Under
the Indian Constitution, the Police are a state concern.[1]
However, there are similarities between the states, due to three main reasons. First, all state polices are structured and
regulated by the Police Act of 1861 or they have state statutes that are modeled
after the 1861 Act. Second, the India Police Service is trained, recruited and managed
by the central government[2].
The service also deploys the senior offices to the states. Third, the central
government maintains a coordinating role, while the state government is in
charge of supervising its police force[3].
At
the district level (every state is divided into districts), there is a level of
dual control. On the one hand, there is a high-ranking police officer in charge
of the district (District Superintendent of Police). On the other hand, that
District Superintendent is subject to the general direction and control of the
District Magistrate, who belongs to the executive.[4]
This was done so as to assure executive rule over the police, which was
considered essential for maintaining British rule. However, the system was not
always efficient so it was supplemented, gradually, in many cities, with
another system, by which the commissioner of police supervises that area.
Matters relating to the police at the central level are under the
responsibility of the Ministry of Home Affairs.
The
relationship between the state and the central government is complex and
multifaceted, regulated by the Constitution and framework statutes. However,
for our purposes, it is important to establish which entity has control over
police conduct itself. The police itself are under the auspices of the Ministry
of Home Affairs. And yet, the mechanism which checks police conduct is not to
be found there. The police does investigate official misconduct and corruption,
but only when it comes to the misconduct of other government officials and not
to police misconduct itself[5]
In terms of internal disciplinary investigations, the police are responsible
for disciplining their own.
The
duties of the police are specified in the Police Act of 1861, a remnant of
colonial rule that was designed to be highly militaristic and authoritarian[6].
Section 20 specifies that the police do not have unfettered discretion to
commit any act, but only those acts that have been sanctioned by law (the
ultra-vires principle). Section 23 specifies the general duties of the police
officer[7].
Save for a brief section on neglect of duty, however, the Act does not discuss
instances of civilian and political control over police when the latter has
exceeded or abused its power[8]
As
mentioned above, the police are governed by the state, so most of the
regulations will be found in state laws rather than central government laws.
For example, the Delhi Police Act of 1978 specifies, in section 19, the powers
held by the commissioner of police. The Commissioner may make regulations
regarding, among others, the place of residence of members of the police force and
regulations for the purpose of "rendering the police efficient and
preventing abuse or neglect of their duties"[9].
The Act further provides for punishments in cases of misconduct[10].
While
the various police acts clearly articulate the powers the police forces enjoy, they
are less clear, indeed silent, on the processes that can be taken against
police misconduct by the aggrieved citizenry. True, the police acts prescribe
actions that can be taken against police officers in cases of dereliction of
duty, but such action is usually brought by the officer's superior, who also
later assigns the punishment, if any. The various police acts do not set up any
mechanism for effective political and civic control of the police force. There
is no establishment of an institution whose sole purpose and authority is to
receive complaints from the public, investigate the complaints, and bring the
proper action after the investigation has ended. While the police have internal
mechanisms to deal with disciplinary infractions and the like, there is no
clearly established external mechanism that makes them accountable to the public
which they are in charge of protecting.
The need for reform:
The need for police reforms in India is long recognized. There has been more
than three decades of discussion by government created committees and
commissions. Way back in 1979 the National Police Commission (NPC) was set upto
report on policing and give recommendations for reform. The Commission produced
eight reports, dozens of topic specific recommendations and also a Model Police
Act. No recommendation was adopted by any government. This persuaded two former
Director General’s of Police (DGPs) in 1996 to file a Public Interest
Litigation (PIL) in the Supreme Court asking the Court to direct governments to
implement the NPC recommendations. In the course of the 10 year long battle in
Court, the Court set up the Ribeiro Committee in 1998 followed by the
Padmanabhaiah Committee in 2000 and eventually the Police Act Drafting
Committee (PADC or Soli Sorabjee Committee) that drafted a new model police
bill to replace the colonial 1861 Police Act in 2006. Meanwhile very little was
ever done on the ground to improve policing or implement the recommendations
put forth by any of these committees or commissions.
