Tamil Nadu Gvernment Cmpliance with Supreme Curt Directives n Plice Refrm TAMIL NADU POLICE BILL, 2008 (1 st Reading in the Legislature, 14 May 2008) 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 Tamil Nadu Plice Bill, 2008 creates a State Security Cmmissin which will be knwn as the Tamil Nadu Plice Bard (TNPB). This Bard, hwever, lacks the pwer t make binding recmmendatins (Bill s.28), despite the clear directive frm the Supreme Curt that the Bard s decisins must be binding t avid undue influence n the plice. The creatin f the TNPB is nt immediate, pursuant t the SC directive, but shall take place within six mnths frm the date f cming int frce f this Act (Bill s.27(1)). The cmpsitin f the Bard des nt cnfrm with any f the mdels recmmended by the Supreme Curt, and lacks significant prtectins against gvernment cntrl and manipulatin: The MPA mdel (Srabjee Cmmittee) is nt met. It calls fr 5 independent members, and stipulates 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 Tamil Nadu Plice Bill, cnversely, des nt expressly reference independent members. The Bill states nly that 4 nn-gvernment/nn-plice members will be unilaterally appinted by the Gvernment frm amng the ranks f public service fficers! (Bill s. 27(2)). The MPA sets ut extensive rules fr ineligibility and remval f independent members, as well as term limits (MPA ss.45-47). These rules are nt addressed in the Bill, as the Tamil Nadu prpsal des nt specifically cntemplate independent Bard members. The MPA als states that a High Curt Judge (retd) nminated by the Chief Justice must be a member f the Bard, that 2 members must be wmen, and that minrities must be adequately represented (MPA s.42). These prvisins are nt reflected in the Bill. The Bill is silent n the prcess fr the remval f members. It lacks the requirements cntained in MPA s.47, which stipulates that remval frm the Bard can nly ccur upn reslutin passed by a tw-thirds majrity f the Bard, and with reasns prvided in writing. The Ribeir Cmmittee mdel is nt met Ribeir requires 3 independent members, chsen by a panel created by the Chair f the NHRC, t sit n the Bard fr a fixed perid f time. The Ribeir mdel als stipulates that a High Curt judge nminated by the Chief Justice, must be a member. Ribeir des nt cntemplate the Hme Secretary serving n the Bard (Ribeir Recmm. 1.2).
2 The Natinal Human Rights Cmmissin mdel is nt met the NHRC des nt permit the Hme Secretary t serve n the TNPB. This mdel als des nt cntemplate Bard members frm the Tamil Nadu Public Service Cmmissin, the State Wmen s Cmmissin and the State Minrities Cmmissin (NHRC petitin, p.87). Every ne f the enumerated members f the TNPB is designated as ex ffici save fr the Leader f the Oppsitin (Bill s.27(2)). Generally, ex ffici members can participate in the wrking f an rganisatin, but are prevented frm exercising a vte/key decisinmaking functins. As currently drafted, the TNPB amunts t little mre than a nepersn decisin-making bdy this cmpsitin clearly vilates each f the Curt s recmmended mdels. The functin f the TNPB des nt cmply with the SC directive. The Curt expressly stated that the purpse f the Bard 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 s.28 f the Bill. (See als Ribeir Recmm. 1.5, and NHRC petitin, p. 88). The functin f the TNPB als des nt mirrr the mdels recmmended by the Supreme Curt. Fr example, the MPA states that ne f the functins f the Bard is t recmmend the DGP candidates fr appintment by the State Gvernment (MPA s.48). This functin is nt addressed in the Tamil Nadu Bill. 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 Tamil Nadu Bill prvides a guarantee f 2 years tenure t the DGP, hwever, the prvisin des nt cmply with the Curt s Order. The sectin stipulates that the DGP shall have tenure till the date f his superannuatin (Bill s.7(2)). This vilates the Curt s directive, which stipulated that the tenure must run irrespective f superannuatin, in rder t safeguard against the ptential fr arbitrary state interference. Fr example, t circumvent the Supreme Curt s 2 year minimum requirement, the gvernment culd simply appint candidates within 6 mnths f their date f retirement! (See als MPA s.6(3)). The Bill des nt require that the state gvernment select a DGP frm a panel f candidates chsen by the UPSC (Bill s.7). This prvisin fails t meet the requirements set ut in the SC directive. The Curt expressly indicated that the State Gvernment must select frm amngst the three senir-mst fficers f the Department wh have been empanelled fr prmtin t that rank by the Unin Public Service Cmmissin. It is imprtant that a nn-state rganizatin nminate candidates t preserve bjectivity and immunize the prcess frm influence within the state. The nature f the DGP s tenure is actually quite tenuus, as the grunds upn which a DGP may be remved prematurely are ver brad. The Tamil Nadu Plice Bill states that a DGP may be remved early if he/she is under suspensin, transferred fr specific reasns, r relieved n ther administrative grunds (Bill s.7(3)). These brad pwers undermine the Supreme Curt s entire purpse f securing the tenure f DGPs t immunize them frm State Gvernment interference. Fr example, the basis fr the suspensin in s.7(3)(iv) is nt delineated. Further, the fact that the terms specific reasns and ther administrative grunds are undefined, renders this prvisin subject t tremendus manipulatin. 080527-POL-LAW-INDIA-AV-Legislative cmpliance with SC decisin, TAMIL NADU.dc
