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PUCL Bulletin, December 2006

Police Act symposium

-- By K G Kannabiran

It is the saddest comment on our democratic consciousness that all these fifty years and more of Constitutional governance we never thought of restructuring almost all the institutions that are relevant to the functioning of the Constitution. Police administration is one such. All the laws now in force are colonial laws of post East India Company vintage. In these fifty years and odd years there have been outstanding policemen but none of them thought that the laws governing the police should relate to the Constitution. Nor after the Constitution brought into force, nor the President while adapting these laws he thought that we should refuse to adapt these laws.

To the present draft there are four or five preamble clauses, not one of them has any reference to the Constitution. The police force, of all the services of the State, is the one directly dealing with citizen as a citizen and a person. He alone is authorized to restrain, confine arrest and subject him to use of force and despite the crucial role he plays in the newly codified Act in the preamble to the Act no reference is made to the Constitution. A reference to the Constitution may drive the officer to know about the Constitution and its objectives and that may be the beginning of Constitutional discipline. That perhaps would make him aware that the major articulate premise of the Constitution is Rule of Law. This awareness will keep him away from politico religious politics and other political movements.

Such understanding will enable him to understand how to operate in a society, which is plural in character, and composition and that he/she should play a detached role in maintaining public tranquillity, in the investigation and prosecution of crimes based on religious and caste conflict and in preventing assault on minorities thus preventing crimes of genocide. It is very important that this Act should provide to the police person a vision of promoting a healthy plural society informed by equality in every aspect of the various communities living and forming the ‘Indian Society’. That is why we insist that reference be made in the preamble to the Act. This we believe is a must.

It is true that there is a necessity for a comprehensive codification of police laws regulating discipline and conduct towards persons who happen stray within their jurisdiction and for rule governing their promotion in their official hierarchy. But this clamour for autonomy may result inter-institutional conflicts and bickering and become conflict ridden. We do not think independence is a synonym of reckless and irresponsible assertion of power.

We have witnessed independence of the police. They have decided in all the recent assaults on the minorities whether the attackers should be prosecuted or not and in all the major incidents from 1984 onwards they let go the attackers scot-free. This would amount to suspension of Articles 21 and 14 and consequently the laws, which provide for enforcing these rights. Article 21 is not just a right of the accused. It is as much a right of the victim that the perpetrators should be prosecuted and their life and liberty shall be forfeited only after following the established procedure by law. All this is to say that the police force is re- structured to effectively face up to the challenges of a society where a plurality of communities and castes are claiming equal protection of laws. It is not autonomy but independence to act according prescribed law in the performance of their duties. The clamour by non-elected bodies clamouring for autonomy will changes the character of democratic republic prescribed by the Constitution.

Already there is a feeling that the judiciary by its judicial activism is eroding the salutary principles of the theory of separation of powers. We are not afraid of what Laski called “Judicial Tyranny”, we are afraid of judicial anarchy that may destroy inter-institutional discipline so very necessary running the Constitutional scheme It is wrong to discredit political government who comprise of the elected representatives. Nothing prevents the police establishment from maintaining its independence in its discretionary jurisdiction from the political government. A bunch of sycophants may bring down an institution and make it subservient to a mindless political set up, but it is the aggressive competition to climb that brings the institution t this pass and for that the competition within the service needs to be regulated by providing certain amount of certainty to officers and men in their ascent in the service hierarchy.

The administration should live up to the expectations of its officers and men. We would advise against needless creation of administrative structures for they may bring in litigious tendencies. It should be rule governed ensuring the expected progress in their official careers and such assurance alone will ensure presence of human dignity in the force and we are of the view that the men/women at the constabulary level needs to be looked after than at the officer level. There should be democratic debate within the police force where the constabulary’s views may be very important to determine not only their service conditions but also the officers' service conditions.

We human rights activists are of the view that democratic functioning of institutions are a sine qua non of respect for human rights. Until now we have been defining human rights by their violation and the proposed Act is to reform the police set-up in the country. But we are very particular that this Act should not contain any provisions dealing with “Law and Order”, “Public Tranquillity “Public Order’ and Security of State”. The preventive provisions of Criminal Procedure Code, the Penal Code, the various special laws creating special jurisdiction and special evidentiary rules and the various preventive detention laws with powers of externment and terrorist laws at the state and central levels regulate these. The police Act need not and should not create any parallel jurisdiction under the Police Act. It will improve the content of Rule of Law and enrich Article 21 if enforcement, investigation and adjudication of such enforcement are kept in separate jurisdictions If such parallel jurisdictions are created administration will break into a wilderness of arbitrariness. Chapter VI and VII or paras 6 and 7 attempt at creating parallel jurisdiction. This should be avoided.

There is yet another provision where the Act suggests complete power to administer the Arms Act be entrusted to the police. Praetorian guards should not aspire for the powers of the Praetor. It is good that the power of enforcement and power to review the necessity to such acts in furtherance of enforcement are vested in different authorities. Once such power is extended to one enactment appropriation of such powers with reference to other enactments is sure to follow and that is sure to destroy the democratic fabric of the society in which we live. Institution building is a difficult task for we to structure a culture of respect for law, a habit of legality both in the governing and the governed and we are not running the government for the purpose of maintaining a police set up or a team of irremovable non elected judges or to maintain a bureaucracy whom Marx called a Republic of Priests. The emphasis is on “We the people”. .

People's Union for Civil Liberties, 81 Sahayoga Apartmrnts, Mayur Vihar I, Delhi 110091, India. Phone (91) 11 2275 0014