Mirage of reforms

MADHAV GODBOLE

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POLICE reforms, like many other matters crucial for the establishment of the rule of law, have been relegated to the backburner by successive governments at the centre and the states, irrespective of the party to which they belonged. The police have become the handmaiden of every government in consolidating its hold. This paper focuses on some critical areas of concern.

It will be useful to begin this discussion by making a brief reference to the futility of relying, beyond a point, on crime data.1 It needs to be noted that in respect of the incidence of cognisable crime, during 1991 to 1996, the all India figure for each year hovers around 17 lakh. In 1993, it showed a decline as compared to the preceding year. In 1994 as also 1996, it showed only a marginal increase as compared to the figure in the preceding year. It is interesting that while Uttar Pradesh occupied third place after Madhya Pradesh and Maharashtra, Bihar, with its much lower figure of cognisable crime, was at seventh position among major states. This is equally true of cognisable crime figures for 1996 arranged city wise. Delhi was at the top with a crime figure of 54,199. Lucknow and Patna were at 12th and 13th position respectively, with their crime figures as low as 5,514 and 4,971 respectively! Clearly, there is a major problem with the authenticity and reliability of crime data.

 

 

The total number of cases for trial during the year, including cases carried forward, has gone up steeply from 39.64 lakh in 1991 to 52.97 lakh in 1996. However, the number of cases securing conviction each year has remained at about 3.20 lakh during four of the six years. In the remaining two years it was only slightly higher at about 3.40 lakh.

As the reports of the Commission on Scheduled Castes (SC) and Scheduled Tribes (ST), as also the National Commission for Women, have brought out in their successive volumes, crimes against these vulnerable sections has gone up. There is general apathy in investigating such cases and the rate of conviction in courts is dismal. The National Human Rights Commission (NHRC) has repeatedly brought out the serious problem of custodial crimes even in the national capital and the so-called progressive states.

It is also necessary to take note of other demands made on the police. The foremost of these is for the protection of persons whose life is believed to be in danger. Earlier, this category included only a few ministers and very senior officers working in highly sensitive positions. Now, having an ostentatious security outfit and bullet-proof cars has become a status symbol for persons in public life.

 

 

Often, threats are engineered by protectees themselves to have their security arrangements upgraded and continued indefinitely. Every attempt by the centre or the states to review the list of those to whom security has been provided, so as to reduce the manpower and vehicles deployed for the purpose, meets with stiff resistance. The decision to give special protec-tion group (SPG) security cover to the former prime ministers and their families is scandalous. Except Rajiv Gandhi’s family members, none of the others have any security risk whatsoever, but the country spends over Rs 200 crore each year on the SPG.

Though no authentic figures, on an all India basis, are available of the staff and vehicles deployed for providing security to thousands of other protectees, this has clearly become the first charge on the police budget in the states as also at the centre. The two high profile commissions of inquiry set up after the assassination of Rajiv Gandhi have created a psycho-logy among concerned agencies to err on the side of safety and not to resist any demand for providing security to persons in public life. The archaic, flat-footed, ostentatious and manpower intensive practices adopted in India, however, are in stark contrast with those in advanced western countries where the emphasis is on providing unobtrusive security with much greater emphasis placed on gathering intelligence and analysing it with utmost care and patience

 

 

Insurgency and terrorist activities, aided and abetted from across our borders, have added new dimensions to the already complex task of maintaining peace and order in the country. The other significant development in recent years is the rise of Hindu fundamentalism and propagation of slogans such as Garva se kaho hum Hindu hain (Say with pride, I am a Hindu). These have created new and potent divisive forces in the country.

Communalism is bad, whether it is indulged in by the majority community or the minorities. But, the communalism of the majority community can hold the entire society to ransom. The wanton and deliberate demolition of the Babri Masjid by the Hindu fundamentalist forces in December 1992 was a watershed in the governance of the country. For the first time this divided society on the basis of religion and created the ugly and frightening monster of terrorism indulged in by the Muslims. This has long term implications for maintenance of law and order as the Muslims, with their population of over 150 million, can hardly be called a minority, except in the relative sense of the term when compared with the large majority of Hindus.

The country has seen a revival of religion in other ways too. Celebrating Hindu festivals on a gala scale is yet another recent phenomenon. Due to constant fears of communal flare-ups and threats of terrorist acts, large numbers of policepersons have to be deployed in these festivities and festivals for days together. Whirlwind countrywide and statewide tours of ministers and provision of bandobast all along the route has become a nightmare for the police.

