INTERFERENCE WITH AND MISUSE OF POLICE BY ILLEGAL OR IMPROPER ORDERS OR PRESSURE FROM POLITICAL, EXECUTIVE OR OTHER EXTRANEOUS SOURCES—
15.1 '"Long years ago we made a tryst with destiny, and now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially. At the stroke of the midnight hour, when the world sleeps, India will awake to life and freedom. A moment comes, which comes but rarely in history, when we step out from the old to the new, when an age ends, and when the soul of a nation, long suppressed, finds utterance. It is fitting that at this solemn moment we take the pledge of dedication to the service of India and her people and to the still larger cause of humanity........ We end today a period of ill
fortune and India discovers herself" 'again. The achievement we celebrate today is but a step, an opening of opportunity, to the greater triumphs and achievements that await us. Are we brave enough and wise enough to grasp this opportunity and accept the challenge of the future ? . . . Freedom and power bring responsibility. That responsibility rests upon this Assembly, a sovereign body representing the sovereign people of India. . . . The service of India means the service of millions who suffer. It means the ending of poverty and ignorance and disease and inequality of opportunity. The ambition of the greatest man of our generation has been to wipe every tear from every eye. That may be beyond us, but as long as there are tears and suffering, so long our work will not be over. And so we have to labour and to work hard, to give reality to our dreams. . ."—thus spoke Jawahar Lal Nehru, our first Prime Minister, when he addressed the Constituent Assembly in New Delhi on the eve of Independence on 14th August, 1947. On the conclusion of this Assembly's deliberation, we adopted, enacted and gave to ourselves the Constitution of India embodying all the fundamental concepts and principles of a socialist, secular democracy.
15.2 Looking back over the years that have rolled by since then, one is apt to question and doubt whether we have progressed well on the path of democracy and evolved smooth and successful working arrangements for the purposeful functioning of the three important wings of the democratic system : Legislature, Executive and the Judiciary. The Executive has two layers—the top layer constituted by the elected political leadership in Government and the lower layer covering the career executive, namely, the civil services. While steering the country towards the promised objectives of the socialist welfare State for its hundreds of millions of people, the Government have had to control and regulate in an increasing degree
the conduct and business of different sections of people through progressive legislation and other related measures. This has meant increasing exercise of power by the Government through its widely spread apparatus of the executive in several matters affecting the daily life of the people. National leaders, who were at the helm in different parts of the country in the first decade after Independence, conducted the affairs of the Government with great vision and wise statesmanship and set down patterns of conduct and inter-relationship between the political leadership in Government on the one side and the civil services on, the other. Though not precisely defined, their respective roles were mutually understood fairly well and followed in practice. While the civil services had the benefit of lead and guidance in policy from the political leadership having in view the expectations and aspirations of the public, the political masters had the benefit of professional advice from the civil services regarding the different dimensions of the problems they had to solve. Great leaders and statesmen like Jawahar Lal Nehru, Sardar Patel, Abul' Kalam Azad, Rajagopalachari, Govind Ballabh Pant, Rafi Ahmed Kidwai, K. Kamaraj, Roy and Sri Krishna Sinha provided an atmosphere of dignity and sense of direction for the civil services to function honestly and efficiently, with public interests constantly held in view. Passing years saw the entry of a large variety of people into the field of politics and increasing contact between politicians and the executive at various levels in a variety of situations, including those caused by decreasing majorities in legislatures. Scope for exercise of power through the political leadership in Government induced political functionaries outside the Government to take undue interest in the conduct of Government affairs, and gradually the spectre of 'political interference' appeared on the scene. Police, as a part of the civil services, came within the ambit of this interference. In fact the police became specially vulnerable to interference from politicians because of the immense political advantage that could be readily reaped by misuse of police powers. The quality of police performance was and continues to be adversely affected by such interference. During our tours in several States and discussions with different sections of the public as well as services, we heard repeated references to the partisan performance of police owing to frequent interference and pressures from political, executive or other extraneous sources. We propose to deal with this malady in this chapter. '
15.3 Prior to Independence police functioned de jure and de facto as an agency totally subordinate to the executive and ever ready to carry out its commands ruthlessly, even though they may not always have been in genuine 'public interest' as viewed by the public. Though the concept of "rule of law" was introduced by the British regime, law enforcement was subject to the ultimate objective of protecting the British Crown and sustaining the British rule. hi a criminal justice system in which the executive and judicial functions were combined in the same functionaries who constituted the magistracy, accountability to law was covertly subordinated to the executive will. Military strands of the organisation, with their emphasis on discipline and unquestioning obedience, made it easy for the Government to use or misuse the police as they wished.
15.4 After long years of tradition of law enforcement subject to executive will under the British rule, the police entered their new role in independent India in 1947. The foreign power was replaced by a political party that came up through the democratic process as laid down in our Constitution. For a time things went well without any notice of any change, because of the corrective influences that were brought to bear on the administrative structure by the enlightened political leadership. However, as years passed by there was a qualitative change in the style of politics. The fervour of the freedom struggle and the concept of sacrifice that it implied faded out quickly, yielding place to new styles and norms of behaviour by politicians to whom politics became a career by itself. Prolonged one-party rule at the Centre and in the States for over 30 years coupled with the natural desire of ruling partymen to remain in positions of power resulted in the development of symbiotic relationship between politicians on one hand and the civil services on the other. Vested interests grew on both sides. What started as a normal interaction between the politicians and the services for the» avowed objective of better administration with better awareness of public feelings sad expectations, soon degenerated into different forms of intercession, intervention and interference with mala fide objectives unconnected with public interest.
15.5 The interaction of the political party in power with the civil services in general and the police in particular has also been considerably influenced by the tactics adopted by some political parties in opposition who believe in establishing their political presence only by continuously keeping up an agitationist posture. The manner in which different political parties have functioned, particularly on the eve of periodic elections, involve the free use of musclemen and Dadas to influence the attitude and conduct of sizeable sections of the electorate. Commenting on the last panchayat elections in Bihar the local correspondent of the "Hindu" reported as below in its issue of August 5, 1978 :—
"The Panchayat elections like the other elections in the recent past have demonstrated once again that there can be no sanity in Bihar as long as politics continue to be based on caste and gangsterism. A significant pointer to this was the frank confession in the Assembly the other day by the Minister of Agriculture, Mr. Kapildeo Singh that he patronized and would continue to patronize gangsters and criminals to fight and win elections as long as the existing system of fighting is not changed. Speaking in the Assembly, Shri Singh declared : 'It is well known that each one of us, irrespective of all party affiliations, who is serious about fighting elections, patronizes anti-social elements and enlists their support. It is another matter that we do not admit this.'"
The involvement of each people in political activity brings in its wake anti-social elements who exploit then proximity to politicians to gain protection from possible police action under the law. The nexus between unscrupulous elements among politicians and such anti-social element» particularly affect the enforcement of social and economic enactments such as those against prostitution, gambling, smuggling, black-marketing, hoarding, adulteration, prohibition etc. whenever they involve politically influential accused. Arrest and enlargement on bail of persons involved in such offences and their subsequent prosecution in court attract political attention. This also results in some places in a kind of link being established between the elected representatives and the Station House Officer in the day to day affairs of the police station in which the local Dadas frequently get involved. This link facilitates the practice of corruption and other malpractices by the police and politician acting in collusion with each other.
15.6 Consequent on the agitationist posture taken up by some political parties in opposition, protest demonstrations, public meetings, procession», politically motivated strikes in the industrial sector, dharnas, gheraos, etc. have become a recurrent feature of political activity in the country. Police have been increasingly drawn into the resultant law and order situations and arc expected by the ruling party to deal with all such situations with a political eye. Putting down political dissent has become a tacitly accepted objective of the police system.
15.7 The relationship that existed between the police and the foreign power before independence was allowed to continue with the only change that the foreign power was substituted by the political party in power;The basic law—Police Act of 1861—remained practically unaltered and no attempts were made to redefine .the relationship between the police and the politically oriented Government. More and more time of the police was taken up with law and order work which really meant dealing with street situations in a manner that would cause maximum satisfaction to the ruling party. In the process, individual crimes affecting the interests of individual citizens by way of loss of their property or threat to their physical security got progressively neglected. Police got progressively nearer to the political party in power and correspondingly farther from the uncommitted general public of the country. Since most of the law and order situations tended to have political overtones, the political party in power got habituated to taking a direct hand in directing and influencing police action in such situations. This has led to considerable misuse of police machinery at the behest of individuals and groups in political circles. Police performance under the compulsions of such an environment has consequently fallen far short of the requirements of law and impartial performance of duties on several occasions.