A
decade later in 2006 the Court delivered its verdict. In what is popularly
referred to as the Prakash Singh case[11]
the Supreme Court ordered that reform must take place. States and union
territories were directed to comply with seven binding directives that would
kick start reform.
THE
SEVEN DIRECTIVES IN A NUTSHELL
Directive
One
Constitute
a State Security Commission (SSC) to:
(i)
Ensure that the state government does not exercise unwarranted influence or
pressure on the police
(ii)
Lay down broad policy guideline and
(iii)
Evaluate the performance of the state police
Directive
Two
Ensure
that the DGP is appointed through merit based transparent process and secure a
minimum tenure of two years
Directive
Three
Ensure
that other police officers on operational duties (including Superintendents of
Police in-charge of a district and Station House Officers in-charge of a police
station) are also provided a minimum tenure of two years
Directive
Four
Separate
the investigation and law and order functions of the police
Directive
Five
Set
up a Police Establishment Board (PEB) to decide transfers, postings, promotions
and other service related matters of police officers of and below the rank of
Deputy Superintendent of Police and make recommendations on postings and
transfers above the rank of Deputy Superintendent of Police
Directive
Six
Set
up a Police Complaints Authority (PCA) at state level to inquire into public
complaints against police officers of and above the rank of Deputy
Superintendent of Police in cases of serious misconduct, including custodial
death, grievous hurt, or rape in police custody and at district levels to
inquire into public complaints against the police personnel below the rank of
Deputy Superintendent of Police in cases of serious misconduct
Directive
Seven
Set
up a National Security Commission (NSC) at the union level to prepare a panel
for selection and placement of Chiefs of the Central Police Organisations (CPO)
with a minimum tenure of two years
These
directives pulled together the various strands of improvement generated since
1979. The Court required immediate implementation of its orders either through
executive orders or new police legislation. Initially, the Court itself
monitored compliance of all states and union territories. However, in 2008 it
set up a three member Monitoring Committee with a two year mandate to examine
compliance state by state and report back to it periodically.
Compliance Statistics
of the Directive issued by Supreme Court : So far, only 14 states have either enacted the new Police Act
or amended their existing laws to incorporate suggestions of the SC.
Comparison of the
Police Act 1861 and Model Police Act, 1861 :
1) On the basis of scope
of the Acts: The
Police Act 1861 is not the sole or only law in
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 Model Police Act seeks to cover the entire field of
police administration. It is self sufficient in nature and does not draw any
support from the other substantive law for the purpose of administration. It is
an act in a right direction which can be a good alternative to the archaic old
act
2)
The
preamble of the Act: The preamble of the
Police Act of 1861 states that enacted to reorganize the Police and to make it
a more efficient instrument for the prevention and detection of crime[12].
The preamble of the act makes it clear that the role of the police is just as an instrument for prevention and
detection of crimes. The police plays no role in preserving the rights of the
people and responding to the democratic aspiration of the people. The role of
the police is just confined to the law enforcement function.
The
preamble of the Model Act is wider
in its ambit and its states:
WHEREAS
respect for and promotion of the human
rights of the people, and protection of their civil, political, social,
economic and cultural rights, is the primary concern of the Rule of Law[13];
AND
WHEREAS, it is the constitutional
obligation of the State to provide impartial and efficient Police Service
safeguarding the interests of vulnerable sections of society including the
minorities, and responding to the democratic aspirations of citizens;
AND
WHEREAS such functioning of the police personnel needs to be professionally
organised, service oriented, free from extraneous influences and accountable to
law;
AND
WHEREAS it is expedient to redefine the
role of the police, its duties and responsibilities, by taking into account the
emerging challenges of policing and security of State, the imperatives of good
governance, and respect for human rights;
AND
WHEREAS it is essential to appropriately empower the police to enable it to
function as an efficient, effective, people-friendly and responsive agency;
NOW,
THEREFORE, since it is necessary for this purpose to enact a new law relating
to the establishment and management of the Police Service, it is hereby enacted
as follows:
3)
Control
and Supervision of Police :
Under
the Police Act 1861, the superintendence of the police vests in the State
Government and it is exercised by the State Government to which the Police
Officer is Subordinate[14].
