THE NEED FOR REGULATED POLITICAL INTERFERENCE IN MATTERS OF INTERNAL POLICE FUNCTIONING IN INDIA

Transcription

1 THE NEED FOR REGULATED POLITICAL INTERFERENCE IN MATTERS OF INTERNAL POLICE FUNCTIONING IN INDIA Authored by: Jerush Priyatham Arava * * 3rd Year BBA LLB Student, School of Law, Christ (Deemed to be) University ABSTRACT In this paper some of the ethical challenges inherent in the functioning of Indian Police are considered. By its very nature policing is controversial and an integral aspect of governance, its relationship with politics has always been adjacent and composite. This paper seeks to add clarity to the relationship of political executive with the police. Politicization of police when referred back into the history has questioned the basic functioning of democracy, this paper seeks to throw light on importance of the issue which has been compromising the basic principles of democracy and how it can be combated, particularly how it can be described in the statues. This has been done with the aid of Using various cases and examples from the international scenario. Seeking reforms and setting fort an institutional framework of how police work in democracies. In a democracy like India the ultimate focus will be for the well fare of the people. This responsibility lies in hands of their elected representatives, police being the implementers. So the relation between both is crucial and is of paramount importance. Both of them are bound to maintain law and order and take an active role in preventing crimes in the society. Key-words: Police; Regulation; Political Interference; Principles of Democracy. 37 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

2 INTRODUCTION In ancient India, the Ramayana and Mahabharata have emphasized the effort of the local administrators who are responsible for the safety and security, in keeping the king informed about the welfare of the people. Kautilya s Arthashatra has also given a detailed system of secret services, in which the spymaster of one group headed their respective cadre of agents and controlled operations. 1 The members of one group are not aware of the existence of another. This classification is still followed in most police secret services around the world. An elaborate policing system was established by the Mughals during their long reign lasting three centuries. The routine duty of the police was to patrol throughout day and night to guard the vantage point. The British initially worked with the Mughal system of administration but after their victory in Plassey 2 in 1757, they created the famed Indian Civil Services for the purpose of collecting revenue and providing general administration at the district level. 3 Later British needed a police system to deal effectively with the possibilities of agrarian and industrial unrest, the efforts of British to streamline the police administration finally led to police Act V of 1861 that still governs the Indian police of twenty first century. India is now an established liberal, parliamentary from of democracy with more the 600 million registered voters 4. Despite its diversity, the country has been showing admirable unity. Most of the colonial era administrative structures have continued largely unchanged even after independence and many of the present day problems of corruption, misuse of force and unaccountability appear to be related to their basic design. This paper seeks to add clarity and enhance debate as to the relationship between the political executive and police, particularly how it can be delineated in statutes. Using international examples, it sets a conceptual framework for understanding how police agencies are held accountable in democracies, with particular focus on the role of the political executive in police accountability. In any democracy the ultimate responsibility for ensuring public safety and security 1 (Anon., 2004) 2 Available at ( 3 Available at ( 4 India Votes, General elections P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

3 lies with the people s representatives, specifically the Home Minister or his/her equivalent depending on the jurisdiction. The police are the implementers. As such, the police and political executive are both bound together in the common endeavor of preventing and investigating crime, maintaining law and order and ensuring that the people have a well-functioning essential service that protects life, property and liberty 5. However, for policing to work in an efficient, unbiased, responsive manner, the roles, powers and responsibilities of each entity involved has to be properly articulated. A careful balance has to be struck between legitimate supervision of the police by the political executive and illegitimate interference and influence. Conversely, the police must always remain accountable to elected politicians for enforcing the law and to perform its duties in accordance with the law. The political executive must be able to craft policy and seek accountability for poor performance or wrongdoing by an essential public service paid for by taxpayer money. 6 PROBLEM There is no rarity of events, in fact even history stands testimony to the manner in which the Indian police was forced to remain as ruling party s police and sadly has remained one even after the country attained independence. The act of 1861 created a centralized police organization with command, control and decision making concentrated at the top. Furthermore, also developed a policy wherein no government functionary could be posted in his or her home district ad every three years must be transferred to another post. This system continues unchanged today. Such a provision prevents the police officers from developing local links and effectively creates a situation where an officer has no stake in the local community. It also prevents any sort of accountability to the people. The only option for an aggrieved citizen who has a complaint against an officer is to go for an internal inquiry to the police headquarters or approach the courts for civil damages. There is no system of local monitoring by some kind of citizen body and no input from the citizens to determine the nature of policing for their area. 5 (varma, 2007),Politicization and Legitimacy of Police in India 6 Politicisation of the police, B.G. Verghese, P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