 

 

Against this background, it is interesting to note the additions to the police strength in the country during the last few years. The all India civil police strength (including district armed reserve police) has gone up marginally by 65,000 from 9.04 lakh in 1991 to 9.69 lakh in 1995. Uttar Pradesh accounts for the maximum number (1.24 lakh), followed by Maharashtra (1.21 lakh). Inclusive of the armed police, the total strength of police has increased by only about a lakh between 1991 and 1996.

The adequacy of police is generally assessed with reference to three major criteria, namely, number of policepersons per 100 square kilometres of area, per 1000 population, and number of Indian Penal Code (IPC) cases per civil policeperson. In respect of the first criterion, there is only a slight improvement in that the all India number of policepersons per 100 square kilometre of area has gone up from 35 in 1991 to 39.5 in 1995. It remained at the same level in 1996. In terms of number of policepersons per1000 population, the all India figure was the same (1.4) for the five years from 1991 to 1995. It came down to 1.3 in 1996. The number of IPC cases per civil policeperson went up from 1.9 in 1991 to 2.3 in 1996. Here again, one sees a large variation between states, with several states recording figures well below the national average.

This brings us to the question of the primary responsibilities of the state. It is time some serious thought was given to this subject by all states. As the annual report of the Reserve Bank of India (1998-99) brings out, state finances are in a dire state. The gross fiscal deficit (GFD) of the state governments as a percentage of gross domestic product has gone up steeply from the average of 2.6% during 1991-97 to 4.3% in 1998-99 (RE). The reve-nue deficit of the state governments has more than doubled to Rs 40,539 crore in 1998-99 from Rs 15,372 crore in 1997-98 – an increase of 147.6%! The revenue deficit for 1999-2000 is estimated to increase to Rs 43,236 crore. The combined GFD of the states is budgeted at Rs 80,223 crore, with the revenue deficit contributing 53.9% of GFD.

 

 

Yet another disturbing feature is the sharp decline in the rate of growth of development expenditure. All this points to the need for a serious review of all public expenditure so as to concentrate only on those activities which are inescapable. In other areas, the state will have to shed its responsibilities. This will mean downsizing the government – a term which gives nightmares to all political parties, leave aside the associations of government employees.

It has to be accepted that all progress and development will finally depend on whether the state is able to safeguard the life and property of its citizens. The process of economic liberalisation and globalisation set in motion in June 1991 cannot be carried forward to any appreciable extent if the state cannot guarantee the maintenance of law and order. Several new areas are now being opened up for the private sector but private capital will not flow into new ventures without the guarantee of the state discharging this responsibility.

In a sense, therefore, the basic functions of the government boil down to ensuring law and order and justice, and providing a social security net for the weaker and neglected sections of society – the very responsibilities neglected by the state all these years. From this perspective, the challenges in the field of police reforms are not only crucial but have acquired new urgency. A conscious effort will have to be made to see that every rupee spent on the police yields maximum benefits to society, as the opportunity cost thereof is so high. The following paragraphs bring out some of these issues.

 

 

The first concerns the composition of the police. The representation of women in police is dismal and stands at less than 1%. This is particularly worrisome in view of the increasing crime against women. It is well recognised that in crimes such as rape, molestation, dowry deaths, kidnapping and so on, victims would be more forthcoming if questioned by women police. The same is true of the representation of religious minorities, SCs, STs, and other weaker sections. It must be our endeavour to ensure that the composition of the police reflects, as closely as possible, that of the society itself. It is unfortunate that no serious effort has been made so far to change the profile of the police to remedy these deficiencies.

World over, the emphasis within the uniformed services is changing from large manpower to its technology orientation. Even after taking into account the differences in the role of the armed forces and the police, this should be equally applicable to the police. Mere addition to numbers has to give way to making the police more efficient, productive and effective by provision of modern aids and equipment, mobility and communications.

As a part of this effort, the minimum educational qualification for recruitment as police constable has to be increased to at least passing the 12th standard. Advance increments could be given to those possessing higher educational standards. Police constables, particularly in metropolitan areas, should have even higher minimum educational qualifications. But, this will be possible only if the entire gamut of issues such as promotional avenues for constables are looked at afresh.

 

 

Police, law and order are subjects which fall in the state list. It is, therefore, the responsibility of the states to provide funds for these requirements. But, due to the repeated demands of the state governments, the central government has implemented a centrally sponsored scheme for modernisation of police forces in the states. The scheme is funded equally by the centre and the state concerned.

