The caged parrot

 

For many in India, policing conjures up images of sloth, rudeness, potbelly, corruption and unkempt Khaki. On the other hand, the police officers feel that the depiction is unfair – they are actually overworked, underpaid and subject to whimsical and abrupt transfers that prevent them from knowing the neighbourhoods under their watch. However, everyone on both sides of the divide agree that Policing in India needs serious reforms and urgently. 

Policing is a state subject and the Police in India has been governed by an archaic Police Act of 1861 which envisaged abject fealty of the Police to the rulers. 11 states set up state police commissions led by Kerala in 1959, the latest being in 1984 by Andhra Pradesh, to bring about reforms in policing. Reports of these commissions gathered dust in their respective states. At the national level, the Central government set up the National Police Commission in 1977 with ex–Governor, Dharam Vira as Chairman and comprising four other extremely eminent members. This Commission did ground–breaking work and submitted eight reports between 1979 and 1981 covering all aspects of policing. These reports were outstanding, comprehensive, earth–shaking – and ignored. The Commission also produced a model Police Act to replace the Act of 1861 and that too was ignored.

 

In 1996, Mr. Prakash Singh, a celebrated Police officer who had been DGP of Assam and UP and DG, BSF, along with others, moved a writ petition in the Supreme Court to issue directions to the government to frame a new Police Act on the lines of the model Act drafted by the National Police Commission in order to ensure that the police is made accountable essentially and primarily to the law of the land and the people. Mr. Prashant Bhushan represented the petitioners. After 10 long years, on September 22, 2006, the division bench of Justices Sabharwal, Thakker and Balasubramanyan of the Supreme Court delivered a landmark judgement [case no. 310 of Prakash Singh and Ors vs Union of India and Ors] which promised to radically change the face of policing and, by extension, governance in India.

 

The Supreme Court gave seven directions: (i) Constitute a State Security Commission fairly independent of the political executive which will insulate the police from undue interference, (ii) Transparent, merit–based process of appointing the DGP and giving him a two – year tenure, (iii) Two – year tenure for Zonal IG, Range DIG, SP of district and SHO, (iv) Separate Investigation wing from Law & Order wing, (v) Set up a Police Establishment Board consisting of DGP and four other senior police officers to decide transfers, postings and other service related matters up to the rank of Dy. S.P. and recommend regarding posting and transfers for higher ranks, (vi) Set up Police Complaints Authority to inquire into serious complaints against Police, and (vii) Set up a National Security Commission for selection of chiefs of Central Police Organisations with a minimum tenure of two years.

 

Essentially, what the Supreme Court sought to do was to make Policing and the Police administration autonomous, with loyalty only to the law of the land. India has had an encouraging history of autonomous institutions delivering well. Even officials steeped in a lifetime of wheeling and dealing because of job exigencies and ethos have developed a spine the moment their autonomy has been ensured. The autonomous institution of the Election Commission produced a T.N. Seshan who changed the election landscape of the country into something which is the envy of even the most advanced democracies. The Union Public Service Commission has continued to select the best and the brightest without fear or favour or corruption. Some of the Comptrollers and Auditor Generals have done stellar work and refused to bow down before the might of the Executive. In fits and starts, the higher Judiciary has delivered.

 

It took 10 years after the petition for the judgement. It has been another 17 years since then. Has anything changed? It has, for the worse. The judgement shook not only the political establishment but also the civil administration across the country. Almost all states entered impassioned objections to the Supreme Court ruling. Each single state tried to first resist it, then to delay and then to find inventive ways to circumvent.

 

The first weapon in the arsenal of the government/s was to represent that Policing was a state subject so it was up to the states. To my mind, this logic was spurious. However, even if it had merit, the Centre did not pass a Police Act for Delhi where the Police comes directly under it. After follow-through by the Supreme Court, so far, only 18 out of the 28 states have passed new Acts; there has been no new Police Act for the Union Territories. Most of the new Acts make one hanker for the old 1861 Act.

 

On paper, this is how things stand as of 2021 till which detailed inputs are available. State Security Commissions have been set up for all the states and Union Territories except Odisha. Only five states have allowed shortlisting of candidates for the post of DGP by the UPSC and six states accorded her/him a minimum 2-year tenure. 17 states  and the Union Territory of Delhi have provided for minimum tenures of two years for key personnel. Only one state, Mizoram, made a serious attempt at separating the investigation wing and the law and order wing. All the states have set up Police Establishment Boards. Barring three states and the remaining Union Territories, all the other states and Delhi have constituted Police Complaints Authorities. National Security Commission has not been set up.

 

Is it a mixed bag then? No, no, a thousand times NO. It’s way worse than before the Supreme Court judgement if one looks at the real picture.

