Police Reform via New Legislation Should Not Dilute State Role

As the police reform discourse has begun again, let us recall some of the glaring incidents that have crossed the limits of the rule of law.

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Police has been in the news recently, mostly for the wrong reasons. Let us recall some of the glaring incidents that have crossed the limits of the rule of law to contextualise the discussion on police reforms in India.

The Justice V.S. Sripurkar Commission set up by the Supreme Court for an inquest into the killing of four ‘accused’ in the gang-rape and murder of a veterinarian on the outskirts of Hyderabad in 2019 has found it to be a false encounter, in which innocents, including three minors were killed. It has indicted the police for firing on the accused ‘with an intent to cause their death’ and recommended legal action against the ten policemen involved in the case.

Uttar Pradesh chief minister Yogi Adityanath summarily removed state’s DGP Mukul Goel on 12 May for inefficiency and ‘neglecting work’. So sudden was the move that additional charge had to be handed over to an additional director general of police. Obviously, the mechanism and procedure of appointing police chief recommended by the Supreme Court’s 2006 directive is not in place in UP, as in most states.

Three police organisations were in the news when Bharatiya Janata Party (BJP) activist Tejinder Pal Bagga was arrested by Punjab Police from his Delhi residence for a comment on Delhi chief minister Arvind Kejriwal on 6 May and the Punjab police team was intercepted by Haryana and Delhi police teams to ‘rescue’ him.  This was the first instance of police versus police guided from the top since independence; extreme politicisation of the police was written all over it.

Outrageously, Gujarat MLA Jignesh Mevani was arrested from Palanpur in Gujarat by Assam Police on April 20 for an ostensible tweet against the prime minister.  He was released on bail the same afternoon by a local court, but immediately rearrested on a first information report by a lady police officer in Barpeta for using abusive language against her while he was taken from one place to other.

His arrest has been deliberately under non-bailable section of the Indian Penal Code. Barpeta district and session judge Aparesh Chakravarty made harsh comments condemning the action of the Assam police while granting Mevani bail. Surprisingly, the Gauhati high court said the Barpeta court had ‘crossed its limits’ in its order and ‘demoralised’ the police force and the state government. Since the police of a BJP-ruled state raided and arrested an incumbent legislator from another BJP-ruled state, there was no inter-state police war. Persecution of political opposition and dissent was writ large in the episode.

Police organisations across the country are prone to using sedition charges against all kinds of incidents and offences. Obviously, all political parties in power across states do not blink before taking orders from the political bosses to use the harshest laws. The most glaring and intriguing is the use of the police in Bhima Koregaon case – the Pune Police exonerated an accused of a Hindu organisation from the charges of inciting riots and arrested 16 human rights activists gathered at the Shanivar Vada, Pune for the Elgar Parishad, a programme organised in the city on December 31, 2017, on the eve of the 200th anniversary of the Battle of Bhima Koregaon, on charges of sedition and UAPA.

The Maharashtra government was then ruled by the BJP. But as soon as the BJP lost power in the state in 2019, the Union home ministry transferred the case to the National Investigation Agency under Section 6 of the National Investigation Agency (Amendment) Act, 2019.

Also read: Narendra Modi Speaks of Elusive Police Reforms, but Evades the Central Issue

police reforms

File photo of police at the Delhi-Noida border. Photo: Special arrangement

Triggering police reform debate

No wonder the police reform discourse, which unfortunately is not yet a popular demand, has begun again. And rightly so. However, most of the analysts have highlighted the 1861 colonial origin of the police and recounted the reforms suggested since independence, particularly since the Supreme Court’s Prakash Singh judgment in 2006.

While we underline them, it is crucial to bring into the discourse the proposal floated by Bibek Debroy, the chairman of the prime minister’s Economic Advisory Council, in a signed article titled ‘The Good Cop’ in The Indian Express on May 12, 2022.  Significantly, the same proposal had been made by a NITI Aayog-sponsored paper titled Building Smart Police in India: Background into the Needed Police Force Reforms published in 2016, when Debroy was a member of the NITI Aayog. Both argue for a constitutional amendment in the Seventh Schedule (Article 246) to shift the police from State List (List II) to Concurrent List (List III). To contextualise this, let us look at the progression in the discourse on police reforms in the country.

Beginning with the Cornwallis Code and taking away police powers from zamindars by the East India Company in 1793, police reform had a history of over six decades before the Indian Police Act came into existence in 1861. An important landmark that eventually shaped the police system in India was the introduction of the Irish Royal Constabulary system by Sir Charles Napier in 1843 in Sind. The Sepoy revolt followed 14 years later and that brought the Act of 1861.

Importantly, this central Act left the police to be operated by provinces. However, it was to be led by centrally recruited cadre of Indian (Imperial) Police officers. Four decades of the functioning of the police under the Act, brought the Fraser Commission in 1902. The Commission observed the police in the country, ‘in a most unsatisfactory condition’ and ‘that abuses are common everywhere’. Underlining the need for ‘radical reforms’, it recommended more funds for the starved department. Since the colonial government was not prepared for it, the imperfections were bequeathed to independent India.

Public and official discourse on police reforms in India began as soon as independence of India was in the air. The government of the United Provinces (now Uttar Pradesh) appointed a Police Reorganisation Committee on January 23, 1947. Its report, which was submitted on March 2, 1948, listed several of the ailments of the police that were stated by the Fraser Commission. Since the nature of the polity had yet to be shaped, it ended there.

