POLICE ROLE, DUTIES, POWERS AND RESPONSIBILITIES
Criminal Justice System
14.1 The fundamental basis for any criminal justice system is the law of the land, specially in a democratic society. The very process of evolution of law in a democratic society ensures a measure of public sanction for the law through consent expressed by their elected representatives. The entire criminal justice system in our country, therefore, revolves around laws passed by the Union Parliament and State Legislatures. The durability and credibility of the system will, in the first place, depend on the inherent strength or weakness of the various laws enacted from time to time. After laws are made in the legislative, bodies, their enforcement is taken up by the various agencies set up for that purpose by the government. Police come at this stage as the primary law enforcement agency available to the State. Enforcement of police is primarily an exercise of taking due notice of an infraction of law as soon as it occurs and ascertaining the connected facts thereof including the identity of the offender. Thereafter the matter goes for trial before the judiciary where the facts ascertained by the enforcement agency arc presented by the prosecuting agency and the accused person gets a full opportunity to present and argue his side of the case. If the trial results in the accused person being found guilty, he is made to suffer a penalty either by being held in custody for a specified period or by being made to pay up an amount of money as fine to the State Exchequer and/ or compensation to the victim of crime. Even in cases where a convicted person is to be sentenced to imprisonment, there are legal provisions for exempting him from such physical custody in certain circumstances and keeping him under special observation by correctional agencies with the avowed object of facilitating his reform and smooth return to society. The criminal justice system covers the entire scenario from the occurrence of crime, i.e., any deviatory conduct punishable by law, investigation into the facts thereof by the enforcement agency, adjudication proceedings in court aided by the prosecuting counsel as well as the defence counsel, the performance of the correctional services in facilitating the quick return of toe delinquent person to normal behaviour and finally the administration of jails with the ultimate object of re-socialising the criminal apart from deterring him from repeating his crime. Police, prosecutors, advocates, judges, functionaries in the correctional services and jails form the different distinct organised wings of this system. The ultimate object of the system is to secure peace and order in society. The success of the system, therefore, depends largely on a proper understanding of the objectives of the system by all wings put together and their co-ordinated functioning to secure this objective. The role, duties, powers and responsibilities of the police with special reference to prevention and control of crime and the maintenance of public order cannot be denied in isolation in absolute terms, but has to be fitted into the overall requirements for the success of the criminal justice system as a whole. We propose to examine in the succeeding paragraphs the limitations in police role that flow from this inter-relationship.
14.2 The basic criminal law in our country is made up of the Indian Penal Code, the Code of Criminal Procedure and the Evidence Act, all of which were originally conceived in the late nineteenth century under the British regime and have largely remained intact in their original form since then. The amended Code of Criminal Procedure of 1973 vary largely reproduced the previous version of the Code. While the Indian Penal Code gives an exhaustive definition of several forms of deviatory conduct, the Code of Criminal Procedure limits police responsibility for dealing with them. Offences under the Penal Code arc divided into two categories : cognizable and noncognizable. In cognizable offences, police have a direct responsibility to take immediate action on a complaint by visiting the scene, ascertaining the facts, apprehending the offender and prosecuting him in court. Non-cognizable offences arc generally left to be pursued in courts by the affected parties themselves. Police cannot intervene in non-cognizable offences except with magisterial permission to be specially obtained if found necessary in any specific situation. In the classification of offences as cognizable and noncognizable, it appears that the framers of the Code were inclined to take a severe view of any violation of law relating to possession of property and a lenient view of offences against the human body. For example, even an ordinary theft involving a trifling amount has been made cognizable by the police and followed by aggressive prosecution white offences of causing hurt, assault etc. are held non-cognizable in certain circumstances. The classification of offences and limitations of police response to complaints thereof, as spelt out in the existing laws, do not conform to the understanding and expectation of the common people who, when they become victims of a crime or are otherwise subjected to a distress situation, naturally turn to the police for help. Police™ become a much misunderstood force when their action gets limited by law contrary to the natural expectations of the people. There is, therefore, immediate need to examine the procedural laws and allied regulations for modifying them to enable police response to conform to public expectations, consistent with the resources potential of the police.
14.3 The provisions in the Criminal Procedure Code for the release of an arrested person on bail have been so framed that bail release would be possible only if the arrested person has some financial backing by way of sureties. The report of the Legal Aid Committee appointed by the Government of Gujarat in 1970 under the chairmanship of Justice P. N. Bhagwati, who was then the Chief Justice of Gujarat High Court, stated—
".........the bail system causes discrimination
against the poor since the poor would not be able to furnish bail on account of their poverty while the wealthier persons otherwise similarly situated would be able to secure their freedom because they can afford to furnish bail. This discrimination arises even if the amount of the bail fixed by the Magistrate is not high, for a large majority of those who are brought before the • courts in criminal cases are so poor that they would find it difficult to furnish bail even in a small amount. The evil of the bail system is that either the poor accused has to fall back on touts and professional sureties for providing bail or suffer pre-trial detention."
The amendments made in the Criminal Procedure Code in 1973 have not changed the position in this regard. Here again, on account of a procedural requirement of law, the police appear as a harsh and oppressive agency showing undue severity in dealing with poor people who happen to get arrested in certain situations. We are mentioning this as an example of several such features in law which handicap the police and rigidly circumscribe their actions in such a manner as to stifle their functioning effectively.
14.4 There has been a spate of legislation in Parliament and State Legislatures year after year. The socialist democracy that we have evolved for ourselves finds increasing need to restrict and regulate the conduct or business of individuals to secure the objectives spelt out in our Constitution. In the three decades of 1947—57, 1957—67 and 1967—77, the number of laws enacted by Parliament were 692, 597 and 672 respectively. In their anxiety to secure the desired objectives, the legislators enact laws at a rapid pace and immediately hope that a rigid enforcement of the laws would secure what they want. Police, as the premier law enforcement agency available to the State, are suddenly brought into the picture
by a ring of the bell as it were and given a bundle of new laws to enforce forthwith. There is no meaningful interaction with them at the earlier stages 0f legislative exercises. No thought is given to the resources potential of the police to handle the fast increasing volume of law enforcement work. The situation is something like planning and executing a very large number of irrigation dams and giant reservoirs without simultaneously planning and executing an efficient canal system for orderly distribution. Police involvement in law enforcement in these circumstances is, therefore, subject to considerable strain and pressure. We have to bear this in mind while re-defining police role and responsibility for law enforcement in such a situation.
Accusatorial system of criminal trials
14.5 A significant feature in our criminal law is the accusatorial system or the Anglo-Saxon or common law system of trial which is at the base of our criminal justice system. Unlike the inquisitorial system which has been followed in Europe from the thirteenth century onwards in which the judge is expected to take the initiative and find out for himself, by examining all relevant persons including the accused, what really happened, i.e., what was the truth and then act according to law, in the accusatorial system the judge is only an umpire between two contesting parties. He will only give his decision on the issues and evidence put before him. In a criminal trial it is the prosecution side that charges the accused with a definite offence and having done so it has the responsibility to prove it as well. Section 101 of the Indian Evidence Act, 1872 says : "Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist", and "when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person". So the burden of proof, save in a few exceptional cases, lies on the prosecution. As the judge is an umpire and not an inquisitor, it is not for him to ascertain if the accused has violated a law. He will give a decision only on the evidence brought before him on the issues raised between the prosecution and the defendant. The rules which govern this system make various demands from and place various restrictions on the prosecution so that the defendant gets all the help he can to defend himself. After the accused has seen and heard the entire evidence against him, he can decide which line of defence he will adopt and, therefore, which documents and witnesses will he produce. At the end of the trial the prosecution must prove their case beyond reasonable doubt the accused may, however, only raise a doubt and get its benefit to secure his acquittal. The severe limitations placed on the admissibility of evidence from the prosecution side and the norms for determining the value of the admitted evidence make it difficult for the police as the investigating agency to carry forward all the material uncovered during their investigation to the final point of success in getting the offender convicted under the law.