4 This three- year tenure policy has played havoc with the organization first. It has provided the politicians with a powerful mechanism to interfere in organizational matters. The transfer- postings are controlled by the politicians who do not follow any administrative guidelines. They use these powers to place their officers in crucial positions. The police are unable to discharge their duties properly because political impede their functioning. The police leadership has lot much control over their subordinates and police chiefs face enormous difficulty in operating their subordinates and police chiefs face enormous difficulties in operating their department. Being generally unable to discipline officers who are politically connected. Since police are organized at the state level, all organizations are large units with thousands of personnel. Thus, at any given time several hundred personnel are being transferred from one unit to another. Politicians can exercise considerable power through the threats of transfer or making attractive offers of alternating postings. The politicization of the Indian police has therefore become serious problem. Incidentally, this problem was vividly highlighted by the shah commission appointed to look into the atrocities committed during the emergency period of , when Indira Gandhi suspended the parliament and assumed dictatorial powers 7. The entire police force became captive to the small coterie wielding power within Gandhi household. Despite strong recommendations of the national police commission, appointed in 1978, political control over the police has not been reduced but has in fact increased substantially. The police have become a useful instrument in political battles too. Thus, the destruction of mosque by Hindu zealots at Ayodhya [1992] and killing of Sikhs in delhi [1984] 8 by ruling party as in nandigama[2007] could go on by shackling and preventing timely police action. The nature of political order in the country affects policing and in India, police actions is invariably guided by politics of the country. Control over the police department provides a means for harassing political opponents through intimidation, arrests and even threats to their supporters. Furthermore, this control also enables the anti-social elements aligned to the ruling party who are useful in capturing election booths and in serving as demonstrators and frenzied supports during political rallies. The investigative power of police is used to gather political intelligence used in countering the strategies of the opposition parties. Further, the Indian system does not prohibit a criminal from contesting elections unless he or she has been convicted by a judicial court. Since criminal trial linger for considerable period of time many criminals have taken 7 Four reasons why Indira Gandhi declared Emergency, Adrija roychowdary, I lived through the Sikh riots and 30 years later, I m not ready to forgive or forget, Amarjit singh walia, P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

5 advantage. Politicians approach them for muscle power to intimidate the opponents and to go fight election battles. The criminals in return seek protection from law enforcement agencies by the intervention of politicians. The two has formed an unholy alliance and a politician Kapil Deo Singh even confessed on the floor of Bihar assembly that he patronized and would continue to patronize gangsters and criminals to fight and win elections as long as the existing system of fighting is not changed. Many criminals have won elections and even became ministers wielding power over the officers investigating and prosecuting their case. At present there are reportedly 125 elected members in the parliament who have criminal background. The Vohra committee, appointed to look into this phenomenon, reported a strong nexus between politicians and criminals with police in as a weapon to control. This is perhaps the most dangerous trends seen in India in past three decades. In August 1979, the National Police Commission stated that transfer and suspension are two weapons frequently used by the politician to bend the police officers down to his will. 9 The Supreme Court has observed that frequent and arbitrary transfers, besides "demoralizing the police force" and "politicizing the personnel" constitute a practice that is "alien to the envisaged constitutional machinery". 10 As a result, political control of policing has eroded internal chains of command, obstructed police functioning, and ensured that responsibility for wrongdoing is hard to pin on any one body or individual. This poses a major threat to the democracy of the country. It is commonly argued that the terms superintendence and control have never been clearly explained in legislation such as the Police Act of 1861 or state Police Acts, and this legislative ambiguity is a significant factor in facilitating political manipulation. It is true that these crucial terms are not defined in the central and state legislation, but it is not accurate to say that important elements of superintendence and control are not defined anywhere. Provisions in state Police Manuals fill the gaps left empty by central and state Police Acts. For instance, with regard to the power to transfer for instance, many state Police Manuals clearly stipulate who - whether the political executive or the designated senior officer within the police, can transfer officers, and even more, this power is classified according to officers ranks. Further, almost all Police Manuals 9 National Police Commission (1979), Second Report, page In the judgement of the Supreme Court of India, 1997, Writ Petition (Criminal) Nos of 1993, popularly known as the Havala case 41 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

6 contain provisions which set benchmarks for the duration of certain postings. Provisions in the state Police Manuals reveal the level of detail provided by the Manuals in terms of jurisdiction and general rules regarding transfers. The power and jurisdiction of the executive on one hand and of the police leadership on the other, relating to transfers are clearly delineated. Thereby, it is not accurate to argue that there is no legislative guidance, at least on this important aspect of superintendence. In light of the above mentioned issues it it clear that the politicians have taken all the matters concerning to transfer into their own hands without any accountability and transferability. This is a blatant violation of the laws and procedures mentioned in the police manuals. Hence this stands as a violation to rule of law. THE SOLUTION There are many countries that are trying to come up with solutions, taking into consideration of political development and socio political factors they are responding accordingly. At a bare minimum, Stenning argues that in the last 20 years or so, "attempts have been made in many Commonwealth countries to clarify, and in some to codify, the essential principles that should govern the police/executive relationship in a democracy". Scholars and academics explaining the Police/Executive balance in a modern democracy have stated the following: POLITICAL SUPERINTENDENCE The general principle is that the police, no less than any other state employee, must be subject to democratic superintendence, control and accountability for their activities, through the usual political, judicial and administrative processes. Police, politicians and the public must understand that: (a) legitimately and democraticallyelected governments serve as the principal guardian of the public interest; and (b) the exercise of democratic governmental supervision, oversight and accountability of the police are an essential aspect of a free society, and these do not prima facie constitute improper political interference. 42 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

