INDIA: Kerala Police Bill, 2010 requires drastic changes to meet the standards of a legislation fitting for a modern democracy.

To,
The Legislature Secretary,
Kerala Legislature Secretariat,
Legislative Assembly Complex,
Palayam, Trivandrum.

Sir,
Sub: Kerala Police Bill, 2010 – Notes and Comments for consideration by the Select Committee – forwarded.
Ref: My letter dated 07-05-2010

I invite kind reference to my letter cited. I would be grateful for information on the sitting of the Select Committee at Trivandrum to enable me to give evidence on the Bill.

In continuation, kindly find enclosed a copy of our 'Notes and Comments' on the Kerala Police Bill 2010 for kind perusal and suitable further action by the Hon. Members of the Select Committee.

Yours faithfully,
Dr. P. J. Alexander
Director

The Kerala Police Bill, 2010 (English version)
Notes and Comments

1. It is after nearly 150 years, that a legislation to replace the Police Act of 1861 is being considered. This is a momentous occasion. The Hon. Members of the Kerala Legislature in the Select Committee would not fail to take note of the fact, that they are laying the keel of a new Society. Those who have made incisive analyses of police – society interaction and consequent developments (Coatman to Bayley) have concluded that the police help shape society and vice versa. The classic case cited is that of Robert Peel and the police in Great Britain. When after 150 years of the Police Act of 1861 and 63 years of independence, we embark upon rewriting the basic Police Law, we must have a vision for a new Society in Kerala. The new Police Act should help shape it and safeguard it. Such a vision is normally placed in the Preamble. Our first observation is that the Preamble of the Kerala Police Bill 2010 has failed to incorporate a vision for a new Society.

1.1. This has been disappointing, particularly because Draft Preambles envisioning such hopes, dreams and expectations were readily available for consideration by the Drafting Committee from the following sources:

a) Model Police Act at Appendix I of the Eighth and Concluding Report of the National Police Commission, Government of India, (May 1981) (page 49)

b) Model Police Act by the Drafting Committee, Ministry of Home Affairs, Government of India, (October 2006) (page 2).

c) Kerala Police Act – 2008 – Draft prepared by The Police Act Review Committee.

d) Draft Kerala Police Bill prepared by the Kerala Law Reforms Commission with Justice V. R. Krishna Iyer as Chairman, (July, 2008)(page 1) and
e) A Draft Kerala Police Bill published by the Director, Centre for Criminal Justice Research (CCJR) based almost wholly on the Draft Bill prepared by the Kerala Law Reforms Commission,(December 2009) and forwarded to the Government by Justice K T Thomas, Chairman of the Police Reforms Monitoring Committee in January 2010. (page 19)

1.2. The Preamble to the Kerala Police Bill, 2010 may be therefore re-written, keeping the need for a vision for a new Society in view and modeled on any one or more of the Draft Preambles mentioned above.

1.3. The present Preamble may please be deleted.

2. The English translation of the Bill, which is under discussion here, suffers from literary and grammatical deficiencies. Many clauses are ambiguous and vague and there are repetitions of words and phrases. The English version needs to be re-written to provide sharper focus and clarity to the provisions.

3. Apex Courts directions in Prakash Singh's case and Sections 18 (2) and 98, 24, 23, 107 and 112

The spark that kindled the present struggle for Police Reforms can be sourced, primarily to the orders of the Supreme Court of India, dated 22-09-2006, in the Writ Petition (Civil) No. 310 of 1996 filed by Shri. Prakash Singh and Others. The Petitioners had prayed among other things, to direct 'Union of India to frame a new Police Act, on the lines of the Model Act drafted by the National Police Commission'. The Soli Sorabjee Committee to draft a new Police Act was constituted by the Government of India on 20-09-2005. The Draft Kerala Police Act – 2008, has apportioned credit to the present Home Minister for his initiative in constituting 'Kerala Police Act Review Committee' as per GO RT 2110/06/Home dated 16-09-2006. That the Kerala initiative came earlier than the orders of the Apex Court is no doubt commendable. The dates above should not steal the thunder from the Home Minister either. But he and the Government have to be reminded that this initiative has cast on them the onerous responsibility of producing a Police Act which would be a model for the rest of India. The present Draft Bill falls woefully short of any such claim.