Prosecuting Agency—Police interaction
14.6 During pendency of proceedings in court, the police have no locus standi inside the court hall except when a specified police officer happens to be examined as a witness. Our criminal law has several provisions which breathe a total distrust of the police as a community (examples : sectional 62 or the Code of Criminal Procedure and sections 25, 26, and 27 of the Evidence Act). Our criminal procedures do not approve of police presence inside a court hall and do not envisage a legitimate interaction between the police and the prosecuting agency for proper marshalling and appreciation of all the facts uncovered during investigation. In fact, the amended Code of Criminal Procedure of 1973 has tended to segregate the prosecuting agency as another independent agency which, in practice, gets a feel of its independence only by declining to have effective interaction with police at the stage of trial ! We are convinced of the need for this interaction without, in any manner, affecting the professional independence of the prosecuting agency and we are of the view that this principle should also be suitably recognised in law, instead of being left as a mere administrative arrangement. Later on, in a separate chapter, we shall deal with the details of the set up of prosecuting agency and the modalities for bringing about this interaction and coordination.
Court trial rituals
14.7 The rituals of court trials under the existing law and the general attitude shown by the legal counsel, tend to delay the proceedings in court. Apart from the delays at the stage of investigation which are attributable to deficiencies in police, the further delay at the stage of trial results in considerable harassment to the victims of a crime while at the same time the effect of deterrence of quick conclusion of proceedings in court is lost on the offender himself. Pendency of criminal cases under trial in courts has gone up enormously in the recent years and the system itself will soon get clogged up beyond repair if the existing law is allowed to operate without any modification. The loss of deterrent effect following prompt disposal of case in court and appropriate punishment in proved cases acts as a handicap in containing criminal activity in society. People tend to commit crime more freely when they know from what they observe in day to day life that it will take several years for the arm of law to hold them in effective custody. The relative ease with which accused persons with the influence of men and money get released on bail after repeated commission of crimes tends to encourage similar behaviour by the unruly elements in society. The ineffectiveness of court trials to produce the desired deterrence acts as a severe limitation on police success in containing crime.
14.8 Even in U.K., from where our present system is borrowed, it is not claimed now that this is a logical system. A Royal Commission on Criminal Procedure has been recently constituted there to examine if changes .are needed in criminal procedure and evidence relating to the powers and duties of the police in the investigation of criminal offences and the rights and duties of suspects and accused persons including the means by which these are secured. Age old concepts regarding the process of investigation and trial in respect of criminal offences are thus under review in U.K. itself. We feel there is urgent need for a comprehensive reform in the procedural laws relating to investigation and trial in our own system. We shall be dealing with details of this reform in a separate chapter.
14.9 Correctional Services which constitute the other end of the criminal justice system consist of the probation machinery, special schools to take care of delinquent juveniles as well as neglected and uncontrollable children, protective homes to look after women who may have been forced into the channel of immoral traffic under the compulsions of poverty or social helplessness etc. and jails which are expected to hold the convicted criminals who are required to be kept in custody and handle them in such a manner as to aid their reform and reabsorption as normal members of society.. Though well-conceived and based on progressive concepts, these institutions in practice have not been functioning to the desired levels of efficiency.
14.10 Although there were Probation Acts in some States before independence, the Parliament legislated the Probation of Offenders' Act in 1958 applicable to all the States and Union Territories in the country. The concept of Probation is intended to protect first offenders from the contamination of old offenders in prisons and probation officers are expected to place before the law court the socio-economic background, personality and behaviour of the offender to enable the court to decide whether the offender should be sent to a prison or can, under certain conditions, be allowed to return to the community. Should subsequent reports indicate any failure on the part of (he person released on probation, the initial sentence which was suspended can be re-imposed without further trial. But the actual application of this act on account of too many cases and too few probation officers has been minimal only. The new section 361 of the wherein it is mandatory for the courts to record reasons for .not adopting the rehabilitative system of treatment is by and large, reduced to a ritual. To illustrate, in 1976 a total of 1,20,910 juvenile offenders were put up before law courts and cases involving 33,227 juvenile offenders were disposed of. Out of these, 30,548 were sent to prisons and only 2,679 were released on probation. It is important to note that out of the juveniles arrested 89.2% of the offenders. Another important point is that 85% were new offenders who were sent to prison were for sentences of less than 6 months of imprisonment The absence of adequate infrastructure of probation services to deal with juveniles has practically nullified the scope for reforming juvenile offenders.
14.11 Although Children Acts have existed in various States for many years—in Madras it was enacted as early as 1920—the Central Children Act was passed in 1960. The Central Act which extends to all the Union Territories and serves as a model for adoption by the States provides for the care of non-delinquent as well as delinquent children ; non-delinquent may be neglected or destitute children or exploited or victimised children. Delinquent children are expected to be dealt with by Children's Courts and non-delinquent children by Child Welfare Boards. The delinquent children go to special schools and the nondelinquent to Children Homes. Juvenile Courts do not exist in all the States and Union Territories. The Probation Officer is expected to investigate every case referred to the Juvenile Court and submit a report so that the court can select the most appropriate method of dealing with the child. Child Welfare Boards exist only in Delhi and Pondicherry to deal with the destitute children. The Children Act also provides
that female children should be handled by women police only but the number of women police in India is negligible and they are not to be found in every district.
Reformatory processes in law
14.12 A significant aspect of some laws—particularly those coming under the category of social legislation— is that the ultimate object of the law can be secured in reality, not by mere rigid enforcement of the law, but by successful implementation of the non-penal, remedial, rehabilitative and corrective measures spelt out in the law. It is common experience in all the States that the number of Protective Homes and Corrective Institutions as provided in Section 21 of the Suppression of Immoral Traffic in Women and Girls Act is far from adequate. There are only 74 Protective/Rescue Homes in the country and their total capacity is only 6290. The number of girls actually being exploited for prostitution may well exceed this number in any one large city itself. In one city hundreds of beggars were rounded up by police in the course of a drive against begging, but when they were produced before the Magistrate he had no alternative but to order their release as there was no room for them in any "Home". Anti-beggary laws are in force in 14 States and two Union Territories but a proper exit for beggars, after they have been put up before a court of law, is generally lacking. There is an All India Children Act (1960) which seeks to provide for neglected and delinquent children. But the accommodation, as compared to the requirement, in the various 'Homes' is infinitesimal. It has been estimated that we have about 10 million working children in "avocations unsuited to their age or strength". The number of neglected children is anybody's guess.
.14.13 Our jails are terribly over-crowded. In 1961, there were 1176 prison institutions in the country and these included 52 central jails, 180 district jails, 919 sub-jails, 2 juvenile jails, 9 borstals, 3 women's jails, 6 special jails and 5 open jails. By 1970 the total number of institutions had come down to 1170 and yet admissions to jails in 1970 were 13,78,657 as compared to 10,05,896 in 1961. During this period the number of undertrials also rose; in 1960 there were 5,93,398 undertrials as against 4,12,498 convicts. In 1970 there were 9,38,598 undertrials as against 4,40,059 convicts. Thus while the convict admission rose by 7% only, the admission of undertrials rose by 58%. As the total accommodation remained the same it has led to more and more undertrials living with convicts, contrary to the requirement of section 27 of the Prison Act, 1894. The huddling together of a large number of undertrials with convicted prisoners and the mixing together of old and hardened criminals with young first offenders tend to promote in the minds of all inmates feelings of criminality instead of remorse and regret for their previous conduct and a desire to reform.