The admistration of the Police according to the act vests in the
Inspector-General of Police and in such Deputy Inspectors-General and Assistant
Inspector-General , as the State Government considers fit.[15]
Whereas
in the Model Police Act, Superintendence of the police vests in the relevant
state government[16].
The state government is responsible for ensuring an efficient, effective,
responsive and accountable police service[17].
Superintendence is limited to promoting “professional efficiency of the police”
and ensuring that “[police] performance is at all times in accordance with law.
Administration of the police vests in the Director General of Police[18].
The government cannot interfere with the Director General’s powers except in
accordance with prescribed rules or in exceptional circumstances (where reasons
should be recorded). The powers of administration will include[19]:
§ supervising
the functioning of the police at all levels;
§ appointment
to subordinate ranks (all officers below the rank of Deputy
§ Superintendent of Police);
§ deployment;
§ transfers
and disciplinary action up to and inclusive of the rank of Inspector of Police; and
§ advising the government on the placement of
officers of and above therank of Assistant/Deputy Superintendent of Police.
4. Provision
for State Police Board
The Police Act 1861 does not provide for
the formation of a State Police Board whereas the Model Police Act, 2006 states
a state Police Board[20]
would be constituted
The State Police Board according to the act shall comprise of[21]:
a) the Leader of the
Opposition in the state assembly;
b) a retired High Court judge
nominated by the Chief Justice of the High Court;
c) the Chief Secretary;
d) the Home Secretary;
e) the Director General of
Police as the member secretary; and
f) five non-political persons
of proven integrity and competence from the fields of academia, law, public
administration, media or nongovernment
The State Police Board would perform the
following functions according to the act[22]:
a)
frame broad policy guidelines for
promoting efficient, effective, responsiveand accountable policing;
b)
select and prepare a panel (on the basis
of seniority and merit see below)of three senior most police officers for
promotion to the post of Director General of Police;
c)
identify performance indicators for
police evaluation; and
d)
Conduct organizational performance evaluation.
5.
Provisions
regarding Director General of Police:
The
Police Act, 1861 does not contain any provision regarding the appointment of
Director General of Police but under the Model Police Act, the police is under
administration of Director General of Police so provision has been incorporated
for appointment of Director General of Police who shall be appointed by State
Government from amongst three senior-most officers of the state Police Service,
empanelled for the rank[23].
6.
Security
of Tenure:
The
Police Act, 1861 does not contain any provision regarding the security of
tenure. It provides that the Inspector General, Deputy Inspector-General,
Assistant Inspector-General and District Superintendents of Police may at any
time dismiss , suspend or reduce any police officer of subordinate ranks whom
they think remiss or negligent in the discharge of duty , or unfit for the same[24].
On
the other hand the Model Police Act, 2006 provides that all officers must be
provided with a minimum of two years tenure in a particular post to ensure they
are free to complete their tasks free of illegitimate interference[25].
An authority mandated to transfer officers of a particular rank (or to a
particular post) may transfer officers before the passing of two years, but
only if reasons are recorded.
7.
Transfers:
Under
the Police Act 1861, there is no specific provision regarding transfers. The
police being under the State Government is always subject to frequent transfers
on the wishes of the State Government.
