India’s police are still governed by the Police Act, 1861. There has been no dearth of committees on police reforms after Independence — only a worrisome dearth of any will to prevent political interference, custodial ill-treatment, refusal to record FIRs, etc.
Among the host of committees, a high-powered National Police Commission stands out. It was set up in 1977 by the Janata Party government and had submitted eight reports by 1982. Indira Gandhi, who had returned to power in 1980, refused to touch anything that had to do with the party that had ousted her in 1977. That has been the bane of most attempts at reform.
In a divided polity, politicians disdain consensus or reforms even if they are sorely needed. In 2006, the police act drafting committee recommended a comprehensive bill. Its 16 chapters and 221 sections were, if anything, tepid.
Meanwhile, the Supreme Court of India issued some directives to the states for reforms. One of them was to constitute a State Security Commission to ensure the state government did not exercise unwarranted pressure on the state police and to evaluate the latter’s performance; to ensure that the director-general of police is appointed through a merit-based transparent process with a minimum tenure of two years, etc.
It recommended a board called the Police Establishment Board to decide about transfers, postings, promotions and other services, and a Police Complaints Authority.
These directives were issued in September 2005 on a petition filed by a senior police officer nine years earlier. The states took their time to act on the court’s directives; not always adequately enough.
Missing in the entire discourse is any informed intervention by an independent body comprising academics, journalists, former civil servants and police officers. The report of such a body, based on thorough research, can help to arouse and mould public opinion.
Since our constitutional and administrative systems are based on the British model, the series of reforms in the UK can help in careful adaptation, not blind imitation.
There was the Police Act, 1964 and a much more radical Police and Criminal Evidence Act, 1984. Section 83 of the act established the Police Complaints Authority while Section 106 set out “arrangements for obtaining the views of the community on policy”. Abolished was the previous complaints board.
The Stephen Lawrence Inquiry in 1999 found institutional racism in the police force. The complaints authority was replaced because it was suspected of bias and lack of independence. The Police Reforms Act, 2002 established a complaints commission which is entirely independent of the police and political parties and free from government involvement. It has a legal duty to oversee the whole of the police complaints system, created by the Police Reform Act, 2002.
The aim of the complaints body is to transform the way in which complaints against the police are handled. Its functioning is open to public scrutiny. What emerges is a record of 50 years of trial and error. The pace was forced by public opinion and was buttressed by a jurisprudence established in rulings by the courts; most importantly the famous dictum by Lord Denning. “I hold it to be the duty of the commissioner of police, as it is of every chief constable, to enforce the law of the land.
He must take steps so to post his men that crimes may be detected, and the honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted and, if need be, bring the prosecution or see that it is brought, but in all these things he is not the servant of anyone, save of the law itself.” On January 20, 1948, a bomb exploded at Mahatma Gandhi’s prayer meeting. Jamshid Nagarvalla of the Bombay CID asked Bombay’s home minister Morarji Desai for permission to arrest V.D. Savarkar on the basis of the assailant Madanlal’s visit to him the week before. Desai refused. Had he agreed, Gandhi would not have been assassinated by that gang on January 30. Savarkar was behind the crime.
Legally, Nagarvalla was not bound to seek, still less follow, the minister’s order; and the minister had no business to instruct or order a police official. Both received their just deserts in 1970 from Justice J.L. Kapur, a former judge of the Supreme Court, in his report as commission of inquiry into the conspiracy to murder Gandhi.
He said: “Directing the police how to carry out its statutory duties or any interference with the statutory duties of the police… is foreign to the notions accepted in countries governed by the common law.”
The writer is an author and lawyer based in Mumbai
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