Introspection

Change can't wait: The Indian Supreme Court takes police reform into its own hands

Reform of police in India is long overdue. Police laws date back to 1861 and support a repressive, brutal and inefficient system of policing that is at odds with India's modern democracy, the expectations of the community and the needs of the officers who tread beats. After 25 years of bureaucratic debate, community pain and endless rounds of government committees and commissions, the reform process got a shot in the arm in September last year, when the Supreme Court brought down a decision in a long running public interest case, requiring state governments to make reform a reality (policing is a responsibility of state governments in India). At the same time, a union-level Police Act Drafting Committee, chaired by Dr Soli Sorabjee, presented a proposed model law to the central government that set out a new vision of policing in India.

The judgment

In 1996, two former Director Generals of Police filed a public interest case with the Supreme Court. In the case, they requested the Supreme Court to direct central and state governments to address the poor quality and performance of police in India. In September 2006, the Court ruled that given the "gravity of the problem" and "total uncertainty as to when police reforms would be introduced" it would issue "appropriate directions for immediate compliance".

These directions are binding upon central and state governments. Governments were initially required to report to the Court on steps taken to comply with the directions at the end of 2006. The majority of states filed applications seeking more time. Some of these applications also sought review of the judgment. The court refused to review its directions and ruled that governments were required to comply with its directions by the end of March 2007

Two critical issues that the Supreme Court ruled on were functional autonomy and accountability. Both are outlined further below.

Functional autonomy

Policing is a public service. The bottom-line of good policing is that the police do their job in an impartial and efficient manner, for the benefit of all and not an elite few. To do this, they require some measure of autonomy. While working within the framework of national laws and accountability systems, the police must retain control over their day-to-day operational policies and decisions. "Functional autonomy" or "operational independence" has become a basic characteristic of policing in many Commonwealth countries.

In order to address these endemic problems and ensure functional autonomy to the police, governments were directed by the Supreme Court to:

1. Constitute a State Security Commission 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;
2. Ensure that the Director General of Police is appointed through a merit based and transparent process and enjoys a minimum tenure of two years;
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;
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; and
5. Set up a National Security Commission at the Union level to prepare a panel for selection and placement of Chiefs of the Central Police Organisations (CPO), who should also be given a minimum tenure of two years.

Accountability

Armed with the power to use force against ordinary people, the police must be accountable for all of their actions at the individual and the organisational level. Considering the culture of "brotherhood" within the police, the most successful police reform initiatives across the Commonwealth have created independent police accountability mechanisms. In a nutshell, these mechanisms have powers to investigate public complaints against police officers - usually they are given the responsibility to investigate only the most serious complaints of misconduct. Importantly, these mechanisms provide channels for civilian oversight of the police and give accountability powers to the very people that the police serve. The judgment provides for similar civilian oversight, instructing states to establish Police Complaints Authorities at both state and district levels, and to also create State Security Commissions that will be responsible for evaluating the performance of the state police and to prepare reports for the state legislature.

How will governments comply with the judgment?

Governments needed to comply with the seven directives by 31 December 2006 so that the agencies provided for in the judgment become "operational on the onset of the new year". Since policing is a state subject, each state government needed to comply with the directives. Governments had two options: draft a bill and push for its enactment or resort to executive orders. Governments may not have been able to comply fully with the judgment in the short deadline but could have taken decisive first steps towards reform.

The judgment only provided a general framework into which governments will have to build processes and mechanisms to ensure the effectiveness of the newly created institutions. Key elements include: process and criteria for the selection of members, functions, powers and relationship to internal police mechanisms. The draft Police Act prepared by the Police Act Drafting Committee provides a relevant and useful template as it fleshes out mechanisms that could be used for implementing most of the Supreme Court's directives.

The inherent dangers

Although the judgment must be welcomed as a landmark decision, its real impact will only be measured in the coming months according to the extent of compliance by central and state governments. Implementing police reform has clearly not been high on any government's agenda so far. A few risks and dangers should be kept in mind.

First, governments may not set up the institutions provided for in the judgment due to lack of political will. Experience shows that governments fail to put in place empowered institutions created to hold them accountable.

Second, there is a danger of governments' compliance with the letter but not the spirit of the judgment. Most notably, there is a risk of capture of the newly created institutions by vested interests. Key to any institution is the selection process of its members. It is therefore essential that mechanisms be put in place to ensure that the best possible candidates are chosen by a transparent and fair process to ensure their independence.

Third, governments might only partially comply with the judgment favouring either the functional autonomy aspect of the decision or its accountability aspect.

Compliance – the reality

Earlier this month, each state government was required to tell the Supreme Court what it had done to make police reform a reality. Government action has been patchy – in some states, broad scale reform is ushering in a new era of accountable, people centered policing, while other states continue to look backwards and resist change.

A chart comparing the response of each state to the Supreme Court directives – and analysing whether they have complied with the Supreme Court directives or not – is available on the CHRI website (www.humanrightsinitiative.org).

It is absolutely critical that as police reform shifts into high gear, community consultation and public participation are an integral part of the process. This means that governments must actively engage with their constituencies, and individuals and groups must actively engage with their politicians and lawmakers.

Police reform is now a reality in India – but the nature of that reform is still uncertain. Governments have begun to articulate their positions and initiate their processes. Public discussion, involvement and engagement are the next critical ingredient for successful reform.

For more information on the police reforms process in India, go to the Commonwealth Human Rights Initiative website (www.humanrightsinitiative.org).

Click here for a CHRI summary of state government compliance with the Supreme Courts directions and here for CHRI’s seven steps towards police reform.