Comments on the Model Police Act 2006
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June 17, 2006
Dear Colleague, You are aware that the Police Act of 1861 is to be revised. A Drafting Committee of the Ministry of Home Affairs has circulated a “Model Police Act 2006”. Shri S R Sankaran, Convenor of the Committee of Concerned Citizens in Andhra Pradesh, and a member of the PUCL has prepared a Commentary on the Draft according to his ideas. I am sending his comments to you with the request that you may hold discussions in a seminar treating this document as Background Paper and give comments. We will try to compile all the comments and send them to the MHA. It would be good if the needful is done at an early date, say, within a month or so. Warm regards,
Y P Chhibbar, Ph D
General Secretary PUCL
Comments on the Model Police Act 2006 circulated by the Police Act Drafting Committee of Ministry of Home Affairs
- By S R Sankaran IAS (Rtd)
Former Secretary, Ministry of Rural Development, Government of India
1. General - Scope of a Police Act
It is to be recognized that the .Police Act 1861 is not the sole or only lawin relation to police functions .The maintenance of public order and the criminal justice system are based on the Indian Penal Code (IPC), Criminal Procedure Code (CrPC), Indian Evidence Act as well as a large number of special legislations including special laws including Prevention of Terrorism Act (POTA, now repealed ) or Unlawful Activities Prevention Act (in which many of the provisions of repealed POTA have been incorporated ) or Control of Organized Crimes Act (COCA) as in Maharashtra or Scheduled Castes and Scheduled Tribes (Prevention of Atrocities ) Act, apart from the provisions of the Indian Constitution itself .In addition to the laws, there are Police Regulations (e.g. PRB in West Bengal) and Police Manuals (e.g. Tamil Nadu) in every state laying down clear guidelines and instructions in regard to the exercise of police powers and duties .The Police Act 1861 is no doubt 150 years old ;but to trace the reason for all the inadequacies and shortcomings in policing to the Police Act 1861 merely on the ground of its antiquity will be an incorrect understanding of policing in a democratic society .In fact, the1861 Act by itself does not stand in the way of proper and efficient functioning of police as a humane institution at the service of the people.
2. Model Police Act 2006 – Comments on Approach and Scope
The Model Police Act seeks to cover the entire field of police administration, much of which cannot and need not be incorporated in a statute by Parliament . There are too many details of administration. Some of the sections of this nature which are illustrative of this are amenities in police stations (Section 12(5)), non-statutory activities such as technical and support services (Section 17), state police academies (Section 18),organization of research (Section 19 )qualification for recruitment (Section 25), service conditions (Section 26) ),financial management ( Section56), standardisation of forensic aids (8.15) training policy, disciplinary actions, welfare and grievance redressal or working hours .
These are not normally laid down instatutes .Apart from the unnecessary need for making a statute of Parliament or State legislature for a minor issues such as imposing punishment on police personnel (or for that matter any government servant ), inclusion of such details in an Act will make it operationally difficult .Any change or modification will necessitate an amendment of the law by Parliament or State legislature .What should be part of a manual of administrative instructions have been brought into the law .The Act often reads like an office memorandum of the Government !
The Act should be confined to major issues and concepts of policy such as rule of law, statutory duties, functions and responsibilities or accountability . . Even here, some of the details such as composition of a Committee can be best left to Rules. In trying to achieve autonomy in the functioning of police, the Act seeks to provide privileged position to the police personnel (specially the Director General of Police), without adequate accountability and mechanism for redressal against arbitrary actions . There are, no doubt, some institutional mechanisms that are envisaged but they are all, if fully analysed, only advisory in nature. The Act as worded will only result in furthering the authoritarian nature of policing .
The functioning of the police must be looked at from the point of view of the people and not just from the point of view of the government or the police .The emphasis must be on police as service with duties and accountability on the part of the police; not more power and authority. As the police is the most visible symbol of State authority and is clothed with wide ranging powers to use force, including even causing of death in relation to life and liberty of citizens, police functioning naturally becomes central to human rights. The crucial fact is that the police is the legally sanctioned coercive arm of the Government and has the authority to interfere with the life and liberty of people. This distinguishes police from other agencies of the State and it is this feature that requires proximate accountability not only to its own departmental hierarchy but non police authorities (as in UK) .Any autonomy should be linked to accountability and close and immediate supervision. The police cannot become a “State within a State” .It has necessarily to function under the lawful control of the State /Central Government. At the district level it has to function as part of the District Administration.
