State of police reforms: Wanting on many counts

It took the Maharashtra government eight years to clear the Maharashtra Police (Amendment) Bill 2014, which it claimed complied with the top court directive.

However, there have been constant accusations that the state has severely diluted and subverted the recommendations of the Supreme Court, which has culminated in the recent accusations against former Home Minister Anil Deshmukh of influencing police transfers.

In the supplementary chargesheet filed by the Enforcement Directorate (ED) against Deshmukh last month, former chief secretary Sitaram Kunte, in his statement, said they received an “unofficial list” from Deshmukh about postings of IPS officers. Former Mumbai police commissioner Param Bir Singh, who was part of the Police Establishment Board (PEB) which, as per law, should decide on police postings, said the PEB was merely a “rubber stamp” and the list of postings was finalised by Deshmukh.

PEBs were set up following directions from the Supreme Court in the 2006 Prakash Singh police reforms judgment to insulate police postings from political parties. While it was long believed that ruling dispensations across the country had found ways to circumvent police reforms and ensure they maintained their stranglehold on postings, statements by Kunte and Singh brought methods used by the government on record for the first time.

In 2020, senior IPS officer Rashmi Shukla, who headed the State Intelligence Department (SID), prepared a report which stated that the department had call records that indicated lobbying by IPS officers. Shukla had then forwarded the report to then DGP Subodh Jaiswal who had provided these details to Chief Minister Uddhav Thackeray.

A report filed by the Commonwealth Human Rights Initiative (CHRI) in September 2021 shows how the seven directives given by the SC in the landmark police reforms had not been complied with by a single state or a Union Territory. It added, “The failure to comply with the directives reveals the extent to which elected governments are resisting police reforms across the country.”

Since last year, Maharashtra has faced allegations, including those from former CM Devendra Fadnavis, about lobbying for posts of IPS officers. Notably, irrespective of which government has been in power, the state has been falling behind in complying with the directives issued by the Supreme Court since 2006.

Police Establishment Board (PEB)

What the directive says –

Supreme Court directed setting up of a Police Establishment Board (PEB) made up of DGP and four senior officers whose functions are to decide the postings and transfer of police officials. This was meant to insulate the police postings from governmental control so that the force could function without any fear or favour.

The situation in Maharashtra –

In Maharashtra, while PEBs have been set up, they also include a government representative – Additional Chief Secretary (ACS), Home – along with DGP and three other senior officers. This practice is against the directive that seeks only police officers to be a part of it.
An IPS officer said when names of officers are discussed for the post, other officers view the choice made by ACS, home, as the government’s nominee and would think twice before shooting it down. This practice has gone on during the tenure of both the current and previous governments. Thus, even though PEB is deciding postings, it is allegedly what the government wants in most cases.

The statements made by Kunte and Singh before the ED further corroborate this method used to render PEBs incompetent to stop government interference.

CHRI report –

The CHRI report found Maharashtra’s overall compliance report “non-complaint”. Of the 27 states – data for Telangana was not available – CHRI report found only Arunachal Pradesh and Karnataka compliant on all counts, five states partially compliant and 20 states non-compliant when it came to PEBs.

Tenure and selection of DGP

What the directive says 

The DGP must be selected from the three senior-most IPS officers empanelled by the UPSC, and must have a minimum tenure of two years. Further, in 2018, the Supreme Court ordered that states cannot appoint “acting DGPs” and that three months before retirement of the incumbent DGP, states have to approach Union Public Service Commission (UPSC) for seeking empanelment of three officers for the post.

The situation in Maharashtra –

In Maharashtra, there has been an acting DGP, Sanjay Pandey, since April last year. This is despite the fact that the UPSC has sent a list of three officers to the state government, which does not include the name of Pandey. Currently, the matter is the subject of a PIL filed in the Bombay High Court seeking directions for appointment of a full-time DGP.

CHRI report –

CHRI report has marked Maharashtra’s overall compliance on this count as “non-compliant”. The report says that it did not appoint DGP based on UPSC shortlisting and did not keep in mind minimum tenure of two years for DGP. It was only marked as compliant in categorically laying down the grounds of removal of a DGP as stated by the court.
The overall report found only two states – Arunachal Pradesh and Nagaland – compliant, two states partially compliant and 24 others non-compliant.

Minimum tenure of key field-level officers

What the directive says –

The directive provides a minimum tenure of two years for Inspector General (IG), Deputy Inspector General (DIG), Superintendent of Police (SP) and Station House Officer (SHO). This is to ensure security of officers in key operational positions in the field and is expected to safeguard against undue political interference. The state is also expected to specify grounds for premature removal that are clear and limited to the four conditions laid down by the court.

