PUNJAB POLICE ACT, 2007

Transcription

1 Punjab Gvernment Cmpliance with Supreme Curt Directives n Plice Refrm PUNJAB POLICE ACT, 2007 Directive 1 Cnstitute a binding State Security Cmmissin t (i) ensure that the state gvernment des nt exercise unwarranted influence r pressure n the plice, (ii) lay dwn brad plicy guidelines, and (iii) evaluate the perfrmance f the state plice. In the cmpsitin f this Cmmissin, gvernments have the ptin t chse frm any f the mdels recmmended by the Natinal Human Rights Cmmissin, the Ribeir Cmmittee r the Srabjee Cmmittee. The new Punjab legislatin creates a State Plice Bard (SPB), hwever the SPB des nt have the pwer t make binding recmmendatins (Act s.28) despite the clear directive frm the Supreme Curt that the Cmmissin s decisins must be binding t avid undue influence n the plice. The creatin f the SPB is nt immediate, pursuant t SC directives, but shall take place within a perid f three mnths f the cming int frce f this Act (Act s.27(1)) The cmpsitin f the SPB des nt cnfrm with any f the mdels recmmended by the Supreme Curt, and lacks significant prtectins against gvernment cntrl and manipulatin f the new Cmmissin: The legislatin des nt require any independent members t be appinted by the State whatsever (Act s.27). This vilates several f the mdels suggested by the Supreme Curt and entirely subverts the gal f ensuring bjective versight. The MPA mdel (Srabjee Cmmittee) is nt met. It calls fr 5 independent members (nne f whm can be sitting gvernment persns), and adds that they must be appinted nly n the recmmendatin f a tri-partite Selectin Panel that fllws a transparent prcess ( MPA ss.42, 43, 44). The MPA als stipulates that the Leader f the Oppsitin and a High Curt Judge (retd) nminated by the Chief Justice must be members, that 2 members must be wmen, and that minrities must be adequately represented (MPA s.42). The MPA sets ut extensive rules fr ineligibility and remval f independent members (MPA ss.45,47) that are absent frm the Punjab statute. The Ribeir Cmmittee mdel is nt met the Ribeir mdel requires 3 independent members chsen by a panel created by the Chair f the NHRC, and stipulates that the Leader f the Oppsitin and a High Curt judge nminated by the Chief Justice, must be members (Ribeir Recmm. 1.2). The Natinal Human Rights Cmmissin mdel is nt met the NHRC mdel calls fr the Leader f the Oppsitin and tw sitting r retired High Curt judges (nminated by the Chief Justice) t sit as members f the SPB (NHRC petitin, p.87). In the alternative, ne judge may sit, tgether with a member f the State Human Rights Cmmissin r the Lk Ayukta f the State (NHRC petitin, p.87). Nne f the 3 prpsed mdels authrizes the Advcate General, Punjab, t sit as a Member (NHRC petitin, p.87; MPA s.42; Ribeir Recmm. 1.2) The term f service fr Members is nt articulated. This prvisin des nt cmply with sme f the suggested mdels. The MPA calls fr a 3-year renewable term (MPA s.46),

2 2 while the Ribeir Cmmittee requires a 3-year nn-renewable term (Ribeir Recmm. 1.3). The functin f the SPB des nt cmply with the SC directive. The Curt expressly stated that the purpse f the SPB is t ensure that the State Gvernment des nt exercise unwarranted influence r pressure n the Plice, and its functins must include giving directins fr the perfrmance f preventative tasks by the Plice. Each f these specific functins/purpses is absent frm the Act s.28. The functin f the SPB als des nt mirrr the mdels recmmended by the Supreme Curt. Fr example, the MPA states that ne f the functins f the SPB is t recmmend the DGP candidates fr appintment by the State Gvernment (MPA s.48) The MPA als states that the expenses f the SPB must be paid by the State Gvernment (MPA s.49). These functins and attributes are absent frm s.28 f the Punjab Act. The new statute indicates that a reprt n Plicing must be prepared and tabled in the Legislature, but it stipulates that this reprt shuld be created by the State Gvernment (in cnsultatin with the SPB)! This is a basic effrt t manipulate and cntrl the reprting prcess, and it is cntradictry t the SC directive, which expressly indicates that the reprt must be created by the SPB itself! This prvisin f the Act als vilates each f the prpsed mdels suggested by the Curt. The MPA (s.50), the NHRC (Petitin, p.88) and the Ribeir Cmmittee (Recmm. 1.5) all stipulate that an annual reprt must be created by the SPB, and that this reprt must be tabled in the Legislature and made available t the public! Directive 2 Ensure that the Directr General f Plice is appinted thrugh a merit based, transparent prcess and enjys a minimum tenure f tw years. The Punjab legislatin prvides 2 years minimum tenure t the DGP, hwever, this tenure is subject t superannuatin (Act s.6(2)) This is in direct vilatin f the SC directive which calls fr minimum tenure independent f the date f superannuatin [see als MPA s.6(3)]. The nature f the DGP s tenure is tenuus. An verride prvis at the cnclusin f s.6 in the Act states that the State Gvernment may transfer the DGP befre the cmpletin f 2 years tenure fr special reasns, t be recrded in writing. This brad pwer undermines the Supreme Curt s entire purpse f securing the tenure f DGPs t immunize them frm State Gvernment interference. The fact that the term special reasns is undefined, makes this prvisin vulnerable t a high degree f manipulatin. The new legislatin des nt enumerate the specific criteria which the SC stated must be used fr selecting a DGP, and it des nt require that the state gvernment select a DGP frm a panel f 3 candidates chsen by the UPSC (Act s.6(1)). These aspects are imprtant t act as a buffer against unwarranted manipulatin f the selectin prcess by interests within the State. [The selectin prcess als cntradicts MPA ss. 6(2), which utlines detailed criteria upn which a DGP is t be chsen.] The SC directive nly cntemplates premature remval f the DGP n enumerated grunds when the State Gvernment acts in cnsultatin with the State Security Cmmissin. Hwever, the Punjab Act permits the Gvernment t act unilaterally in remving a DGP based n ne f the enumerated grunds in s.6(2) f the legislatin.