The next phase of the discourse on police reforms began after the constitution was enacted on January 26, 1950. Since maintenance of public order and police were placed in the State List in India’s federal structure, the explorations on police reforms were left to the states. Beginning 1959, Kerala, West Bengal (1960), Bihar and Punjab (1961), Delhi (1968), Tamil Nadu (1971), and Maharashtra, Uttar Pradesh, Madhya Pradesh, Assam and Andhra Pradesh set up Police Commissions. While they all underlined issues such as corruption, brutality, high-handedness, non-registration of FIR, long duty hours, low salary, inadequate training, some structural issues and so on, none of them questioned the colonial Indian Police Act, 1861 since it was a central Act and beyond the legislative domain of the states.

The Union government first looked at the police reforms within the broader framework of administrative reforms and the first Administrative Reforms Commission, 1966, set up a Working Group on Police Reforms. Next, it set up M.S. Gore committee on police training in 1971. The awareness that police reforms were needed in India came following the Emergency in 1975.  Thus, the National Police Commission (NPC) chaired by Dharam Vira was set up by the Janata Party government in 1977, which became even more relevant due to the all-India police strike in 1979.

Eight reports submitted by the Dharam Vira Commission between 1977 and 1981 stressed issues that had been underlined time and again and suggested institutional remedies, including a draft of a new Model Police Act. However, the Congress governments led by Indira Gandhi and Rajiv Gandhi that were in power during the 1980s did not take any action. The state governments did not have any imperative to accept the NPC’s recommendations.

The PIL filed in the Supreme Court by two former Directors General of Police, Prakash Singh and N.K. Singh, in 1996 led to a landmark judgment in 2006 that touched a number of issues – the appointment and tenure of police officers DGP downwards, the separation of investigative and law and order wings, institutional mechanisms to make the police accountable and responsive to people as well as mechanism to reduce political interference.  In the meantime, the Government of India had appointed the Padmanabhaiah Committee in 1998, the Julio Ribeiro Committee 1998 and Soli Sorabji Committee in 2005, which gave a draft of a Model Police Act to be adapted and enacted by each state.

Till 2015, 17 states had formulated their Model Police Act. In 2015, the Government of India reviewed the Model Police Act, 2006 and put it on the website of the Bureau of Police Research and Development. But not many states have taken steps to make big ticket police reforms in these years. Obviously, political leadership in the states, irrespective of the party in power, have not been enthusiastic about improving the police and policing. Thus arises the question whether the police and public order should be moved to the Seventh Schedule.

Also read: Interview: ‘Police Reforms Should Become an Election Issue,’ Says Former UP DGP

Constitutional view

There was a consensus on Article 246 and the Seventh Schedule in the Constituent Assembly. This consensus was disturbed in 1976 when Indira Gandhi brought the controversial 42nd Amendment, which incorporated entry 2A in the List I regarding deployment of armed forces of the Union in states. This also brought in corresponding change in the entry 2 of the List II, qualifying it with the change in the List I. The 44th Amendment, brought by the Janata Party government in 1978 to undo the constitutional incongruities of the 42nd Amendment did not disturb the above changes on public order and police.

The report of the Sarkaria Commission on Centre-State Relations (1988) underlined the tendency of the Union to occupy ‘most of the concurrent field leaving little for the States, and by indiscriminately making declarations of public interest or national importance, taken over excessive area of the linked entries in the State field at the expense of the State legislative power’. All without consulting the states.

Importantly, Article 252 (1) that Debroy’s proposal suggests of invoking to bring the states around to accepting police reforms proposals, was criticised by the states during their consultation with the Commission, and they wanted to repeal it. The Commission, however, recommended a three year bar on any legislation brought by the parliament under the two clauses of the Article. The Commission also recommended greater space for the states in the use of the Concurrent List; meaning that the Union must exercise caution and be more consultative and cooperative.  It also recommended the creation of Inter-State Council under Article 263 of the Constitution.

The second Centre-State Relation Commission under Justice M.M. Punchhi Commission (2010) conceded the role of the Union in tackling some of the crimes of federal nature and supported the creation of the National Investigation Agency. It recommended that in such cases an amended Article 355 could be used, but with discretion and with a time bar. The Commission did not suggest any constitutional amendment either in Article 252, or in the Seventh Schedule, neither did it recommend the use of Article 252 (1) to impose any police reform measure on the states. It did recommend that the Union government should take a lead in bringing police reform. It should constitute a committee with chief ministers of states, prepare a model Act, and develop consensus on its adoption.

Thus the central outreach being suggested by Bibek Debroy, whether promoted by the Union government or not, is avoidable. Police reform is indeed an express need in the interest of the people of the country, but not at the cost of greater centralisation being proposed. Instead, as suggested by the two Centre-State Commissions, a consultative approach would be advisable.

The Inter-State Council has been in existence since the Sarkaria Commission suggested it. It needs to be enlivened for bring the spirit of cooperative federalism. A committee of chief ministers as suggested by the Punchhi Commission under the umbrella of the Inter-State Council could be set up for the purpose. The BJP-led Union government should also set an example by implementing police reforms in the states the party is in power and by desisting the use of the NIA as central overreach.

The writer is a political scientist. He was Atal Bihari Vajpayee senior fellow, Nehru Memorial Museum and Library, New Delhi, 2019-21.