3 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 (Plice Bard). Hwever, the Tamil Nadu Bill permits the Gvernment t act unilaterally in remving a DGP based n ne f the enumerated grunds in s.7(3) f the Bill. 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 new Tamil Nadu Bill legislatin prvides 2 years tenure t the required fficers, this guarantee des nt fully cmply with the SC directive. The grunds upn which the fficers may be remved prematurely are ver brad: The SC directive permits premature remval t fill vacancies caused by prmtin r retirement, but the Bill (s.13(2)(vii)) 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 because f the State Gvernments histric explitatin f the transfer pwer. As is the case with DGPs (abve), the Tamil Nadu Plice Bill states that Senir Officers may be remved early if they are under suspensin, transferred fr specific reasns, r relieved n ther administrative grunds (Bill s.13(2)). These brad, undefined pwers undermine the Supreme Curt s bjective f securing the tenure f Senir Officers t immunize them frm State Gvernment interference. [See the discussin under Directive 2, abve.] Tamil Nadu has als added grunds fr early remval nt cntemplated by the Curt. Senir fficers may be remved early due t prmtin t a higher pst (Bill s.13(2)(vi)). This prvisin pens the senir fficers up t ptential pressure and manipulatin n the part f plitical masters, particularly since the fficer s cnsent t the prmtin is nt required under the prpsed legislatin. Directive 4 Separate the investigatin and law and rder functins f the plice. The Tamil Nadu Plice Bill prvides very little infrmatin n the separatin f the investigatin functin, frm the law and rder functin f the plice. T the extent sme separatin f functins is cntemplated, this separatin is nt immediate the Bill simply states that the Gvernment may, having regard t the ppulatin in an area by rder, separate the investigating plice frm law and rder plice in such area as may be specified (Bill s.16(5)). This prvisin is entirely speculative, and leaves the decisin abut cmpliance with the Curt s directive entirely in the State Gvernment s discretin. 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 Tamil Nadu Bill fails t fully cmply with several prvisins needed t ensure the success f the separatin f the 2 functins: The Bill speaks nly t the creatin f a state level Criminal Investigatin Department (Bill s.16(1)). It des nt establish statin level Crime Investigatin Units (MPA s.122ff) nr district level Special Investigatin Cells (MPA s.129). 080527-POL-LAW-INDIA-AV-Legislative cmpliance with SC decisin, TAMIL NADU.dc
4 The Bill des nt delineate the types f ffences which fall under the mandate f the new Criminal Investigatin Department. The MPA, s.132, specifies that certain significant ffences require special units within the Criminal Investigatin Department, such as: cyber crime, rganised crime, hmicide cases, and ecnmic ffences. Due t the brevity f the Bill, there is n detail whatsever regarding imprtant items, including: training fr assigned fficers, guaranteed fficer tenure, sufficient funding, the prvisin f staff, adequate scientific facilities, crime scene technicians and legal/frensic advice (see MPA ss.126-27, 133-137). 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 Tamil Nadu Plice Bill creates a Plice Establishment Cmmittee, but fails t d s in cnfrmity with the SC directive. The cmpsitin f the PEC vilates the Curt s directive. The SC stated the PEC must be cmprised f the DGP and 4 ther senir fficers whereas the Bill permits the Additinal DGP t perate the Cmmittee entirely alne, r with such number f fficers as may be specified by the Gvernment (Bill s.31(1)). This type f brad discretinary pwer is unwarranted, and may be used t further entrench cntrl ver transfers, prmtins and appintments in the hands f the State Gvernment. The SC directive explicitly prvides the Establishment Cmmittee a wide mandate t dispse f representatins frm fficers cncerning prmtin, transfer, disciplinary prceedings, r their being subjected t illegal r irregular rders alng with generally reviewing the functin f the plice in the state. Cnversely, the authrity granted in the Bill is much mre narrw. It permits the PEC nly t examine the grievances f plice persnnel and make recmmendatins t the Directr General f Plice (Bill s.31(2)(a)). Tamil Nadu addresses the jurisdictin f the PEC re the transfer f certain lw ranking fficers (Bill s.31(2)(c)) whereas the Curt s directive is mre brad. The SC empwers the PEC with quasi-binding authrity ver nt nly transfers, but appintments and pstings as well. 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 PEB in exceptinal cases nly after recrding its reasns fr ding s ). (See als MPA, s.53(3)). This wide jurisdictin is absent frm the Tamil Nadu prpsal (Bill s.31(2)(c)). 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 des nt exist in the Tamil Nadu Bill. 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. 080527-POL-LAW-INDIA-AV-Legislative cmpliance with SC decisin, TAMIL NADU.dc