Under
the Model Police Act, 2006 the Power to transfer is given to different authorities
depending on rank or post. Transfer is prohibited by any authority other than
the one specified in law. Under the Act the government shall post officers to
all positions in the ranks of Assistant/ Deputy Superintendent and above. In
each case (except for the Director General of Police), the government should be
guided by the recommendations of the Police Establishment Committee[26],
made up of the Director General of Police and four other senior-most officers.
The government must accept these recommendations or record its reasons for
disagreement in writing.
The
Director General decides all initial transfers of officers who are
Sub-Inspectors or Inspectors to a police range as well as transfers of these
officers from one range to another, after considering the recommendations of
the Establishment Committee. The Range Deputy Inspector General decides
inter-district transfers of Inspectors and more junior officers within a range
on the recommendations of a committee made up of all the District Superintendents
of Police in the range[27].
The District Superintendent of Police decides the transfer of Inspectors and
more junior officers within a district on the recommendations of a committee
made up of all the Additional, Deputy and Assistant Superintendents of Police
in a district.
8.
Promotion
:
Under
the Police Act 1861, there is no specific provision for promotion.
The
Draft Police Act, 2006 lays down specific provision regarding promotion which
has to be evaluated by a qualifying examination and a performance evaluation[28].
The act further lays down that the union government must frame the evaluation
criteria for officers of the Indian Police Service[29].
The Director General of Police shall frame the evaluation criteria for the
remaining officers in the relevant state (with the approval of the state
government)[30].
The Model Act also mandates the state Police Recruitment Board to set out the
merit and seniority criteria for promotion for different ranks[31].
9.
Appointment
The
Police Act, 1861 states that appointment of the police officers is subject to
article 311 of the constitution and such rules as the State Government may from
time to time make under the act[32].
According to the Model Police Act Recruitment[33] to the police
organization shall continue to be at the following three levels:
a) to the Indian Police Service through the Union Public Service
Commission[34];
b) to Deputy Superintendent of Police through the State Public
Service Commission[35];
c) and direct recruitment to non-gazetted ranks through a state-level
Police Recruitment Board.
This Board created under the Model Act shall ensure that the
process of recruitment is transparent, and adopts codified and scientific
systems and procedures. The New act proposes the position of constable to be
replaced by civil police. The direct
recruitment to Group ‘C’ posts in the Civil Police, other than in the
ministerial and technical cadres, after the coming into force of this Act,
shall be made only to the ranks of Civil Police Officer Grade II and
Sub-Inspector[36].
The age group for recruitment as stipendiary Civil
Police Officer Grade II cadet shall be 18 to 23 years. The minimum educational
qualification shall be 10+2 Higher Secondary or equivalent examination[37].
The act further provides that in case of armed police direct
recruitment to the armed police shall be limited to Deputy Superintendent of
Police or Assistant Commandant; Reserve Sub-Inspector; and Constable[38].
The minimum educational qualification for a Constable in the armed police shall
be matriculation, while a reserve Sub-Inspector must be a graduate. A Constable
shall be between 18-21 years of age and a reserve Sub-Inspector between 21-24
years[39].
10. Strengthening
police investigations
Under the Police Act, 1861 the preamble clearly
states that “whereas it is expedient to reorganize the
Police and to make it a more efficient instrument for the prevention and
detection of crime[40].
The Police Investigation conducted are governed by the provision of Code of
Criminal Procedure and there are no specific section in the Police Act, 1861
which provides for it.
On
the other hand Model Police Act, 2006 provides that Investigation and law and
order functions shall be separated (a model is proposed to ensure this happens
without affecting the chain of command). Specialised crime investigation wings
and departments must be equipped with adequate facilities, scientific aids, and
qualified and trained human resources[41].
At
the state level, a Criminal Investigation Department[42]
must be created to investigate inter-state and inter-district crimes, as well
as other serious crimes either notified by the state government or allocated to
the Department by the Director General of Police. A Deputy Inspector General of
Police shall head the Department[43].
