Nervazhi, Thrissur & Asian Legal Resource Centre, Hong Kong
On 11 May 2010, a Select Committee appointed by the Kerala Legislative Assembly prepared and published a questionnaire seeking opinions and advice from the general public, jurists and human rights organisations concerning the Kerala Police Bill, 2010. The purpose of the exercise is to receive comments and recommendations concerning the bill so that the aspirations of the people of Kerala are reflected in the law governing the state police, when the Kerala Legislative Assembly finally enacts the law.
To prepare comments and suggest recommendations on the bill, Nervazhi and the Asian Legal Resource Centre (ALRC) have consulted experts in the field, including senior police officers serving and retired in India, jurists, academics, journalists, and above all, the people of Kerala.
The comments and recommendations below reflect a combination of expertise emerging from this knowledge base.
We have no claims whatsoever that the following pages contain a comprehensive analysis of the bill, but we are certain that the bill, as it stands now has the potential to turn Kerala into a police state. The comments and recommendations are thus made with an intention to prevent this. We have analysed the bill bearing in mind various human rights cases that we have come across from Kerala in particular and India in general. We have studied the jurisprudence developed internationally concerning law enforcement agencies and their operational standards and the case law developed by the courts in India, the Supreme Court of India in particular, concerning the rights of the citizens while in custody and the duty of the state as well as that of the law enforcement agencies in dealing with the citizens while engaged in law enforcement duties.
We have held consultations with the general public about the bill. The use of simple language in this document, understandable to the common person, is the result of the effort taken to write down the opinions the ordinary Indian living in Kerala provided us concerning the bill. It reflects the collective wisdom of the ordinary people, rooted in their experience of dealing with the police as a state institution.
The recommendations also reflect this collective voice of the people of Kerala and their hope that their police can be corrected, provided the law governing the police is also right. Almost everyone whom we have consulted has informed us in various forms that the state of affairs of the Kerala police is deplorable at the moment. They want the new law to be a tool to bring change to this unacceptable status quo.
The ALRC is, along with the comments and recommendations, also submitting a model law for the consideration of the Legislature to criminalise torture and extrajudicial executions.
We hope that the recommendations and comments will be duly considered and appropriate changes incorporated in the bill. We are certain that by incorporating the recommendations in the bill, the Kerala State Police will be provided with a statutory framework to discharge their duties, thereby contributing to develop India, a country of great people, into a mature democracy.
T. K. Naveenachandran, Secretary, Nervazhi
Bijo Francis, South Asia Desk, ALRC
21 June 2010
Section 6
Comment: It is the constitutional duty of the government to provide all resources, without failure and in a prompt manner, to guarantee the disciplined and effective functioning of the police. To realise the mandates set forth in the preamble to the bill and to discharge the duties mentioned in section 3, it is not enough that the government ‘may’ strive ‘subject to resources’ to provide manpower and infrastructure for the police to function.
Recommendation: The current wording in section 6 (1) in the bill does not imply the mandatory nature of state responsibility to provide without failure all resources, financial and logistical for the police to function. Viewed from the reality that lack of resources has been an important impediment for the proper functioning of the police, and the police being a vital state institution for guaranteeing democracy and fundamental rights to the people, the wording in section 6 (1) must be changed to:
“The government shall ensure that every police station has appropriate manpower and infrastructure facilities to provide police services to all who need the same.”
Section 7
Comment: It is the right of every citizen to receive efficient police service at all times. It must not be left to the police or to the government to decide the efficiency and quality of service rendered by the police depending upon the conditions prevailing at the time when the service is required.
Recommendation:
“All citizens are entitled to efficient police services from every police station and police officers at all times.”
Section 8
Comment: In view of the comments and the recommendations made above concerning section 7 it is the right of every citizen to have a peaceful entry to every police station for lawful purposes. Words like ‘reasonability’ and ‘practicability’ must not be left to the interpretation of each police officer that will be bound by this law, since it can vary from person to person.
Recommendation: Accordingly, Sub-section (1) of shall be amended as:
“All persons shall have the right to peaceful entry to any police station for obtaining lawful services and the right to be received at all times.”
Comment: When it is the right of every citizen to lawfully enter any police station for lawful purposes and meet any police officers, it must not be left to the police officer to decide or to impose restrictions upon the citizen whom he shall meet. A police officer, irrespective of rank, is a government servant appointed to serve the public.