State Police Commissions
15.8 We notice that several State Police Commissions have also referred to this malady. The Punjab Police Commission (1961-62) said : "The evidence led before the Commission has disclosed that members of political parties, particularly of the ruling party, whether in the Legislature or outside, interfere considerably in the working of the police for unlawful ends. We have been told that politicians accompany complainants to police stations and try to influence the Station House Officer to take down reports implicating innocent persons against whom the complainant has enmity .... no objection can be taken to politicians accompanying their constituents for lawful purposes but the objection is that they approach the Station House Officer for ulterior purposes and use their position to influence him. He is threatened that if he does not support them, they will bring orders from above for his transfer, or will otherwise harm him in his career. . . .the result of this political interference is disastrous and it has considerably and very seriously affected the police work in the State. The police are demoralised". The Kerala Police Reorganisation Committee (1959) said : "The greatest obstacle to efficient police administration flows from the domination of party politics under the State administration. Pressure is applied in varying degrees and so often affects different branches of administration. The result of partisan interference is often reflected in lawless enforcement of laws, inferior service and in general decline of police prestige followed by irresponsible criticism end consequent widening of the cleavage between the police and the public affecting the confidence of the public in the integrity and objectives of the police force". The Tamil Nadu Police Commission (1971) stated : "The problem of political interference is not a new one. It cannot be dated 'from February 1967. It has grown over the years, during the term of office of a number of different Ministers. And it has grown in spite of the most explicit public declarations made by successive Chief Ministers (including the present one) that there should be no political interference and they expect officers to do their duty without fear or favour, in the confident expectation of government support. .... The problem is by no means peculiar to Tamil Nadu. The position in this State is no worse than in the best among other States and much better than in many". The West Bengal Police Commission (1960-61) found that there were frequent allegations that investigation of offences is sometimes sought to be interfered with by influential persons highly placed in society or office. .... and concluded : "We have little doubt that such interference takes place, although it is difficult to say to what extent they are prevalent".
The Committee on Police Training set up by the Government of India (1972) reported : "There have been instances where Governments have been accused of using the police machinery for political ends. There are also instances of individual politicians interfering with the administration and the work of the police". The Committee had found a great deal of political interference in the administration as well as the operation of the police forces, particularly at the lower level. The Delhi Police Commission (1968) observed : "We have been informed that political interference is another rich source of corruption. Allegations have been made before us that some politicians resort to the device of securing the assistance of goondas and bad characters who are given protection by the police. This protection is the result of influence exercised by the politicians upon policemen. We are not in a position to say to what extent this allegation is true, and if there is a large substance of truth in it. but the evil undoubtedly exists. . . . and the only way to do away with it is to take a strong stand against political interference. This can come only from within the police force and the higher officers of the department should make it a code of their conduct to resist all kinds of unlawful interference and to see that their subordinates also do not permit themselves to be influenced by this kind of pressure".
Study by I.I.P.O.
15.9 The extent of political interference with police as perceived by the public is also revealed in a study conducted by the Indian Institute of Public Opinion, New Delhi at the instance of the Ministry of Home Affairs in September—December. 1978 regarding "Image of the Police in India". The study covered interviews with a total of 4,000 respondents, made up of a random sample of 1,000 each from the districts of Ballia (Uttar Pradesh), Ramanathapuram (Tamil Nadu) and Ranchi (Bihar), besides Delhi. The questionnaire for the study" had three types of questions. One type was the unaided question where the respondent was free to indicate his own reply, without being restricted to alternatives posed by the questioner. The second was the 'aided' question in which the respondent had to indicate his choice among the specific alternatives proposed before him. The third was the 'priority' type where the responder had to indicate the relative priority of his preferences. Respondents were divided into two broad categories :—
(i) Complainants, i.e., those who had had direct interaction with the police; and
(ii) Non-complainants, i.e., those who did not have such interaction.
15.10 In answer to a question (unaided) regarding causes of misuse of power and disregard of law by the police, 33% in the complainant category identified the cause as "political pressures, interference by influential people". This item jointly shared top rating with another item "motivated by money and lack of morality" which was also identified by another 33% of the complainant category. All the other causes were rated lower. In the non-complainant category, "corruption" got the top-rating at 38%,"political interference" was second with 31% and other causes fell well behind. In the complainant category, political pressure is more acutely perceived in rural areas (35%) as compared to urban areas (31%). The same position obtains in the non-complainant category also with 39% in rural areas and 22% in urban areas.
15.11 When the same question was repeated with a set of 14 alternative causes to elicit a well thought out answer, political interference took the first place, being mentioned by the highest number of respondents (81%), in the complainants category as well as non-complainant category. When the question was again repeated requesting the respondents to give priority ratings for the different causes, political interference was given the first priority by the largest number of respondents in the complainant category as well as non-complainant category, with all the other factors taking a lower priority.
15.12 The statistical tables of this study support the following conclusions :—
(i) Political interference is seen by the public as a major factor contributing to the poor image of the police and manifests itself in the misuse and abuse of police powers and disregard of the law by the police;
(ii) People consider political interference with police as a greater evil than even corruption; and
(iii) Political interference appears more pronounced in rural areas than in urban areas.
15.13 Some typical situations or matters in which pressure is brought to bear on the police by political, executive or other extraneous sources are listed below :
' (i) Arrest or non-arrest of a person against whom a case is taken up for investigation by the police.
(ii) Deliberate handcuffing of a person in police custody merely to humiliate him.
(iii) Release or non-release on bail after arrest.
(iv) Suppression of material evidence that becomes available during searches by police.
(v) Inclusion or non-inclusion in the chargesheet placed in court on conclusion of investigation..
(vi) Posting or non-posting of police force in an area of apprehended trouble to create an effect to the advantage of one party or the other.
(vii) Taking persons into preventive custody to immobilise them from legitimate political activity in opposition to the party in power.
(viii) Foisting false criminal cases against political functionaries for achieving political ends.
(ix) Discretionary enforcement of law while dealing with public order situations, with emphasis on severity and ruthlessness in regard to persons opposed to the ruling party.
(x) Manoeuvring police intervention by exaggerating a non-cognizable offence or engineering a false complaint to gain advantage over another party in a situation which will lie outside the domain of police action in the normal course.
(xi) Preparation of malicious and tendentious intelligence reports to facilitate action against an opponent.
Transfer or suspension weapon
15.14 Pressure on the police takes a variety of forms, ranging from a promise of career advancement and preferential treatment in service matters if the demand is yielded to, and a threat of drastic penal action and disfavored treatment in service matters if the pressure is resisted. While it is not possible to punish a police officer with a statutory punishment under the Discipline and Appeal Rules, without adequate grounds and following a prescribed procedure, it is very easy to subject him to administrative action by way of transfer or suspension on the basis of an alleged complaint taken up for inquiry. While suspension acts as a great humiliating factor, a transfer acts as a severe economic blow and disruption of the police officer's family, children's education, etc. The threat of transfer/suspension is the most potent weapon in the hands of the politician to bend down the police to his will. We have been told in several States about the frequent transfer of police personnel ordered on direct instructions from political levels in Government, in disregard of the rule that the transfer of the personnel concerned fell within the normal domain of the supervisory ranks within the police. We are aware of an instance in which the Inspector General of Police himself was transferred to an inconsequential post under the State Government immediately after he had shown his reluctance to issue orders for the transfer of a large number of police personnel as desired by the political leadership when he felt that the transfers were not justified on normal administrative grounds. A typical instance was brought to our notice in which even though the local commanding officer specifically pointed out the hardship and loss of morale that would result from the peremptory transfer ordered by a Minister, he was over-ruled and was asked to comply with the order forthwith. We were also informed of an instance in which an Inspector of Police, under orders of transfer issued by his departmental superiors, exclaimed publicly that he would soon get orders from above cancelling his own transfer order and transferring away his superior officer instead. The Inspector's transfer was in fact cancelled within the next few days and it was his superior officer who had to move out under the compulsion of a politically directed transfer order! The consequent serious damage to discipline and morale of the chain of command within the police system can be easily imagined.
