Towards Democratic Policing

Just, democratic, accountable: What police reform should be all about
By John Samuel

Draft bills to reform the police system are pending in many states. But while most of them include independence from political interference and more autonomy, they almost all leave out the crucial reform that must make the police accountable to the people

The power of the State is often institutionalised through legitimacy-building mechanisms such as elections, as well as through the coercive arms of the State. The most obvious form of coercive power of the State is expressed through the police. The very term ‘police’ implies ‘order’ and ‘power’, through the maintenance of ‘law and order’ and security. As the coercive arm of the State, the police are expected to ensure security and the rule of law for all citizens. The police impact the social, economic and political situation in a country in many ways and play a significant role in the process of governance.

In a diverse, multi-religious, multi-ethnic country like India, the process of policing has huge implications for the integrity and security of the country and the people. Though policing in a democratic country is expected to be an enabling public service to ensure security, freedom and human rights of all people, the very sight of the police evokes fear, terror or cynicism in citizens of this country. This is primarily because the police are still a force used to control the people by instilling fear and sometimes terror. The use of abusive language, torture and violence are perceived as part of ‘normal’ police conduct. Despite India gaining independence in 1947, the character and nature of the elite Indian bureaucracy and the police are still influenced by the ghosts of colonial power -- the power to control, oppress and regulate, rather than the enabling characteristics of public service. In spite of the importance of the police in maintaining law and order and the rule of law, there is hardly any adequate public debate or discussion on the role of the police in democratic governance. In fact, the criminal justice system as a whole is little discussed and debated in various studies and research on governance. There have been relatively few empirical studies on the Indian police. Except for the reports of the National Police Commissions of 1904 and 1978, and the reports of various state police commissions, there is hardly any comprehensive or detailed independent analysis or research on policing in India. Serving or retired police officers have written books, but there is little, if any, critical evaluation or monitoring of the performance and practice of the Indian police. The major government source of information still remains the annual Crime in India report which provides statistical information and official data about various crimes and police resources. Most discussions and debates on policing take place among the policy elites or retired police officers and there has been hardly any public scrutiny or systematic citizen monitoring of policing in India.

The few ongoing discussions and debates on police reform need to expand to include debates on the relevance, implications and impact of the police. However, the agenda and advocacy for police reforms is yet to catch the attention of the public and the media. While civil society organisations such as the Commonwealth Human Rights Initiative (CHRI), the People’s Union for Civil Liberties and some other human rights groups have played an important role in advocating for police reforms, the primary proponents of police reforms are retired police officers. These important initiatives need to be appreciated and supported. However, they have not spurred wider political and public debate on the role and character of policing in India. For example, there is hardly any public debate about the much-needed administrative reform of the police force and of the criminal justice system in India.

Despite India being an independent country with its own Constitution, its criminal justice system is still driven by its colonial legacy. The administrative and police systems first developed by the East India Company and then institutionalised by the imperial power were primarily extractive and repressive in nature. So the Police Act of 1861, enacted to strengthen the repressive authority of the police in the aftermath of the first war of Indian Independence in 1857, still remains the cornerstone of Indian policing in the 21st century – after 63 years of freedom! The Act of 1861 was accompanied by a whole range of new laws that still define our criminal justice system in India. The Indian Penal Code of 1860, the Criminal Procedure Code of 1862, the Evidence Act of 1872 and the Criminal Tribes Act of 1868 form the defining base of our criminal justice system. Though a Police Commission was appointed by Lord Curzon in 1902-03, the British did not make significant changes in the police system as recommended by the commission. In fact, the very first report of the National Police Commission in 1904 pointed out that “the police force is far from efficient; it is defective in training and organisation; it is inadequately supervised; and it is generally regarded as corrupt and oppressive.” A hundred years later, nothing much has changed.

The character and purpose of policing in a democratic polity and society will be substantially different from that of a police force designed to control and oppress people under a colonial dispensation. It is indeed a matter of deep concern that it took more than 60 years of independence and more than 30 years of active campaigning by citizens of this country to influence the government to go beyond the spirit and substance of the British Colonial Police Act of 1861. The major challenges to the character of Indian democracy and the rule of law have emerged from the lack of accountability of the police and the misuse of police forces by vested interests within the government and political system. During the Emergency regime, from 1975 to 1977, police raj was the most evident form of the coercive arm of the State. The entire police machinery was misused by vested interests to control and oppress any voice of dissent. Shocking examples of police torture came to light after the fall of the Emergency regime. It is in this context that the National Police Commission was appointed by the newly elected government in 1977. However, over the years its reports have been put in the deep freeze and the agenda of police reform has been brushed under the carpet by various governments.