Recommendation: In view of the comment above, sub-section (2) shall be amended as:
“Any member of the public shall have the right to meet the officer in charge of a police station.”
Section 11
Comment: The establishment of a ‘Special Police Station’ in any place at all times must be a matter of public knowledge. ‘Out of the ordinary’ police stations are often misused by the police to run illegal torture cells and interrogation houses in India, and Kerala cannot be an exception.
Recommendation: An additional sub-section (7) shall be added to section 11 to incorporate the following:
“The State Police Chief shall by a public notification notify the public of the place and period of the establishment of Special Police Stations.”
Section 12
Comment: Section 12 requires a thorough editing since due to wrong use of punctuation it now appears that it is only required for the police station to maintain a general diary from time to time, as opposed to what is required which is: “Every police station shall keep a general diary, in such form as shall be prescribed from time to time by the government…” Also the changes must be made to read the section as “… charges preferred, the names of the complainants and the names of the persons…”
Section 17
Comment: Similar to the State Police Chief, a person to be appointed as the District Police Chief must not also have any charge pending against him/her at the time of appointment.
Recommendation: An addition to sub-section 17 (2) should be incorporated in section 17 to read:
“The District Police Chief shall not be an officer lower in rank than of a Superintendent of Police and shall not have a charge pending against the person appointed in any Court or Tribunal or Departmental agency on a charge filed on behalf of the state.”
Section 24
Comment: It is the obligation of the state government to constitute a State Security Commission. The commission must be set up according to the directions issued by the Supreme Court in the Prakash Singh & Ors. v. Union of India and Ors, in Civil Writ Petition 310/1996 vide judgment dated 22/09/2006. The judgment, against which the state governments, including the Government of Kerala, filed a revision, which was summarily dismissed, is binding upon all state governments in India and the Government of Kerala is no exception. Accordingly, “the recommendations of the Commission shall be binding on the State Government” (page 8 of the judgment).
Sub-sections 4 and 5 of the bill contravene this obligation of the state government and can be read having powers conferred upon the state government to nullify the recommendations of the commission and therefore its very purpose.
Recommendation: Sub-sections 4 and 5 must be deleted.
Section 29
Comment: According to the laws in India, the police have no legal right to ‘punish’. On the contrary, ‘punishment’ in any form or a threat to punish can be illegal and subject to criminal prosecution. In a mature legal setup, punishments by law-enforcing agencies can amount to torture, a crime having universal jurisdiction and considered to be as evil as slavery and genocide. There is no reason why the Kerala Police can be an exception.
Recommendation: Sub-section (2) must be amended as follows:
“They shall not, unless it is necessary to achieve any lawful purpose, use force or threaten use of force or any legal action.”
Further comment: Maintaining good manners and good health must not be the singular responsibility of the state police officer. It is a requirement to maintain discipline among the officers and a primary necessity to keep a vital public service in good shape. This implies in addition to the officers maintaining good manners and a good physical state at all times, that the government must ensure that the working conditions of the officers meet standards that would allow the officers to be in good mental and physical state.
The government must also guarantee that there are adequate arrangements made to provide periodic training, physical, scientific and psychological, to the officers. For this the very notion of viewing police as just ‘the arm of the state to enforce law by force and to maintain discipline’ must change. Police in many parts of the world that face manmade and natural calamities and threats much more than in Kerala have changed from being a stick or weapon-wielding uniformed arm of the state to that of a people-friendly service provider and an agency the common citizen trusts and does not fear to approach. This has been possible by gradually educating and encouraging the police to deal with citizens with respect, to undertake investigations scientifically, ensuring timely prosecution of the crimes the police investigate, and by providing employee-friendly service packages, including conditions of service and other benefits.
Today, for various reasons, the Kerala Police is an internally demoralised force. This is not unique to the Kerala Police, as it is a common character of the police in all other states in India and even in the neighbouring countries. This must change. Expecting the police to function to the best of their ability without adequate service packages, including working conditions is like expecting to row a boat on dry sand. Poor working conditions, like in any job, demoralise the employee. The service conditions, including training facilities, have to be made. To begin with, the willingness of the government to provide good working conditions to the police must be reflected in the law. Thus the following sub-section must be incorporated into section 29, reading:
“(7) It shall be the duty of the State Government to provide the best working conditions for the police, in terms of salary, allowances, training and deployment. The State Security Commission shall make periodic directions to the Government with a view to improve the working conditions of the police, their training and deployment.”