15.15 We had commissioned the National Council of Applied Economic Research (NCAER) to make a sample survey of the living and working condition» of the constabulary in Delhi and Uttar Pradesh. Their study has inter alia revealed that about 53% and 43% of constables in Uttar Pradesh and Delhi respectively were transferred from one District to another or from one place to another in less than a year and they had mentioned it as a sore point of grievance. In their view the transfers were too frequent, ad hoc and arbitrary in nature, and were mostly ordered as a means of punishment and harassment, sometimes due to the influence of local politicians. During our tours in the States several officers brought to our notice this phenomenon of frequent and indiscriminate transfers ordered on political considerations. In one State, a Sub-Inspector broke down while narrating his story of 96 transfers in 28 years of his service! We analysed the frequency of transfers in different ranks in the States in the five year period 1973—1977 and found the following position in many States :
Average period of stay in the same post/ same station
I.G. 1 year & 8 months (In one State 6 IGs were changed, in this . States5 IGs were changed in this period).
S.P. 1 year & 7 months (In one State it is as low as 11 months). Sub-Inspector 1 year & 2 months (In one State it is as low as 7 months and . . in three others it was 10 months)
In computing the above period, we have excluded the transfers arising from normal administrative reasons like promotion to a higher post, deputation to training or to a post under the Central Government, retirement, removal/dismissal from service, etc. The frequent changes of officers, particularly at the operational level of Sub-Inspectors in Police Stations and Superintendents of Police in districts coupled with frequent changes at the apex, namely. Inspector General of Police, have no doubt largely contributed to the sharp decline in the quality of police service down the line. Inspectors General in some States have been changed as often as the Chief Minister or Home Minister changed! The interests of real professional service to the public have been sacrificed at the altar of political expediency.
Sources of pressure
15.16 Political interference emanates not only from political functionaries in Government but also from others outside the Government who arc connected in any manner with different political parties including the ruling party. Further, an individual's capacity to generate political pressure on the police is not necessarily linked with his formal association with a political party. He can operate through several link» that are forged by considerations of money, caste, community, regional affinity, etc.
15.17 We are also aware that the unhealthy influences and pressures that arc brought to bear on the police do not always originate from political sources alone. Capitalists, industrialists, businessmen, landlords and such others who form the richer and more influential sections of society have immense capacity to generate such pressures to operate at different levels in the police, either directly or indirectly through political sources, and influence the course of police action. Any corrective measure to deal with this malady has, therefore, to cover this pressure group also.
Repercussions of interference
15.18 Interference with the police system extraneous sources, especially the politic encourages the police personnel to believe that < career advancement does not at all depend on the merits of their professional performance, but can be secured by currying favour with politicians who count Politicking and hobnobbing with functionaries outside the police system appear very worthwhile in the estimate of an average police officer. Deliberate and sustained cultivation of a few individuals on the political plane takes up all the time of a number of police personnel to the detriment of the performance of their normal professional jobs to the satisfaction of the general public at large. This process sets the system on the downward slope to decay and total ineffectiveness.
15.19 Apart from deterioration in the quality of police performance viewed from the public point of view, the exercise of such pressure on the police system from political and other extraneous sources immediately damages the control system and weakens the normal chain of command that has to operate efficiently if the discipline and health of the system are to be maintained. Interference at the operational level in police stations, police circles, etc. results in the total by-passing of the supervisory officers in the hierarchy. Subordinate officers see it in every day of their official life that their superior officers count little in the ultimate disposal of a matter which lies in the normal course within their official cognisance only. Decisions taken at a far higher level—political levels to government—are implemented without question at the operational level. The frequent by-passing of the normal chain of command results in the atrophy of the supervisory structure. It, therefore, fails to operate effectively even in matters which do not attract any such extraneous interference. This was strikingly seen in the situation arising from the policemen's stir in certain States in May-June 1979. It is also significant that the policemen's protest activity in this period, which mostly centred round the living and working conditions of the constabulary, is reported to have been triggered off by an alleged incident in one State in which a police constable was attempted to be victimised at the behest of a political functionary. The seriousness of the situation was recognised by the conference of Chief Ministers of States convened by the Union Home Minister on the 6th June, 1979, to discuss Police Reforms, with particular reference to the First Report we had submitted to Government in February 1979. In the note circulated by the Ministry of Home Affairs for this Conference, it was noted that "there is a feeling in all States that interference not only in the matter of postings and transfers, but also in the matter of arrests, investigations and filling of charge-sheets in widespread. The principal grievance of the policemen is that if there is any unwillingness to comply with unlawful or improper suggestions, the persons concerned are harassed or humiliated". The note went on to observe farther that "Government of India would like to impress upon the Chief Ministers that efforts should be made to ensure that there is no unlawful interference in the exercise of statutory powers. Secondly, in the matter of postings and transfers States should see to restore leadership and effectiveness of the official hierarchy with a view to ensure that the requisite rapport between the officers ;and the men is not further eroded". At the end of the deliberations of this conference the participants agreed that the "problems arising out of interference will bear effective solutions at the political level". The suggestion was noted that Chief Ministers might discuss with leaders of political parties the basis for some consensus on the issue. It was also agreed that a "similar effort at the national level would also be explored and the Home Minister will request the Prime Minister to initiate appropriate steps in this behalf'.
Issue of illegal/irregular orders by State Governments
15.20 In their anxiety to ensure police performance in accordance with the appreciation of the situation by the political party in power, some State Governments are known to have issued executive instructions restricting the scope for police action even in situations where a specific line of action by police is, enjoined on them by law itself. We have a typical instance in West Bengal in what has come to be known as the "Jay Engineering Works Case". This case arose from the executive instructions issued by the Government of West Bengal on 27th March, 1967, laying it down that in cases of "gherao" of industrial establishments by ' their workers resulting in the confinement of managerial and other staff, the matter should be referred to the Labour Minister and his directions obtained before deciding upon police intervention for the rescue of the confined personnel. When an affected party obtained an injunction from Calcutta High Court against the implementation of this order, a further order was issued by the State Government on 12th June, 1967, stating that "the police must not intervene in legitimate labour movements and that, in case of any complaint regarding unlawful activities in connection with such movements, the police must first investigate carefully whether the complaint has any basis in fact before proceeding to take any action provided under the law". Executive instructions conveyed in both these circulars were later struck down by Calcutta High Court as contrary to law, without jurisdiction and invalid. In view of the importance of the legal position clearly set out in this judgment, a copy of extracts from AIR 1968 Calcutta 407 (V 55 84) which give the ruling of the Court on the specific issues raised in this case along with copies of the three circulars dated 7th February, 1956, 27th March, 1967 and 12th June. 1967 of the Government of West Bengal, is enclosed as Appendix V.
15.21 We have seen another instance in another State (U.P.) where the following executive instructions were issued in March 1977, governing police action in law and order situations :
"Whenever a situation likely to have a bearing on the general law and order situation arises in the district, the Superintendent of Police will immediately inform the District Magistrate by the quickest means available and seek his instructions in regard to the steps to be taken to meet the situation, unless circumstances make it impracticable to do so. Further action to meet the situation will be taken according to the instructions of and in close and continuous consultation with and guidance from the District Magistrate."
[U.P. Government Order No. 7850/VUI-1-51-A/ 76 dated 21st March 1977]
This insistence on prior consultation with the executive functionary who has direct contact with Government before taking action to deal with a law and order situation would definitely inhibit the police from taking even such steps as are enjoined on them directly by law in a given situation. To that extent we feel that these executive instructions must be deemed to be illegal.
15.22 We are also aware that in several States executive instructions have been issued conferring a kind of supervisory and inspecting role on the subordinate executive magistrates vis-a-vis the police. Section 3 of the Police Act, 1861, runs as under :—
"3. SUPERINTENDENCE IN THE STATE GOVERNMENT—The superintendence of the police throughout a general police district shall vest in and be exercised by the State Government to which such district is subordinate, and except as authorised under the provisions of this Act, no person, officer or court shall be empowered by the State Government to supersede or control any police functionary."