The Department must have specialised units for investigating cyber crime,
organized crime, homicide, economic offences and any other offences that
require specific investigative skills (and are specifically notified by the
state government).
The
act further provides that a Special Crime Investigation Unit shall be created
at the police station level in all urban and crime-prone rural areas[44].
A Sub-Inspector or a more senior officer shall head the Unit[45].
The Unit must investigate offences such as murder, kidnapping, rape, dacoity,
robbery, dowry-related offences, serious cases of cheating, misappropriation
and other economic offences that are notified by the Director General of Police
or allocated by the District Superintendent of Police[46].
All other crimes shall continue to be investigated by other officers in the
police station[47].
Officers in the Special Crime Investigation Unit and in the Criminal
Investigation Department at the state level shall have a minimum tenure of
three years (with a maximum tenure of five years)[48].
Officers posted to the Special Crime Investigation Unit cannot be given any
other duty, except under exceptional circumstances and with the written
permission of the Director General of Police.
The
act also considers that despite the separation of investigation and law and
order f unctions, the Station House
Officer shall continue to supervise all officers in the Police Station
including those posted in the Special Crime Investigation Unit. In addition to
the Station House Officer, an Additional Superintendent of Police at the
district level must supervise these investigations as well. The Additional
Superintendent shall report to the District Superintendent.
11. Accountability for performance
The Police Act, 1861 totally fails on the grounds of any accountability of
the acts of the Police. The police under this act hold no accountability to
anyone.
Under the Model Police Acts the Police organization has been made
more accountable to the public by incorporating certain specific provisions in
this regard. The acts incorporates that
the The State Government shall in consultation with the State Police Board
established under draw up a Strategic Policing Plan for a five-year period duly
identifying the objectives of policing sought to be achieved during the period
and setting out an action plan for their implementation[49];. The plans shall be
prepared after receiving inputs on the
policing needs of the districts from the District Superintendents of Police who, in turn, shall
formulate the same in consultation with the community[50].
The
State Police Board shall regularly evaluate the performance of the police
organisation in each district, as well as the state police as a whole. When
conducting an evaluation, the Board shall be assisted by an Inspectorate of
Performance. This Inspectorate shall be headed by a retired Director General of
Police and made up of serving or retired police officers, social scientists,
police academics and crime statisticians. The members of the Inspectorate shall
be appointed by the government from a list of candidates prepared by the State
Police Board[51]
12. Accountability for
Police Misconduct
Police
misconduct and the failure to effectively respond to situations are undermining
public confidence in the system. These are issues whose gravity is not being
addressed in any really serious way. The widespread belief that the police
functions with impunity - and officers are rarely held to account for their
acts of omission and commission is breaking the faith of the public in the
police. Further, Sections 132 and 197 of the Code of Criminal Procedure (CrPC)
prevent courts from taking cases of alleged offences in the discharge of
official duty, for various categories of public servants including police
officers, without the prior sanction of the government. This sanction is
sparingly granted which explains the overwhelming reliance on internal
disciplinary mechanisms which unfortunately do not inspire public trust and confidence.
General public distrust stems from a variety of beliefs such as an innate
desire for the department to protect its image; some questionable practices
finding widespread acceptance within the police; inquiry officers not wishing
to be seen as turncoats and inimical to the feeling of camaraderie; the feeling
that disciplinary action will lower the morale of the force and blunt its edge
in dealing with special situations like militancy or organised crime; and the
likelihood of the person under scrutiny being personally known to inquiry
officer/s.
The
Police Act 1861 is silent on Police Misconduct but the Model Police Act has
specific provisions devoted to it. Under the Model Police Act, 2006 The state
government must set up a Police Accountability Commission[52]
at the state level to inquire into extremely “serious misconduct[53]”,
which is defined as: death in police custody; grievous hurt; rape or attempted
rape; and illegal arrest or detention. Inquiries by
the Commission shall replace internal inquiries, and its findings shall be binding on the police department and the government. The
only discretion or power that the police or
government shall have in such cases is to award punishment
in cases where the Commission finds an officer guilty.