Section 30
Recommendation: In the light of the comment and recommendation above, sub-section (4) may be amended as follows:
“The Government shall institute a system of incentives and infrastructure facilities to promote good mental and physical health of the Police Officers.”
Section 31
Comment: By being in custody, a person’s right to dignity and privacy is not surrendered to the police. Even a convict has an inalienable right to dignity and privacy. Parading a suspect in public is a cruel and inhuman practice currently followed by the police. It is a form of extrajudicial punishment.
Punitive jurisprudence has changed world over and it is only in places where the development of law and practice is still stuck in the medieval mindset that public parading and punishment of suspects is practiced today. Such punishment impairs the possibility of a person to change or reform. It traumatises a person, often beyond the point of recovery. Parading a suspect or convict in public is counterproductive for correction. This practice has to end in India and Kerala can be a model.
Recommendation: For the above reasons, sub-section (3) shall be amended to read:
“Persons in custody shall not be paraded or photographed for the purpose of publication in press or visual media. The police shall take all measures to guarantee and respect the privacy and dignity of a person in custody, even if the person is a convict.”
Section 32
Comment: A police officer and the police department is a ‘state agent/agency’ and by virtue of this status, all acts of the police must be accountable. Record keeping is fundamental to accountability. No action of the police is at anytime non-recordable and any attempt to breach this vital duty is prone to misuse by the police and anyone in control of the police.
Police cannot commit illegal acts with impunity, and if the police commit no illegal acts they have no reason not be any hesitation to keep records of all actions. Additionally, the criminal law of India mandates law-enforcing agencies to maintain activity records, as these records forms vital part of the crime adjudication process.
Recommendation: For the above reasons sub-section (2) shall be amended as:
“Under all circumstances in every case, a police officer, performing any act which is likely to endanger or adversely affect a person’s fundamental liberties, property or reputation of a person, shall maintain records of all of the officer¡¦s actions as may be prescribed by any law governing the performance of such act or by the State Police Chief.”
Comment: The Indian Evidence Act, 1972 the Criminal Procedure Code, 1973 as well as the Criminal Rules of Practice, 1982 mandate all crime investigating agencies to provide all evidence against an accused in court in the trial, irrespective of the fact whether the production of such evidence may adversely affect the prosecution case or not. In addition under the provisions of the Right to Information Act, 2005 all actions of a public office and servant must be provided to the information seeker under the act, unless the disclosure of such information is exempted under the Right to Information Act, 2005.
Refusal to divulge information by the police unless it is exempted by any of the above law is illegal and unwarranted. Such a provision can lead to misuse of authority, intrusion into the privacy and the breach of fundamental rights of a citizen.
Recommendation: For the above reasons sub-section (3) shall be amended as follows:
“The State Police Chief or any police officer shall not deny the furnishing of information to any person concerning any acts committed by the police, unless such information sought for is exempted by the Right to Information Act, 2005.”
Section 34
Comment: While a complaint can be made to a police officer by various means, including the complainant remaining anonymous, it shall be the duty of the police officer receiving the complaint to record and investigate it. It must be mandatory for the police officer to record the complaint, including the manner in which the officer received it. It shall also be the responsibility of the officer to record with reasons what actions have been initiated upon the complaint, and its result.
Upon receipt of a complaint through any means, including written or oral, it shall be the right of the complainant to receive an acknowledgment of the fact that a complaint has been lodged with the police. It shall be a duty of the police officer to give such written acknowledgment to the complainant.
If a police officer decides to take no action upon receiving a complaint, that also has to be recorded by the officer. If the complainant has provided the complaint either orally or by other means where the identity of the complainant is made available to the police officer, it shall be the duty of the police officer to inform the complainant in writing whether the officer has investigated the complaint and why no action has been taken and the complaint is dropped. Such information has to be provided to the complainant regarding the action taken upon the complaint, in addition to the written acknowledgement for the receipt of the complaint within 48 hours from the time of receipt of the complaint.
