Every once in a while, when a case of criminality breaks in the newspapers, there will be the usual lamentations and the country will go on living in the same cesspool of police vice. Prakash Singh, who won the 2008 decision of the Supreme Court (SC) as petitioner, did a fantastic job then, but his responses now show that he has reconciled to the same old protestations and the oft-repeated but clichéd plan of action. Calling the developments in Maharashtra in Commissioner Param Bir Singh’s case “scandalous”, he advises at the end of his lament (‘Police needs a makeover‘, IE, April 3) that the unholy nexus between politicians, bureaucrats, police and criminals be broken. Really?
Adding to the pretence of alacrity in response is the Bombay High Court’s question to the Commissioner as to why he did not file an FIR against the Home Minister. It is like asking a puisne judge of a high court as to why he did not complain against the Chief Justice when he discovered something wrong. Our systems, whether of the police or judiciary, are army-like, dedicated to command structures, lacking morality or integrity and wedded to undying obedience. And why not? Who will protect the protestor or the whistleblower? Our democratic institutions are high on form, pomposity and self-praise and low on spine. Self-seekers, ingratiators, political connectors and godfathers fill the system, making a rise in the hierarchy at the highest levels completely independent of merit. Once the man at the top fulfils his ambition by crooked means, he replicates the model for those below him and, thus, the system of patronage and influence becomes a permanent stain on what we consider to be the glorious Indian democracy.
In Prakash Singh v. Union of India, the SC relied on the eight reports of the National Police Commission (1979-1981) appointed by the Union. Singh’s petition was filed in 1996. It took 10 years for the SC to deliver judgment. It has remained path-breaking on paper. The oft-quoted provision regarding the selection of and minimum tenure for the DGP post has had partial, if any, effect. Corruption, politicking, and patronage-seeking at the top is so endemic that this provision has lost its sting. The Security Commission consisting of the Home Minister, the Leader of the Opposition, the Chief Secretary, the DGP and five independent members is likewise impotent. How can one have at the apex of the reform system for the police those who have a vested interest in maintaining the top rung of the police force as the security guards of politicians and the rich and famous? How demeaning it must be for honest and upright officers to work in the police force today. How many dreams of serving the nation have been shattered? How much bitterness and resentment have been caused by interference?
The Commission’s recommendation that there ought to be a separation between the investigation and prosecution wings, as is the system in many developed countries, required immediate enforcement by the judiciary so that hanky panky and corruption in criminal investigations would get a second look by the prosecutorial wing. But, for that, it would require that this department be placed not under the Home Minister, the source of the corruption in the first place, but under the Ministry of Law and Justice. This was never done.
This brings us to the next main recommendation which remains to be implemented — the Police Complaints Authority (PCA). Obviously, for police criminality, one cannot expect the police or the home department to take action for the simple reason that instructions for the commission of serious crimes emanate from the top. An independent body was necessary. The commission recommended that there should be a PCA at the state level, headed by a retired judge of the SC or high court chosen out of a panel of names proposed by the chief justice of the state. A similar structure was envisaged for the PCA at the district level. In addition, the PCAs would be assisted by members selected by the state from panels prepared by the State Human Rights Commission, Lokayuktas and the State Public Service Commissions. The state PCA would look into murder, rape and other serious misconduct committed by the police while the district PCA would look into extortion, and incidents involving serious abuse of authority. The most important part of this decision was that the recommendations of the PCA would be binding on the state.
The current state of universal defiance by states across the country is this: Affidavits filed in the SC showed that not a single state or UT has implemented the PCA provision. Though most states have notified the PCA, thus making formal compliance, the appointments have not been made of retired judges chosen out of a panel as aforesaid. This most important provision ensuring independence, has been made a mockery of by not constituting panels and by appointing officials as chairpersons in the place of retired judges. This is so even for states that have in their Police Acts the requirement of retired judges. In many states, the name Police Complaints Authority has been changed. For example, in Tripura and Mizoram, it is called The Police Accountability Commission, diverting attention away from the fact that the commission is for entertaining complaints against police persons.
The Union of India was openly defiant. In Delhi, it notified a Public Grievance Commission as PCA and said that since there were bodies such as the National Human Rights Commission situated at Delhi it was not necessary to have a PCA. It may be remembered that the SC in the Manipur fake encounter case characterised the NHRC as a toothless tiger!
Thus, on police reform, the recommendations exist, the SC order has been made but the Union remains defiant. There is a petition pending in the SC since 2013 asking for the implementation of the Prakash Singh directives. Perhaps, now, after the Maharashtra fiasco, the SC may decide that this case pending for eight years merits listing.
The writer is a senior advocate, Supreme Court, and founder-director of Human Rights Law Network