3 3 The enumerated grunds fr premature remval themselves d nt cmply with the SC judgment. Punjab has added a grund nt cntemplated by the Curt namely prmtin t a higher pst. This prvisin makes the DGP subject t significant pressure and manipulatin, particularly since the individual s cnsent t the prmtin is nt required under the legislatin (see by cmparisn MPA s.6(3)(e), which requires the DGP s cnsent in similar circumstances). The Punjab Act fails t include as a grund f premature remval, an actin taken against the DGP under the Discipline and Appeal sectin f the All India Service Rules. This missin vilates the SC directive. Additinal Cncerns regarding the MPA Mdel The new legislatin prvides grunds fr premature remval f a DGP, but des nt stipulate (Act s.6(2)) that the reasns fr remval must be reduced t writing in all cases (see MPA s.6(3)). Directive 3 Ensure that ther plice fficers n peratinal duties (Superintendents f Plice in-charge f a district, Statin Huse Officers in-charge f a plice statin, IGP (zne) and DIG (range)) als have a minimum tenure f tw years. While the Punjab legislatin prvides guaranteed tenure t all 4 f the fficers listed in the SC directive (Act s.15(1)), the actual duratin f the tenure prvided is nt sufficient. Althugh the SC clearly stipulated that senir fficers must be prvided with a minimum f 2 years tenure, the statute prvides fr nly ne year. (See als MPA s.13(1)). The grunds upn which the fficers may be remved prematurely are verly brad. The SC directive permits premature remval in t fill vacancies caused by prmtin r retirement, but the Punjab statute (s.15(1)(e)) adds that premature remval is als pssible t address a vacancy caused by transfer. This vilates the Curt s Order this grund was specifically mitted by the SC due t the State Gvernments histric explitatin f the transfer pwer. The Punjab Act adds additinal grunds fr the premature remval f a senir fficers nt cntained in the Curt s directive--namely inefficiency r negligence r nn-perfrmance r where a prima facie case f a serius nature is fund against him n the basis f a preliminary enquiry (Act s.15(2)). The nature f such a preliminary enquiry is nt utlined, and the Act des nt prvide any prcedural prtectins t fficers wh may be subject t such an enquiry (see, as a cunter example, the prcedural prtectins prvided under MPA s.13(2)). As such, s.15(2) f the new Act is subject t abuse and manipulatin n the part f the State Gvernment. (Arguably s.15(2) is redundant given the ability t prematurely remve a DGP due t disciplinary issues, cntained in s.15(1)(b) and (c) f the new Act.) Additinal Cncerns regarding the MPA Mdel The legislatin (Act s.15(1)(b),(c)) stipulates that the fficers may be remved early due t suspensin frm service, cnvictin r charges having been framed, hwever, the statute des nt stipulate that such discipline must ccur under the prvisins f the All India Services (Discipline and Appeal) Rules 19, as set ut in MPA s.13(1)(c),(d). Directive 4 Separate the investigatin and law and rder functins f the plice.