Apart from the over-crowding in jails, the general manner in which the rituals of the daily life inside the jails are rigidly administered and enforced tends to dehumanise the prisoner who is cowed down by the oppressive atmosphere around with all its brutalities, stench, degradation and insult. Instead of functioning as a reformatory house to rehabilitate the criminal to reform him and make him see the error of his ways and return a better and nobler man, the ethos inside our jails to-day is tragically set in the opposite direction, making it practically difficult for any reformatory process to operate meaningfully.
14.14 The deficiency in the functioning of correctional services has meant the weakening of their corrective influence on the behaviour and conduct of all the delinquents who pass through the system. Police, who appear in the first part of the system to investigate crimes and identify the offenders involved, have again to contend with the likely continued criminal behaviour of the same offenders, without the expected aid and assistance from the other agencies of the system to contain their criminality. We are, therefore, of the opinion that in whatever way we may define the role, duties and responsibilities of the police, they cannot achieve ultimate success in their role performance unless all the wings of the criminal justice system operate with simultaneous efficiency. This would require our having some kind of body which will have the necessary authority and facilities to maintain a constant and comprehensive look at the entire system, monitor its performance and apply the necessary correctives from time to time, having in view the overall objective of the system. In view of the primacy of law in the entire system, our first thoughts in this matter go to the Law Commission. We feel it would be advantageous to enlarge the concept of the Law Commission and make it function as a Criminal Justice Commission on a statutory basis to perform this overseeing role on a continuing basis. For this purpose it would be desirable for appropriate functionaries from the police and correctional services to be actively associated with the deliberations of the new Commission. This arrangement at the Centre should be supported by a similar arrangement at the State level in which a high powered body under the Chairmanship of the Chief Justice of the High Court, either serving or retired, and with members drawn from the police, bar and the correctional services, would perform this monitoring role and evaluate annually the performance of the system as a whole. The deliberations of such a body would also help in more realistic enactment of legislative measures and their amendments as may be required from time to time
Prevention of crime
14.15 Apart from investigating the facts of a crime after it has occurred police have, according to normal public expectation, a responsibility for preventing the very occurrence of crime. Investigation may be deemed as an expert professional responsibility that has to be squarely borne by the police, and their success in this regard depends mostly on their own training, equipment and competence, aided by public cooperation wherever possible. But in regard to prevention of crime, police cannot do very much by themselves, since quite many among the factors that cause crime are beyond their control In fact several of these factors transcend the criminal justice system itself. At the fourth U.N. Congress on the Prevention of Crime and the Treatment of Offenders held in 1970, the crimogenic factors identified were urbanisation, industrialisation, population growth, internal migration, social mobility and technological change. All these factors are present in India in varying degrees and none of them is really controllable merely by police activity or influence. Crimogenic factors also vary from area to area within the country and also change from time to time. Communal tension which is marked in certain areas results in certain types of crime. Certain crimes are also generated by social tensions which affect the backward classes. The presence of a representative political leader, generally popular with large sections of the local public, is helpful in resolving conflicts and maintaining social order and harmony in certain areas. When such leadership is eroded by political instability in Government, there is consequent disturbance in the general state of law and order in the areas concerned. We thus see a large variety of factors which determine the state of crime and public order in society at any point
(of time, and it is obvious that police action alone cannot regulate the operation of these factors. Another • aspect of prevention is deterrence. There is no doubt that certainty of detection and certainty of swift punishment in proved cases deter crime but while the former is within the control of police the latter involves, together with police, the prosecuting agency, the lawyer community and the law courts. Further, it is now being increasingly believed that one way to prevent crime is to resocialise the offender. This process lies entirely in the jurisdiction of the jail administration and the correctional services. Whether a person, who comes out of the other end of the criminal justice system, is absorbed by the community, or is capable of such absorption, depends on the degree of his resocialization at that stage. In a sense, laws create crimes and if more and more of human conduct is categorised as criminal, even an ideal criminal justice • system, including the best possible police, cannot prevent the commission of more and more crimes. This is particularly true of those social laws which create the category of victimless crimes, such as gambling, drinking liquor, etc. where there is seldom any aggrieved party to complain. It would be seen, therefore, that the role of police in prevention of crime can only be defined in the context of the limitations described above.
Maintenance of public order
14.16 Police role in maintaining public order has even greater limitations specially in a democracy. Maintenance of order implies a certain measure of peace and avoidance of violence of any kind. Public order is deemed to have been upset, in public estimate if violence breaks out in public in a noticeable form. The characteristic features of the existing social structure in India are (i) inter-group conflicts on account of religion, language, caste, etc. ; (ii) a clear majority of the young in the population—there were according to the 1971 census 58.6% people below the age of 25
(iii) increasing pressure of poverty with 48% in rural areas and 41% in urban areas living below the poverty line in 1977-78; the total number of such persons according to the draft Five Year Plan (1978—83) being in the neighbourhood of 29 crores ; (iv) increasing unemployment—according to the National Sample Survey on a typical day 186 lakh people were seeking work; (v) groups of people congregating in urban areas—the Centre for the Study of Developing Societies (Delhi) has found that the urban growth rate of 4% a year is about the fastest in the world and at this rate by 1985 the Indian urban population is likely to be 350 million, possibly the largest in the world and there are many organised protest groups in urban areas such as Government employees, employees of autonomous bodies, professional groups, occupational groups, industrial workers, political groups, students and others; and (vi) increasing awareness of the destitute and the poor of what they do not have and what they should have. This awareness is increased by the spread of mass media. In 1947 there were 6 radio stations and now we have 82 with nearly two crore radios which means one set for about every 37-38 persons and our broadcasts cover all the regional languages and as many as 136 dialects. We have newspapers, 14,000 of them with a circulation (1976) of 340.75 lakh copies, and the films. All these factors, combined with the general belief among the have-nots that the only way to evoke response from administration is to launch an agitation or a strike or any form of protest activity involving violence of some kind or other, induce an atmosphere of continuing pressure and proneness to break into situations of public disorder.
14.17 Public urge for reform and relief from pressure situations of the above kind are often articulated by political parties, particularly those in opposition to the ruling party. Protest activity, therefore, gets mixed up with political dissent. Police methodology in dealing with such situations has necessarily to conform to democratic traditions and cannot have the trappings of the technique of an authoritarian regime to sustain itself in power. In such circumstances, the police have the. most difficult role to perform to maintain order. Any step taken by them for this purpose is immediately viewed by the agitating public as partisan conduct to maintain the status quo and oppose the changes for which the agitators clamour. Police invariably get dubbed as being on the side of the conservative and the no-changer. Police action in such situations is severely handicapped on this account. Police cannot be expected to handle such situations all by themselves but they should have accommodation, co-operation assistance, sympathy and understanding from organised sections of the public themselves.
