Gujarat, Punjab, Rajasthan don't think deaths in police custody are a serious misconduct

Gujarat, Punjab, Rajasthan don't think deaths in police custody are a serious misconduct

Dec 11, 2023

(Counterview Desk)

In its latest assessment of the working of India's Police Complaints Authorities (PCAs), the Commonwealth Human Rights Initiative (CHRI) has said in a study that police-public interface is an arena in which a very large number of human rights violations occur. This despite the fact that PCAs have been established across India in compliance with the 2006 directives of the Supreme Court of India to act as a civilian oversight mechanism over police functioning.
Stating that PCAs play a critical role in inquiring into complaints of misconduct and recommending appropriate action against culpable police personnel as the first steps towards remedying human rights abuses, CHRI says in a note on its study, "Our evidence-based study finds them ill-equipped and largely ineffective in delivering on their mandate."

PCAs are an important reform measure directed by the Supreme Court of India to inquire into police misconduct and fix accountability. In its September 2006 judgement in Prakash Singh and Others vs. Union of India and Others, the Court mandated all States and Union Territories to constitute PCAs, at the state level and in every district. They are required to be headed by retired judges, have members who are not serving government officers and include at least one civil society representative.
State-level PCAs (SPCAs) are responsible for inquiring into complaints against officers of and above the rank of Superintendent of Police about serious misconduct. Police action which causes death, grievous hurt or rape in police custody, and any other misconduct specified by the State Government concerned falls within this category of 'serious misconduct'.

District-level PCAs (DPCAs) are competent to inquire into complaints of misconduct against officers of the rank of Deputy Superintendent and below depending upon the jurisdiction fixed by each State Government. PCAs may initiate inquiries of their own accord, based on complaints received from aggrieved persons, or when the government itself refers a case of serious misconduct to them.
Where an inquiry initiated by PCAs establishes misconduct or serious misconduct as the case may be, they are required to recommend either the initiation of a departmental inquiry or criminal proceedings against culpable personnel concerned.

These guidelines have been supplemented by the Model Police Bill, 2015 that was developed by a high-level committee appointed by the Union Ministry of Home Affairs. The PCA-related provisions of this Model Bill provide the nuts and bolts of the mechanism through which the Supreme Court's directive can be most effectively fulfilled.
Even after 17 years, the directive of the Supreme Court is not fully implemented across India. Several States have not even set up PCAs. Where they have been established, the PCAs' reach and impact remains very limited. Our study, based on information collected through Right to Information (RTI) interventions and Annual Reports/Websites between January 2018 and March 2023, evaluates complaints data of the operational SPCAs and highlights administrative, human resources and budgetary challenges impacting their work.

Status and Composition:
SPCAs are functional in only 14 States/UTs (Andhra Pradesh, Arunachal Pradesh, Assam, Delhi, Goa, Gujarat, Haryana, Jharkhand, Karnataka, Kerala, Maharashtra, Rajasthan, Tripura and Uttarakhand).
Eleven States/UTs (Bihar, Chandigarh, Jammu & Kashmir, Ladakh, Lakshadweep, Madhya Pradesh, Manipur, Meghalaya, Mizoram, Puducherry and Uttar Pradesh) do not have SPCAs.

Of the functional SPCAs only 11 (Assam, Delhi, Goa, Gujarat, Haryana, Jharkhand, Karnataka, Kerala, Maharashtra, Tripura and Uttarakhand) are operational and three (Andhra Pradesh, Arunachal Pradesh and Rajasthan) have been constituted as recently as in 2022-2023.
Four States (Himachal Pradesh, Odisha, Tamil Nadu and West Bengal) have assigned the police oversight functions of the SPCAs to other authorities/officials.
Another seven States/UTs (Andaman & Nicobar Islands, Chhattisgarh, Dadra & Nagar Haveli and Daman & Diu, Nagaland, Punjab, Sikkim and Telangana) did not respond to our RTI intervention about the existence and working of their SPCAs, nor is their existence and functioning evidenced by any website.

Vacancies are a big obstacle in the functioning of SPCAs: Jharkhand has been without a Chairperson since 2020. Concerned citizens had to file Public Interest Litigation (PILs) suits in order to fill up the vacancies in the Maharashtra and Karnataka SPCAs.
Nine SPCAs (Arunachal Pradesh, Dadra & Nagar Haveli and Daman & Diu, Gujarat, Jharkhand, Karnataka, Kerala, Rajasthan, Tamil Nadu and West Bengal) have government/police officers as the Chairperson and/or Members which is a violation of the Supreme Court’s 2006 guidelines. With the exception of the PCA in Delhi, no other SPCA has an independent member representing civil society. This is also a contravention of the Supreme Court’s guidelines and defeats the purpose of independent police oversight mechanisms. SPCAs in Tamil Nadu, Dadra & Nagar Haveli and Daman & Diu and West Bengal only have serving government/police officers as Chairperson and Members.