4 4 The Punjab legislatin enacts a partial separatin f the law and rder functin frm the investigative functin f the plice. Althugh the SC directive is general in terms f the structure f such a separatin f functins, the MPA prvides a useful template. When cmpared with the MPA, the Punjab Act fails t fully cmply with several prvisins recmmended t ensure the successful separatin f the 2 functins: The statute cntemplates the creatin f a State Crime Investigatin Wing (s.18), and district-level Crime Investigatin Units (s.36(2)), hwever it fails t implement Special Investigatin Cells (MPA s.129). Althugh the Act stipulates that the fficer in charge f the Crime Investigatin Units shall be an individual nt belw the rank f Inspectr, the MPA states that the supervising fficer shuld be smene nt belw the rank f Addl SP (MPA s.128). The Punjab Act states that assistance can be prvided t Crime Investigatin Units thrugh the appintment f extra fficers (Act s.36(2)), hwever, it des nt indicate that these extra fficers shuld be psted fr the specific purpse f ensuring quality investigatin n prfessinal lines (MPA s.128) The training fr fficers within the Crime Investigatin Units is t be upgraded frm time t time (Act ss.37), rather than n a regular basis. The legislatin mandates the creatin f a Frensic Science Labratry and Finger Print Bureau (Act s.19(2)), but it stipulates nly that the State may prvide necessary legal and frensic aid t investigating fficers. The MPA makes this requirement mandatry (s.127). Minimum tenure f 3-5 years is nt prvided fr fficers psted t the new Crime Investigatin Unit (MPA s.134). The Punjab Act des nt address the need t prvide the new Crime Investigatin Unit with adequate funding and crime analysts (MPA ss ). Directive 5 Set up a Plice Establishment Bard, which will decide all transfers, pstings, prmtins and ther service related matters f plice fficers f and belw the rank f Deputy Superintendent f Plice and make recmmendatins n pstings and transfers f fficers abve the rank f Deputy Superintendent f Plice. This Bard will cmprise the Directr General f Plice and fur ther senir fficers f the plice department, and will be empwered t dispse f cmplaints frm SPs and abve regarding discipline and ther matters. The Punjab Act creates a Plice Establishment Cmmittee, but fails t d s in cmpliance with the SC directive. The new legislatin prvides an verride (Act s.32(6)), whereby the DGP may unilaterally transfer any fficer up t the rank f Assistant SP as he deems fit, withut any recurse t the PEC whatsever (Act s.46). This kind f brad pwer eviscerates the PEC and undermines bth the letter and spirit f the SC decisin. Accrding t the Curt, the decisins f the PEC respecting transfer, prmtin and psting f all fficers at r belw the rank f DSP are meant t be virtually binding (the Curt allwed that the Gvernment culd interfere with the decisin f the PEC in exceptinal cases nly after recrding its reasns fr ding s ). The decisins f the PEC fr all ther fficers are recmmendatry, hwever, the Curt expressly stated the Gvernment is expected t give due weight t these recmmendatins and shall nrmally accept them. (See als MPA, s.53(3)). Ntwithstanding these clear directives frm the Supreme Curt, the Punjab legislatin is nt

5 5 sufficiently brad the statute gives the PEC binding pwer ver the transfer (but nt the prmtin) f fficers at the specific level f DSP, but n binding r quasi-binding authrity ver the transfer and prmtin f any fficers abve r belw this level (Act s.32(2)). The functin f the PEC vilates the SC directives. The Curt plainly stated that that the PEC must be a frum f appeal fr dispsing f representatins frm fficers at r abve the SP level, regarding: (i) their prmtin r transfer; (ii) disciplinary prceedings against them, r; (iii) their being subject t illegal r irregular rders. This functin is entirely absent frm the Punjab legislatin (Act s.32). The Curt stated that the PEB must generally review the functining f the plice in the state. This functin is nt addressed in the Punjab legislatin (Act s.32). Additinal Cncerns regarding the MPA Mdel The MPA prvides that all plice persnnel subject t a prmtin r transfer will be prvided with a minimum tenure f 2 years (MPA s.53(7)). This prtectin is absent frm the Punjab Act. Directive 6 Set up independent Plice Cmplaints Authrities at the state and district levels t lk int public cmplaints against plice fficers in cases f serius miscnduct, including custdial death, grievus hurt, rape in plice custdy, extrtin, land grabbing and serius abuse. The Cmplaints Authrities are binding n criminal and disciplinary matters. The state level authrity is t be chaired by a retired judge f the High Curt r Supreme Curt t be chsen by the state gvernment ut f a panel f names prpsed by the Chief Justice. It must als have three t five ther members (depending n the vlume f cmplaints) selected by the state gvernment ut f a panel f names prepared by the State Human Rights Cmmissin, the Lk Ayukta and the State Public Service Cmmissin. Members f the authrity may include members f civil sciety, retired civil servants r plice fficers r fficers frm any ther department. The district level authrity is t be chaired by a retired district judge t be chsen by the state gvernment ut f a panel f names prpsed by the Chief Justice f the High Curt r a High Curt Judge nminated by him r her. It must als have three t five members selected accrding t the same prcess as the members f the state level Plice Cmplaints Authrity. The new Punjab Plice Act des nt substantively address this SC directive, and is in vilatin f the Curt s Order. The legislatin simply states, in ne clause dedicated t the issue, that the State Gvernment may by ntificatin, cnstitute Plice Cmplaints Authrities at the State Level as well as District Level (Act s.54). This prvisin is entirely speculative, and leaves the decisin abut implementing bth a State-level and District-level PCA, cmpletely in the State Gvernment s discretin. In rder t ensure greater plice accuntability t the public, the Supreme Curt stipulated that its directive must take immediate effect. The State f Punjab has cmpletely ignred this part f the Curt s ruling. Miscellaneus The Punjab Plice Act includes an mnibus exemptin clause, at s.81(1), which exempts the State frm having t cmply with its wn legislatin if any difficulty arises in giving effect t the prvisins f this Act. This type f brad exemptin clause is dangerus and subject t significant abuse, as the gvernment may simply defer cmplying with its wn legislatin based