Recommendation: In view of the comments above section 34 shall be amended as follows:
Section 34 (1) A complaint to the police officer may be made orally, or in writing or by gestures or signals or by digital or electronic means. A police officer receiving the complaint shall investigate the complaint immediately.
(2) The complainant has a right to receive a written acknowledgment for the filing of the complaint from the police officer receiving the complaint within 48 hours from the filing of the complaint. A person filing a complaint by personally presenting at the police station or through the complainant’s authorised representative has a right to receive such acknowledgement immediately. For the purposes of issuing an acknowledgment, the police officer may require the complainant or the complainant’s representative to provide the police officer the complainant’s or the representative’s identification details, which may either be a contact address, or the details in any identity document that is issued by the government in the name of the complainant. It shall be the right of the complainant however to refuse it and to remain anonymous.
(3) Upon receipt of a complaint, the police officer shall record all details of the complaint in the record maintained at the police station where the officer serves within 24 hours of the receipt of the complaint.
(4) The police officer shall investigate the complaint and take appropriate actions against the compliant, including the decision to drop the complaint.
(5) For all actions mentioned in sub-section (5) above, the officer shall provide written information to the complainant informing the complainant what actions the officer has taken upon the complaint and the reasons for the same. Such written information shall be provided to the complainant within 72 hours from the receipt of the complaint.
Section 35
Comment: One of the several reasons why persons fail to volunteer as witnesses in cases involving the police is the present practice where the police officers summon witnesses to the police station. Often this procedure has been misused to the detriment of crime prevention and eventually criminal trial. Cases are common where police officers summon a person to the police station repeatedly on the pretext of gathering evidence or recording statement. This practice must end.
Recommendation: Changes must be incorporated into sub-section (2) of section 35 as follows:
“All witnesses shall be approached by the police officer at their normal places of residence or work. No one shall be summoned to the police station for the purposes of recording a witness statement.”
Comment: It shall not be the lawful duty of any police officer to curtail the freedom of movement or privacy of any person. Limitations on these two rights can only be enforced by a court and a police officer at no time must be given a quasi-judicial authority, particularly those that may result in the infringement of individual freedoms.
Recommendation: For the reasons stated above, sub-section (3) shall be deleted.
Section 36
Comment: While it is required for the police officer to demand the identity of a person as an essential tool for crime prevention and for the maintenance of law and order, such a tool must be used with caution since it has the potential to enable a police officer to interfere into a citizen’s life and privacy for unlawful purposes, or at the least for causing nuisance. Hence two qualifiers are essential to define this authority so that it is used with caution. They are the rank of the police officer and the officer’s reason to demand the identity of a citizen, which is when the officer suspects that the person to whom a demand is made has committed a crime or is to commit a crime.
Recommendation: For the reasons stated above, to apply caution to the use of such authority, section 36 shall be amended as follows:
“Section 36 (1) Every person shall disclose the person’s identity when so required by a police officer not below the rank of an Inspector of Police. The police officer requiring a person to disclose the identity shall do so only if the police officer is of the opinion that the person is likely to commit a crime or is suspected to be in the process of committing a crime.
(2) Such police officer may take reasonable steps necessary to get the identity of the person established and for this purpose, the police officer may make such or write down such records of personal identity as may be necessary in each case. However, the police officer so recording the personal details of a person shall give in writing to the person whose identity is being questioned the officer¡¦s reason for demanding such personal details.
(3) No person shall be arrested or kept in custody in any manner under this section merely for the reason that the identity given by such person requires to be verified.”
Section 37
Comment: Privacy is the right of a citizen and it is the responsibility of the state to guarantee and protect it. Police being a state agency, it shall be the duty of every police officer to protect a citizen¡¦s right to privacy and property. Therefore the police have no reason to intrude into the privacy of a citizen, unless such intrusion is necessitated to prevent a crime, or to protect another person or property. The procedure for this is mentioned in the Criminal Procedure Code, 1974. The Kerala Police Act cannot override the provisions in the Criminal Procedure Code.
Recommendation: Section 37 for the reasons stated above shall be amended as follows:
“No police officer shall have access to a private place unless following the procedures mentioned in the Code of Criminal Procedure 1974.”