14.18 In the foregoing paragraphs we have referred to some aspects of the present functioning of the different wings of the criminal justice system. The object of the criminal justice system is to secure a state of peace and tranquility in society by reinforcing the norms of society by laws and ensuring that those who violate the law of the land are detected, tried according to law and procedure in a court and treated in accordance with the best interests of society which could be anything from their segregation—permanent through death penalty or for a fixed period in jail—from society to correction and release back into the mainstream of society. This entire process should not only be reformatory but also effective enough to deter potential law breakers. In other words, the effectiveness of this process should be seen as an aid to counter the temptation to commit crime. There is no doubt that, at present, the entire criminal justice system in our country is weak, is seen to be oppressive on the poor and the helpless and is highly convenient for the rich and the power elite. In 1966 reported cognizable crimes were 7,94,733. In 1976 this figure rose to 10,90,887. The number of cases which remained pending investigation at the end of 1966 was 1,08,127 ; for 1976 this figure was 2,30,650. The number of cases pending trial at the end of the year 1966 was 2,92,003 ; at the end of 1976 this figure was 10,43,085. This system is fast getting choked and is ceasing to command the confidence of the people. The victim of an offence does not believe that he will get justice from this system, particularly if he is poor and lacks influence.
14.19 We are of the opinion that police role in law enforcement is very much linked with the part played by Other wings of the criminal, justice system and has, therefore, to be defined and understood within a common framework applicable to the entire system as such. We now proceed to examine their role, duties, powers and responsibilities in this context.
Police—Law enforcement agency
14.20 Police, throughout the ages, have functioned as the principal law enforcement agency of the State. In the early and medieval periods of civilisation, governance of a State was centred in ruling individuals or family groups. Laws of the State were what the individual rulers felt inclined to pronounce as such from time to time. Police enforcement of the law as propounded by the 'ruler practically meant regimented compliance of the ruler's demands and desires.
14.21 The basic concept of governance in ancient India were of Dharma and Danda and there were functionaries to ensure the operation of 'Danda'. In fact Dandaniti was an important ingredient of statecraft. . In the Dharma-sutras proper wielding of 'Danda' «as held to be an important duty of the king. The basic unit of policing was the village; a village being an aggregation of families together with their lands and pastures surrounding the village. Every village had its local court which was composed of the Headman and the elders of the village. These courts decided mino criminal cases such as petty thefts as well as civil disputes. The Mahabharata speaks of Gramadhipati and the Buddhist Jatakas mention Grambhojaka. While these were actually village headmen the nagaraguthka was responsible for arresting and executing robbers. There is also the mention of "chora-ghataka" —slayer of thieves. Kautilya's Arthashastra refers to a detailed police organisation, a "sangrahana" for 10 villages, a "kharvatika" for 200 villages, a "dronamukha" for 400 villages and a "sthaniya" for 800 villages. Significantly there was accent on intelligence collection.
14.22 During the Mughal period the key functionaries responsible for policing were the Faujdar and the Kotwal, at their respective levels. In the Mughal Empire a number of villages were grouped together to form a Mahal or Parganah. A number of Parganahs formed a Sarkar and a number of Sarkars formed a Subah or Province. The Empire itself consisted of Provinces, the number of which generally increased or decreased in accordance with what happened in the Deccan. The Kotwal was responsible for policing the cities, towns and their suburbs. The functions of the Kotwal are mentioned in the Ain-i-Akbari. He prevented dimes and social abuses, regulated cemeteries, burials, slaughter houses, jails and took charge of heiress property. He patrolled the city at night and collected intelligence from paid informers on men and matters. The sanad of his appointment enjoined upon him to ensure that there was no theft in his city. In a register he maintained the addresses and professional of every resident of the town, observed the income and expenditure of various classes of men, and checked the accuracy of weights and measures. Preparation and distribution of intoxicants and the profession of prostitutes were also controlled by him. Thus his functions were preventive, detective and regulatory. The Faujdar was the head of the Sarkar and commanded troops to suppress rebellion and disorder in the area—mainly . rural—of his jurisdiction. Although he was subordinate to the provincial Governor, he could directly communicate with the Imperial Government. He dispersed and arrested robber gangs and took cognizance of all violent crimes. His functions were to guard the roads in the country-side, suppress violent crimes, hunt down bandits, prevent manufacture of fire arms, arrest disturbers of peace and assist the Malguzars in the collection of revenue by making demonstrations of force to overcome opposition, where necessary. In practice the Zamindar was made responsible for peace and security of the people in his zamindari. The Faujdar was only to ensure that the Zamindars did their job.
14.23 With the advance of civilization, ideas of socialism and democracy took root. Laws of the land no longer reflected the individual whims and fancies of ruling individuals or groups. Law making as a process involved increasing participation by the public through elected representatives. Law thus got delinked from the individual ruler or ruling group or party and got attached to the people of the State as a whole. Personalised laws were replaced by public laws. Police role consequently changed in its content. Instead of serving the interests of an individual ruler or a group, police started functioning as servants of an impersonal law which was something common to all citizens of the State. While this natural development came about smoothly and easily in free countries, the old concept continued in colonial countries which were ruled by foreign powers as was the case in India till 1947.
Police Act, 1861
14.24 The Indian Police system as organised by the Police Act of 1861 was specifically designed to make the police totally subordinate to the executive government in the discharge of its duties. No reference was made at all to the role of police as a servant of the law as such. Thus when on 17th August, 1860 the resolution appointing the Police Commission was issued by the Governor-General in Council the Memorandum attached to the resolution stated, for the guidance of the Commission, the following "characteristics of a good police for India". The first was "that it should be entirely subject to the Civil Executive Government". It was added that this would require "a change in the rule which, as formerly in Madras and Bombay, gave the control of the Police to a judicial body—the Circuit Judges in Madras and the Sudder Foujdaree Adalut in Bombay. In a Non-Regulation Province this rule would point to the necessity of the police being under the Civil Commissioner, or other head of the Executive Government, rather than under the Judicial Commissioner or other substitute for a Court of Appeal". It was further noted that "the organisation of the police must be centralised in the bands of the Executive Administration" and that "the organisation and discipline of the Police should be similar to those of a military body".
14.25 The Commission (1860—62) found it easy to follow the guidelines given by Her Majesty's Government because examples of the type of police structure desired in them were already available within the country, starting from Sind. After annexation of Sind (1843) General Charles Napier organised on the pattern of the Royal Irish Constabulary, a police force commanded at the district level by Army officers, a European Lieutenant of Police and an Adjutant and at the provincial level by a Captain of Police directly responsible to the Chief Commissioner. The Irish Constabulary was organized to control a colony and was. therefore, fundamentally different from the British Police. The British Police was and is a democratic police, an instrument of law answerable to the people and their representatives who form the police authority and there were. at the last count, forty three police authorities. Sir George Clerk, the then Governor of Bombay, visited Sind in 1847 and impressed by Napier's police system reorganized his barquandazi police. Changes on similar lines were effected in Madras. The revelations by the 'Forture Commission" appointed in 1854 (reported in 1855) hastened the process and Act XXIV of 1859 set up the new pattern of a force led by an Inspector General of Police at the top and Superintendents of Police in the districts. Before I860 a similar system had been established in Bengal. The Indian Police Commission of I860, therefore, stated : "we have arranged for this force being in all respects subordinate to the Civil Executive Government and we have paid due consideration to the'Despatch from the Majesty's Government of the 6th July on the constitution of the Police". The Indian Police Act, 1861 was enacted soon after, on the model of the Madras Act, formalising the present organisational set up and making the police at the district level function under the control and direction of the chief executive of the district, namely, the District Magistrate. The police force has since then remained an instrument in the hands of the State Government.