The Act itself does not confer any supervisory or inspecting role on the subordinate ranks of executive magistrates in a district and, therefore, any executive instructions issued by the Government empowering them to control the police in any manner should be deemed to be illegal.
15.23 We have referred to the above-mentioned instances to underline the fact that in the garb of executive instructions that flow from the Government from time to time. attempts have been made to subordinate police personnel to executive requirements, without regard to the requirements of law as such. Interference with police by political, executive or other extraneous sources have to be seen as a part of this philosophy and therefore, require to be analysed from the point of view of propriety or impropriety of such an approach.
Police during Emergency of 1975—77
15.24 The brazen manner in which the police were misused during the emergency of 1975—77 to subvert lawful procedures and serve purely political ends is brought out in Chapter XV of the Interim Report II dated 26th April, 1978, given by the Shah Commission of Inquiry, which is reproduced below :
"15.16 The Commission invites the Government's attention pointedly to the manner in which the Police was used and allowed themselves to be used for purposes some of which were, to say the least, questionable. Some Police officers behaved as though they are not accountable at all to any public authority. The decision to arrest and release certain persons were" entirely on political considerations which were intended to be favourable to the ruling party. Employing the police to the advantage of any political party is a sure source of subverting the rule of law. The Government must seriously consider the feasibility and the desirability of insulating the police from the politics of the country and employing it scrupulously on dudes for which alone it is by law intended. The policemen must also be made to realise that politicking by them is outside the sphere of their domain and the Government would take a very serious view of it.
15.17 In this context the Commission can do no better than quote from one of the speeches of Sir Robert Mark, the ex-Chief Commissioner of Police, London. Its relevance for 'the Police of our country is self evident. Sir Robert Mark says :—
'Our authority under the law is strictly defined and we are personally liable for the consequences whenever we invoke it. We play no part in determining guilt or punishment and our accountability to the courts, both criminal and civil, to local police authorities, to Parliament and to public opinion is unsurpassed anywhere else in the world. In the legal and constitutional framework in which society requires us to enforce the laws enacted by its elected representatives, the most essential weapons in our armoury are not firearms, water cannon, tear gas or rubber bullets, but the confidence and support of the people on whose behalf we act. That confidence and support depends Hot only on the factors I have already mentioned but on our personal
and collective integrity and in particular on our long tradition of constitutional freedom from political interference in our operational role. .Notwithstanding me heavy responsibilities for the policing of England and Wales given to the Home Secretary by the 1964 Police Act, it is important for you to understand that the police are not the servants of the Government at any level. We do not act at the behest of a minister or any political party, not even the party in government. We act on behalf of the people as a whole and the powers we exercise cannot be restricted or widened by anyone, save Parliament alone. -^ It is this which above all else determines our relationship with the public, especially in relation to the maintenance of public , order, and allows us to operate reasonably effectively, with minimal numbers, limited powers and by the avoidance of force, or at least with the use only of such force as will be approved by the courts and by public opinion.'
'To sum the position up for you in easily understandable and practical terms, a chief officer of police will always give the most careful consideration to any views or representations he may receive from his police authority, be it Home Secretary or police committee, on any issue affecting enforcement of the law, whether public order or anything else, but in England and Wales it is generally for him and him alone to decide what operational action to take and to answer for the consequences. In the case of the Commissioner of Police of the Metropolis his exercise of those responsibilities will no doubt be all the more scrupulous in that he alone of all chief police officers enjoys no security of tenure and that subject to parliamentary approval he may be removed by the Home Secretary.'
I emphasise this because while the police place great importance on their constitutional freedom the significance of their accountability should not be overlooked as a counter-balance to any improper use of it'.
15.18 The Commission feels that what applies to the police applies in equal measure to the Services as a whole. The politician who uses a public servant for purely political purposes and the public servant who allows himself to be so used are both debasing themselves and doing a signal disservice to the country."
Political instability and politicisation of police
15.25 The phenomenon of political interference appears to have assumed larger dimensions particularly after 1967 when the continued stability of the elected Governments in some States got disturbed and a period of political instability started. Increased political interference in such a context meant the increased division of the police personnel into different cliques and groups with different political leanings. A police force which does not remain outside politics but is constantly subjected to influences and pressures emanating within the system from the politicised police personnel themselves will in turn seriously disturb the stability of the duly elected political leadership in the State itself and thereby cause serious damage to the fabric of our democracy. This danger has to be realised with equal seriousness and concern by the politician as well as by the police.
15.26 The increasing scope for mala fide interaction between the politician and the police has also encouraged unscrupulous policemen at different levels to forge a working relationship with the politician for gaining Undue career advantage, besides pecuniary advantage resulting from collusive corruption. The phenomenon of political interference has thus grown to enormous proportion, assiduously fed by vested interests among the police as well as the politicians. We are conscious that any remedial measures we might think of in this context will have to contend with resistance from such vested interests on both sides.
Experience in other democracies
15.27 On a survey of the existing situation as outlined in the foregoing paragraphs; any observer of the national scene is bound to feel extremely pessimistic and throw up his hands in despair. He may, however, draw some consolation from world history which indicates that perhaps this is an inevitable and passing phase in the growth of any young democracy.
15.28 An interesting study of the evolution of police reform in the United States of America by Robert M. Fogelson, Professor of Urban Studies and History at the Massachusetts Institute of Technology and Consultant for the President's Crime Commission, shows a remarkable similarity to some of the problems we are currently experiencing in the Indian police situation. The following extracts from Fogelson's study report, which depict the situation on the American scene around 1900, are relevant in this connection.
"Whoever dominated the police could assign to the polls hundreds of tough, well-armed, if not necessarily well-disciplined men, whose jobs. the politicians reminded them, depended on the outcome. Empowered to maintain order in the streets, the police decided whether or not to permit agitators to speak, protestors to march, and laborers to picket, and if so, judged whether or not the protests remained orderly. They also determined whether or not to intervene in racial, ethnic, and religious clashes, and if so, at what point, on whose side, with how many men, and with how much force. Whoever controlled the police possessed an enviable flexibility to respond to confrontations and crises in ways consistent with their own political objectives, which was a tremendous advantage in a society so prone to group conflict.
The captain's wardman, a patrolman who collected the payoffs in the precinct, had more influence than many sergeants and roundsmen; and so did veteran patrolmen who were well regarded by local politicians. As every recruit who survived for long learned, most officers derived their prerogatives and influence as much from then" political connections as from then official positions. Formal organization also corresponded poorly, if at all, with actual operation. The chiefs could not possibly know what went on outside headquarters; and their assistants, who owed their positions to the political organizations, would . rarely tell them. The captains, who got their jobs through the ward bosses, felt no compunction about ignoring departmental instructions inconsistent with the injunctions of the local machines.
But as the investigative committees discovered, the police manuals were deceptive. Most politicians, including the Democrats who paid lip service to the concept of an apolitical police and the Republicans who criticized their opponents for interfering with the department, viewed control of the force as a prerogative of the party in power.
To secure an appointment, most candidates went not to the police commissioners or the police chiefs but straight to the New York district leaders, the Philadelphia ward leaders, the Chicago aldermen, and other influential politicians. Some politicians demanded a payoff: in the 1890s the going rate for a patrolman was 4:300 in New York City and $400 in San Francisco, according to investigating committees. But most politicians preferred evidence that the candidate and his friends or relatives had been helpful to the party in the past and could be counted on by the organization in the future.
As most patrolmen soon learned, the sympathetic concern of an influential politician was far better protection than the procedural safeguards of a departmental hearing."
15.29 Even the phenomenon of transfers at the dictates of political bosses was a noticeable feature in the American Police system. Fogelson's study report refers to an intransigent New York City officer who told a State Investigating Committee, "I have been transferred so continuously that I keep my goods packed ready to go at a minute's notice".
15.30 The direction of subsequent police reforms in the United States was towards strengthening the position of the police chief by giving him a reasonable tenure of office and reducing the scope for political interference. Policing was developed as a profession with emphasis on high admission standards, extensive training, and acquisition of a wide range of special skills. Policemen were made to subscribe to a Code of Ethics devoting themselves to the public interest.