 

While states have set up State Security Commissions, some have omitted and some have “forgotten” to include the leader of the Opposition and/ or the judicial member. While, as per the Supreme Court directive, the official members of the Commission should be a minority, many of the Commissions are predominated by the official appointees. Barring Karnataka, none of the states has made the recommendation of the Commission binding. Even the requirement to submit an annual report to the Assembly has been done away with except in nine states. So these Commissions have only one function – produce a few reports which are never read by anyone and are consigned to the dustbins, or, even worse in bureaucratese, “FILED!”. Responsibility without any real power – prerogative of the eunuchs through the ages.

 

That all-important matter of insulating the DGP, the head of the police force, from political interference – well, it didn’t happen. All that the Supreme Court order achieved was legitimising wrongful action by the state governments. They started appointing officers just before their retirement and giving them two-year tenures on the pretext of the Supreme Court order. Either pliable officers were found for this or their pliability was ensured because of the lure of having their service careers extended by two years. The Supreme Court wised up to it very late and ordered that such officers must have at least six months’ tenure remaining. That led to states appointing officers holding “temporary charge” of DGPs in perpetuity. The Supreme Court mandated that the DGP can be removed from the post within two years only on three grounds, indiscipline, conviction and incapacitation. However, many states have included “convenient” phrases like “on other administrative grounds,” “in public interest,” etc. as grounds for removal and this has made a mockery of the two-year tenure provision. At least two of my batchmates were summarily removed from the DGP posts on such ambiguous grounds.

 

None of the states is inclined to implement two – year – tenure for other operational officers, Zonal IGP, Range DIG and so on. Police Acts of some states provide that the tenure would be “generally” or “normally” two years. Further, words like “in public interest,” “any other contingency,” etc. as grounds for removal render the minimum tenure bit meaningless. The transfers have become so frequent that at a certain stage of my career, every day, while boarding the staff car in the morning to go to office, I used to check up WhatsApp as to where I was posted that day and then instruct the driver accordingly. Once I searched for three days for the office where I was posted before realising that the office didn’t exist. In the next posting, a traffic sergeant performing duty 10 feet away didn’t know the existence of the office – it was that insignificant.

 

On ground, investigation has not been separated from Law & Order although some states have passed executive orders with riders. A senior IPS officer of UP carried out a time-and-motion study and found that investigation is devoted some point zero zero something percentage of a Police officer’s work–time while that is supposed to be her/his main task. The issue appears to be manpower provisioning. What will it cost a ruling dispensation to treble the police force one day? What might be the benefit? Tremendous. But the benefits will come three to five years, hence. Political view span in India – one to two years of effective government, rest of five years in trumpeting it and preparing for the next election.

 

Police Establishment Boards (PEBs) were mandated to consist of only Police officers so that Police internal administration is insulated from extraneous influences and pressures. Instead, some states have included others. PEBs were to decide on all transfers of and below Dy SPs and recommend all transfers above Dy SPs. That has not happened. The members of PEBs sign up or sign out after the orders of postings and transfers are issued. Since this is the only Directive that seems to have been implemented on paper, and since Mr. Prakash Singh was visiting IIPA when I was pursuing an M. Phil., I asked him whether asking the Supreme Court to direct video recording of the proceedings of the PEBs with electronic date-time-stamping would be a good idea. His reply: “Agar aap DGP ban gaye ho aur tenure mila hai toh spine kyon nahin ho sakta hai aap mein?” [When you’ve become the DGP and got a tenure, why can’t you develop a spine?] I find that many officers who are championing the cause of Police reforms today are the very same officers who so signed on the dotted line “post-facto,” back-dated, in their heydays, vitiating the entire Supreme Court judgement by that one single act of theirs.

 

Police Complaints Authorities were mandated to be set up both at the State level and the district level to look into complaints of serious misconduct by the Police. A few states have set them up on paper in a half-hearted way but whether the authorities are doing any work is a moot question. Rather than embracing the Directive, Police itself is the institution vehemently opposing it.

 

National Security Commission has not been set up. This is one Directive where the government has objected to everything – the nomenclature, the composition, the functions and even the mandated two – year tenure of the chiefs.

 

So, what is the net-net, or Naatu Naatu in today’s lingo? Governments/Politicians are doing pretty much what they used to do/ what they want; in fact, the transfers, etc. have become much more frequent and vindictive. Only, these misdeeds have Supreme Court validation now, however specious. Why is the Supreme Court not able to enforce its own orders? I am told by someone who should know that just one particular lawyer, presumably at the behest of one particular state, has been stymieing the process through many, many weapons of legal skulduggery, adjournments, non-appearances, frivolous or dilatory objections, and so on. Plus, there are more pressing matters like Arnab Goswami’s bail application.