The Model Act exhibits alack of trust in the bona fides of people and even the institutions of State, other than police . As police functioning directly interferes with life and liberty of people, there is need for immediate and proximate accountability and mechanisms for correction . The judicial machinery is distant and formal. Hence, there must be within the executive, an immediately available corrective mechanism other than the hierarchy of police . This is provided usually by the executive magistracy; but the Model Act is unmindful of this need .
The Model Act is department oriented rather than people oriented, in spite of the pronouncements in the Preamble.
2. Chapter wise and Section wise observations
This has been very well expressed .But the word “empower “ may be avoided . It is not correct to think of power . Instead a term like “confer legal authority “ may be used .
It is indeed a very welcome departure from the traditional concept of force that police is referred to as service instead of force .
The reference to pay and allowances is unnecessary in a statute .This is to be taken into account by Pay Commissions set up from time to time. If this is put into a law by parliament or State legislature, there will be similar claims by many other wings of government to have similar statutes
Section 5(2) is peremptory .To say that no officer senior or equivalent in rank to the incumbent Director General should be posted to any position within the police organization cannot become part of a law .It can be an administrative convention, at best The DGP can be first among equals .He can even supersede seniors in the process of getting selected. But to say that all others should move outside police organization is impossible and inappropriate. The proviso as well as the main provision are uncalled for in a statute ..This will also be administratively impossible when the selection of the DGP is to be done from among the three senior most persons as proposed. For example, if the third person in the order among the three gets selected, the two seniors have to go out of the police oganisation itself ! This will be impracticable
The method of selection cannot be written into law. The criteria for selection, particularly 2(b) such as gradings are out of place in a law.
Fixed tenure of two years is a longstanding need which is administratively welcome ; but it hinges crucially on the quality of selection . In my view, there is no need to select persons with a limited service left before retirement and give a fixed tenure. If the retirement age is 60 years, it should be adhered to for all, particularly for police, as physical fitness is an essential requirement . It is better to make the selection from among the persons with two years of service before retirement.
All these can be more appropriately incorporated in administrative instructions and not in law.
This is necessary .But there is no need to put it into law .
Section 2.9 to 2.12
These relate to creation of range, district, circle, police station etc.
There is no need to mention about the amenities etc in the law
The minimum fixed tenure concept has been extended up to the level of SHO, Circle Officer SDPO and SP .There is also a maximum of three years prescribed unlike in the case of DGP .It is not possible or appropriate to provide in law for fixed tenure at every level . It will be impracticable .It may also result in “petty tyrannies “ at operational levels . (Looking at it from peoples point of view and not the departments view, there are a number of cases where common people wish that some officers known for their undesirable activities are transferred quickly in the hope that some better person might arrive ).While fixed tenure will have significance at higher levels, the principle cannot be extended to every post at every level
This is an important provision which brings in the District Magistrate into this Act.
Section 4 of thePolice Act 1861 refers to general control and direction of the District Magistrate .The practices in States vary . The relationship betweenpolice and District Magistrate has been debatedfor longand wasalso gone into great detail by the Police Commission in Chapter XXXIX of its report .The Police Commission held the view that while police should have a distinct identity and operational independence, the role of the District Magistrate has to be recognised and respected by the police .
As police are vested with authority over life and liberty of people, an immediate and close non police general supervision is necessary and in this view, the provision in the Police Act 1861be retained It need not be viewed as subordination. It is somewhat akin to relationship with judiciary.
While the Model Actappears to follow the suggestion of Police Commission, the Police Commission draft visualizedthat the District Magistrate *“call for a report regarding the steps taken by the police or other agency to deal with the situation and give such directions in respect of the matter as are considered necessary by him(the District Magistrate ) to the police and the concerned agency “.
Section 14(2) of the Model Act waters down the role of the District magistrate.. The reference to other heads of the Departments in this act is unnecessary and uncalled for .There is no need to repeat “for the purpose of coordination “ or “to achieve the objective of coordination “ in the Section . All these seem to spring from a reluctanceto accept the role of theDistrict Magistrate .