7 Independence from normal governmental direction and control is an exception to the general principle, rather than the norm. These exceptions should be kept to a minimum. ADMINISTRATIVE RESPONSIBILITIES Law enforcement and administration are the two areas where the police must be able to act independently. In law enforcement, the police must be independent in their decision-making with respect to enforcing the law in individual cases. This includes important decisions about whom to investigate, search, question, detain, arrest and prosecute in a particular case. Governments are not precluded from advising police of their views with respect to police decisions that may have significant public policy or public interest implications (e.g. matters of national security, or matters that have repercussions for international relations). However, in all such cases the government: Must not seek to exert undue pressure; 1) Should acknowledge that the ultimate decision in such cases rests with the police; and 2) Must keep a written record of any such intervention which must be made public and available for judicial review as early as possible. Regarding administration: 1) Communications from government must always be through the Home Minister to the DGP; 2) Governments must never be involved in decisions regarding the appointment, assignment, deployment or promotion of officers, other than the DGP. The DGP must have ultimate responsibility and accountability for such decisions; and 3) The DGP must be given suitable protection against arbitrary removal (i.e. removal should not be permitted unless there is evidence of misconduct/incapacity or until after the expiration of a fixed term. 43 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

8 The principle of police accountability for their actions (through standard political, legal, and administrative processes) applies in all cases, regardless of whether such actions are exclusively within the purview of the police. Its clary visible that to change the current scenario there should be a change in the model in which the police is being operated. Referring to international examples like Canada where the idea which has gained popularity internationally in the recent few decades that is policing is to serious or too important a business to be left out for the politicians or police alone and that it is necessary to exercise some form of civilian control over police. As the basic tenet of democracy is to that people have power and are given to power to make choice in which way they are going to be ruled. And also looking into the Nigerian constitution, we can find Nigeria s Police Service Commission is a unique hybrid oversight body having the potential of being one of the most powerful and autonomous civilian oversight institutions in the world, if strengthened and allowed to function as an independent organization as laid down in the 1999 Nigerian Constitution. The power to dismiss and discipline individual police officers, coupled with the statutory obligation to establish an investigative department, provides the Police Service Commission with the ability and legal powers necessary to receive complaints on police conduct, investigate these complaints, and enforce any disciplinary measures it deems fit. It also has the powers to develop and implement policy for the police force, making a significant contribution to setting higher standards in the force as a whole. 11 Responsibilities and independence of State Police Chief: In the officer of the rank of Director General of Police designated as the State Police Chief the supervision, direction and control of the police throughout the State shall be vested. The state police chief shall be responsible to minister for the following activities: 1) The effective, efficient, and economical management of the Police. 2) Giving effect to any lawful ministerial directions. 3) Carrying out the functions and duties of the Police. 4) The general conduct of the Police. 11 Prakash sing v union of India, P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

9 The State Police Chief shall not be responsible and must act independently of the Minister regarding: 1) The maintenance of order in relation to any individual or group of individuals 2) The enforcement of the law in relation to any individual or group of individuals. 3) The investigation and prosecution of offences. 4) Decisions about individual Police officers. The Minister may give the Director General of Police directions on matters of Government policy that relate to: 1) The prevention of crime 2) The delivery of police services; and general areas of law enforcement. 3) The maintenance of public safety and public order The Minister must not give directions to the Director General of Police in relation to the following: 1) Enforcement of the criminal law in particular cases and classes of cases 2) Decisions on individual members of the police 3) Matters that relate to an individual or group of individuals If there is dispute between the Minister and the Director General of Police in relation to any direction under this section, the Minister must, as soon as practicable after the dispute arises 1) Provide that direction to the Director General of Police in writing; and 2) Publish a copy in the Gazette; and 3) Present a copy to the Legislature CONCLUSION It is a known fact in the society the police enjoy tremendous power given the chance for the politician to control them the power has always been put to misuse. There is an urgent need to condition the relation between the police and political executives who seek to work towards strengthening democracy, not limiting it. The basic truth is that for policing to transform, it is 45 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

10 necessary for the government to whose authority police are subject to, itself be committed to democratic norms and checks and balances, and most importantly see the police as an instrument for protecting the safety and democratic rights of the people and not as a means of carrying out their vested motives. 46 P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]