5 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 Tamil Nadu Bill is entirely silent n the vital issue f implementing Cmplaints Authrities at bth the State and District levels. In this respect, the Bill cnstitutes a whlesale vilatin f the Curt s Order. In rder t ensure greater and mre effective plice accuntability t the public they are intended t serve, the SC stipulated that Plice Cmplaints Authrities must be put in place immediately. Nevertheless, the Tamil Nadu Gvernment has cmpletely ignred this aspect f the Curt s judgment. The Bill is even mre shcking in its disregard f the Apex Curt, given that the Statement f Objects and Reasns states that the Bill seeks t give effect t the Prakash Singh decisin. The failure t implement prper Cmplaints Authrities flies in the face f the Bill s wn preamble, which prfesses respect fr human rights and the gal f making Tamil Nadu s plice prfessinally rganised, service riented and accuntable t law. Miscellaneus The Bill cntains an extremely restrictive limitatin clause. The Tamil Nadu prpsal states that n ne may be sued r prsecuted fr vilating the Statute, if the event cmplained f ccurred mre than 3 mnths earlier (Bill s.60). This limitatin perid is highly bjectinable, 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 Bill s preamble states, is t enable the plice t functin as an effective, peple-friendly and respnsive agency that is accuntable t law. If the State is permitted in this manner t penly prevent suits/prsecutins against unlawful fficers frm prceeding, the ptential fr grss human rights abuses t escape unchecked is extremely significant. Tamil Nadu s Bill includes an mnibus exemptin clause which prtects frm liability any actin taken in gd faith by the State Gvernment, the Tamil Nadu Plice Bard, the PEC, its members r staff (Bill s.63). These types f mnibus exemptin clauses are dangerus and subject t significant abuse, as the gvernment may seek t clak any mishandling f plice affairs under the guise f the undefined ntin f gd faith, and thereby immunize the plice and the state frm the very type f accuntability the Curt s ruling is meant t help entrench. The Bill cntains a wide pt-ut prvisin, which exempts the State frm cmplying with the legislatin within the first 2 years f its passage, if any difficulty arises (Bill s.67). This permissive verride is hazardus and vulnerable t manipulatin, as the Gvernment may simply defer cmplying with its wn legislatin based n the assertin that difficulties have arisen in the implementatin prcess. The existence f s.67 increases the likelihd f State influence, and entirely undermines the Supreme Curt s directives. 080527-POL-LAW-INDIA-AV-Legislative cmpliance with SC decisin, TAMIL NADU.dc
6 The Tamil Nadu prpsal includes prvisins related t mandatry pst-inductin training f new plice recruits, as well as mandatry pre-prmtin training and in-service training (Bill s.17(1)). Nevertheless, the Bill fails t enumerate that in-service training f existing fficers must ccur n an annual basis (MPA s.141). [The Bill stipulates nly that such training will ccur as deemed necessary, frm time t time.] Sectins 32-33 f the new Bill list the functins, duties and scial respnsibilities f plice fficers, hwever: The Bill 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, 2007, s.65) It des nt prevent a plice fficer frm serving in his hme plice statin r district. (See as a cunter example, Himachal Pradesh Plice Act, 2007, s.86(2)) The Bill des nt incrprate a frmalized witness prtectin prgram (including name changes and re-lcatin) alng with measures t ensure the safety and prtectin f witnesses in the face f reprisals frm accused parties (See as a cunter example, the Uttarakhand Plice Act, 2007, ss.54, 55) Welfare f Plice: Althugh the Bill purprts t limit the maximum wrking hurs f plice persnnel (Bill s.49), it is bereft f details cncerning what prtectins the State Gvernment will prvide t plice persnnel in areas such as medical care, husing, educatin and insurance. The Bill des nt create a Welfare and Grievance Redressal Mechanism fr plice, nr des it require the tabling f an annual reprt cmpiling plice grievances (unlike the MPA, ss. 185-187) New Delhi DRAFTED BY Mr. ARIF VIRANI Prgramme Officer Cmmnwealth Human Rights Initiative Date: 27 May 2008 080527-POL-LAW-INDIA-AV-Legislative cmpliance with SC decisin, TAMIL NADU.dc