4. The crux of the orders of the Apex Court dated 22nd September 2006 lies not in the six directives, which are of course very important, but in the observation extracted below: "…..we can only express our hope that all State Governments would rise to the occasion and enact a new Police Act wholly insulating the police from any pressure whatsoever there by placing in position an important measure for securing the rights of the citizens under the Constitution, of the Rule of Law, treating everyone equal and being partisan to none, which will also help in securing an efficient and better criminal justice delivery system". It was in continuation that the Court laid down the guidelines to be operative till the new legislation is enacted by the State Government. The most important part of the orders of the Supreme Court is the need to have a new Police Act, which would insulate the police from any pressure, enable it to secure for all citizens, their rights under the Constitution, ensure Rule of Law and equality for everyone.

These are the ideals to be etched firmly in the provisions of the Police Act. It is not seen that the Kerala Police Bill – 2010 attempts to do so.

5. The Supreme Court issued the directives for:

i) a State Security Commission
ii) a new process to select the Director General of Police and to provide a minimum tenure for him and other functionaries
iii) separation of Investigation
iv) constituting a Police Establishment Board
v) constituting a Police Complaints Authority and
vi) the Central Government to setup a National Security Commission.

5.1. The Government of Kerala had issued an Ordinance (Kerala Police Reforms Ordinance 2006) to comply with the above directions of the Supreme Court. The Statement of Objects clearly mentions that the Ordinance is in pursuance of the directions of the Supreme Court.

5.2. Subsequently the Chief Secretary to the Government of Kerala in an Affidavit before the Supreme Court had submitted that the directions of the Supreme Court would be complied with.

5.3. Therefore the Draft Bill should incorporate the directives of the Supreme Court without tampering with its structure or diluting its contents.

5.4. However it is seen that the directives have not been incorporated in the Draft Bill.

6. In the Kerala Police Bill 2010,

i) Selection and Tenure for DGP and other officers is mentioned in Sections 18 (2) and 98.
ii) State Security Commission in Section 24,
iii) Separation of Investigation in Section 23,
iv) Police Establishment Board in Section 107 and
v) Police Complaints Authority in Section 112.

6.1. The Select Committee may kindly examine whether these proposals pass the litmus test of substantial compliance with the directions of the Supreme Court.

6.2. It is submitted that the above provisions do not satisfy the directions of the Supreme Court.

7. The departures from the directives of the Supreme Court in the Draft Bill are briefly discussed below.

7.1) State Security Commission

The State Security Commission was proposed by the National Police Commission in Section 29 (1), Chapter III, in the Model Police Act appended to the Eighth and Last Volume of the Report of the Commission. After the decision of the Supreme Court, on this proposal, there was more than one model – that of NHRC, that of the Rebiero Committee and that of the Soli Sorabjee Committee. A State Government was free to choose any one of the models. The Ordinance issued by the Government of Kerala opted for a model of its own. The State Security Commission proposed in Section 24 of the present Bill does not comply with the directives of the Supreme Court either in form or content.

7.2) The composition of the Commission as proposed by the NHRC was;

a. Chief Minister/Home Minister, Chairman
b. Lok Ayukta or in his absence, a retired Judge of High Court to be nominated by Chief Justice or a Member of State Human Rights Commission,
c. A sitting or retired Judge nominated by the Chief Justice of the High Court,
d. Chief Secretary,
e. Leader of Opposition in Lower House,
f. DGP as ex-officio Secretary.

7.3) The composition of the Commission as proposed by the Rebiero Committee was;

a. Minister i/c Police as Chairman,
b. Leader of Opposition,
c. Judge, sitting or retired, nominated by Chief Judge of High Court,
d. Chief Secretary,
e. Three non-political citizens of proven integrity,
f. DGP as Secretary.

7.4) The composition of the Commission as proposed by the Soli Sorabjee Committee was;

a. Minister i/c Police (Ex-officio Chairperson),
b. Leader of Opposition,
c. Chief Secretary,
d. DGP (Ex-officio Secretary),
e. Five Independent Members.

7.5) The composition of the State Security Commission as given in Section 29 of Chapter III, of the 8th and Last Report of the National Police Commission was:

a. Minister in-charge of police, Chairman, ex-officio
b. One member each from State Legislature representing the ruling party and the opposition, nominated on the advice of the Speaker
c. Four members to be nominated by the Chief Minister of the State after approval by the State Legislature, one each from retired Judges of the High Court, Government Servants retired from senior positions, social scientists or academicians of public standing and eminence.
d. Director General, Secretary, ex-officio

However the Kerala Police Bill 2010 rejected all the five models. The composition of the Security Commission in Section 24 deviates from all the above models both in form and content. Further while the Supreme Court has said that the recommendations of this Commission shall be binding on the State Government, the proposed Bill says in Section 25 (5) that the directions of the Commission shall be binding on the Police Department and in the proviso it is further stated that the State Government may fully or partially reject or modify any recommendation or direction of the Commission.