The police must be under a duty to forward all cases of serious
misconduct to the Commission for inquiry.
Except in cases of serious misconduct, the police department shall
retain the the police department shall retain the power to
internally inquire and discipline officers.
The
Commission shall be made up of five members that have a credible record of Integrity
and commitment to human rights. Of the five members, at least one must be a
woman, and not more than one should be a police officer. The members must
include[54]:
a.
retired High Court judge as the
Chairperson;’
b.
a retired police officer of the rank of
Director General of Police from a different state cadre;
c.
a person with a minimum of ten years
experience either as a judicial officer, public prosecutor, practising
advocate, or a professor of law;
d.
a person of repute and standing from
civil society; and
e.
a retired officer with experience in
public administration from another state.
The state government must also put in place District
Accountability Authorities[55]
in each police district or group of districts in a police range to monitor
internal inquiries into cases of police misconduct that include any wilful
breach or neglect by a police officer of any law, rule, or regulation that
adversely affects the rights of an individual.
To
increase the accountability under the Act, The police are under a duty to send
quarterly reports[56]
detailing the complaints received against police officers and the action taken
by the police organization (where the case involves a member of the public). If
a complaint relates to a Deputy Superintendent (or more senior officer), the
reports shall be sent to the Commission at the state level; for other officers,
the reports must be sent to the Authority at the district level. If the
Commission or Authority believes that there has been a delay dealing with a
complaint, it may direct the police to expedite the inquiry. If a complainant
is not satisfied with the outcome of an inquiry and believesthat the principles
of natural justice have not been followed, the Commission or Authority may
direct the police to institute a fresh inquiry by a different officer.
A
Complainant has also been granted right
under the act[57],
which are
a) to be informed of the progress of an inquiry periodically and of
any conclusion and action taken in their case.
b) to be informed of the date and place of each hearing.
c) to attend all the hearings.
d) to have all hearings
conducted in a language intelligible to the complainant,and if that is not
possible, to be provided with an interpreter upon his or her request.
13. Police Offences :
The
list of offences committed by a police officer under the Police Act, 1861
includes wilful breach or neglect of any rule or regulation or lawful order;
withdrawal from duties of the office or being absent without permission or
reasonable cause; engaging without authority in any employment other than
police duty; cowardice; and causing any unwarrantable violence to any person in
her/his custody. The penalty for these offences is fine up to three months' pay
or imprisonment up to three months or both[58].
Under
the Model Police Act, 2006, Identified police misconduct is considered a
criminal offence. Identified misconduct includes illegal arrest,
detention, search and seizure, failure to present an arrested person
before a magistrate within 24 hours, subjecting a person to torture,
inhuman or unlawful violence, gross misbehaviour and making threats or promises
unwarranted by law[59].
Non-registration of a First Information Report shall also be an offence
punishable with three months imprisonment or fine (or both)
Conclusion
The
Police Act, 1861 needs to be replaced with legislation that reflects the
democratic nature of India.s polity and the changing times. The Act is weak in
almost all the parameters that must govern democratic police legislation. The
Act has made it easier for others to abuse and misuse the police organisation.It
has been possible for people in positions of power to do so because of the following
reasons:
i)
The Act gives the government, the
authority to exercise superintendence over the police, without defining the
word.Superintendence. or prescribing some guidelines to ensure that the use of
power will be legitimate
ii)
The Act does not establish any
institutional and other arrangements to insulate the police from undesirable
and illegitimate outside control, pressures and influences
iii)
The Act does not recognise the responsibility
of the government to establish an efficient and effective police force.
iv)
The Act does not make it necessary to outline
objectives and performance standards, nor does it set up independent mechanisms
to monitor and inspect police performance.
v)
The Act is antiquated in its charter of
duties, which is narrow and limited.
vi)
The Act does not mandate the police to
function as a professional and serviceoriented organization
vii)
The Act is not in consonance with the
requirements of democratic policing. These requirements insist on the existence
of a police force that:
(a)
is subject to the rule of law, rather than the whims of a powerful leader or
party;
b)
can intervene in the life of citizens only under limited and controlled
circumstances; and
(c) is publicly accountable.