Section 40
Comment: An educational institution is a place for students and teachers. The police have no role to play inside an educational institution, unless the head of the institution requires police help.
Recommendation: In light of the above comment, in sub-section (2) “including educational institutions” shall be deleted.
Section 45
Comment: The police while an important arm of the state to maintain law and order, must remain an executing arm of the state and must not in any circumstances be bestowed with any decision-making powers, particularly when an area is declared ‘disturbed’ by the government. As of now, the Criminal Procedure Code, 1974 empowers an Executive Magistrate with certain powers to limit individual freedom under section 144 to maintain peace and prevent large-scale violence. It must be left as is and the authority of the Executive Magistrate shall not be delegated to a Station House Officer in any circumstances.
Recommendation: For the reasons stated above, sub-section (2) shall be amended to read:
“When an area is declared to be a disturbed area, the Station House Officer may, under written instructions and the supervision of the Executive Magistrate entertaining jurisdiction over the area, in the interest of maintenance of law and order,-
(a) … same as in the draft Bill (b) … same as in the draft Bill (c) … same as in the draft Bill (d) … same as in the draft Bill”
Section 46
Comment: Studies conducted by the ALRC and Nervazhi suggest that mistreatment of persons by the police happens the most while they are detained in custody. This is not exceptional behaviour of the Kerala Police, and is a common characteristic across police units throughout India.
That torture is an act that the state commits against the citizen calls for special seriousness with which this crime must be treated. World over, much has been discussed, and the jurisprudence against torture has evolved and developed. Today a police officer engaged in the practice of torture is looked down on as an incapable officer not worthy of serving the citizen, a person who is systematically engaged in committing a crime and somebody who requires psychological assistance to recover.
The torture and inhuman or degrading treatment of suspects and persons in custody is a crime that is recognised world over as evil. Yet, in India torture is not a crime and there is still no credible mechanism in India by which a case of torture can be punished. The only advancement India has made in dealing with torture is in the initial stages, at the behest of the Supreme Court of India, which has made it mandatory for the police and all other law-enforcing agencies to follow a strict set of procedures, which if followed limit the chances for a state officer to engage in torture.
The bill as it stands now appears to dilute this procedure by convenient usage of terms and provisions as provided in sub-section (8) of section 46. The state government cannot in any form dilute the procedures set up by the Supreme Court when it decided the D. K. Basu case.
The procedure to be followed by the law enforcement agencies in India at the time of arrest and detention has been an issue of discussion and concern at various forums, including the Supreme Court of India and venues where India’s state obligations are assessed and reviewed under the International Convention on Civil and Political Rights.
The Supreme Court of India has on several occasions issued clear and specific directions for law enforcement agencies to follow at the time of arrest and detention of persons. Based on these recommendations the Criminal Procedure Code, 1974 has been recently amended to incorporate the Supreme Court’s directives. These directions are mandatory for all law enforcement agencies, and the Kerala Police cannot be an exception. Accordingly section 46 has to be completely changed.
Recommendations: In view of the comments above, section 46 shall read as follows:
“Procedure for arrests: (1) A police officer arresting a person shall inform the person at the time of arrest, the reason for arrest and caution the arrestee that she/he has a right to remain silent and that whatever the person may say to the police officer could be used against the arrestee in future legal proceedings against the arrestee and that the arrestee has a right for legal counsel.
(2) The police officers carrying out the arrest and handling the interrogation of the arrestee must bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police officers who handle interrogation of arrestees must be recorded in a register.
(3) The police officer carrying out the arrest shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(4) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up shall be entitled to have one friend or relative or other person known to her/him or having interest in his welfare being informed, within six hours, that the person has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(5) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(6) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(7) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
(8) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The ‘Inspection Memo’ must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(9) A trained doctor must medically examine the arrestee every 48 hours during his detention in custody. Such doctor shall be from the panel of approved doctors appointed by Director of Kerala Health Services. Director of Kerala Health Services shall prepare such a penal for all Tehsils and Districts and review the same every six months.
(10) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Judicial First Class Magistrate entertaining jurisdiction over the place where the arrest is made or the arrestee is detained for her/his record.
(11) The arrestee shall be permitted to meet his lawyer during interrogation.”
