Jul 31, 2020
By: Devyani Srivastava
Recent incidents of police brutality, torture and abuse provide an opportunity, once again, to examine the role and impact of Police Complaints Authorities (PCAs) in India. In 2006, the Supreme Court of India required states to constitute PCAs both at the state and district levels to inquire into alleged misconduct by police officers, and push for accountability. Headed by retired judges, and consisting of independent members, it was envisioned that the PCAs would emerge as a dedicated, impartial and easily accessible (located in every district) remedy against police wrongdoings, thereby representing a missing measure to challenge police impunity.
Yet, 14 years later, PCAs have barely made a dent in invigorating accountability. Less than 10 states in India have functional authorities, that too just barely so. States have either ignored the Court’s directive, or rejected it by divesting the function of PCAs to existing oversight bodies like the Lokayukta. Worse, states have brazenly infringed on crucial independence safeguards while constituting the authorities. Tamil Nadu, for instance, provides for a state PCA headed by the Home Secretary instead of a retired judge, and the police DG and ADG as members, instead of non-official persons.
Neglect and violations apart, a major problem has been the PCAs own limited understanding of their oversight role. Rarely have the authorities displayed pro-activeness and taken suo moto cognizance of reported misconduct. It is unclear whether a single authority has taken note of the several reported instances of excessive police violence during the lockdown, for instance. Very few have carried out inspections of police stations or lock-ups, even where they are explicitly authorized to do so in the respective state police acts. None have exercised a broader role in identifying patterns of misconduct and pushing for corrective action with the police leadership. In responding to complaints, too, the authorities have tended to mirror court processes with frequent adjournments and inquiries that spread over months, even years at times. This makes the experience of PCAs just as intimidating as the courts, with even fewer remedies to offer.
In other words, far from serving as a strong watchdog, the authorities have slipped into a business-as-usual mode of functioning, adding to the existing problem of other oversight bodies faltering in their mandate.
This is a moment, like no other, to press pause and to repurpose PCAs. To this end, the Model Police Act 2015, formulated by an MHA-appointed committee to guide legislative reform, provides a strong base to build upon. Three features laid out in the Model Act, in particular, are crucial if PCAs are to emerge as an effective remedy.
First is their structure. A balanced composition with 3-5 competent persons from diverse fields including the judiciary, police, public administration, law, civil society and human rights is central to upholding the independence and integrity of PCAs. Single-member authorities or instituting serving bureaucrats and police officers as members of PCAs can only be an eyewash. This not only gives the impression that the PCA is just an extension of the system rather than an oversight; the presence of serving officers prevents the PCA from working independently. Only retired officials, preferably those who have served in a different state, must be eligible. The Model Act also requires the state PCA to have its own investigation wing, along with the power to direct other agencies including the CID, the Vigilance and the Anti-Corruption Bureau to conduct investigations. This is critical to end the current practice where the same police station/district to which the respondent personnel belong is often assigned the task of conducting the inquiry for the authority.
Second is the mandate. Key points of debate include whether complaints of custodial death and rape should be dropped from the PCAs’ mandate laid down by the Court and elaborated upon under the Model Act. The police are already required to report such cases to the National Human Rights Commission, and criminal law further mandates judicial inquiry into every death and rape in custody. At the least, a clear arrangement is needed between PCAs and human rights commissions to respond to such complaints to avoid duplicating accountability processes, which would also necessitate equalizing the PCA powers to that of HRCs. Alternatively, PCAs could instead focus only on all other forms of negligence, misconduct and abuse. Either way, they can be empowered with powers of ordering protection of witnesses, victims and their families who might face threat or harassment for making a complaint and recommending payment of monetary compensation to victims. A local body with the ability to order these redress measures will greatly assist victims.
And finally, the recommendations flowing from the PCA inquiry must be binding on state governments/police departments after having followed a due appeal process. Without this, PCA inquiries carry little meaning. Only 6 out of 18 new/amended state police acts currently provide for this. In fact, like other jurisdictions with powerful oversight bodies, the Model Act also makes unreasonable delay by the police in reporting on the status of departmental inquiries to the authorities misconduct in itself. This will give the authorities much-needed teeth to enforce accountability.
That a dedicated external accountability mechanism is needed to handle public complaints against the police is evident from the routine experiences of police negligence and abuse. Lack of transparency with internal disciplinary proceedings and overburdened or inaccessible human rights commissions add to their compelling need. It is important though that the authorities and the police leadership work together to review and correct practices giving rise to transgressions. Improved accountability, after all, will benefit the police as much as the people, and is central to preventing and overturning an unrelenting pattern of police violence, abuse and custodial deaths. Read More