14.26 This position is very clearly reflected in the manner in which police role, duties, powers and responsibilities have been spelt out in the Police Act of 1861. According to Section 23 of that Act, police are required to—
(i) prevent the commission of offences and public nuisances ;
(ii) detect and bring offenders to justice ;
(iii) apprehend all persons whom the police are legally authorised to apprehend ;
(iv) collect and communicate intelligence affecting the public peace ;
(v) obey and execute all orders and warrants lawfully issued to them by any competent authority ;
(vi) take charge of unclaimed property and furnish an inventory thereof to the Magistrate of the District, and be guided by his orders regarding their disposal ;
(vii) keep order on the public roads, thoroughfares, ghats, landing places and at all other places of public resort ; and
(viii) prevent obstructions on the occasions of assemblies and processions on the public roads.
The insistence on prompt obedience and execution of all orders lawfully issued by any competent authority underlines the total submission of police to executive authority and provides immense scope for the executive to use police for implementing decisions which may not be spelt out in any law, rule or regulation. An average policeman would deem an order to be a lawful order provided it comes to him from some one above in the hierarchy. He would not pause to check whether there is any enabling provision in any law for such an order to be issued. This is the present position.
Police reform in U.K.
14.27 In contrast to this situation brought about in India, police reform in Britain itself took a different shape and truly reflected the basic responsibility of police for enforcement of law, in a fair and impartial manner without any obligation to implement mere intentions or desires of the Government as expressed their policy declarations as different from duly promulgated law. When the metropolitan police of London was radically re-organised in 1829 under inspiration from Robert Peel, the then Prime Minister of U.K., Charles Rowan and Richard Mayne, who were the first two Joint Commissioners of Police, propounded the following nine basic principles to govern all police actions :
THE FIRST PRINCIPLE. To prevent crime and disorder, as an alternative to their repression by military force and severity of legal punishment.
THE SECOND PRINCIPLE. To recognise always that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour, and on their ability to secure and maintain public respect.
THE THIRD PRINCIPLE. To recognise always that to secure and maintain the respect and approval of the public means also the securing of the willing co-operation of the public in the task of securing observance of law.
THE FOURTH PRINCIPLE. To recognise always that the extent to which the co-operation of the public can be secured diminishes, proportionately, the necessity of the use of physical force and compulsion for achieving police objective.
THE FIFTH PRINCIPLE. To seek and preserve public favour, not by pandering to public opinion, but by constantly demonstrating absolutely impartial service to Law, in complete independence of policy, and without regard to the Justice or injustice of individual laws; by ready offering of individual service and friendship to all members of the public without regard to their wealth or social standing; by ready exercise of courtesy and good humour; and by ready offering of individual sacrifice in protecting and preserving life.
THE SIXTH PRINCIPLE. To use physical force only when the exercise of persuasion, advice and warning is found to be insufficient to obtain public co-operation to an extent necessary to restore order; and to use only the minimum degree of physical force which / is necessary on any particular occasion for ' achieving a police objective.
THE SEVENTH PRINCIPLE. To maintain at all times a relationship with the public that gives reality to the historic tradition that the police are the public and that the public are the police; the police being only members of the public who are paid -to give full-time ' attention to duties which are incumbent on every citizen, 'in the interest of community welfare and existence.
THE EIGHTH PRINCIPLE. To recognise always the need for strict adherence to police executive functions, and to refrain from even seeming to usurp the powers of the judiciary of avenging individuals or the State, and of authoritatively judging guilt and punishing the guilty.
THE NINTH PRINCIPLE. To recognise always that the test of police efficiency is the absence of crime and disorder, and not the visible evidence of police action in dealing with them.
Police—servant of law
14.28 For the present purpose we would, in particular, draw attention to the fifth principle, which underlines police responsibility for absolutely impartial service to law in complete independence of policy. We hold this as the most fundamental concept for observance in the police system in a democracy. The basic role of police is to function as a law enforcement agency and render impartial service to law, in complete independence of mere wishes, indications or desires, oppressed by the Government as a matter of policy which either come in conflict with or do not conform to the provisions in our Constitution or laws duly enacted thereunder. We will be separately discussing in another chapter the working arrangements and safeguards that would be needed to enable the police perform this role, but our purpose in this chapter is to underline this role as the basic role. We visualise that as we proceed further with our task of police reform, we might find it necessary to make several radical changes in the existing provisions of the outmoded Police Act of 1861. We recommend that the basic police role as noted above may be specifically spelt out in categorical terms in the new Police Act.
Code of Conduct for police
14.29 We notice that a Code of Conduct for the police in India was adopted at the Conference of Inspectors General of Police in I960 and circulated to all the State Governments. This Code has the following clauses :
(1) The police must bear faithful allegiance to the Constitution of India and respect and uphold the rights of the citizens as guaranteed by it.
(2) The police are essentially a law enforcing agency. They should not question the propriety or necessity of any duly enacted law. They should enforce the law firmly and impartially, without fear or favour, malice or vindictiveness.
(3) The police should recognise and respect the limitations of their powers and functions. They should not usurp or wen seem to usurp the functions of the judiciary and sit in judgment on cases. Nor should they avenge individuals and punish the guilty.
(4) In securing the observance of law or in maintaining order, the police should use the methods of persuasion, advice and warning. Should these fail, and the application of force becomes inevitable, only the absolute minimum required in the circumstances should be used.
(5) The prime duty of the police is to prevent crime and disorder and the police must recognise that the test of their efficiency is the absence of both and not the visible evidence of police action in dealing with them.
(6) The police must recognise that they are members of the public, with the only difference that in the interest of the community and on its behalf they are employed to give full-time attention to duties which are normally incumbent on every citizen to perform.
(7) The police should realise that the efficient performance of their duties will be dependent on the extent of ready cooperation they receive from the public. This, in turn, will depend on their ability to secure public approval of their conduct and actions and to earn and retain public respect and confidence, The extent to which they succeed in obtaining public cooperation will diminish proportionately the necessity of the use of physical force or compulsion in the discharge of their functions.
(8) The police should be sympathetic and considerate to all people and should be constantly mindful of their welfare. They should always • be ready to offer individual service and friendship and render necessary assistance to all without regard to their wealth or social standing. '
(9) The police shall always place duty before self, should remain calm and good humoured whatever be the danger or provocation and should be ready to sacrifice their lives in protecting those of others.
(10) The police should always be courteous and well-mannered; they should be dependable and unattached ; they should possess dignity and courage ; and should cultivate character and the trust of the people. '
(11) Integrity of the highest order is the fundamental basis of the prestige of the police. Recognising this, die police must-keep their private lives scrupulously clean, develop self-restraint and be truthful and honest in thought and deed, in both personal and official life. so that the public may regard them as exemplary citizens.
. (12) The police should recognise that they can enhance their utility to the Administration and the country only by maintaining a high standard of discipline, unstinted obedience to the superiors and loyalty to the force and by keeping themselves in a state of constant training and preparedness.
While we are in general agreement with all the above clauses and are satisfied that they will admirably fit in with the re-defined role, duties and responsibilities for the police as envisaged now, we have some reservations in accepting clause (12) as it is. A reference to the utility of the police to the "administration" and the "country" separately would induce a general impression that the interests of the administration and the country may not always coincide. We have made clear our view that the basic role of the police is to function as a servant of the law and not as a servant of the government in power. The word "Administration" in clause (12) can only refer to the Government and, therefore, we do not accept its relevance in this clause. Further, the use of the words "unstinted obedience to the superiors" may also be misunderstood to mean an obligation to execute any decision taken by the hierarchy irrespective of its legal validity or propriety. We would, therefore, recommend that clause (12) of the above Code may be modified to read as under :
(12) The police should recognise that their full utility to the people of the country is best ensured only by maintaining a high standard of discipline, faithful performance of duties in accordance with law and implicit obedience to the directions of commanding ranks and absolute loyalty to the force and by keeping themselves in a state of constant training and preparedness.