Criticism of the Model Police
Act, 2006:
1.
The first concerned expressed is that
some of the words and phrases used in the Model Act have been defined very
broadly in Chapter I of the Act. For instance, words and phrases like terrorist
activity, militant activities, insurgency and organized crime have been used
throughout the Model Act with concomitant police duties as well as powers of
the state to declare areas as Special Security Zones. The definition of these
terms is not sufficiently precise. Instead, definitions are inclusive- the
terms are defined to include activities. It means that many other activities
that are not specified can fall within the terms of the definition. This has the
potential to impact heavily on the fundamental rights of the community, and broaden
the application of the Act well beyond what was anticipated by the Committee.
2.
Secondly, grave reservations are expressed
regarding the inclusion of Section 22 in Chapter II of the Model Act. Section
22 empowers the Superintendent of Police to appoint any able-bodied and willing
person he considers fit to be a Special Police Officer to assist the Police
Service. A Special Police Officer appointed under Section 22 would have the
same powers and immunities as ordinary police officers, but would not have the
opportunity to undertake the comprehensive training a regular officer is
required to undergo, in subjects as diverse as the use of fire arms, the principles
of law relating to use of force and the legal rights of the public. Experience
in Punjab,If more police officers are required in a given situation, proper
recruitment and appointment procedures must be followed to induct new officers.
An effective police service is a professional, trained policeservice. This is a
minimum standard that must not be breached.
3.
Thirdly, the concern expressed is
regarding the police presence in rural India which continues to be minimal. The
rural policing system advocated by the Committee in Chapter VII is based on
assistance from local villagers who are appointed as Village Guards and Village
Defense Parties. Their functions broadly include: (a) preventive patrolling;
(b) securing and preserving scenes of crime; (c) remaining alert and sensitive
to any information about any suspicious activity. such information to the
police; (d) making arrests and handing arrested people to the police without
delay. It has been observed that these provisions have vast scope for abuse.
Questions like, “who are suspicious persons?”, and “what is suspicious
activity?” are bound to arise. Authorizing Village Guards to arrest and hand
over a suspect to police is also an issue. Concern has been expressed regarding
the absence of any provision requiring the Village Guards to hand over the
suspect within twenty-four hours of arrest, which is the general standard
followed in the Cr.P.C. It might result in a concentration of power in the
hands of the dominant groups within villages that might be steeped in gender,
caste or religious bias. The scope for abuse is vast; especially given the fact
that most villagers would not be aware of the ambit of powers of the Village
Guard and Defense Party or of their rights vis-Ã -vis these power structures
within the village. Apart from the grave dangers of abuse of power, lack of
appropriate skills, experience and training would also mean inefficient,
ineffective and unresponsive policing in rural areas. Doubts have been raised
about the skills of a villager while preserving and securing crime scenes or in
preventive patrolling. It has also been observed that there is no excuse for
the failure to provide regular police cover to villages where the majority of
Indian population resides.
4.
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).
Though the Model Police Act, 2006 is not free from criticisms
but it is a better substitute to the old and outdated Police Act, 1861
[1] Article 246 of the Indian
Constitution.
[2] Police Organization in India,
Report of the Commonwealth for Human Rights Initiative, p. 10.
Available at
http://www.humanrightsinitiative.org/publications/police/police_organisations.pdf
[3] Police Act of 1861, section 3.
[4] Section 4 of the Police Act of
1861.