Similarly, only nine of the functional SPCAs (Andhra Pradesh, Arunachal Pradesh, Assam, Delhi, Goa, Haryana, Karnataka, Rajasthan and Tripura) have at least one woman member - this is a mandatory requirement as per the guidelines. The woman member in Tripura SPCA has been appointed during the publication of this study.
In several states, the mandate of the SPCAs has been narrowly defined from the very beginning. The state police laws under which SPCAs are established have diluted the definition of 'serious misconduct' thereby limiting their jurisdictional powers. In Rajasthan, Gujarat and Punjab ‘deaths in police custody’ are excluded from the definition of 'serious misconduct'.
Some State Governments are curtailing the mandate of the SPCAs. Assam has excluded ‘arrest and detention without due process, forceful deprivation of rightful ownership or possession of property, blackmail or extortion and non-registration of FIRs’ from its definition of 'serious misconduct'. In Haryana, the Government has introduced a Bill in the State Legislative Assembly to exclude 'attempt to rape' entirely and 'rape & grievous hurt when not in police custody' from the definition of 'serious misconduct'.

Five of the SPCAs (Chhattisgarh, Gujarat, Kerala, Tamil Nadu and Uttarakhand) do not have the power to take up suo motu inquiries. In Haryana, the Government Bill pending in the Vidhan Sabha seeks to take away the power of the SPCA to initiate inquiries suo motu.
Rules of Procedure and Capacity to Inquire into Complaints
Only 50% of the operational SPCAs (Andhra Pradesh, Assam, Haryana, Jharkhand, Karnataka, Maharashtra and Tripura) have adopted Rules of Procedure to inquire into complaints of serious police misconduct.
When we sought copies of the Rules of Procedures from the other SPCAs, we were either not provided any documents (Delhi and Goa) or only given copies of their constituting legislation which do not go into the operation of the PCAs in detail (as in Kerala). Presumably, they have not adopted any Rules of Procedure because they are not available in the public domain.
Gujarat SPCA responded that the there is no provision in its parent Act for any rules of procedure to be formulated.

Uttarakhand SPCA stated that its Rules of Procedure are pending with the State Home Department for approval.