The four dark chapters in the history of Indian democracy -- the Emergency in1975-77, violence against the Sikh community in 1984, willful destruction and demolition of the Babri Masjid in 1991 and the Gujarat pogrom against the Muslim community in 2002 -- exposed the biases and lack of accountability of the police. In fact, minority communities and poor people have been at the receiving end of an ineffective and indifferent police force. When thousands of innocent people were killed right in front of an indifferent and ineffective police force in Delhi or Ahmedabad, the very integrity and impartiality of the Indian police was questioned, leaving deep scars on the character and content of the Indian democratic system. More recently, the attacks against Christians in Orissa clearly show how the police can still be part of a repressive power relationship; the most virulent attack and advocacy against the minority community came from a retired senior police officer in Orissa. This indifference, inefficiency, bias and repressive character of the Indian police undermine the sprit and content of the Indian Constitution and the very future of Indian democracy. In spite of the eight reports submitted by the National Police Commission (1977-82), and in spite of numerous state commissions, the recommendations by the National Human Rights Commission, and the recent Model Police Act 2006 developed by the government-appointed committee headed by Soli Sorabjee, it seems the political establishment is reluctant to initiate or pass the much-needed police reforms in various states and union territories. Now the Supreme Court of India – responding to the petition filed by Prakash Singh, a former director-general of police and others – has very clearly prescribed clear measures for police reform.

The seven directives by the Supreme Court in 2006 provide the practical mechanisms for police reform. As a study by CHRI indicated, the directives incorporated recommendations from many of the commissions and committees on police reform that have sat in India over the last 25 years.

The Supreme Court directed the state and central governments to:

Constitute a state and national Security Commission to (i) ensure that the state government does not exercise unwarranted influence or pressure on the police, (ii) lay down broad policy guidelines, and (iii) evaluate the performance of the 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 other police officers on operational duties (including Superintendents of Police in-charge of a district and Station House Officers in-charge of a police station) also have a minimum tenure of two years
Set up a Police Establishment Board, which will decide all transfers, postings, promotions and other service-related matters of police officers of and below the rank of Deputy Superintendent of Police and make recommendations on postings and transfers of officers above the rank of Deputy Superintendent of Police
Set up a National Security Commission at the union level to prepare a panel for selection and placement of chiefs of the Central Police Organisations (CPO), who should also be given a minimum tenure of two years
Set up independent Police Complaints Authorities at the state and district levels to look into public complaints against police officers in cases of serious misconduct, including custodial death, grievous hurt or rape in police custody
Separate the ‘investigation’ and ‘law and order’ functions of the police.
It is in the context of the Supreme Court directive and in the spirit of democratic policing that the government should envision and enact a new Police Act to ensure that policing is a public enabling service to guarantee freedom, human rights and security to all people. Following the directive of the Supreme Court, many state governments have introduced an ordinance for police reforms and many of them have also developed a draft bill for enacting a new Police Act (as policing is a state subject). However, while the draft documents of the various Police Acts stress the autonomy and authority of the police, most of them do not have any clear and tangible provisions for public accountability or for the citizen’s right to effective and accountable policing. In fact, while many retired or serving police officers advocate the need for relative autonomy from political interference, and seek more authority for the police, there is less enthusiasm to advocate for strong provisions to protect human rights and create mechanisms to make the police accountable to the public.

It is interesting to note that advocacy for police reforms stems from different assumptions, and for different reasons. Many of those in the forefront of calling for police reforms are former police officers and many of them strongly feel that political interference in appointments and transfers and the misuse of the power of the police are at the core of the problem. Then there are those civil society advocacy groups which see police reforms through the lens of governance, that is, accountability, responsiveness, efficiency and quality of service.

The third advocacy perspective is based on a human rights approach to policing. Such an approach would stress that the police is essentially a coercive force used by those in power. And given the fact that the police and army have almost a monopoly over coercive power, they are bound to abuse power and violate human rights. Hence, the police must be necessarily accountable in terms of respecting and protecting human rights and should be monitored by an independent public process. Citizens need to regularly evaluate the performance of the police through independent and credible civil society initiatives.

While these three approaches to police reforms are not mutually exclusive, the human rights-based approach cannot be compromised. Whether we call it a ‘police service’, a ‘police force’ or a ‘police authority’, by its very nature it is the coercive arm of the State and this necessarily means the use of ‘power over’ and ‘control of’ people. Hence, there is an urgent need for citizens and independent civil society formations to monitor and watch the act of policing.

A reading of most of the draft bills shows that though there is some rhetoric and minimalist provisions for accountability, there are very strong provisions for more ‘authority’. While most police officers advocate ‘functional autonomy’ (from political interferences) and seek more ‘authority’, there is hardly any corollary provision for public accountability. More autonomy and authority without more accountability can actually be counterproductive to the very purpose of the police reforms.