The situation in Maharashtra –

While implementing the police reforms, then Bharatiya Janata Party (BJP) government in Maharashtra led by CM Devendra Fadnavis, who also held the portfolio of the home minister, had in 2014 introduced a proviso that “in the case of serious complaints, irregularities, law and order-related questions, the Chief Minister is authorised to transfer any cop without any recommendation by the PEB”. RTIs filed by The Indian Express in 2015 showed that 51 senior IPS officers were transferred mid-term by the Fadnavis government taking recourse to proviso that allowed CM to transfer officers mid-term in “exceptional cases and in public interest.”
Another RTI filed by The Indian Express in 2017 showed that four out of ten transfers– 52 out of 129 transfers – between 2016 and 2017 in the state were done mid-term using the same proviso of mid-term transfers for exceptional reasons.

CHRI report –

On the issue of overall compliance comprising ‘minimum tenure of 2 years’ and ‘provides specific grounds for premature’ removal, CHRI found Maharashtra ‘non-compliant’. Overall, CHRI found seven states to be compliant while 21 were non-compliant.

Police Complaints Authority

What the directive says –

A police complaints authority to be established at both state and district level. Its mandate is to look into complaints from the public against police officers in cases of serious misconduct and select types of
misconduct.

The situation in Maharashtra –

A senior official said that one of the main drawbacks of the State Police Complaints Authority (SPCA) is that its recommendations are not binding. If the government is not taking action against an errant cop, it just has to give the reasons in writing which makes the exercise fruitless, the official said.
Secondly, while the SPCA headquarters is set up in Mumbai, the district units of the complaints authority is not fully set up due to which, in the initial years, people from distant parts of the state had to come to Mumbai to make complaints. Even at the Mumbai headquarters, on several occasions, the SPCA does not have all the panel
members.
In 2021, a controversy related to nominating an “eminent member of society” on the SPCA panel surfaced when it came to light that the nominated member was a government appointee and had police cases registered against him.
Further, a recent RTI has shown that between 2017 and 2019, the SPCA recommended action in only 22 of the 1,487 complaints received by it. There is no clarity on what action was taken in these cases.

CHRI report –

The CHRI marked Maharashtra as “non-compliant” with regard to overall compliance of this directive. The markers on which the states are judged include whether recommendations of SPCA are binding and if it provides for independent investigators. In both cases, Maharashtra was “non-compliant.”
Overall, the report found that in some states such as Uttar Pradesh and Bihar, SPCA has not been constituted while in other states, all other parameters have not been satisfied. Only one state – Arunachal Pradesh – has been found to be compliant with the directive while Uttarakhand and Haryana are found to be partially compliant. When it came to setting up SPCA at district level, not a single state was found to be compliant.

State Security Commission

What the directive says –

It recommends setting up of the State Security Commission that would include a government representative, Leader of Opposition and eminent members of the society. Its main function would be to draft policy guidelines, evaluate police performance and be a buffer between the political executive and the police.

Situation in Maharashtra –

An official said that while the Commission was established in 2014, it has not seen regular meetings. Further, since its recommendations are not binding, they are not taken
seriously.

CHRI report –

The CHRI report has marked Maharashtra as “non- compliant” in the overall compliance when it comes to this directive. While it says that Maharashtra has established the State Security Corporation that includes the Leader of the Opposition, its recommendations are not binding and it does not submit any report to the Legislative Assembly. Overall, only one state – Karnataka – has been found to be partially compliant while other states have been found to be non compliant.

Separation of investigation and law and order

What the directive says –

To encourage specialisation and upgrade overall performance, the Court ordered a gradual separation of investigative and law and order wings. The court did not specify how this separation is to take place on the
ground.

The situation in Maharashtra –

In Maharashtra, traditionally there is a crime branch and CID whose primary task is investigation. At police station level, there are ‘detection officers’, but their services are used for law and order routinely as well.
CHRI report – The CHRI could not conduct field-level assessment and relied on observations of compliance “on paper” last compiled up to 2018. As per the report, 16 states, including Maharashtra, had taken some measures to separate investigations and law and order duties.

National Security Commission

What the directive says –

It seeks the setting up of a National Security Commission (NSC) at the Union level to prepare a panel for selection and placement of chiefs of the Central Police Organisations (CPO) with a minimum tenure of two
years.

The situation in Maharashtra –

Not applicable as it is to be done by the Central government.

CHRI report –

While the CHRI report does not mention compliance on this front, Singh, whose PIL led to the police reforms, said that a few years ago, the Central government has set up an organisation with some other name, not NSC, and had a few officials, including a retired DGP, as its members. An official from the Maharashtra Home Department said that over a period of time the state government has followed the SC directives in most cases. “While it took us some time to implement certain directives like the Police Complaints Authority at district level, over the past few months, they have become operational in several districts,” the official added.