Wanted, Police Reforms to Institutionalise Accountability
Responsibility of states
While the world battles the abject public health crisis brought on by Covid-19, in India, we are also having to deal with police brutality as people are beaten up and lathi charged by cops for trying to purchase essentials, like milk and water.
Reports have come in about a man who allegedly died of injuries after he was beaten by police in Howrah, West Bengal while out to buy milk during the recently imposed 21-day lockdown – perhaps the first death due to police brutality during the Corona Crisis. There are several other reports of police violence, coming in from different parts of the country.
A little while back, India was battling the Citizenship Amendment Act and the fraught National Register of Citizens (NRC) and the police brutality that met protestors across the country. The violence in Delhi, police complicity and the manner in which the Indian state handled the protests, and now the enforcement of the 21-day lockdown, highlights more than ever, the urgent need for police reforms in India.
Reports of torture abound, and while human rights organisations have been highlighting the this for years, the institutionalisation of torture and violence have been brought sharply to the fore in how police have treated protesters in different parts of the country. By ‘othering’ them, in the same way people of different vulnerabilities and from different marginalised groups have been treated, everyday violence at the hands of the police in India, and indeed other South Asian countries, is a sordid part of life for many.
There are several reasons for this but not enough has been spoken or written about the dire state of police accountability in India, and the abject lack of robust systems in place for ensuring (ironically) that the police follow the law. In 2006, the Supreme Court of India in its landmark judgment in Prakash Singh & Ors. vs. UOI & Ors. [(2006) 8 SCC 1] took serious note of the issue of police violence and impunity and issued binding directives to State governments, one of which was for the establishment of Police Complaint Authorities (PCA).
These authorities were touted as independent, it’s functions to enquire into police misconduct through complaints, that anyone could file before them, to ensure that the police uphold the ‘constitutional rights and liberties of the people’. The judgment also makes crucial points on the separation of law and order functions from the investigation functions for the police.
The judgment, although now almost 15 years old, speaks of issues that also plague India in the present day – politicization of the police, frequent transfers, a demoralised, overworked police force – similar issues raised by the first report (1979) of the first National Police Commission, appointed in 1977.
More than four decades ago, this first report highlights the unique issues and ‘new dimensions’ for policing given a growing culture of protests in the country due to labour, agrarian, student issues and so on – issues that ring true today. Crucially, the Commission was set up by the Janata government, against the backdrop of the then recently concluded Emergency.
Over the course of 8 reports, the Commission gave several recommendations to reform the police force in India, mooting different mechanisms for ensuring accountability, including complaint mechanisms, and most importantly, a draft new Police Act was provided along with the 8th and final report. The Prakash Singh judgment too recommended the overhaul of the Police Act,1861 resulting in the drafting of the Model Police Act, 2006.
However, given that policing is a state subject under the Constitution of India, the Model Police Act 2006, (although not in force still), like the Police Act of 1861 is simply a legislative guideline – the burden and responsibility ultimately rests on the states to ensure that the guidelines of the judgment, and the guidelines given by the draft Act are encompassed in new state police acts or amendments to existing ones.
While Directive 6 in the Prakash Singh judgment mandates states to establish Police Complaint Authorities, the recommendations have been speciously drafted with tremendous scope for (mis)interpretation, as evidenced by how different states have treated the subject. As of March 2018, according to the Commonwealth Human Rights Initiative (CHRI), there were only 17 states that have new Police Acts, and have established Police Complaint Authorities (PCAs), while most of the other states have done nothing to ensure compliance. These 17 states have also only partially complied with the direction of the judgment.
The result of this is that States have either incorporated the recommendations superfluously or it appears, deliberately flouted them - it can only be assumed, due to lack of will or to ensure vapidity, to maintain the status quo.
Even in states where PCAs are functioning, a lot is left to be desired to ensure independence, such as in Kerala, lauded for its active PCA. Here, the State Police Complaints Authority (SPCA) only usually has one active sitting member, and after a long-pending demand for an independent investigator, the state government, in late 2019, finally cleared the decks so that the SPCA can appoint an independent investigator that has never served in the Kerala Police. Serving police officers also serve as committee members from time to time, which according to S.162 of the Model Police Act, 2006, makes them ineligible for membership. However, this clause has not found its way to the Kerala Police Act and instead, S.110(2) mandates that an officer not below the rank of Additional Director General of Police be a part of the SPCA!
Another instance is Tamil Nadu, where there are PCA’s at the state and district level, their independence is severely truncated as serving police officers serve as members of the authority. A fundamental violation of principles of natural justice, it is impossible for a PCA with serving police officers to grant a fair hearing, rule independently and without bias, especially in case of severe police violence such as torture and rape. There is also no mention of whether recommendations of the authority will be binding.
Across the board, most states do not have independent members, nor an independent panel to appoint the members. States have made a mockery of the judgment and the lack of will on the part of states means that more than 13 years after the judgment, people have nowhere independent to go to complain about severe police misconduct, especially torture and rape in custody. The Prakash Singh judgment is to blame in part for this turn of events, as Directive 6 is loosely drafted, with several loopholes, most of the recommendations can be interpreted as not binding in nature. It is no wonder then that states have taken the liberty to obfuscate further the failed project that is police reforms.
Complaints against police are rarely prosecuted. In a country like India this is a major factor contributing to the heavily disintegrated rule of law framework.
It is hoped that the recent contempt pleas on the non-implementation of the Prakash Singh judgment, filed by Adv. Prashant Bhushan in the Supreme Court, will force state governments to take the issues seriously. While the setting up of robust, independent PCAs are not a quick fix or a hold-all to take care of the several, serious issues related to police accountability for India, it is a meagre start, a small step for police reforms in the country - sadly, Indian states have refused to take even this baby step.
Urmila Pullat is an independent lawyer and researcher.