In this context, CHRI has rightly pointed out:

“Police laws are put in place to regulate policing. The rationale for any police legislation is to regulate policing; to provide the police with a new vision of itself; to change the underlying assumptions on which it functions; articulate the relationships that the police establishment will have with the political executive, the civil administration and the public; define its role and function; delimit its powers and activities and define its structure. The Police Act should not go beyond this remit to give extraordinary powers to the police or create obligations for the public. Large portions...are in the nature of an emergency law (like the Disturbed Areas Act), and encroach on areas of administration that fall outside the purview of a Police Act. Emergencies of public order and the problems of insurgency or militancy require a coordinated and integrated approach that goes beyond the policing requirements and includes action by various other wings.”

(http://www.humanrightsinitiative.org/programs/aj/police/india/initiatives/model_police_act_chap9.pdf)

The cornerstone of democratic policing is public service, public accountability and a professional duty to uphold the Constitution of India and to ensure security, human rights and service to all people.

It has been pointed out that the success of democratic policing is dependent on the principle that the police should be held accountable not just by government, but by a wider network of agencies and organisations working on behalf of the people within a human rights framework (CHRI -- New Delhi). Democratic policing is both a process and an outcome. A democratic police organisation is one that is

accountable to the law and not a law unto itself
is accountable to democratic government structures and the community
is transparent in its activities
gives top operational priority to protecting the safety and rights of individuals and private groups
protects human rights
provides society with professional services
is representative of the community it serves.
The drafts of proposed Police Acts in various states do not have adequate provisions to protect human rights and to ensure public accountability and citizens’ rights in the context of the Supreme Court’s directives as well as in relation to the framework of democratic policing.

In a democratic country, the very purpose of policing is to serve the people by ensuring security, service, freedom and human rights. So the right to effective, efficient and professional policing, as well as public accountability of the police, are the two cardinal aspects of a citizen’s right to just and democratic policing. It is thus important to have a clear section on Citizens’ Rights to Accountable Police Service. The following are a few provisions that must be considered in a revision of the various drafts of the proposed Police Acts:

• The section/chapter on Citizens’ Right to Accountable Police Service should bring together all aspects of the interface between citizens and police, particularly in terms of access to quality and professional service and the right to demand accountability. It is also important to highlight the responsibility of citizens to support, cooperate and collaborate with the police to ensure security, human rights and service.

• There has to be a clear provision for a Citizen’s Charter in the proposed Police Acts. From time to time, the Security Commission (stipulated in the Supreme Court directives), can develop and revise the Citizen’s Charter that must clearly articulate all rights and responsibilities of citizens with regard to the police service. The charter should be clearly and visibly displayed in English and local languages in all police stations and other relevant offices and public places.

• The various existing drafts make some provisions for ‘adequate facilities’ for citizens. This is too vague. It is important to stipulate that every police station will have a designated space, with chairs, tables, and stationery required to file a petition of complaint.

• All police stations, including lock-ups, should be equipped with a digital recording and monitoring system. This ensures the overall security of the police station and also helps monitor instances of abuse of power or torture or use of violence or abusive language. The digital documentation of each police station (and lock-up) should be maintained for a period of at least one year.

• There has to be a micro website within the larger website of the state police with details of all police officers and constables in a given police station or unit. There has to be a clear email address of the officer-in-charge of a police station as well as the emails of the district police officer so that any citizen can file a formal complaint or post an alert about any abuse of power by the police. There has to be provision for electronic/digital acknowledgement of the petition or complaint submitted through email. The complainant must get a clear response from the concerned person within five working days of submitting the petition/complaint. If no response is forthcoming within five working days, the complainant will have the right to file a formal complaint before the District Police Complaints Authority.

• Clear instructions must go out to all police constables and officers not to use abusive language or say or do anything that violates the basic human dignity of a person. There must be clear provisions to ensure that there is no use of torture and violence in the process of cross-questioning or investigation.

• Every person will have the right to know the identity, name and designation of a police officer whether in uniform or not.

• There has to be mandatory training and orientation for all police constables and officers about human rights, women’s rights and citizens’ rights. This should be an obligatory part of the training curriculum. Every police station should also clearly display the basic principles of human rights.

• There should be a provision to get feedback from citizens to be included in the annual performance appraisal of police officers in a police station. Such feedback can be submitted through email.

• Police officers should ensure confidentiality in the process of inquiry and investigation. In a case of public interest, relevant information regarding the case under investigation should be given by a senior police officer in charge of public information and media at the district level. This will ensure that the media do not create unnecessary sensations and hamper the process of investigation. In the event of any calamity, natural disaster or violence, the designated and well-trained police officer in charge of public and media relations should speak to the media. There has to be a police code of conduct in interacting with the media.

Thus the core of police reforms should be based on the principles of just, democratic and accountable governance as well as on the fundamental human rights guaranteed by the Constitution of India.

InfoChange News & Features, May 2009