15.31 In the United Kingdom the need to prevent political patronage from .affecting the performance of civil services was recognised by the creation of the Civil Services Commission in 1855 which established independent civil services recruited through open competition. It, however, took 'nearly 15 years for the political parties to relinquish the patrontage they had till then enjoyed and agree to the new arrangement. The experience of several other democracies has also shown the need for evolving healthy norms in the interaction between the political leadership in Government and the executive services, to ensure that each section performs its duly recognised role and benefits by the corrective influence from the other in constantly serving the cause of public interest.
15.32 We have already observed how in the early years after independence the political leadership provided by well-motivated administrators and statesmen had in fact enabled the services including the police to function effectively in the best interests of the public at large. We feel confident that the existing situation can certainly be corrected and we can evolve practicable remedial measures to bring about a healthy functioning of the police with helpful and wise guidance from the elected representatives of the people.
15.33 Before we proceed to set out some possible remedial measures we would like to clarify at this stage the ambit of the meaning of certain terms we will be frequently using in our Report while dealing with this subject.
15.34 The term "politician" will denote any person who indulges in political activity of any kind, directly or indirectly, either as a formal member of a political party or otherwise. Political functionaries in government, like Ministers and Deputy Ministers will be referred to by the term "political executive". The mere term "executive" without the suffix 'political' will be used to" refer to the normal career executives in government. The meanings of the words 'intercede', 'intervene* and 'interfere' require to be well understood to appreciate the points that will be made in the paragraphs to follow. A may be said to intercede in a situation with if he merely pleads with on behalf of another person to make better understand the representation of the other person. A may be deemed to have intervened m a situation with if by such intercession he seeks to modify the disposal of a matter by without in any way bringing any kind of pressure on B. Lastly, A may be said to interfere with in the discharge of the latter's functions if A directs -f or experts pressure directly or indirectly on to act or omit to act in a manner otherwise than on B's own judgment and assessment of the relevant facts. However, it shall not amount to 'interference' if A has the direct supervisory responsibility over and has the concurrent power to act as aforesaid under the law or rules or duly recognised procedure and takes direct responsibility for the orders.
Shah Commission's observations
15.35 We would commence our analysis of the problem by quoting the following observations in Chapter XXIV of the Third and Final Report dated 6th August, 1978 of the Shah Commission of Inquiry :
"Para 24.10—The political system that our Constitution has given to our country is such that it contemplates parties with different political ideologies administering the affairs of the Centre and the State Governments. It is necessary in the interest of the territorial, political and economic integrity of the nation to ensure that the factors which contribute to such integrity are forever and continuously strengthened and not impaired. One such factor, and a very important and decisive one, is the body of public servants at various levels and particularly those at the decision making levels belonging to the different disciplines and functioning in the States and at ^ the Center. If the basic unity and territorial integrity of the country is to be emphasized at the political level it is imperative to ensure that the officials at the decision making levels are protected and immunised from threats or pressures so that they can function in a manner in which they are governed by one single consideration—the promotion of public well-being and the upholding of the fundamentals of the Constitution and the rule of law. The Government ought to ensure this, if necessary, by providing adequate and effective safeguards to which the officials may turn if and when necessary against any y^ actual or attempted threats by the political ^"and/or administrative authorities to sway the officials from performance of their legitimate duties.
Para 24.17.................. a recurrence of tins type of subversion is to be prevented, the system must be overhauled with a view to strengthen it in a manner that the functionaries working the system do so in an atmosphere free from the fear of the consequences of their lawful actions and in a spirit calculated to promote the integrity and welfare of the Nation and the rule of law.
This will call for considerable bean-searching both .at the political and the administrative levels. Both the groups, during the period of the emergency, sadly deviated from their respective legitimate roles of duty, trespassing into each other's areas with the consequences that are there for all to see and many to lament. the officials on the one side and the politicians on the other do not limit their areas of operation to their accepted and acknowledged fields, this Nation cannot be kept safe for working a democratic system at Government. . ."
Our principal task in this exercise will, therefore, be to spell out as precisely as possible the areas in which political functionaries including the political executive may have legitimate facility for interaction/intercession sad intervention with the career executive which will naturally include the police, and to further spell out the appropriate safeguards to ensure that this (acuity does not lead to unauthorised interference with the executive.
Government's superintendence over police
15.36 The phenomenon of 'interference' with Police is, in popular estimate and belief, linked with the existing system of control 'over (he police by the political executive in Government. It has been argued before us by functionaries in the political executive in some States that tile Minister in charge of police has to account for and defend police performance in the Stale Legislature and in order to fulfil this responsibility properly he must have full control over the police. According to thorn the police cannot be conceived as an agency independent of Government control. Everyone will readily agree that while attempting to insulate the police from unauthorized interference from political and other extraneous sources, we should not confer a totally independent status on the police which would then make A function as a "State within a State* Our object, however, is to devise a system in which police will have professional and operational independence, particularly in matters in which their duties and responsibilities are categorically specified in law with little or no room for discretion and at the same time their overall performance can be effectively monitored and kept within the framework of law by an agency which will involve the Government also. In the existing set up the Government seeks to have fun control over the police by virtue of Section 3 of the Police Act, 1861 according to which "Superintendence of the police throughout a general police district shall vest m and shall be exercised by the State Government to which such district is subordinate". While evolving ideas regarding the nature of relationship between the Government and the police that would be desirable ib public interest in a democracy, we have examined the scope of supervision and control that can be deemed to flow from the word 'superintendence* occurring in the above section of law. to this context we have seen some rulings of the Supreme Court relating to article 227 of the Constitution according to which "Every High Court shall have superintendence over all Courts subject to its appellate tribunal acting without jurisdiction". The purport of some relevant observations of the Supreme Court is furnished below :—
(i) The general superintendence which the High Court has over all courts and tribunals is a duty to keep them within bounds of the authority and to sec that they do what then duty requires and they do it in a legal manner. It does not involve responsibility for the correctness of the decisions of the subordinate tribunals either in fact or in law—AIR 1971 (SC) 315.
(ii) An error of fact or law resulting in a tribunal exercising jurisdiction not vested in it by law or in having failed to exercise jurisdiction vested m it by law, both come within the scope of superintendence of the High Court. Apart from matters relating to jurisdiction, flagrant abuse of elementary principles of justice, manifest error patent on face of record, or an outrageous miscarriage of justice, all call for exercise of powers by way of superintendence—1971 CRLJ 134—1971 116.
iii) The power should be restricted to interference in case of grave dereliction of duty for which no other remedy is available and which would have serious consequences if not remedied. The High Court cannot under the 'superintendence' powers go into the merits of the dispute before the inferior court or tribunal in the absence of grounds such as, one of jurisdiction, grave irregularity of procedure, resulting in prejudice to the detriment to one of the parties and so on—AIR 1953 (SC)—58-59.
(iv) Ordinarily there should be no interference by the High Courts with the decisions of the ulterior courts or tribunals m matters which are left by law to the discretion of the inferior tribunal or court—AIR 1972 HP 24.
15.37 From these observations ft may be seen that the power of superintendence by the High Court is generally exercisable m the following category of cases :— .
(i) Lower court or jurisdiction.
(ii) Lower court or tribunal refusing or failing to exercise jurisdiction or to do its duty.
(iii) Conflict of jurisdiction (interference only when there is no other remedy).
(iv) Refusal or failure to proceed with a case.
(v) Proceeding contrary to principles of natural justice.
(vi) Personal interest of Judge in the issue to be decided.
(vii) Illegal orders of the court. (viii) Patently erroneous decision on facts.
15.38 Having regard to the general principles enunciated above in regard to judiciary, we feel that it 'would be appropriate to lay down that the power of the State Government over the ; be limited for the purpose of ensuring that police performance is in strict accordance with law.