6 6 n the assertin that difficulties have arisen in the implementatin prcess. The existence f s.81(1) increases the likelihd f state manipulatin, and entirely undermines the Supreme Curt s directives. The Statute als cntains a clause which immunizes plice fficers frm prsecutin fr any ffence dne in gd faith, absent the sanctin f the State Gvernment (Act s.69). This prvisin is an anachrnism, and must be remved. It is entirely cntradictry t bth the letter and spirit f the SC ruling and the guiding philsphy f the legislatin which, as the Act s preamble states, is t make the plice persnnel accuntable. If the State may intervene t prevent prsecutins under the guise f the undefined ntin f gd faith, the ptential fr cllusin and the immunizatin f human rights abuses is extremely significant. The legislatin includes prvisins related t mandatry pst-inductin training f new plice recruits, as well as mandatry pre-prmtin training (Act s.20(1),(3)). Hwever, it fails t specifically require re-training f existing fficers n an annual basis (MPA s.141). The legislatin empwers the state t appint Special Plice Officers (s.23). Brad pwers t create Special Plice Officers are unwarranted, given the state s ample pwers t appint regular plice fficers. The creatin f Special Plice Officers is arbitrary and may be subject t abuse by the State Gvernment while Special Plice Officers wuld pssess the same pwers as rdinary plice fficers, due t the emergency nature f their appintment they will nt have adequate time t receive the same level f cmprehensive training (in the use f firearms, the principles f law relating t the use f frce, and the legal rights f the public) that all fficers must be required t underg. Given the dearth f infrmatin regarding the Plice Cmplaints Authrity, it is nt indicated in the Punjab legislatin whether such Special Plice Officers will be answerable t the new PCA whenever it happens t be created! (Act s.54). The payment f such Special Plice Officers is nt fixed, but may be set by way f hnrarium (Act s.23(3). Chapter IV f the Act, entitled Plicing in the Cntext f Public Order and Internal Security Challenges shuld be mitted in its entirety. This Chapter has n place in the Punjab Plice Act the cncerns addressed in Chapter IV are mre apprpriately addressed in separate, specific security related legislatin. Emergencies f public rder and prblems f insurgency require a unique and carefully tailred respnse, which ges beynd the scpe f the rutine plice requirements and regulatins cntained in the Punjab statute. The Act cntemplates creatin f Research Wing within the Plice Frce (Act s.19(4)), but limits its scpe. In particular, the functin f examining the present system f plicing and suggesting structural and ther changes that need t be intrduced (MPA s.146(e)) is absent. Althugh the Act lists duties and respnsibilities f plice (Act ss.40-41) which cnfrm with the MPA (MPA ss.57-58), certain additinal guarantees are nt prvided: The statute lacks any prvisins utlining the duty f plice fficers upn arrest r detentin f any individual (t emply nly reasnable frce, prvide access t a lawyer and dctr, etc.). (See as a cunter example, Himachal Pradesh Plice Act s.65) The statute des nt prevent a plice fficer frm serving in his Hme plice statin r district. (See as a cunter example, Himachal Pradesh Plice Act s.86(2)) Welfare f Plice: the Act is bereft f details cncerning what specific prtectins the Welfare and Grievance Redressal Mechanism (Act s.55ff) is intended t ffer plice persnnel. The statute des nt include a prvisin requiring the tabling f an annual reprt cmpiling plice

7 7 grievances, and des nt stipulate maximum wrking hurs fr fficers (unlike the MPA, ss ). Other prvisins are unduly restrictive. Fr example, Sectin 50 states that n member f the plice shall be a member f a trade unin, labur unin r plitical assciatin. New Delhi DRAFTED BY Mr. ARIF VIRANI Prgramme Officer Cmmnwealth Human Rights Initiative Date: 2 March 2008