Law enfocement—Objectives '
14.30 Law enforcement cannot, however, be held up as an objective by itself. It may be viewed as a fundamental duty and responsibility with the ultimate object of preserving peace and order, protecting the life and property of the people and, what is more, protecting the constitutional rights conferred on them. The preamble to the Constitution says that India is constituted into a sovereign, socialist, secular, democratic republic and/it is to secure to all its citizens "Justice, social, economic and political; Liberty o( thought, expression, belief faith and worship; Equality of status and of opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation".
14.31 Having regard to the objectives mentioned in the Preamble, we would hold that law enforcement by police should cover the following two basic functions :—
(i) Upholding the dignity of the individual safeguarding his constitutional and legal rights. Police secure this objective by enforcing laws relating to the protection of life, liberty and property of the people.
(ii) Safeguarding the fabric of society and the unity and integrity of the nation. Police secure this objective by enforcing laws relatable to maintenance of public order,
Investigation and prevention of crime '
14.32 Law enforcement essentially consists of two parts. One relates to investigation of facts concerning a crime, i.e. a violation of law, after such violation has actually taken place. The second part relates to the prevention of the very occurrence of crime by a proper study, assessment, regulation and control of factors and circumstances, environmental or otherwise, which facilitate the commission of crime. We are of the view that police have a direct and more or less exclusive responsibility in the task of investigating crimes but have a limited role in regard to the prevention of crime for the reason that the various contributory factors leading to crime do not totally and exclusively tall within the domain of police for control and regulation. A coordinated understanding and appreciation of these factors not only by the police but also by several other agencies connected with social defence and welfare would be necessary for effective prevention of crime.Police responsibility for the prevention of crime has thus to be shared to some extent with other agencies. We feel that this distinction in police responsibility for investigation of crime on the one hand and prevention of crime on the other should be clearly understood and indicated in the Police Act itself, which would also thereby institutionalise and facilitate appropriate associative action by other social welfare agencies for preventing crime.
Maintenance of public order
14.33 The task of maintenance of public order includes several measures for preventing violations of law relating to public peace. Extending the principle mentioned in the foregoing paragraph, we feel that police should be enabled in law to take the assistance for other organised public bodies for undertaking appropriate preventive measures.
Private security arrangements
14.34 With increasing State ownership of the means of production and distribution of goods and delivery of services there has been an enormous growth of 'public property, particularly after independence. Under the traditional protection extended to private
property, public property also needs protection. This fed to the development of special forces such as the Industrial Security Force and the Railway Protection Force. With progressive industrialisation private property also has expanded its dimensions, and the owners have progressed from the utilisation of sundry .Watchmen to a system of organised private security guards. As many owners are willing to pay for the services of such security guards without taking on the 'burden of administering them directly a large number of privately operated Industrial Security organisations have sprung up in the country. With greater industrialisation these organisations are bound to increase in size because police cannot themselves possibly provide these services to individual business .establishments,
14.35 Besides organised services in the private sector for protection of property, private detective agencies have also come up in the recent years to make informal enquiries certain types of crimes where, for a variety ,pt .reasons, the victims of crime desire a quiet and confidential inquiry in preference to an open and .aggressive investigation by police. We understand there are over 50 such agencies functioning in the country. They mostly deal with inquiries relating to insurance claims, matrimonial suits, divorce matters, elopment and infringement of trade mark and copyright Such agencies are also known to be employed on some occasions for collecting intelligence to facilitate a-better understanding of an internal situation by the management of private industries. There is at present no law in our country governing the functioning of the private agencies. In some foreign countries they have a system of licensing such organisations and .bringing them within the framework of some rules and regulations to facilitate their healthy working and meaningful interaction with police in specified situations.We would recommend a system of licensing with appropriate statutory backing to control the working of these private agencies.
Categorisation of crime
14.36 Police responsibility for investigation of crimes may be spelt out in general terms in the basic law, namely, the Police Act, but in actual procedural practice there should be graded situations specifying different degree's of police responsibility in regard to different types of crimes. In the existing law, we have a graded division of crimes into two categories—cognizable and non-cognizable. The procedural law describes in detail the responsibility of police in the investigation of a cognizable crime. Police intervention in a noncognizable crime requires prior permission from a magistrate. We agree that police responsibility need not be made uniform in regard to all crimes under all laws. Certain types of crimes will require police intervention on their own initiative and on their own intelligence, without waiting for a complaint as such from any aggrieved person. Certain other types of crimes may justify police intervention only on a specific complaint from a member of the public. A third category of crime can be visualised where police may intervene only on a complaint from an aggrieved party and not by any member of the public. The different types of police response that will be desirable in different situations will be separately dealt with by us in another chapter where we will be examining the present provisions in law relating to inquiries and investigation. It is sufficient for the purpose of this chapter to state our view that police responsibility for investigation need not be the same for all types of crimes but may be graded and classified into different categories for different types of crimes.
14.37 Apart from the traditional form of crimes as spelt out in the Indian Penal Code which relate to the protection of human body and property, we have in the recent years seen the growing phenomenon of social and economic crimes. The Law Commission in their 47th Report have defined social and economic offences as under:—
"By now, the concept of anti-social acts and economic offences has become familiar to those acquainted with the progress of the criminal law and its relationship to the achievement of social objectives. Still, it may not be out of place to draw attention to some of the salient features of these offences".
Briefly, these may be thus summarised :—
"(I) Motive of the criminal is avarice or rapaciousness (not lust or hate).
(2) Background of the crime is non-emotional (unlike murder, rape, defamation etc.). There is no emotional reaction as between the victim and the offender.
(3) The victim is usually the State or a section of the public, particularly the consuming public (.i.e. that portion which consumes goods or services, buys shares or securities or other intangibles). Even where there is an individual victim, the more important element of the offence is harm to society.
(4) Mode of operation of the offender is fraud, not force.
(5) Usually, the act is deliberate and wilful.
(6) Interest protected is two-fold— (a) Social interest in the preservation of—
(i) the property or wealth or health of its individual members, and national resources, and
(ii) the general economic system as a whole, from exploitation, or waste by individuals or groups;
(b) Social interest in the augmentation of the wealth of the country by enforcing the laws relating to taxes and duties, foreign exchange, foreign commerce, industries and the like."
The Law Commission concluded that "social offences" are offences which affect the health or material welfare of the community as a whole and not merely of the individual victim. Similarly, economic offences are those that affect the country's economy, and not merely the wealth of an individual victim. In this category fall white collar crimes i.e. crimes committed in the course of their occupation by members of the upper class of society, offences calculated to prevent or obstruct the economic development of the country and endanger its economic health, evasion of taxes, misuse of position by public servants, offences in the nature of breaches of contracts resulting in the delivery of goods not according to specifications, hoarding and black marketing, adulteration of food and drugs, theft and misappropriation of public property and funds, and trafficking in the licences, permits etc.