Section 47
Comment: No police officer should be allowed at any point to use force upon a detainee at the time of arrest or after, unless the force is required to arrest the person. While the term ‘minimum force’ can be subject to interpretation depending upon the circumstances in each case, the term must not be left to wide interpretation that allows a police officer to defend his acts whatever be the nature of the case. For this very reason the language in section 47 must be precise.
Recommendation: Sub-section (1) of section 47 must be amended to be specific. As of now, usage of terms like ‘suitable gadgets’ can cause serious challenges to interpretation as anything could be a gadget, including a weapon, which if used at the time of arrest can cause serious injuries to an arrestee. Thus sub-section (1) must be amended as follows:
“A police officer shall not use force at the time of arrest unless the use of minimum force is required to arrest the person and to prevent the person from escaping from custody. While using force the officer must not use force than what is required to carry out his lawful duty. Use of force shall not be as punishment.”
Section 50
Comment: While it is the right of the police to seek medical treatment of a person in custody from any hospital, and it is the responsibility of all medical facilities to provide treatment to persons in police custody, it shall also be the responsibility of the hospital to produce a copy of the medical report to the person examined or to his authorised representative and get acknowledgment for the same.
Recommendation: Sub-section (2) shall be thus amended as:
“It shall be binding upon the hospital authorities to immediately furnish on demand to the police copies of all the medical records pertaining to the treatment of such persons. It shall also be binding for the hospital authorities to furnish a copy of the records handed over to the police to be submitted to the person examined or his authorised representative and obtain acknowledgement, irrespective of the fact that such a record has been demanded either by the person or his authorised representative.”
Section 51
Comment: Injuries sustained at the time of arrest or in custody could not only challenge the entire police operation, but could also play a vital role in determining whether a person has been mishandled by the police. It is for the benefit of the injured or those accused of having caused the injury that a medical examination is conducted when an injury is suspected.
Additionally, all injuries need not be visible since there could be internal injuries. Not all persons at all times can be expected to be conscious or suffer pain immediately after sustaining an injury enabling the person to complain. Neither is a police officer a medical practitioner, who could assess the injury a person might have suffered. So it shall be mandatory for a police officer to produce a person who is under the officer’s care and custody before a medical practitioner for medical examination.
At the time of medical examination, the officer accompanying the person shall not in any form interfere or witness the medical examination or listen to the communication between the person and the medical examiner. The medical report prepared by the medical examiner shall be despatched to the nearest Judicial First Class Magistrate entertaining jurisdiction in a sealed envelope by the medical examiner through the police officer producing the person. The officer shall also provide a copy of the same to the person examined or his authorised agent.
If the person produced requires continuous treatment or admission at the hospital or to be referred to another hospital for specialist treatment, the same shall be incorporated in the report and the police officer producing the person instructed to ensure that the person continues to receive treatment.
Recommendation: Section 51, for reasons mentioned above, shall be amended as follows:
“Action in respect of injuries on those in police custody: When any person is taken into police custody in a physically injured condition or if application of force upon the person in custody by the police officer was required or if the person in custody complains of pain, the Station House Officer shall immediately cause the person to be examined by a medical practitioner.
(i) The medical practitioner before whom a person is so produced shall medically examine the person, ensuring that no police officer witnesses the medical examination or over hears the consultation between the person and the medical officer.
(ii) The medical officer shall prepare a medical report, that includes the version narrated by the person examined, regarding what caused the injury or pain with details concerning the event, including the date, place and time and the persons involved and the same shall be on the same day send to the nearest Judicial First Class Magistrate entertaining jurisdiction in a sealed envelope through the police officer who produced the person.
(iii) A copy of the report shall be handed over to the person or to his authorised representative. If the person is unconscious, or does not want the copy to be furnished to him at the time of examination, the medical officer shall keep the medical record in his safe custody, until demanded by the person or a court. Under no circumstances the medical practitioner shall make the detailed contents of the medical record available to the police officer.
(iv) If the person produced requires admission at the hospital or has to be referred to another hospital with adequate facilities, it shall be the responsibility of the medical practitioner to inform the police officer producing the person about the requirement and to guarantee that the person receives treatment as chosen by the medical examiner.”
