Observe things and learn

One thing I would like to share... It is about observation and learning... and one of my friend Deepak Sharma. I was in eigth class in Jammu. During one of our sports period, it was football ground and as usual we have have to divide our classmates into two teams... everyone wanted to be part of the team which has good players... I was one of them. But to surprise Deepak always played for the team which seems weak and later I followed him and felt the changes... One good reason I found that he do not like few who were good players and another yet to explored. But he gave me a lesson. Play for the weak team you will not only hone up yourself but also work hard to prove you capacity and capability. You will read the strong opponent more clearly and improve accordingly...The result, Deepak outshines in many matches as good defender and he was in for the school football team. Later because of him I was inducted in the school team. I played as left forward player...

ACCOUNTABILITY OF POLICE PERFORMANCE

Our experience in the preceding three decades after independence has shown that a Constitutional system of Government based on democratic principles cannot function without the support of an effective, efficient and accountable administration. Constitutionally, the political executive i.e., the Minister has been made accountable for the performance of the bureaucratic executives under him. We feel that such undiluted ministerial responsibility is not in the interest of either administrative efficiency or the people sought to be served by the administration in the present conditions. Responsibility of the political executive or the Cabinet in the Assembly is too broad to afford relief to the people who have no access to the channels of power. It is, therefore essential that the accountability of the bureaucratic executive at the various levels be defined and a degree of immediate proximity to the people introduced. The concept of anonymity of the bureaucratic executive cannot wish away the necessity for fixing his accountability for the performance of his duties. While the above is true for the entire administrative machinery, it has an extra significance for the police organisation which is entrusted with the task of preservation of the basic order in society which is essential for the stability of a Constitutional Government. Unlike the other executive wings of the Government, the police has maximum visibility. Visibility by itself waters down anonymity. The accountability of the police has to be viewed in this light.Accountability means answerability for the proper performance of the assigned task. It means more than mere responsibility to discharge the duties involved in a job and includes that the discharge of duties shall be to the satisfaction of the party for whose benefit the duties are being discharged. Therefore, accountability pre-supposes two parties, one under obligation to render account for the proper performance of the task assigned and the other having a right to ask for and receive such an account. While the party who renders account has perforce to be unitary, the party which has the right to ask for and receive the account may be multiple. It may be within the organisation or outside.It is, therefore, essential that the departmental functionaries should know clearly the source of authority to which they have to account for their performance. A clear understanding of the concept would indicate to them their various roles and functions the level of expectations and the limits and constraints within which they have to function. A similar understanding is essential on the part of the source of authority to which the police is accountable. Lack of understanding by either side will result in misplaced goals and objectives and consequent displacement of accountability.This leads us naturally to the next issue as to whom the police is accountable. In a democratic society, each department of the Government including the police is ultimately accountable for its performance to the people. However, direct accountability to the people in a society like ours may prove difficult. It has, therefore, been constitutionally laid that the public service is accountable to the elected representatives of the people at the forums of Parliament and State Legislatures through the Minister/ Ministers concerned. We have already stated that in the modern world ministerial responsibility of this kind waters down the administrative efficiency and fails to provide the necessary satisfaction to the people. It has become urgent and essential to devise new mechanisms of accountability to ensure a certain amount of direct responsibility to the people at the various levels of administration.While the ultimate accountability is to the people, the police have a proximate accountability to the law of the land, which in essence is the expression of its will. As the prime law enforcing agency, the activities of the police not only centre around the enforcement of various laws, but their free functioning is also governed by the processes of laws. The action of the police is, therefore, confined to the laws of the land while enforcing the same. Every stage of their activity is given, governed and judged by provisions of law. In this area of accountability to the law of the land the police activities come under very close scrutiny of the judiciary. In other words, the accountability to the law is ensured by judicial review at several stages.61.6 Apart from the above two sources of authority to which the police is accountable they have a direct accountability to the organisation. This accountability is ensured under the various regulations and departmental procedures apart from the inspections and periodical review of administration.61.7 We have spelt out in the preceding paragraphs the three-fold accountability of the police i.e. to the people, to the law and to the organisation. We would emphasise that the concept is in fact inter-related and ultimately points to one and the same principle The laws are the collective will of the people expressed through various legislative bodies and put into a formal shape. The department functionaries are bound to act according to the laws as enacted. Finally, it is the people who have created and authorised the supervisory hierarchy of the department to control and direct the functionaries at police station and other levels so that the latter discharge their statutory duties in accordance with the procedures established by law.
