CHRI Newsletter

New Police Laws: An Attempt at Genuine Police Reform or Subverting the Supreme Court Directives?

Shobha Sharma
Coordinator, Police Reforms Programme, CHRI

The Supreme Court of India, in its judgment delivered on 22 September 2006 in the Prakash Singh and Others Vs. Union of India and Others, issued seven directives to the Central Government, State Governments and Union Territories for immediate compliance until the framing of appropriate legislation.

A number of states are framing new police laws. This could be seen as encouraging, but instead it is a source of grave concern. Legislation which has such critical significance for the community is being drafted in complete secrecy. There has been no public consultation on draft legislation in any state. The general trend is for a draft police bill to be introduced in the Legislative Assembly, and be passed with little or no debate and discussion. In some states, an Ordinance has been promulgated, and re-promulgated periodically, which is also done in the absence of any debate or discussion. Furthermore, these new police laws have, in the main, diluted many provisions for systemic reform stipulated by the Supreme Court. Below is a table that highlights some common trends observed in a number of states.

CHRI strongly believes there must be wide public consultation in states. Without it, there is every danger that the Acts will be compromised by the interests of strong lobbies that do not include the poor, the weak, the vulnerable and members of the general public who are the major client group of policing, as well as the victims of police underperformance and abuse.

CHRI urges states to immediately prioritise holding statewide public consultations before passing any Police Bill, and urges civil society’s active participation in the debates and issues involved in Police Acts.

Supreme Court Directive	How states may weaken the directive in their legislation	Implications of straying from the intent of the Court
1 • Constitute a State Security Commission (SSC) 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.	1 • By excluding the Opposition Leader from the membership. • By reducing the number of independent non-Government members from 5 to 2 • By not specifying any selection process for the independent members, instead the government appoints them· • By reducing the security of tenure for non-government members “subject to the pleasure of the government” • By reducing the role to “advise” and “assist the government to frame policies rather than being the body which frames policy	1 • If the membership tilts heavily towards government representatives, the independent members are outnumbered, and there is no Opposition Leader, the checks and balances provided by the Court are removed. • It is no longer assured then that the SSC will insulate the police from undue political interference. • If the role is diluted, once again, the Government retains full control over the police and undue interference is not checked, so no systemic change occurs.
2 • Ensure that the Director General of Police is appointed through a merit based, transparent process and enjoys a minimum tenure of two years; and grounds for removal are laid down in law.	2 • Remove the empanelment by Union Public Service Commission (UPSC) for suitable candidates for Director General of Police (DGP), retain government appointment of DGP • Not stipulate any merit based criteria for selection • Use wording such as “may usually enjoy up to 2 years tenure”· • Add an additional clause under grounds for removal such as “in case of an administrative exigency which may be recorded in writing.”	2 • Excluding the role of the UPSC in empanelling the names of suitable candidates for DGP takes away an important safeguard laid down by the Court. The State government perpetuates the status quo by maintaining its unilateral power to appoint the head of police. • Additional clauses for premature removal, particularly where the wording is not “shall record in writing the reasons” but “may” provides loopholes to remove a DGP – exactly what is trying to be prevented.
3 • 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.	3 • Reduce minimum tenure to 1 year • Add an additional clause under grounds for removal such as “in case of an administrative exigency which may be recorded in writing • Add a clause under grounds for removal such as “ on his own request”	3 • Reducing fixed tenure to 1 year defeats the purpose of providing a stable period of leadership without fear of transfer. • Officers at lower ranks may be intimidated into making a request to be transferred. • The Court provided sufficient grounds for premature removal.
4 • 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.	4 • Include non-Police government officers on the Board • Give them reduced power to recommend transfers and postings to the government rather than deciding on it • Remove Board’s power to recommend postings of Indian Police Service Officers	4 • Undue interference in police postings, promotions and transfers is not prevented if non-Police government officers are included on the Board. • The power of the Board to recommend, and the Government to accept the recommendations as a matter of course is a safeguard against unilateral government decisions on transfers and postings.
5 • 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.	5 • Make the membership of the Authority consist of serving government and police officers – no independent oversight • Do not stipulate any selection process for independent members • Reduce the type of complaints that can be received by the Authority • Have only a State Authority, no District Authority • Combine Authority for a number of Districts • Give the Authority merely a monitoring role rather than looking into complaints • Not giving “binding” power to its recommendations	5 • Independent, full-time members are important to ensure that the public has confidence in the complaints authority. If there is no accountable, transparent method of appointing members the credibility of the Authority is affected. • Having serving police officers on the Authority does not assure independent oversight as intended by the Court. • Access to complaints is severely restricted if there are no District level authorities or combined authorities for a number of districts. • By not giving the Authority the powers as per the Court, yet another ineffective body may be created similar to so many others that exist.