Section 65
Comment: The concept of community policing is good in places where the state of affairs within the police is also good and the purpose of constituting community police is to provide meaningful and thoughtful advice to the police so as to help them to merge with the society. In India however the concept is premature and is often an ill-conceived licence to form vigilante groups, like the Salwa Judum in Chhattisgarh or the village defence forces formed in Manipur.
The pretext for introducing the concept of community policing in India is that it will make the police people-friendly and it can be used as a mode by which the police can seek advice from the community to improve policing. Indeed the suggestions from communities, if they meet democratic and rule of law standards, must be incorporated in policing and there is definitely lot of scope for this today in India.
Yet, the reality in India is that the ordinary people are distanced from the police due to a combination of factors, of which the primary two are that ordinary Indians are afraid of the police due to the extensive use of torture, and the repeated and demonstrated failure of the police to do their job as mandated by law. Without addressing these two cardinal issues, introducing concepts like community policing into the police will only help to worsen the situation and at the very least to create avenues for the influential middle class to use this concept as a tool for settling partisan issues based on wealth, influence, political allegiances and above all religion and caste.
Security and safety of person and property is primarily the responsibility of the police and it is the right of everyone. Today, in Kerala this responsibility has been largely delegated to the ordinary public due to the utter failure of policing, which has resulted in situations where crimes like burglary have now been left to local communities to detect, investigate and prove, so that the role of the police has become that of an uninterested bystander who does no more than finally produce the suspect in court. This has resulted in large-scale violation of human rights.
Unfortunately, even human rights organisations, some of them based in New Delhi, have been advocating for the introducing of community policing throughout India, and the “Kerala Model” has been falsely projected as a success story. This is because of the lack of understanding about the day-to-day functioning of the police and the reasons for their failure as a state institution in India. The bill must not be a statutory excuse for the police to neglect their duties and expect the community to do policing on their behalf.
Recommendation: Section 65 shall be deleted.
Section 99
Comment: The concept of Special Police Officers is a colonial concept that had justifications for a colonial master to run a colony. Sixty-two years after independence, there is no reason why a state government should require Special Police Officers. The concept, as evidenced in states like Chhattisgarh and Manipur, has the potential to be misused where neighbours can be asked to fight neighbours. It is a failed concept and was scrapped some three years ago in Jammu and Kashmir.
It is the responsibility of the state to account for the safety and security of the citizens and their property. The state has the constitutional duty to provide adequately for the proper functioning of the police and other law enforcement agencies required in the state. Expecting the ¡¥outsourcing¡¦ of police and employing mercenaries is a concept not practiced in civilised jurisdictions. Kerala thus does not require Special Police Officers.
Recommendation: Section 99 must be deleted.
Section 113
Comment: It is an option of the complainant to choose the forum where the complainant would prefer to file a case against a police officer. It is redundant for a complainant to complain against a police officer to an adjudicating body where one or many of the adjudicators are police officers. In that sense, the constitution of the police complaints authority at the state and the district level must not have a police officer as one of its members. Accordingly the constitution of the State Police Complaints Authority and the District Police Complaints Authority must be changed in the following manner.
The State Police Complaints Authority shall be chaired by a retired high court judge and of the two additional members, one shall be a government servant of the rank equal to that of the chief secretary of the state government and the other a legal practitioner having legal practice for not less than 15 years with an advanced master’s degree in law, preferably in human rights law. At least one of the members shall be a woman.
The District Police Complaints Authority shall be chaired by a retired district and sessions judge, and of the two other members, one shall be the district collector and the other a legal practitioner with at least 12 years of legal practice and with a master¡¦s degree in law, preferably in human rights law. At least one of the members shall be a woman.
The jurisdiction of the police complaints authority shall not supersede the statutory authority or the State and National Human Rights Commissions.
Recommendation: Section 113 shall be amended as follows to include the following sub-sections:
“(5) Nothing in this section shall prohibit the jurisdiction of the State and National Human Rights Commissions or of any court for entertaining, adjudicating and deciding cases against police officers.
(6) Upon written complaint regarding a police officer to any of the authorities or bodies or Courts mentioned above, the police officer against whom a complaint has been filed shall be immediately placed on suspension and discharged from all duties. Provided such suspension from duty shall only be made based on the direction of any of the bodies mentioned above, after the body considers the question on a petition filed accompanying the main complaint. That the officer is investigating a serious crime shall not be an excuse from the operation of this sub-section.”