Section 14(3) is completely out of place . It seems strange that the District Magistrate is to ensure assistance to the Superintendent of Police, rather than the Superintendent of Police assisting the District Magistrate ! This seems to be misconceived . Even without this provision, the District Magistrate as the head of the district will play this role and there is no need for this in the Police Act .
The concept of Railway police itself requires a rethinking .In any case it need not be written into law. There is need to integrate railway police into the District Police
This may not have to be incorporatedin the law .
On the other hand, as recommended by Police Commission, the law should lay down the limits to intelligence gathering so that intelligence agencies do not get involved in party politics . There have been many well-known instances of this nature both in States as well as Centre.
Sections17 to 19
While the ideas are welcome, there is no need to provide for them in the law
The concept of special Police Officer is provided for in Section 17 of the1861 Act .But this was intended for extraordinary circumstances, with the permission of magistracy and from the residents in the neighbourhood .In other words, it was intended to enlist members of the local community in special cases of disturbance to peace in an area .But Section 22 makes it a regular feature, with an age limit of 18 and 50 years without any relation to the special circumstances and local community. In the context of having a properly motivated and well trained police personnel, this becomes anout moded concept . As these special police officersare to have the same powers privileges and immunities, any such provision as a regular feature of policingwill only result in an army ofillequipped personnel for the task of performing police functions . This Section is inappropriate
The idea of Civil Police Officer Gr II as the lowest rank in civil police is to ensure efficiency dignity and status at this cutting edge level .But this cannot be done by merely changing the nomenclature. In fact the term constable, as used in countries like UK has acquired considerable dignity.
These are a set of recruitment rules and procedure . It does not seem appropriate that such provisions form part of a parliamentary legislation .Nor is there any need to do so .This can be done by administrative instructions or separate recruitment rules.
The provision in 26(5) that the Director General of Police should endeavour to outsource noncore police functions is out of place in a Police Act.
The superintendence of police rightly vests in the State Government as police or for that matter any department cannot become a state within a state .Of the three Constitutional branches -Legislature, Judiciary and Executive -police is part of the Executive . Section 39(2) is not needed, as it has already been stated that the State Government has the responsibility to ensure an efficient effective responsive and accountable police
The concept of strategic policing plan is innovative .There is however no need to stipulate in law that inputs will be received from Superintendents of Police .In fact, such plans at the district level should be drawn up jointly by the Superintendents of Police and the District Magistrates together, in public interest, in consultation with the community . It is necessary that the District Magistrate is involved in this
Section 41 to 50
It is observed that the State Police Board will frame broad policy guidelines for promoting efficient, effective, responsive and accountable policing; identify performance indicators ; review and evaluate performance .
The details of the composition of panel, method, ineligibility, expenses etc may be left to the Rules
It may not be appropriate for this board to prepare panels for the rank of Director Generals of Police, as this is a policy making body, including the Leader of the Opposition, retired judges and other nonpolitical persons .The panel for Director General of Police must be prepared by a separate selection committee consisting of the Chief Secretary, the Personnel Secretary and the Home Secretary in the same manner as the selection of the Director of CBI is done .
The proviso at the end is strange . The State government undoubtedly should act according to law, rules and regulations; but by stating that the Government cannot intervene in the exercise of powers of administration by not only DGP but also any authorized officer, the police is privileged above Government itself and it assumes that the police authorities always act lawfully .Though unlawful political interference is unwelcome, Government cannot be devalued in this manner .This will result in unbridled powers to police .This proviso should be deleted
Section 53 to 56
It is not necessary to incorporate these in law. Administrative instructions should be adequate
This Chapter on the whole is a welcome change moving on from power and authority to Role and Functions; Duties; Social responsibility as well as Emergency duties . The items in the Code of Conduct for police officers issued by the home ministry can be incorporated in a suitable manner .
Sections 61 to 64
While police stations should be properly organized, the matters of details regarding accommodation, amenities etc cannot be written into law .They will form part of a manual of instructions .It is also strange that Section 62 talks of security of a police station though actually a Police station is expected to provide security to people .This soundsincongruous
Section 68 to 84
This introduces the concept of Village Guard for each village, provided with honorarium and treated as a public servant with training and proper identification .In effect, every village will have a policeman, in addition to the police personnel of the StationThere will also be Village Defence Parties with about 15 members with training and identification with expenses being provided to them .All these give the impression that there will be practically about 10 -15police agents in each village ..We will thus be converting each village into a virtual police station .This is not necessary or desirable
There is no reference at all to the elected Panchayats at village level.The appropriate course of action will be to entrust the function of Village Defence Partyto the Panchayat in a suitable manner and utilize the services of the Panchayat Secretary or the Village Officer to assist the police . There is need to bring village policing within the purview of the Panchayat
The establishment of Commissionerate system need not be mandatory. Instead of the word “shall”., the word ‘may” may be used .