7.6) Thus we have a situation where the State Security Commission designed to ensure functional independence of the police in the State reduced to a meaning less and superfluous institution.

7.7) It is submitted that the Security Commission in Section 24 and its function as given in Sections 25 and 26 have to be strictly according to the directives of the Supreme Court

8) Selection of the Director General of Police and minimum tenure for him and other functionaries.

In Section 18 (2) of the Bill, the process of selection of the State Police Chief, is a wide departure from the directives of the Supreme Court. So is his tenure in Section 98. The directives of the Supreme Court that a person selected from among three senior most officers who have been empanelled for promotion should have a minimum tenure of two years has been ignored. The proposals as they stand in Section 18 (2) and 98 do not help to provide the Police Leadership in the State with any amount of security or independence to function truly as the leader of the Police force with professional independence.

It is submitted that the Section 18 (2) and 98 may be suitably amended to incorporate the directives of the Supreme Court.

9) Separation of Investigation and Law and Order

In the background of the steady escalation of the crime graph, the mounting incidence of violent and serious crimes and also the emergence of terror linked crimes affecting the security of the State as well as the life and property of the average citizen, the directives of the Supreme Court that the investigation has to be separated from the Law and Order police to ensure speedier investigation, better expertise and improved rapport with people would appear to be timely.

The proposal in the Bill, in Section 23, qualifying the separation of investigation from law and order would appear to be ill-advised. The main issue is that while the police leadership may and should take the views of the political executive in to consideration in the management of law and order, in investigation of crime they should go by the book. Police performance in investigation has to be strictly accountable to the provisions of the law and nothing else.

Therefore the proposal for separation of investigation and crime as given in the Bill may kindly be dropped and Section 23 recast to conform to the directives of the Supreme Court.

10) Police Establishment Board

The purpose of designing a Police Establishment Board by Supreme Court in each State was to decide on 'transfers, postings and promotions and other service related matters of officers of and below the rank of Deputy. Supdt. of Police'. It was also the intention of the Supreme Court that "the State Government may interfere with the decisions of the Board in exceptional case only after recording its reasons for doing so". In effect the intention of the Supreme Court was to free personnel management issues and service fortunes of officers at the subordinate levels from external interference and pressures.

The Police Establishment Board as it stands would not serve this purpose. The provisions regarding the constitution and the functioning of the Board have to be recast.

11) Police Complaints Authority

The Police Complaints Authority was a much needed mechanism to look in to complaints against the police at the different levels. The directives of the Supreme Court envisaged a two tier setup, one dealing with complaints against police officers of and up to the rank of Deputy. Supdt. of police and the other at the State level to look in to complaints against officers of the rank of Supdt. of police and above. In order to instill confidence in the Authority and to give it credibility, the Supreme Court had suggested that the District level authority may be headed by a retired District Judge while the State level authority may be headed by a retired Judge of High Court/Supreme Court chosen by the State Government out of a panel proposed by the Chief Justice. There are other similar safeguards with regard to the selection of Members of the Authority at the District level as well as the State level. It may be seen that there is gross public dissatisfaction at the present system of Redressal of Public Grievances against the police. To make the police acceptable to the people and to make the people accept their police a credible instrument to look in to police misbehaviour and public grievances is absolutely essential. The directives of the Supreme Court aim nothing more.

The provisions in Section 112 seeking to establish a Police Complaints Authority at the State level and District level, sadly fall short of the aim and objectives of the very proposal.

It is submitted that Section 112 may be deleted and substituted with provisions which would help create a credible mechanism at the disposal of the people to redress their grievances against the police. Nothing else would help evolve a police accountable to the law of the land, transparent in the exercise of their power and acceptable to the people they seek to serve.

12) Service Conditions (Chapter VII Section 85)

The entire range of functions like recruitment and training, remuneration package like pay and allowances and posting and service conditions are dealt with in one Section, Section 85. It is provided that the Government by general or special order would determine the same from time to time.

12.1Duties and functions of the police are given in Chapter II Sections 3 and 4. Rights of the public at a police station are given in Section 8 of Chapter III. The general organization of the police is given in Chapter IV and in Section 21, Special Wings, Units, Branches and Squads are mentioned. Duties and responsibilities of the police are given in Chapter V. On the whole more responsibilities, qualitatively different from the current arrangements are bestowed on the police. The expectations from the police also have been substantially heightened.

12.2 In this background it would be appropriate to spell out, briefly if not exhaustively, the policy outline on recruitment including gender representation, training, career mobility and a remuneration package, commensurate with the arduous nature of police duties and functions.