Section 116
Comment: To prosecute any police officer committing a crime under any law does not require the prior sanction of the government. The Police Act cannot supersede the provisions in the Criminal Procedure Code where government sanction is required only if the act subjected to prosecution was carried out legally in the course of discharge of official duty. Breach of violation of a law, if it amounts to a crime, must not be provided statutory impunity from prosecution, even for the slightest period of time. In addition, it must not be left for the exclusive discretion of the government to decide whether a state agent must be prosecuted for a crime the agent has committed. Such provision undermines the very notion of justice and equality and only allows statutory impunity and nurtures corruption.
It is also an anomaly to create an institution within the police having the exclusive and sole authority to investigate, prosecute and adjudicate crimes committed by police officers. It must not be at any time left to the exclusive decision of a superior officer to decide whether a subordinate officer has to be prosecuted.
What is required in Kerala in particular and India in general is to have separate authorities independent from the police having investigative and prosecution authorities to deal with the crimes committed by police officers. Such an attempt has not been so far made either in Kerala or anywhere else in India. Until there is such an authority, independent from the police to investigate and prosecute crimes committed by the police, the existing and alarming instances of crimes committed by police officers of all ranks cannot be successfully prevented.
In countries and jurisdictions where the police officers are considered to be people-friendly and honest and held by the citizenry as one of the coveted government agencies, such independent mechanisms do exist. It is apparent that this new bill is far short of addressing crimes committed by police officers and as it stands now fails to provide foolproof mechanisms where a citizen having a complaint against a police officer can approach with trust and expect actions taken upon his complaint. Instead, the bill has been reduced to give wide ranging arbitrary authority to the police of all ranks and further, left complaints against police officers to the whims of superior officers, which is like asking the thief to investigate the theft.
To complain and to have independent mechanisms to file, investigate and prosecute complaints is a right of the citizen. A loosely worded bill as it stands now must not take this right away.
Recommendation: Section 116 shall be amended as follows:
“116. Protection to police officers: (1) No suit, prosecution or other legal proceedings shall lie against a police officer or a public servant duly appointed or authorised under this act for anything done or intended to be done in the lawful discharge of duties. However such protection shall not be available for any crime under any law committed by the police officers or a public servant duly appointed or authorised under this act.
(2) No prior sanction from any authority is required to take cognizance of any offence alleged against a police officer or a public servant duly appointed or authorised under this act.”
Sub-section 3 and the subsequent proviso shall be deleted.
Section 117
Comment: There shall be no prescribed period of limitation for the prosecution of any crime committed by a police officer. Section 117 shall be thus deleted accordingly.
Section 120
Comment: Crimes committed by police officers are to be considered serious in nature, irrespective of the pecuniary or physical damage caused by the crime. The simple argument to this is the fact that a person who has the statutory duty to prevent it commits the crime. The punishment prescribed in the bill as of now is too low.
Recommendation: For this reason section 120 shall be amended to increase the imprisonment, its nature and fine as follows:
“… shall, on conviction, be punished with rigorous imprisonment for a period of seven years and shall be liable to pay fine. The amount of fine shall be not less than Rs. 300,000 in all cases. Whereas if a person has suffered mental or physical injuries and trauma as the result of a crime committed by the police officer, the amount of fine shall not be less than Rs. 1,000,000.”
Section 129
Recommendation: In view of the comments made under Section 116, this section must be deleted.
………
Footnote: This article consists of the edited text of a report released by Nervazhi, a registered human rights organisation in Thrissur, Kerala state, India; and, the Asian Legal Resource Centre, a regional human rights organisation based in Hong Kong with the General Consultative Status at the Economic and Social Council of the United Nations, outlining a critique with recommendations for public discussion, and debates in the Kerala Legislative Assembly on the Kerala Police Bill, 2010 (Bill No. 331 of the 12th Kerala Legislative Assembly). The bill is reproduced in full in this edition of article 2 as an annexe to this critique. For inquiries and comments in Kerala please contact: Mr. T. K. Naveenachandran, Secretary, Nervazhi, ACF Centre, Ayyanthole Post, Thrissur district, Kerala State, India, 680 003. Telephone + 91-487-3261235, Email: nervazhithrissur@yahoo.in.