15.39 Police tasks may be broadly divided into three categories for die purpose of this analysis. They are (i) investigative; (ii) preventive and (iii) service oriented. Investigative tasks will include all action by the police in the course of investigating a ease under Chapter of the Code of Criminal Procedure. Preventive tasks will cover such actions like preventive arrests under section 151 Cr. P.C., initiation of security proceedings, arrangement of beats and patrols, collection of intelligence and maintenance of crime records to plan and execute appropriate preventive action, deployment of police force as a preventive measure when breach of peace is threatened, .handling of unlawful assemblies and their dispersal, .'' Service-oriented functions will include rendering service of a general nature during fairs and festivals, rescuing children lost in crowds, providing relief in 'distress 'situations arising from natural calamities.
Investigative tasks—Professional independence
15.40 As far as investigative tasks are concerned we have a clear ruling from the Supreme Court that the nature of action to be taken on conclusion of investigation is a matter to be decided by the police only and by no other authority—vide para 18 of the Sepreme Court judgment in criminal appeal No. 218 of 1966 reported in AIR 1968 Supreme Court 117 (V 55 32). In view of (he importance of this judgment which sets out a fundamental principle, a copy thereof is furnished in Appendix-VI. It may, therefore, be safely projected as a fundamental Principle governing police work that the investigative tasks of the police are beyond any kind of intervention By the executive or non-executive. Any arrangement in which the investigative tasks of the police are sought to be brought under executive control and would go against this fundamental principle spelt out by the Supreme Court and hence should be deemed illegal. We would, therefore, recommend in the-first place that all the executive instructions issued by (he, government having a bearing on investigative tasks of the police may be scrutinised and either cancelled or modified to conform to the above principle.
15.41 during the pendency of an investigation, any person including a political functionary gets information which he feels should be passed on to the
police for appropriate follow up action during the course of investigation itself, he should merely pass on such information to the police without in any way attempting to interfere with the investigation.
Preventive tasks and service-oriented functions-Policy control by Government
15.42 In the performance of preventive tasks and service-oriented functions, the police will need to interact with other governmental agencies and service organisations. For example, in planning preventive measures in a near-strike situation in an educational institution or an industrial unit, police will have to keep in touch with the educational authorities or the labour departmental authorities to have a proper perception of the developing situation. In the performance of such preventive tasks there is considerable scope for exercise of discretion, having in view the overall public interests involved in any particular situation. every police officer should normally be left free to exercise this discretion on his own judgment but there may be situations the disposal of which may have repercussions beyond the jurisdiction of one police officer and it will become necessary in such cases for the supervisory ranks to step in and exercise discretion at their level. Extending this analogy one can visualise a State wide situation in which the exercise of discretion in regard to preventive tasks may have to take into account several factors of State wide significance and it would be appropriate in public interest that the exercise of discretion in such situations conforms to some policy approach that may be" evolved at the highest political level in the government which has the ultimate responsibility for proper governance of the State. We, therefore, recommend that in the performance of preventive tasks and service-oriented functions police should be subject to the overall guidance from the government which should lay down broad policies for adoption in different situations from time to time. There should, however, be no instructions in regard to actual operations in the field. The discretion of the police officer to deal with the situation, within the four comers of the overall guidance and broad policies, should be unfettered.' An erring officer can always be made accountable for his action. Such policy directions should be openly given and made known to the State Legislatures also as and when occasion demands. '
Tenure of office for the Chief of Police
15.43 We have already referred to the weakening of the normal chain of command resulting from unauthorised interference with police work by political and other extraneous sources. To restore the capacity of the police as an organization to resist such pressures and illegal or irregular orders, we consider it would be extremely useful if the Chief of Police in a State is assured of a statutory tenure of office, without the Damocles* sword of transfer hanging over his head all the time, subject to political whim. Such a tenure of office will strengthen his position and enable him to stand up effectively against such pressures on the system. The tenure may be fixed as a period of four years or a period extending upto the date of his retirement or promotion in the normal course, whichever is shorter. This tenure should be put on a statutory basis by being included in a specific provision in the Police Act itself. It shall also be provided that the removal of the Chief of Police from the post before the expiry of the tenure period shall require approval from the State Security Commission m proposed in paragraph 15.46 infra, except when the removal is consequent on—
(i) a punishment of dismissal/removal/compulsory retirement from service or reduction to a lower post, awarded under the provisions of All India Services (Discipline and Appeal) Rules ; or
(ii) suspension ordered under the provisions of the above said Rules ; or
(iii) retirement from service on superannuation in the normal course; or
(iv) promotion to a higher ranking post either under the State Government or the Central Government, provided the officer had given his consent to the posting on promotion.
15.44 It shall be further provided that an officer who has functioned as Chief of Police shall, on retirement from service, be barred from re-employment under the State Government or the Central Government or in any public undertaking in which the State or the Central Government have a financial interest
Appointment of Chief of Police
15.45 Any arrangement of protecting a functionary like the Chief of Police with an assured tenure of office has necessarily to be accompanied by a procedure to ensure a proper selection of the person so that the protection is not put to abuse. For this purpose we recommend that the posting of Chief of Police in a State should be from a panel of IPS officers of that State cadre prepared by a Committee of which the Chairman of the Union Public Service Commission will be the Chairman and the Union Home Secretary, the senior most among the Heads of Central Police Organisations, the Chief Secretary of the State and the existing Chief of Police in the State will be Members. In the absence of the Chairman of the Union Public Service Commission, the senior most Member of the Commission shall chair the Committee. The panel should not have more than three names at any time. Posting from the panel should be according to seniority : We visualise that in the future police set up at the Centre and m the States, the Chiefs of State Police and the Heads of Central Police Organisations will be of comparable status and it should be possible for the Central and State Governments to arrange for periodic inter-change of officers at this level without involving any loss of rank or status as experienced now. The association of the Central Government sad the State Government in jointly preparing this panel would ensure its acceptability to both and facilitate smooth inter-change of officers at the highest level in the normal course
State Security Commission
15.46 We have already given our views on the scope of the power of superintendence of the State Government over the police and the necessary limitations within which that power has to be exercised if the police were to function as servants of law truly and efficiently. It would not be enough to secure the desired objective if lofty principles are merely enunciated and the existing control mechanism is allowed to operate in practice without any change. There is immediate need to devise a new mechanism of control and supervision which would help the State Government to discharge this superintending responsibility in an open manner under the framework of law, with due regard to healthy norms and conventions that may develop in due course. For this purpose we recommend the constitution of a statutory Commission in each State which may be called the State Security Commission which shall have the State Minister incharge of police as the ex-officio Chairman and six others as Members. Two Members shall be chosen from the State Legislature, one from the ruling party and another from the opposition parties. They shall be appointed to this Commission on the advice of the Speaker of the State Legislature. The remaining four members of the Commission shall be appointed by the Chief Minister, subject to approval' by the State Legislature, from retired judges of the High Court, retired Government servants who had functioned in senior positions in the Government while in service, social scientists ox academicians of public standing and eminence. The Chief of Police will ex-officio function as Secretary of this Commission which shall have its own Secretariat for the transaction of its business. Arrangement of funds for the functioning of this Commission will be made on the same lines as for the State Public Service Commission.
15.47 The term of the Members of the Commission (other than the Chairman) shall be three years. any among the four non-political Members were to join a political party after being appointed to the Commission, he shall immediately cease to be a Member of the Commission and the vacancy shall be filled by fresh appointment from the non-political category.
15.48 The functions of the State Security Commission shall include—
(i) laying down broad policy guidelines and directions for the performance of preventive tasks and service-oriented functions by the police ;
(u) evaluation of the performance of the State Police every year and presenting a report to the State Legislature ;
(iii) functioning as a forum of appeal for disposing of representations from any police officer of the rank of Superintendent of Police and above regarding his being subjected to illegal or irregular orders in the performance of his duties ;
(iv) functioning as a forum of appeal for disposing of representations from police officers regarding promotion to the rank of Superintendent of Police and above; and
(v) generally keeping in review the functioning of the police in the State.
15.49 The Commission shall devise its own procedures for transaction of business. It shall be open to the Chairman and Members of the Commission and also the Chief of Police to bring up for consideration by the Commission, any subject falling within its jurisdiction.
15.50 The Commission shall meet at least once every month and may meet more often, if required by the Chairman or Members of the Commission or the Chief of Police for considering any particular subject proposed by them.
