acts threatening National security
    iv. Trafficking in arms and human beings
    v. Sedition
    vi. Major crimes with inter-state ramifications
    vii. Assassination of (including attempts on) major public figures
    viii. Serious economic offences.
  • Organised Crime:-Specific provisions to define organised crimes should be included in the new law governing ‘Federal Crimes’. The definition of organised crime in this law should be on the lines of the Maharashtra Control of Organised Crime Act, 1999
  • AFSPA:- The Armed Forces (Special Powers) Act, 1958 should be repealed . To provide for an enabling legislation for deployment of Armed Forces of the Union in the North-Eastern states of the country, the Unlawful Activities (Prevention) Act, 1967 should be amended accordingly.

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