Enforcement of social legislation—Police role '
14.38 During our visits to the States and group discussions with several members of the services as also public, a basic question was raised whether the police should have any role at all in the enforcement of such social and economic laws. We have received three views on this subject. The first and what may be called the conservative view is that police should have nothing to do with social and economic legislation because (i) the police are concerned with the basic criminal law only; (ii) due to deficiencies of manpower and equipment, they can barely manage to enforce the basic criminal law and cannot undertake a wider role; (iii) much of social and economic legislation is in advance of, and sometimes in conflict with, public opinion and, therefore, enforcement of
such legislation would increase public hostility to police ; (iv) socio-economic reform is not the business of police ; (v) greater efficiency would result from concentration on a narrow role and (vi) it introduces avoidable corruption in the ranks of police which then affects every aspect of their activity. The second view, which is opposite to the first,' states that (i) police are the primary law enforcing agency and must enforce all laws ; (ii) social and economic legislation represent an attempt to fulfil the aspirations of the people as outlined in the Preamble of the Constitution and the Directive Principles of State Policy and, therefore, police must lend a hand in this national effort;, (iii) by enforcing such legislation police would be acting as agents of social change, a role which is definitely better for their psychological health then the traditional negative and punitive role; and, (iv) social legislation often aims at social defence which being preventive in approach is of direct concern to the police. The third view is a composite of the two and holds that the police need not concern themselves with every piece of social and economic legislation but must concern themselves with such as seek to curb (i) social evils that are generally acknowledged as such by the mass of people, an example of which is the Prevention of Corruption Act through effective enforcement of which police can promote rectitude in public life ; (ii) social crimes which have a tendency to sprout traditional crime relating to life and property1 and (iii) social and economic crimes which tend to develop into organised crime.
14.39 On this subject the Working Group on Police Administration set up by the Administrative Reforms Commission had this to say (August 1967) :
"In some quarters, there is a certain amount of resistance to the assumption of responsibility for the enforcement of social legislation particularly like Prohibition etc. by the police. We feel that multiplication of enforcement agencies involved avoidable extra expenditure and manifest risk of clashes of authority. The vesting of concurrent jurisdiction for enforcement in the police along with other agencies like the Excise Department etc. is likely to lead to diffusion of responsibility. Police are an organised, experienced and disciplined agency and as such most suitable for all enforcement. A separate agency may not prove as efficient as the police. As scope for corruption exists in the field of other police work as well, this argument for divesting the police of their responsibility for enforcement of social legislation does not carry conviction. Any other agency, in all probability, may also suffer from the same drawback. Effective supervision may help to curb this evil. The machinery for it may be strengthened according to the needs. No doubt, the task of enforcing such legislation is indeed enormous. Proper assessment of the new work-load and provision of adequate additional strength are absolutely essential for effective enforcement in this field. It is also felt that organisation of 'Specialised Squads' or 'Social Police Wings' on the lines of similar units in Scandinavian countries deserve to be considered. Such legislation is an important part of the social welfare programme and the Study Group feels that the police of a democratic welfare state should participate whole-heartedly in all such schemes of social welfare".
The Committee on Police Training also was in favour of enforcement of social legislation by police.
14.40 We are of the view that as the primary law enforcement agency available to the State, police cannot escape involvement in the enforcement of social and economic laws also in some form or the other. Police have a duty to enforce these laws but the manner of enforcement can certainly be regulated and controlled to avoid some possible evils that may arise from this involvement. Having stated our basic view on this question, we would be separately detailing in another chapter the mechanics of enforcement of social and economic legislation by police.
14.41 Police responsibility for maintenance of public order is frequently mentioned and accepted in general terms It would be useful in this context to understand the actual ambit of the words "public order", and identify the distinguishing features of a public order situation. The following observations of the Supreme Court in Ram Manohar Lohia versus State of Bihar (AIR 1966 SC 740) may be read in this connection :—
"The contravention of law always affects order but before it can be said to affect public order it must affect the community or the public at large ................. disorder is a
broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings...........
Public order if disturbed must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detailed on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions, the problem , is still one of law and order bur it raises (he apprehension of public disorder............
The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. One has to imagine three concentric circles. Law and Order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.
In Arun Ghosh versus the State of West Bengal (AIR 1970 Supreme Court 1228) the Supreme Court reaffirmed that a disturbance of the public order takes place when the current of life of the community is disturbed. "Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality". Public order, therefore, embraces more of the community than law and order and it involves general disturbance of public tranquility. An act by itself or a breach of law by itself does not indicate a disturbance of the public order. If a man stabs another, some people may be shocked but the life of the community keeps moving at an even tempo. But if a man stabs a member of some other, community with which there is already communal tension in the town, it affects public order because the s repercussions may embrace large sections of the community and incite them to commit further breaches of law and subvert public order.
Internal Security—Role of Central Government
14.42 Our object in drawing attention to the above concept of 'public order' is to point out the fact that in a progressively deteriorating law and order situation in different parts of a State, a public order situation may arise in the State as a whole. Disturbances to public order in more than one State may mean threat to internal security of the country as a whole. Police responsibility for prevention and investigation of ordinary crimes may ultimately lead them on to involvement in containing law and order situations, public order situations and threats to internal security in that order. When the country's internal security is threatened, the Central Government has a direct responsibility for taking appropriate counter measures. It has been the practice for the Central Government to come to the aid of State Governments by deputing armed forces of the Centre like CRP and BSF to aid the State police in dealing with serious public order situations. Police is at present a State subject in the 7th Schedule of the Constitution. It is for consideration of the Central Government and the State Governments whether the Central Government should be constitutionally facilitated to coordinate and direct police operations in situations which threaten internal security. In our view, the addition of Entry 2A in the Union List of the 7th Schedule following the Constitution (Forty Second) Amendment Act, 1976 recognises this need to some extent. We understand that no law has yet been enacted and no rules or regulations have yet been laid down governing the jurisdiction, privileges and liabilities of the members of the armed forces of the Union when they are deployed in a State in accordance with Entry 2A of the Union List. We recommend that appropriate law/ rules/regulations for this purpose be enacted soon.
14.43 Sometimes law and order situations arise from confrontation between two organised groups like management-labour, landlord-tenant, academic bodies students, etc. Each group might legitimately feel that its actions are only in the nature of a valid protest against an existing unjust situation and, therefore, does not amount to any threat to law and order, Besides the two groups in conflict with each other in any particular situation, the police have also to contend with the third group—the largest group—which comprises the general public who are not at all involved in the conflict situation. We are of the view that the question whether the circumstances of such a situation constitute a disturbance to law and order or public order has to be judged by the police on their own understanding and appreciation of the connected facts, having in view the overall public interest as distinct from the interests of the two contesting groups alone. Preventive measures have to be planned by the police on this basis only. When specific violations of law actually take place, police intervention thereafter has to be in accordance with law.