12.3 The Model Police Act has devoted an entire Chapter, Chapter XI, on Training, Research and Development in Police. Recruitment and Training are dealt with elsewhere also. In Section 55 of Chapter V, the Model Police Act prescribes a training cum education policy for the police, which is of crucial significance to this State and hence reproduced below;

"55. Training-cum-Education Policy for the police
i) The State Government shall lay down a Training-cum-Education Policy covering all ranks and categories of police personnel. This policy shall ensure that all police personnel are adequately trained to perform their job taking due care of proper attitudinal development and shall be linked to career development scheme of police personnel in different ranks and categories.

ii) The policy shall also aim to promote a service culture of police personnel acquiring appropriate educational and professional qualifications as they advance in their careers".

12.4 Both in the Draft Bill prepared by the Law Reforms Commission under Justice V. R. Krishna Iyer and the Draft Police Bill prepared by The Centre for Criminal Justice Research, recruitment and training are dealt with separately, outlining a policy of recruitment that would attract better candidates to the police and a philosophy of training that is an improvement on the existing system (The Gore Committee Report on which police training is structured is itself 36 years old; it was submitted in 1974). Such an approach to training alone can bring about qualitative changes in police service and behaviour. Therefore both recruitment and training should be separately discussed in the Bill.

12.5 Service conditions of primary ranks of the police service, as given in the Draft Bill brought out by the Centre for Criminal Justice Research may also be considered as it would attract better talent to the police service. It would ensure accelerated career mobility to the police personnel. The Career Planning discussed in Chapter XII, Section 89, of the Bill prepared by the Centre reads "The State Government shall formulate a policy for career progression of police personnel in a manner that will ensure avenues for at least three promotions to meritorious officers".

12.6 These recommendations may be incorporated in the Draft Bill.

13 Legal Advisor and Financial Advisor

Both in the Model Police Act (Section 7) and in the Draft by the Law Reforms Commission/Centre for Criminal Justice Research, a case has been made out for a Legal Advisor and a Financial Advisor to assist the Police Chief. In view of the increased responsibilities in these two sensitive areas, the suggestion may be accepted.

14 Commissionerates for Metropolitan Cities

For Major Urban Areas, all over India, a police system, capable of responding quickly and comprehensively to the typically complex problems of crime, public order and internal security, The Commissionerate System, is being considered. The Draft Bill may consider introducing the Commissionerate System for the Metropolitan cities. Chapter X of the Draft prepared by the Centre carries an outline for a police system for Metropolitan cities.

15. Police Accountability

Police Accountability or Accountability of Police Performance, (as different from what is discussed in Section 32 of Chapter V) has to be more clearly spelt out. The National Police Commission has dealt with this issue exhaustively in Chapter LXI of its Eighth and Concluding Report. For the sake of brevity, the summary given by the Commission is reproduced below:

"Accountability is liability to account for proper performance of assigned task. In a democratic society, the police is accountable for its performance to the people. Then, all activities of the police are governed by various provisions of law and each action of the police is to conform to the law of the land. So the police has an accountability to law. Finally, the police functionaries are accountable for their performance to the organization".

This vision of police accountability may be considered for incorporation in the Draft Bill.

16. Police Associations

Police Associations are dealt with in Section 111 of Chapter VII, Service conditions.

In the background of the present adverse publicity generated by the functioning of the Police Associations, the Bill may clarify that the Associations would be effective Grievance Redressal Mechanisms focused on the welfare of the personnel and different from Service Associations and Trade Unions which function among the Government employees of the State. The Police Associations have to be non political or strictly politically neutral and function as an organization of the members of a disciplined force entrusted with such important duties as protecting the life, the liberty and property of every citizen. Being politically partisan would destroy the police.

17. Police image and credibility

The new Police Act should aim at refurbishing the image of the police and re-establishing its credibility. Making the police accountable to law is the only way it can be achieved. Appended to this Note is a xerox copy from a Paper by Dr. K. K. George of the Centre for Socio Economic and Environmental Studies, taken at random (Page 50 – 53, of Samakalika Malayalam Varika, Annual Number, 4-11, June 2010). This observation from an academic, (ignoring the many critical comments) should be an eye – opener, when a new Police Act is being considered.

18. The Statement of Objects and Reasons (Page 61 and 62)

The Statement of Objects and Reasons do not spell out any objects and reasons. It would appear incomplete. The last sentence "The Bill is intended to achieve the above object", has therefore become meaningless. This Para may be re-drafted.