15.51 As the Chairman of the Commission, the Minister-in-charge of police will be able. to project the government point of view during the Commission's deliberations. Any policy direction or guidelines Which the government desire to issue shall have to be agreed to by the Commission before they are passed on to the police for implementation. However in an emergency, the Government may directly issue a, policy direction or guidelines in regard to a specific situation, but such direction or guidelines shall as soon as possible be brought before the Commission fix ratification and be subject to such modifications is the Commission might decide.
15.52 In recommending the constitution of a State Security Commission as outlined above, we have taken into consideration the various suggestions received in this regard from different sections of the public as also the services in response to our questionnaire in which we had posed this suggestion and sought their reactions. Analysis of the replies received to our questionnaire shows an interesting pattern of response. A majority of respondents from the administration outside the police have favoured strengthening of the existing executive control without the intervention of a separate Commission as proposed. On the other hand a large majority of police officers have wholeheartedly welcomed the constitution of such a Commission. Leaving aside these sections of services which are intimately and directly involved in the present arrangements and, therefore, may be biased one way or the other, we find that a good majority of the other respondents from the judiciary, lawyers, businessmen, elected representatives and the general public have favoured the idea of such a Commission.
15.53 The constitution of the Security Commission as visualised above would ensure its overall nonpolitical character though it would, in its internal deliberations, have scope for taking into account political views as may be reflected by the Chairman and the two political Members. When we discussed the proposed set up of the Commission with a cross-section of the public as well as services in different States, we heard comments that in the present set up of the country it would be difficult, if not impossible, to find a non-political being 1 We consider this to be a somewhat cynical and defeatist view of the matter. We are firmly of the opinion that a beginning has to be made to set up an institution like the proposed State Security Commission to ensure political neutrality in police performance. There may be reservations and doubts to begin with, but we are confident that as the system gets going, it would soon acquire maturity and effectiveness to the satisfaction of the general public.
Amendment to Section 3 of the Police Act, 1861
15.54 The constitution of such a Commission will, in our opinion, help considerably in making police performance politically neutral. While retaining governmental responsibility for overseeing the police, this Commission will ensure that this responsibility is discharged in an open manner with publicly known policy directions and guidelines. The arrangements of an annual evaluation report from the same Commission and constant review of the functioning of the police by it would also further ensure that police performance in any given period has conformed to the prescribed policy directions and guidelines and has served public interests in the best possible manner. We recommend that the limits of supervisory responsibility of the State Government in regard to police performance as observed in para 15.36 to 15.38 above, and the constitution of a State Security Commission as proposed above to help the State Government in discharging this responsibility may be spelt out in a new provision in the Police Act .in replacement of the existing Section 3 of that Act
Intelligence wing of the police
15.55 A sensitive area of police functions with considerable scope for misuse of police relates to collection of intelligence. Under the garb of having to collect intelligence regarding matter & which have a bearing on the law and order situation and internal security in the State, the intelligence wing of the State Police frequently collects a variety of information regarding activities of political parties and individual politicians. It is a fact that the style of functioning of certain political parties and individuals with certain political ideologies has sometimes led to disturbances to public order. Collection of intelligence regarding activities which are likely to lead to such situations becomes a necessary part of the preventive functions of the police. The assessment whether the activity of a particular party or group or individual is likely to lead to a public order situation as such, is sometimes made by the police functionaries in the intelligence wing, not on their own judgment but on directions or indications emanating from the political leadership in Government at a given point of time. When this assessment is made at the instance of the political executive, it is likely to be coloured by political considerations in preference to the actual requirement of the interests of the public or the State as such. This very often leads to misuse of the intelligence wing to collect intelligence in political matters, not strictly relatable to public order or internal security. In this context, the Shah Commission of Inquiry has referred to some aspects of the functioning of the Intelligence Bureau and the Central Bureau of Investigation at the Centre and has pointed out the need for appropriate safeguards to be evolved to ensure that these organisations are not put to misuse by the Government or some one in the Government. We would like to point out that the tendency to misuse these organisations would get accentuated by political instability in Government and, viewed from this angle, the functionaries in these organisations would need protection from improper and unhealthy pulls and pressures that might operate in such situations. We understand from the Ministry of Home Affairs that (hey have recently received the Report of the high level Committee headed by Shri L. P. Singh, a former Home Secretary and presently Governor of Assam, Meghalaya, Nagaland, Manipur and Tripura, which was appointed in pursuance of the observations of the Shah Commission of Inquiry regarding the Intelligence Bureau and the Central Bureau of Investigation. The points (hat may emerge from the analysis of L. P. Singh Committee Report would, in our opinion, be applicable in a substantial measure to the working of intelligence wing in the State Police as also the State Anti-Corruption agencies. We recommend that Central Government may communicate to the State Governments the essential observations and recommendations emanating from the L. P. Singh committee Report for their information and further action to regard to their own agencies, not only for overseeing their performance but also for protecting than from unhealthy influences.
Policemen's involvement with political individuals and parties
15.56 conduct Rules prohibit all Government servants including the police personnel from being members of or otherwise being associated with any political party, or any organisation which takes part in politics. They are also required to endeavour to prevent any member of their family from taking similar part in politics. Canvassing or otherwise interfering with or using their influence in connection with any election is also 'prohibited—vide Rule 5 of the All India Services (Conduct) Rules and Rule 5 of the Central Civil Services (Conduct) Rules. However, in practice this important Conduct Rule does not appear to have been enforced with the required strictness and severity. It is well known that in the symbiotic relationship that has developed between the politicians and the executive, several police personnel have developed close contacts with politicians and are known to seek political influence and interference to secure undue advantages at different stages in their career. We find that the number of instances in which police personnel get punished for infringement of this Conduct Rule are very rare. We would recommend that: the administration should take a severe view of any infringement of the above mentioned conduct rule and deal with erring officers in a deterrent manner. In appropriate cases resort may also be had to article 311(2)(b) or (c) to weed out such personnel from the system. In cases where this constitutional provision is invoked, all the available material against the police personnel concerned should be scrutinised by a small Committee under the Chairmanship of the Chief of Police. Members of this Committee may be drawn from senior ranks in the prosecuting agency set up of the State and police officers of the rank of Deputy Inspector General of Police (other than the one who may have been concerned either directly or in a supervisory capacity with the situations or instances that figure in the material for consideration by the Committee).
Political infiltration into police
15.57 We would also like to point out another danger in this context—the danger of political infiltration into the police system. It is conceivable that some political parties adopt a deliberate strategy of injecting into the police system, through channels of recruitment at different levels, young men who are strongly committed to the ideologies of the political party and could be expected to influence, from within, , the functioning of the police system to conform to these ideologies. While we do not hold any brief for or against any political party to say that the membership thereof or association therewith should not or should act as a bar for recruitment to the police at any , level, we would state emphatically that the continued involvement in political activity of any kind either directly or indirectly by any personnel after joining the police at any level should not be tolerated in) any circumstances. The weeding out of such persons should receive special attention of the Chief of Police from time to time. Here again, recourse may be had to the provisions of article 311(2)(b) or (c) of the Constitution, if need be in appropriate cases.
Transfer/Suspension of police personnel
15.58 We have already referred to the threat continuously faced by police officers in the shape of frequent transfers, suspensions, etc. ordered by the government on political considerations. An analysis of suspensions ordered in a few States in 1977 has shown that in the rank of Inspectors 27% of suspensions were actually ordered by authorities higher than the authority normally competent to order their suspension. In the case of Sub-Inspectors this percentage is 16. This indicates the trend of interference from a higher level to bring about the suspension of officers when the normally competent authority to order a suspension may not consider it necessary to do so. We feel that police officers should be effectively protected from such whimsical and mala fide transfer/suspension orders. One step for securing this protection could be to incorporate a provision in the Police/Act itself specifying the authorities competent to issue transfer/suspension orders regarding different ranks. Such a statutory provision would render hull and void any transfer/suspension order passed by any authority other than those specified in the Act This would be an improvement over the present "position where the powers of transfer/suspension are merely spelt out in rules or executive instructions which can always be overruled by the government as and when it feels like doing so for reasons of its own.