[5] This is handled
by the Central Bureau of Investigation (CBI), also under the Ministry of Home
Affairs. They are governed by the Delhi Special Police Establishment Act of
1946. See Police Organization report, at p. 53
[6] Report of the
Roundtable Conference on Police Reforms (26-27 June, 2003, CHRI) p. 3,
available at
http://www.humanrightsinitiative.org/publications/police/rtc_report_trivandrum.pdf.
See also, S. P. Singh Makkar and Abdul Hamid, Police Act 1861: A Critique,
4 Cent. Ind. L. Q. 209 (1991).
[7] "It shall be the duty of
every police-officer promptly, to obey and execute all orders and warrants
lawfully issued to him by any competent authority; to collect and communicate
intelligence affecting the public peace; to prevent the commission of offences
and public nuisances; to detect and bring offences to justice and to apprehend
all persons whom he is legally authorised to apprehend, and forwhose
apprehension sufficient ground exists; and it shall be lawful for every
police-officer, for any of the purposes mentioned in this section, without a
warrant to enter and inspect, any drinking-shop, gaming-house or other place of
resort of loose and disorderly characters."
[8] Section 29 of the Police
Act 1861
[9] Section 19(c) of the Delhi
Police Act of 1978.
[10] section 19(h) of the Delhi
Police Act of 1978.
[12] Preamble, Police Act 1861.
[13] Preamble. Model Police Act,
2006.
[14] Section 3, Police Act, 1861
[15] Section 4, Police Act, 1861
[16] Section 39, Model Police Act,
2006.
[17] Section 39(2), Model Police Act,
2006.
[18] Section 51, Model Police
Act,2006.
[19] Section 51(3), Model Police
Act,2006.
[20] Section 41, Model Police
Act,2006.
[21] Section 42, Model Police Act,
2006.
[22] Section 48, Model Police
Act,2006.
[23] Section 6, Model Police Act,
2006.
[24] Section 7, Police Act 1861.
[25] Section 13, Model Police
Act,2006.
[26] Section 54(4) of the Draft
Police Act, 2006.
[27] Section 53(5) of the Draft
Police Act, 2006.
[28] Section 26(2) of the Draft
Police Act, 2006.
[29] Section 54(Proviso) of the Model
Police Act,2006.
[30] Section 54 of the Model Police
Act,2006
[31] Section 54 of the Model Police
Act,2006.
[32] Section 7 of the Police Act,
1861.
[33] Section 4 of the Model Police
Act, 2006.
[34] Section 4(3) of the Model Police
Act, 2006
[35] Section 4(3) of the Model Police
Act, 2006
[36] Section 24(2) of the Model
Police Act,2006.
[37] Section 25(1) of the Model
Police Act,2006.
[38] Section 35(1) of the Model
Police Act, 2006.
[39] Section 35(2) of the Model
Police Act,2006.
[40] Preamble, Police Act 1861.
[41]
Section 99(b) of the Model Police Act, 2006.
[42] Section 16 of the Model Police
Act, 2006.
[43] Section 16(2) of the Model
Police Act 2006.
[44] Section 122 of Model Police Act,
2006.
[45] Section 122 of Model Police Act,
2006.
[46] Section 125(1) of Model Police
Act, 2006.
[47] Section 125(2)of Model Police
Act, 2006.
[48] Section 124of Model Police Act,
2006.
[49] Section 40 (1)(a) of Model
Police Act, 2006
[50] Section 40(2) of Model Police
Act 2006.
[51] Section 181 of Model Police Act,
2006.
[52] Section 159 of Model Police Act,
2006.
[53] Section 167 of Model Police Act,
2006.
[54] Section 160 of Model Police Act,
2006.
[55] Section 173 of Model Police Act,
2006.
[56] Section 167(3) Model Police Act,
2006.
[57] Section 177 of the Model Police
Act 2006
[58] Section 29 of the Police Act,
1861.
[59] Section 199 and Section 200 of
Model Police Act, 2006.