Collection of intelligence
14.44 Under the existing law—Section 23 of the Police Act, 1861—the police are responsible for collecting intelligence affecting public peace only. As mentioned earlier, we recognise police responsibility for investigation of social and economic offences also besides offences affecting human body and property. Public peace as such may not always be affected by social and economic offences. Effective enforcement of these offences would necessarily involve collection of some related intelligence. The investigating agency cannot possibly operate in a vacuum while dealing with these offences. We, therefore, recommend that police powers for collection of intelligence should cover not only matters affecting public peace but also matter's relatable to crimes in general including social and economic offences, national integrity and security. The legal provisions in this regard should only be in the nature of enabling provisions which can be availed by the police to collect intelligence as and when required. Law should not place the exclusive responsibility on the police only for collection of all intelligence on these matters because we are aware that a variety of intelligence relevant to these matters may fall within the jurisdiction of some other developmental or regulatory agencies as well. We further recommend that a police agency should not have the power or facilities for collection of any intelligence other than what is specified in law, as proposed. '
Discretion in discharge of police functions
14.45 We are aware that there is considerable scope for exercise of discretion at various stages in the discharge of police functions, particularly in regard to preventive policing measures before a crime occurs as distinct from investigation which starts after the occurrence of crime. Such matters like organisation of preventive patrols, action to be taken in a law and order situation, stationing of police personnel in considerable strength at strategic sectors to show the likelihood of immediate aggressive action if a crime were to occur, whether or not to make preventive arrests in any situation, whether or not to arrest a person during investigation, whether or not to pursue minor infractions of a law like traffic rule or regulation, etc. involve discretion in the use of police power. We are of the view that exercise of discretion in all such situations should be based on the assessment and judgment of the police functionaries concerned only. To prevent freakish or whimsical decisions in such matters some broad guidelines should be laid down to cover all such conceivable situations. Police Manuals which do not contain such guidelines at present should be appropriately amplified. These guidelines should be set out in clear terms and also made known to the public. Ad hoc views or policies declared on the spur of the moment and conveyed orally or otherwise from the executive hierarchy above should not be deemed equivalent to guidelines for such purposes. In the absence of a guideline, the matter should be left to the sole discretion of the police officer directly involved in the situation and should not be subject to directions from above, except where it falls within the legitimate supervisory responsibility of a higher functionary under the law.
Counselling role for police
14.46 We have already said that the police have a limited role in the field of prevention of crime. Even for performing this limited role, we feel that the police should have greater facilities recognised in law for dealing with different situations, in a less aggressive manner than through usual process of arrest, detention in custody. It is acknowledged that every individual member of the community can do a great deal to reduce the opportunities for commission of crime by taking due care of his person and property. In U.K. an important activity of the police is to advise people on how best they can keep their property secure. This is typified by the figures of the year 1976 according to which 40,000 persons were advised by the Metropolitan Police (Crime Prevention Mobile Advice Unit) on how to secure their house and motor-cars. In addition 20,000 surveys of premises were made and 1,900 talks given towards crime prevention. This advisory role of police is not recognised in our country. Such duties are performed here and there on the initiative of a few police officers bot this performance is not institutionalised in the system. The use of a formal warning can also be helpful on occasions. Juveniles becoming wayward, taking drugs, pilfering objects out of bravado and smartness, could be warned on record and their parents duly advised. Persons in danger of falling into the clutches of criminals could be brought to the notice of social welfare organisations. Counselling and warning should be deemed legitimate as police activities towards prevention of crime and recognised as such in law.
Police and the prosecuting agency
14.47 We have already pointed out in para supra the need for effective interaction between the police and the prosecuting agency at the stage of trial in court. We would recommend that this provision be recognised suitably in the Police Act itself.
14.48 A full and proper assessment of the various factors responsible for causing criminal behaviour in society will require a collated study of a variety of data and information not only from police records but also from the proceedings and activities in courts, correctional institutions and jails. In depth studies made by social welfare organisations on some related subjects would also be relevant in this connection. We, therefore, feel that the building up of a good information system based on various inputs from the different wings of the criminal justice system is absolutely necessary for planning appropriate measures for prevention of crime and treatment of offenders. This information system has necessarily to be computerised to handle the increasing volume of data that is likely to pour in when once it is started. The police, as the premier law enforcement agency, should play a leading role in the organisation and maintenance of this information system. In another chapter of this report dealing with item 5 of our terms of reference we have described the detailed set up for maintaining crime records and all other relevant statistics and data for this purpose. '
14.49 Lastly we come to an important area of police work which is presently not recognised in law. That relates to service-oriented functions of police, which are meant to provide relief to persons in a distress situation. Even now policemen do render service of a general nature outside their statutory responsibilities connected with prevention and investigation of crimes as such, but this depends largely on their own initiative and interest, and not considered by them as a necessary part of their role. Situations of collective distress arise oat of natural calamities such as cyclones and floods during which police perform numerous activities that are not related to either enforcement of law or maintenance of order. Examples are the rescue of the marooned, rendering first aid to the injured, clearing the debris, opening the roads, disposing of corpses and carcasses and helping in the distribution of food and clothing. In situations of individual distress involving a destitute or a lost woman or child, police arc expected to help, but they generally do not on account of lack of emphasis on this role. Ideally a police post should be able to advise the citizens about their problems which they bring up before the police, whether they may or may not arise out of violations of law. For example, the victim of a crime may seek advice about the procedure for seeking compensation through civil laws. This kind of help is particularly important for victims of traffic accidents. Most important; it should be considered vital for police to so conduct themselves as to encourage people to seek their help, which must, to the extent possible, be given.
14.50 When a function is not duly recognised as important no preparation is made to discharge it well. example, police have always coming, to the help of people during flood situations but no State police in India is really equipped for it : boats for rescue work do not exist in flood-prone districts, there is no disaster planning and policemen are never trained for it. While a State Police Manual may generally speak of police having to help a destitute, what precisely is the nature of help that may be rendered and, what are the resources for rendering this help are not known 'to many police officers. We recommend that the police be trained and equipped properly to perform these service-oriented functions. Counselling, which is a service activity par excellence, also requires preparation and training. Police officers will have to have a general knowledge of the functioning of various government offices, forms, procedures, locations, addresses etc. We recommend that the police should make a start in the metropolitan cities with this activity of counselling.
14.51 In the light of our observations in the foregoing paragraphs regarding the re-defined role, duties, powers and responsibilities of the police, we recommend that the new Police Act may spell out the duties and responsibilities of the police to—
(i) promote and preserve public order ;
(ii) investigate crimes, and where appropriate, to apprehend the offenders and participate in subsequent legal proceedings connected therewith ;
(Hi) identify problems and situations that are likely to result in commission of crimes;
(iv) reduce the opportunities for the commission of crimes through preventive patrol and other appropriate police measures ;
(v) aid and co-operate with other relevant agencies in implementing other appropriate measures for prevention of crimes ; '
(vi) aid individuals who are in danger of physical harm;
(vii) create and maintain a feeling of security in the community;
(viii) facilitate orderly movement of people and vehicles;
(ix) counsel and resolve conflicts and promote amity;
(x) provide other appropriate services and afford relief to people in distress situations ; i
(xi) collect intelligence relating to matters affecting public peace and crimes in general including social and economic offences, national integrity and security; and
(xii) perform such other duties as may be enjoined on them by law for the time being in force.
Item (ii) above will give legal scope for police to be associated with the process of prosecution and have effective interaction with the prosecuting agency:
Items (iii) and (v) will afford scope for police to be associated in a recognised manner with the other wings of the criminal justice system for preventing crime and reforming criminals. Items (ix) and (x) win facilitate the performance of service-oriented functions and will also recognise a counselling and mediating role for the police in appropriate situations.
14.52 While closing this chapter we would like to observe that the police organisation should pursue certain objectives for effective role performance. These should be (1) to keep the organisation at a high pitch of efficiency particularly through effective personnel and financial management; (2) enforce the law impartially and use discretion in accordance with given guidelines ; (3) accept the limitations of their
role and powers as something inherent in the democratic system and not look upon them as a handicap to be overcome somehow or the other; (4) maintain effective working relationship with every sub-system _ of the criminal justice system and with community services and media; (5) through research and study, continually update the training and the operating procedures of the organization ; (6) and, above all, ensure that every member of the organization renders service due and not service that is demanded, extracted or purchased.