No SPCA has published its Rules of Procedures in entirety on its website; Haryana SPCA’s website provides a summary description only.
Only Assam and Tripura SPCAs have independent investigation cells. In the absence of independent investigation cells, other PCAs are dependent on the co-operation of the State Government to inquire into complaints. This defeats the very purpose of setting up an independent police oversight and accountability mechanism.
Operational SPCAs, for the most part, are utilising their sanctioned budgets. Budget sanctioned and utilised range from a low of Rs. 62 Lakhs versus Rs. 1.5 Lakh (Jharkhand, 2022-2023), to a high of Rs 9.55 Crores versus Rs 7.01 Crores (Delhi, 2022-2023). The sanctioned funds were mostly allocated for salaries, wages, allowances and meeting office expenses.
Work Output of SPCAs
SPCAs are inquiring into cases of serious police misconduct based mostly on complaints received from citizens.
Assam SPCA initiated suo motu inquiries only 58 times, while Maharashtra and Uttarakhand’s SPCAs undertook suo motu inquiries only thrice and once, respectively, between January 2018 and March 2023.
Haryana and Assam were the only SPCAs to receive referrals from the respective state governments. Between January 2018 and March 2023, 101 complaints were referred to the Haryana SPCA by the Haryana Government and 20 complaints were referred to the Assam SPCA by the Assam Government.
According to data available in Annual Reports and what was furnished in response to the RTI interventions, operational SPCAs receive hundreds of complaints every year. Complaints come from across the state and not just select pockets.
According to data examined in the study, Delhi SPCA received over 1,500 complaints every year since 2019 when it started functioning; overall, Delhi SPCA received the highest number of complaints between January 2018 and March 2023 (8,442) followed by Maharashtra (4,512), Gujarat (4,240), Kerala (3,551) and Karnataka (1,538).
According to the responses received to our RTI interventions and what is published in the Annual Reports, the single largest category of complaints received by the SPCAs was about non-registration of FIRs and other police inaction (wherever disaggregate data was available). Unfortunately, these complaints fall outside the definition of 'serious misconduct' provided in the Supreme Court’s guidelines. This finding underscores the urgent necessity of expanding the SPCAs' mandates because by design the SPCAs are not competent to inquire into such complaints, and these complaints go unaddressed if district-level PCAs have not been constituted in the state.
Not all complaints were automatically admitted for inquiry. In Maharashtra and Kerala the proportion of admitted complaints for inquiry was 24 per cent and 45 per cent respectively between January 2018 and March 2023. In Gujarat only a fraction of the complaints received (six per cent) led to detailed inquiries within the same duration.
Several PCAs are struggling with the problem of pendency. In Maharashtra, the pendency rate went up from less than one per cent in 2018 to 54 per cent in 2022, and in Kerala, from two per cent to 45 per cent for the same duration. The data also reveals that while the pendency rates went up in this period, the number of complaints accepted by the Maharashtra and Kerala SPCA came down. Admitted complaints fell from 665 to 82 in Maharashtra, and from 435 to 146 in Kerala?
In Jharkhand in the absence of Chairperson or Members, since 2020-2021, the SPCA continues to receive complaints but cannot take any action.
Outcome of SPCAs' Work
Analysis of the data obtained through RTI interventions and Annual Reports shows that a very small proportion of complaints inquired into by SPCAs lead to findings of serious misconduct against implicated police personnel and results in recommendations for action against them. Despite receiving 8,442 public complaints since 2019, Delhi SPCA has recommended departmental action in just 17 cases (five in 2019-2020, one in 2021-2022 and 11 in 2022-2023). Kerala SPCA has recommended action in only six cases during the study period, two in 2019 and four in 2020. Assam too has recommended action in only 69 cases since 2018 against a total of 1,194 complaints admitted for inquiry (45 in 2018, 15 in 2019, six in 2020 and two in 2021).
As per the data provided, no SPCA recommended registration of an FIR and initiation of criminal proceedings against culpable police personnel.
State Response to PCA Recommendations
The response of State Governments to SPCAs' recommendations is very poor. Annual Reports published by the SPCAs do not contain any information about the state’s response to the SPCAs’ recommendations against police personnel found to have indulged in serious misconduct. In fact, Assam, Tripura and Uttarakhand SPCAs repeatedly raised concern over state inaction on their recommendations in their Annual Reports.
RTI interventions also did not reveal this data at the SPCAs. In Tripura, our request was forwarded to the State Police Department. Their reply revealed that the Tripura Police has initiated only two departmental inquiries since 2018 following the recommendations of their SPCA. Unfortunately, this could not be compared with the total number of instances where the Tripura SPCA made recommendations as that information was not provided to us in our RTI intervention.
Despite the Model Police Bill, 2015 requiring State Governments to submit quarterly reports to SPCAs on action taken on their recommendations, our study did not find any instance of compliance reporting. The recommendations of the SPCAs are not resulting in remedial action. This amounts to wastage of public money and only add to the struggles of the complainant/victim and their family desperately seeking accountability.
Outreach Activities of the SPCAs
Often citizens are unaware about the existence and the mandate of the PCAs. Outreach and publicity about the existence of the PCA, its working and complaints & inquiry procedures are required to improve citizen-awareness. According to the information received under RTI, only Delhi, Haryana, Tripura and Uttarakhand SPCAs spent money on outreach activities between January 2018 and March 2023. Goa SPCA received funds for this purpose but it did not utilise them. Where other SPCAs provided their itemised budget, no funds were allocated for outreach or publicity.
Many SPCAs continue to operate in the dark. About 50 percent of the operational SPCAs (Andhra Pradesh, Arunachal Pradesh, Goa, Jharkhand, Kerala, Maharashtra, Rajasthan and Uttarakhand) do not have a dedicated website. Punjab SPCA has set up its website during the completion of our study.
Only five SPCAs (Assam, Delhi, Karnataka, Tripura and Uttarakhand) publish annual reports (in English or the local language). Four SPCAs (Andaman & Nicobar Islands, Dadra & Nagar Haveli and Daman & Diu, Nagaland and Sikkim) do not even provide accurate contact details about themselves.
Implications and Recommendations
Overall, SPCAs as they exist today are not serving the purpose for which they must be set up. That dedicated, independent and localised police oversight bodies are essential is evidenced by the number of complaints the operational authorities receive year after year. But lack of resources, diluted mandate, and limited powers is contributing to their inability to address common grievances against the police in a timely and just manner. Their structure, mandate and powers need to be enhanced if they are to emerge as an effective remedy for police misconduct and wrongdoings. Read More