There is no need to provide for this in law
This relates to powers of externment . Such a power does exist in some of the present enactments relating to Commissionerates; but it is of doubtful validity. This should be deleted
Section 103 and 104
These provisions are unnecessary .They give the impression that police is the central authority and all other agencies are to coordinate with them . The police must function as part of the district or local administration .
It is not clear how the operation of an Act can be assigned to the Commissioner .Some of them require an independent quasijudicial assessment. It is presumed that this has been based on Police Commission draft Section 83). But in the present draft this is covered by 6.3 (a) .This Section may be deleted
Section 112 to 118 and Section 121
This introduces a new concept of Special Security Zones to be declared by Union Government with the concurrence of the State Government .There is a reference to appropriate police structure, integrated mechanism and standard operating procedure The entire concept is vague and regressive . .This seems to be modelled on declaring areas as disturbed areas . Such provisions cannot be part of a Police Act .There are other legislations such a Unlawful Activities Prevention Act or Disturbed Areas Act etc. These provisions may be deleted .
While welcome, these are matters of detail .It is not appropriate that they should form part of law .Normally they are incorporated in police manuals
Chapter Xi and XII
This should form part of Training Manual and Discipline Rules and not a Central or State Act
This is an important Chapter as it deals with accountability .But unfortunately, the mechanisms envisaged are very weak and ineffective as shown below
Section 159 and 160
The intention is to set up a Police Accountability Commission consisting of a retired High Court Judge, retired DGP of another state, retired administrator from another state, etc. The expectation that persons from other States will be necessarily more objective does not stand to reason ; it does not seem to apply to the retired judge !
Section 161 to 165
These deal with procedures of appointment, removal etc
Section 167 to 171
These set out the powers and functions .The provision is that the Commission shall enquire into allegations of serious misconduct either suo motu or on complaint .”Serious misconduct” has been defined in the explanation as any act or omission that lead to or amounts to death in police custody ; grievous hurt ;rape or attempt ;malicious arrest or detention .A proviso has been added that for malicious arrest or malicious detention, prima facie satisfaction is needed .The Commission may also enquire into cases referred by DGP and also monitor status of departmental enquiries or action
As seen from Section 171, the Commission upon completion of enquiry is to communicate its findings to the DGP with a direction to register an FIR and / or initiate departmental action .The Commission is also to give an opportunity to DGP to present department’s view The Commission though highsounding in nameis nothing more than a body which, at the end of its deliberations, will ask the DGP to register an FIR or take departmental action and that too after giving various opportunities ! Naturally the FIR and the departmental enquiry will take their own course according to law and established procedures .
The statements recorded by the Commission also have only limited value under 169 .The Commission will only become a shield for the culprit personnel .It has no teeth at all .The entire arrangement is flawed and will serve little purpose .If the serious misconduct is death in police custody or rape etc, the proper course is to register an FIR straightaway and investigate by a special agency such as CID or Corps of Detectives .In fact, it is incumbent under law to do so .Merely because the offender is a police personnel, he/she can not enjoy any immunity or seek special procedure .
Section 173 to 175
The District Accountability Authority appears to have no real function at all except to forward complaints of serious misconduct / misconduct and monitor them . This is hardly any function and will only be a waste of effort. The Authority as envisaged is just a forwarding authority, just a post office . It can best can give advise. The name “accountability authority” is again high sounding . But there is hardly any accountability that is enforced and there is no authority whatsoever
This provision seems unnecessary particularly in view of the fact that the commission or authority provide little remedy.
The provisions for welfare, working hours etc need not come into a parliamentary legislation .They are best incorporated in rules or manuals
Section 193 and Section 201
This creates offences by public . Moreover, 201(2) makes all these cognizable i.e., arrest without a warrant .This cannot be done by Police Act .It has to be part of IPC or someother law
This relates to summary disposal by Court .This should form part of Cr PC not a Police Act