New Police Laws - Shrouded in Secrecy

In the wake of police reform measures ushered in by the Supreme Court’s judgment in the Prakash Singh & Others Versus the Union of India and Others in September 2006, many states have commenced drafting new police legislation. Policing is a state subject therefore states can legislate on it. Where a state does not have its own police Act, the Central government’s Police Act of 1861 applies.

This can be seen as a hugely positive step for a country still operating under the archaic and colonial Police Act of 1861. There is an urgent need for a complete re-write of police laws in India. Some headway was made in this direction when the Ministry of Home Affairs set up the Police Act Drafting Committee in 2005. The Police Act Drafting Committee submitted its Model Police Act, 2006 to the Ministry of Home Affairs in October 2006.

Unfortunately, no more has been heard of the Model Police Act with the exception of the Union Home Minister’s pronouncement that it would be tabled at the budget session of Parliament in February 2007. The budget session has come and long gone with no news.

Despite being a government that put police reform on the agenda and that embarked on major administrative reform, the Union government is setting a poor example for the states by dragging its heels on the issue of new police legislation. In the meantime, states have commenced drafting their own police laws. What is emerging, however, are laws that do not embody the principles of modern democratic policing.

States that have led the way in passing new police Acts in 2007 include Haryana, Tripura, Kerala, Bihar, Tripura, Chhattisgarh, Himachal Pradesh, Rajasthan, Assam and Punjab. Many other states such as Madhya Pradesh, Karnataka, West Bengal, Tamil Nadu, Manipur, Meghalya, Orissa, Andhra Pradesh, Uttarakhand, Sikkim, Jharkhand and Arunachal Pradesh are still drafting laws, which are in various stages of completion.

New police laws are of enormous significance to the public. Information about them and the process leading up to their development is certainly useful and important to the community at large. It stands to reason that consulting those who will be implementing the Act, namely the police, and those who will be impacted by its implementation – namely the public at large, will go a long way to ensuring that a sound and effective law is created.

A broad based consultative process will not only educate the public but also strengthen democracy. Yet we hear nothing. The legislation is being developed in secrecy. Without a single exception the members of the public in all the states are completely unaware that their state government is even contemplating bringing in new police legislation. This is in a country with the most progressive Right to Information Act in the world.

Under India’s Right to Information Act the general public can get access to a range of information from public authorities. In addition to the information that the general public can apply for, public authorities are also required to publish proactively a wide range of information on their own, even if no one has specifically requested it. This is a key provision of the Right to Information Act because it recognises that some information is so useful and important to the community at large that it should be given out without anyone specifically requesting it. More broadly, it recognises that transparency is generally in the public interest and that public authorities should therefore strive to make as much information public as possible.

Section 4 of the Right to Information Act, 2005 requires all public authorities to routinely publish 17 categories of information, which should be updated regularly. These categories include information about the structure of the organisation, its process of functioning, financial details and schemes relating to the organisation, details of consultative arrangements and details relating to accessing informaition. Of particular significance in the present circumstance of numerous new police bills being drafted al over the country is Section 4 (1) (c), which says:

Every public authority shall publish all relevant facts while formulating important policies or announcing the decisions which affect public.

The important words in this section are ‘while formulating policies’. The Act does not provide for the provision of information after formulating policies. The public has a right to be involved in the formulation of policy. Public authorities have a legal obligation to involve the public. There is no evidence this is occurring in the lead up to the introduction of new police laws in various states.

It could be argued that Section 4 (1) (c) refers to “policy” and not “legislation”, and therefore home departments (the department responsible for police) are not obliged to publish information about draft police legislation. However, the Right to Information Act applies to all public authorities performing a range of functions, which may span policy making as well as law making. Section 4(1)(c) is therefore equally applicable to the formulation of policies as well as laws.

There is a greater onus on public authorities to make proactive disclosures to the public about the drafting of laws, particularly one as significant as a new Police Act. It’s only then that we will be able to have a policing system of our choice.

Proactive disclosures about the drafting of police legislation are not occurring in any state. It is a task conducted in complete secrecy. It seems the public has no option but to request disclosures invoking section 4 (1) (c) about any documents, file notings, and/or opinions relating to new police bills in their state. As proactive disclosure information is meant to be widely published for free by the government, no specific application needs to be made and no application fee paid. Since it is not treated as an application, there is no 30-day wait to get the information. The information must be given immediately.

Communities are the main beneficiaries of good policing and the main victims of bad policing – community participation in the process of drafting new police laws is essential if the police are going to be efficient, effective and accountable. Members of the public will have to resort to the use of the Right To Information Act to find out something they have a right to know and something that public authorities are obliged by law to publicise proactively.