15.59 Another step could be to lay down as a rule that every transfer/suspension order should also contain a brief paragraph indicating the reasons for the issue of the order, and making it a further rule that any transfer/suspension order' which does not contain this explanatory paragraph shall not be a valid order. The advantage in this arrangement would be that the recipient of the transfer/suspension order will have some material with him which he can agitate before the authorised available forums if he feels that the reasons are mala fide or otherwise not sustainable.
15.60 Situations arising from oral orders issued by the supervisory officers including the political executive, while on tour or otherwise, are known to cause considerable embarrassment to the field officers when the orders happen to require the commission of illegal, irregular, improper or unjust acts. A few State Governments have issued instructions in the recent past for the guidance of officers to ensure proper conduct. The purpose these instructions is that the officer receiving such oral instructions should make a record of the instructions and get it confirmed by the superior officer concerned. We are aware that an administrative apparatus would get badly cramped and become ineffective in day to day service to the public if it is rigidly insisted that no functionary need take action under orders from a higher ranking functionary in the normal line of supervision unless the order is in writing. Several situations may occur in daily life in which a supervisory functionary on the spot may give oral orders for immediate execution by the subordinate functionaries concerned. Several such situations be easily imagined in law and order matters. We ace, therefore, not in favour of enunciating any rigid role that every order that flows from one level to the tower level in administrative hierarchy should be in writing before the intended action is taken. While oral orders cannot be shut out totally from the administrative system, they can and should certainly be avoided in situations which do not involve any element of urgency and can wait for the oral orders to be confirmed in writing before the intended action is initiated. Our recommendation would, therefore, be that—
(i) oral orders should be avoided as far as possible and may be resorted to only in situations which call for immediate executive action and cannot wait for the issue of written orders in confirmation of the oral order;
(ii) a record of every oral order be kept both by the issuing officer and the recipient officer
in the relevant files; and
(iii) a subordinate officer receiving oral orders from a higher ranking officer shall be entitled to ask for and get confirmatory orders in writing from the higher functionary, for record.
Interaction between elected representatives and the police
15.61 In any democratic system we must have with the executive at different levels for bringing to the notice of the executive whatever information the elected representatives may have in which they feel the need for some kind of corrective action in the interests of justice. We must keep open all scope for such interaction. Persons subjected to flagrant injustice by executive action will be inclined to share their grief and disappointment with several others in public including the elected representatives and will expect them to do something to set matters right While conceding the need for interaction between elected representatives and the executive in such situations, we are anxious to ensure that this does not lead to unauthorised interference as such with the performance of the executive. We, therefore, feel that if as a code of conduct it is laid down that elected representatives will interact with the police at the level of the Deputy Superintendent of Police or above only it would avoid situations in which the executives at the operational level in police stations and circles may be overawed by the stature of the political functionary and may be inclined to accept and act upon whatever information he passes on to them without making the necessary check and verification which they might make normally.
Conduct Rules for Police
15.62 In regard to the representations or information which elected representatives of the people may have to communicate to Government servants (including the police) existing instructions emphasise that while the Government servants should consider carefully and listen patiently to what the elected representatives may have to say, they (i.e. Government servants) should always act according to their own best judgment. These instructions are contained in the following references :
(i) Government of India, Department of Personnel and Administrative Reforms, letter No. 25/19/64-Ests (A) dated 29th April, 1975 addressed to Chief Secretaries of all the State Governments.
(ii) Circular No. PMG-1075/XVIII(0&M) dated 25-11-1975 issued by the Government of Maharashtra, General Administration Department.
(iii) G. 0. Ms. No. 976 dated 24th May, 1969, issued by the Government of Tamil Nadu, Public (Services A) Department, Madras to all Heads of Departments.
In this context it will be relevant to refer to rule 3(3) of the All India Services (Conduct) Rules, 1968, which is reproduced below :
"No member of the Service shall, in the performance of his official duties or in exercise of powers conferred on him—
(i) act otherwise than in his best judgment except when he is acting under the direction of his official superior and he shall obtain such direction in writing, wherever practicable, and where it is not practicable. he shall obtain written confirmation
(ii) evade the responsibility devolving legitimately on him and seek instruction from, or approval of, a superior authority when such instruction or approval is not necessary in the scheme of distribution of powers and responsibilities.
The same rule is embodied in rule 3(2)(ii) of the Central Civil Services (Conduct) Rules, 1964. However, this does not find a place in the Conduct Rules in several States which are applicable to the police personnel. We would recommend the adoption of this rule in the Conduct Rules applicable to police personnel of all ranks in all States.
Code of Conduct for Legislators
15.63 The conduct of Government servants (including the police) can be controlled and guided by the issue of rules and instructions and enforcing then strict compliance in actual practice. If, however, the political functionaries, whose conduct is not subject to such rules and regulations, do not change their present attitudes and approach to this matter, their inclination to interfere with the executive including the police will continue in some form or other. While on one side we may be thinking of several remedial measures to enable the executive to resist this interference, our objective can be achieved in a substantial measure only when the political functionaries also change their style of functioning. In the Government of India, Department of Personnel & Administrative Reforms letter No. 25/19/64-Ests. (A) dated 29th April, 1975, addressed to the Chief Secretaries of all the State Governments, it was indicated that a Code of Conduct of Legislators was being separately processed by the Ministry of Home Affairs. Our enquiries reveal that this Code of Conduct for Legislators has not yet taken any shape. We recommend that the Ministry of Home Affairs complete their exercise expeditiously and have the Code issued very soon so that the elected representatives as also the general public at large may know and appreciate the requirements of ethics and propriety in this important and sensitive matter. We also trust that the contemplated exercise on the political plane as decided at the Chief Ministers' Conference of 6th June, 1979 [vide para 15.19 above) will be taken up in right earnest and completed soon.
Declaration by police personnel at the time of appointment
15.64 To bring home the primacy of the rule of law in a democracy and the paramount duty of every police officer to recognise this primacy and stoutly resist any interference with the course of his duties as enjoined by law and in accordance with the Constitution, we feel it would be appropriate if every member of the police is made to swear or solemnly affirm a declaration embodying this fundamental principle, at the time of his joining the police, whatever be the rank of entry. Police regulations in States do not envisage any separate affirmation or declaration by police officers, but in common with other Government servants they are required to sign a simple declaration proclaiming their allegiance to India and to the Constitution of India as by law established. We feel that something more positive is required on the part of a police officer and would, therefore, recommend the following form of declaration :—
I, A B, do swear/solemnly affirm that I will be faithful and bear true allegiance to India and to the Constitution of India as by law established; that as a member of the police in the State of—————I will honestly, impartially and truly serve the people without favour or affection, malice or ill-will; that I will to the best of my ability, skill and knowledge discharge, according to law, such functions and duties as may be entrusted to me as a police officer, and in such a manner as to uphold and protect the dignity and rights of the citizen as proclaimed in the Constitution. ^
Apart from the initial declaration at the time of joining the police, it would further serve the purpose and embed the principle firmly in the minds of all the police officers if this declaration is remembered and repeated by them in groups and assemblies of police personnel drawn up on an annual ceremonial occasion like the 'Police Commemoration Day* which is observed on 2 lit October, every year.
15.65 The sustained capacity of the police system to function as an efficient and impartial instrument of law will largely depend on the attitudes developed by the personnel at different levels in the system and the manner in which they respond to different situations in their career. This in turn depends on the training which they get at the time of their entry into the system and in the subsequent lead and guidance they receive from the leadership at various levels within the system. The structuring of the initial training courses and the later in-service training courses for all police personnel should be suitably designed to facilitate the growth of proper attitudes and sense of values on the part of every police officer, viewing himself throughout as a servant of law to uphold and protect the dignity and rights of every individual fellow citizen of the country. We shall be referring to this aspect m greater detail when we deal with the subject of training for police officers.
15.66 In recommending the various measures in this chapter for minimising, if not eliminating, the scope for interference with or misuse of police by pressures from political, executive or other extraneous sources, we have placed great hopes equally on politicians and police personnel and trust they would look at these measures objectively and see in them a mechanism for rendering genuine public service. We earnestly believe and trust that our expectations will not go in vain and, recalling the words of Jawaharlal Nehru, we hope the politician as well as the police would be "brave enough and wise enough to grasp this opportunity and accept the challenge of the future".