Central funds are made available on the basis of a 50% grant and 50% loan. The amount has to be spent on prescribed items such as mobility, communications, scientific aids to investigation, and crowd control equi-pment. Statewise allocation is based on population, sanctioned strength of police, number of police stations and crime per lakh population. It is seen that the central funds are not being used by a number of states due to a lack of matching funds from the state budget. In several states the budget of the police department is under severe strain and there are shocking news reports that police do not have funds even to buy petrol for their vehicles or ammunition for weapons.

Yet another sign of the apathy of states is the lack of adequate housing facilities for the police. Ideally, looking to the nature of their responsibilities, all policepersons should be provided accommodation by the government. Unfortunately, in a number of cities and towns, policepersons have to stay in slums for want of government accommodation. How can a person living in such squalor and filth and in close contact with criminals and the underworld be expected to uphold the rule of law?

Unfortunately, even the central government is remiss in its responsibilities towards the central paramilitary forces in this regards. It is amazing to see that the government has prescribed that residential accommodation be provided only to 14% of the constables in these forces. However, in practice, the percentage satisfaction is even lower than 10%. Only in respect of the Indo-Tibetan Border Police, it is marginally higher at about 12%.

 

 

This takes us to the image of the police and the respect which the police enjoy in society. As a recent Parliamentary standing committee2 report brings out, during one year from 1 July 1995 to 30 June 1996, 200 Delhi police officials – 5 inspectors, 22 sub-inspectors, 19 assistant sub-inspectors, 47 head-constables, 106 constables and one class IV employee – were arrested in 160 criminal cases. Custodial crimes and human rights abuses by the police have continued to cause concern. The Parliamentary standing committee rightly stressed the importance of improving the image of the police and creating public confidence that it is the saviour and not tormentor of society. But this is easier said than done. For, the police, though a uniformed service, has lost all the characteristics of such a service.

The genesis of this is to be found in the politicisation of the police and dilution of its disciplinary standards. The command structure has totally broken down. It was not, therefore, surprising to read the lament of an outgoing director general of police (DGP) in Maharashtra that he was head of the police force only in name without the power even to transfer a sub-inspector. According to another news report, the powers to transfer subordinates had been withdrawn from the DGP, Uttar Pradesh, and taken over by the chief minister. The same is the situation in varying degrees in almost all states. In several cases, the DGP s have been summarily shifted to innocuous posts.

The matters relating to police reform have been gone into by a number of state police commissions over the last 40 years. As early as 1959, the Kerala Police Reorganisation Commission had cautioned that, ‘The greatest obstacle to efficient police administration flows from the domination of party politics under the state administration… the result of partisan interference is often reflected in lawless enforcement of laws, inferior service and in general decline of police prestige.’ Similar observations were made by the West Bengal Police Commission (1960-61), the Punjab Police Commission (1961-62), the Delhi Police Commission (1968) and the Tamil Nadu Police Commission appointed in 1971.

 

 

The Shah Commission on Emergency excesses too went into the misuse of police by the government and observed, ‘The police was used and allowed themselves to be used for purposes some of which were, to say the least, questionable. Some police officers behaved as though they were not accountable at all to any public authority.’ This was followed by the report of the National Police Commission (NPC) in the late 1970s. All these reports have been gathering dust primarily because the political executive is not prepared to let go of its hold over the police.

The concept of autonomy for the police has been upheld time and again in a number of western and other countries. One of the earliest of these decisions can be traced to the Supreme Court of Massachusetts in Buttrick v. The City of Lowell, 1861, in which it was said that police officers were not agents or officers of the city and that their powers were derived from the law. The city or the town could not be held liable for the mode in which they exercised their powers. They were exercising a function of government delegated by the legislature.

 

 

In Canada, there emerged a different notion that the police in theory were neither agents nor servants of the Crown, nor servants of the municipality, but persons owing a duty to the public. The judgement in the Australian case, Attorney General for New South Wales v. Perpetual Trustee Company, held that while some police duties were statutory and other were derived from the common law, all were of a public character. And although a constable is bound to obey the lawful orders of his superiors, ‘neither they nor the Crown itself can lawfully require him to abstain from performing the duties which the law imposes upon him with respect to the preservation of the peace and the apprehension of the offenders.’

In recent times, in R. v. Metropolitan Police Commissioner, ex parte Blackburn, Lord Denning said, ‘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 is not the servant of any one, save of the law itself. No minister of the Crown can tell him that he must or must not keep observation on this place or that, or that he must or must not prosecute this man or that one. Nor can any public authority tell him so. He is answerable to the law and the law alone.’3 One can imagine how different the outcome of the notorious cases such as Bofors, Hawala, HDW submarines, St. Kitts, and scores of others, which have shaken the confidence of the people in the rule of law, would have been had the police in India too enjoyed similar autonomy.

 

 

All proposals for police reform are not marked by political overtones and some would not evoke any political opposition. All that is required is administrative will, but even this is often found wanting. There is no dearth of ideas and some of the best minds in the country have been at work on this subject. To quote just one example: a group of retired senior police officers in Maharashtra under the chairmanship of V.G. Kanetkar made a set of recommendations in 1998 to speed up police investigations and court trials. Though some of the recommendations, such as revival of the punishment of whipping, are controversial, several others can go a long way in remedying the present ills of the system. It is high time that at least such reforms were pursued vigorously for adoption.

Due to lack of progress, in desperation, a public interest litigation (PIL) was filed in the Supreme Court to force the government to implement the recommendations of the NPC. The decision of the court thereon is still awaited. A reference must, however, be made to the report of the committee appointed by the Ministry of Home Affairs (MHA) under the chairmanship of J.F. Rebeiro to review and suggest ways and means for implementation of the pending recommendations of the NPC, the Law Commission, the NHRC and the Vohra Committee.

This committee had the valuable opportunity to give a push to the long pending issues pertaining to police reforms. Unfortunately, the committee has failed in this task. Thus, on an important question of follow-up action on the recommendations of the Vohra Committee on the nexus between criminals, politicians and bureaucrats, the committee has remained satisfied with the observation, ‘It is learnt that a cell is already operative (in MHA), but how far it has succeeded in its endeavours is not known to our committee.’

The committee has come to the surprising conclusion that the procedures adopted to select the chiefs and senior officers of the central police organisations do not call for any changes. Even a cursory acquaintance with the functioning of the central government would show how this faith is misplaced, how arbitrary and opaque is the system, and how the selection procedures need to be reviewed and replaced by a more transparent and accountable system.

 

 

On the important question of setting up of a state security commission (SSC) in each state, it is amazing to read the conclusion of the committee that, ‘Taking all these considerations into account, we veered round to the view that the commission should be a non-statutory, advisory and recommendatory body for the present as recommended by the NHRC... Our committee feels that this would be largely acceptable to state governments as it will not impinge on government’s overall control and superintendence over the police.’ With this one recommendation, the committee has demolished the entire foundation for the reform of the police.

Yet another ill-conceived recommendation is that ‘the deliberations of the security commission should be released to the press after every sitting’ (emphasis added). This will, in fact, deter free and frank discussion in the commission on matters such as transfers, promotions, postings, representations, grievances and so on. Nowhere in the world do such discussions become public knowledge. The commission’s recommendations (only the recommendation and not the deliberations) should be made public only if not acted upon by the government.

The composition of the commission recommended by the committee is also open to serious objections. The question of sitting judges of High Courts being members of such a commission, along with the home minister and leader of the opposition, goes against the principle of separation of the executive from the judiciary. The recent trend of sitting judges involving themselves in executive functions has long term implications for the governance of the country and needs to be reversed firmly. For the same reason, associating the leader of the opposition with such a commission, which is to look after personnel matters of the police, also requires careful thought.

Further, making a minister in charge of the home portfolio the chairman of the security commission undercuts the entire purpose of the exercise. The proposal to give the authority to NHRC to nominate the members of the security commission is, similarly, difficult to understand. Acceptance of these and several other recommendations of the committee would be counter-productive and a window-dressing to show action where there is none. It is hoped that these recommendations will not form the basis for the decisions of the apex court in the PIL. The above discussion admittedly makes depressing reading. The mirage of police reforms continues to beckon in this long and unending journey.

 

 

Footnotes

1. The figures are reproduced from the publications of the National Crime Records Bureau, Ministry of Home Affairs, quoted in Central Statistical Organisation, Department of Statistics and Programme Implementation, Government of India, Statistical Abstract India, 1998, April 1999. At the outset, it may be important to note a word of caution. The crime figures can be called authentic and relied upon only to the extent to which the crime is duly recorded by the police stations. As is well known, the police are generally reluctant to register a complaint. If it is registered at all, the effort is often to record it as a non-cognisable offence. In some other cases, a complaint is registered but is filed as ‘A’ summary, i.e. could not be substantiated.

2. Rajya Sabha Secretariat, Department Related Parliamentary Standing Committee on Home Affairs (1996-97), Thirty Second Report on Demands for Grants 1996-97, August 1996.

3. Jeffrey Jowell and Dawn Oliver (ed), The Changing Constitution, Third Edition, Clarendon Press, Oxford, 1994, pp. 296-300.

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