Accountability to the people61.8 As stated earlier, at present the concept of total anonymity of the bureaucratic executive and undiluted ministerial responsibility to the people has resulted in distortions affecting police efficiency and citizen-satisfaction. Unfortunately, therefore, the concept of ministerial responsibility has given the wrong impression to the political executive that they are authorised to guide and intervene in all functions of the police in all areas regardless of such guidance or intervention being in accordance with or in contravention of the law of the land. We have brought into clear focus in our earlier reports the harm this has done to the people. We wish to emphasise that it is ultimately the people whose agents the police functionaries are and to whom they are ultimately accountable. Realisation of this concept in our opinion, is of vital importance. We however, find that the process of the police accountability to the people has suffered considerable distortion in the recent past. Various pressure and elite groups have come to develop in society having infinite expectations from all Government departments including the police and seeking favours to the exclusion of legality and fair play. These are members of State and Central Legislatures, the local bodies, important functionaries of political parties, particularly the ruling ones, representatives of the local, yellow press, other important persons of the locality and Government servants holding important positions, who have tended to divert the police accountability from the people to themselves. Police functionaries, therefore, also have tended to shift their priorities on to these pressure groups. This has had obvious effect on the attitude of the common people themselves, who feel that the public services including the police service are meant only to serve the elitist groups and in case they wish to avail of any public service, they have to purchase it through illegal gratification or secure it through exercise of pressures from power-wielding sections of the society.61 9 Another distortion noticed by us is preferential attention of the police to the urban areas at the cost of the rural areas. Since the urban population is more vocal and more demanding, the public services have tended to neglect the rural population. We understand, in several States, departmental instructions provide compulsory stay of district level officers in the rural areas for at least 90 days every year. We notice that these instructions are seldom complied with. Police functionaries of and above the level of Dy. Supdt. of Police/SDPO, therefore, do not come into contact with the rural population as frequently as they should. The rural areas are neglected except for completing the rituals of supervision and inspection. Therefore, the police officials appear to be out of touch with the problems and difficulties facing the vast majority of the people, residing in the villages. In this context, we would strongly recommend strict compliance of the existing instructions and would emphasise that officers of the level of SDPO and SP must reside in the rural areas for at least 90 days in a year Such stays would help them to come in close contact with the common people, know their problems in full and seek their cooperation in various police activities. It will also provide opportunity to police officers to meet representative sections of society and discuss various problems facing the people at large.61.10 The assessment of the police performance has two facets — the-first facet consists of the examination of records during inspections, which constitutes the visible part of accountability as prescribed. More important is the invisible part which can be gathered only by interaction with the people by the inspecting officers. This interaction will enable them to assess the actual qualitative performance of policing, its impact in that area on citizens and the feeling of security. It is, therefore, essential that officers should not make such inspections a routine drill but introduce such fraternisation as is deemed fit so that the interaction with the public will enable them to elicit the maximum possible information about the views of the people in regard to the functioning of the officials in the area.61.11 At present the Annual Administration Reports of the State Police are compiled on the basis of statistics and information collected from the various levels in the organisation. This report attempts to present a picture of the standard of policing within the State during a specific period, usually a calendar year, but generally it bases its conclusions on the basis of the statistics, emanating from the police stations. The report is submitted to the State Government who review it and along with its conclusions present it to the Assembly for discussion. In actual practice, in most States there is a considerable time lag between the date of submission of the report before the Houses and the period to which it relates.61.12 We have recommended in our Second Report that the evaluation of performance of the State Police would be one of the tasks assigned to the State Security Commission The aforesaid Annual Administration Report of the State Police will naturally be an important document to aid the State Security Commission in the evaluation of the performance of State Police. But we feel that this document is not enough for an objective assessment. It is based on the statistics, which, as we have more than once observed in our previous reports, are unreliable on account of the fact that there is considerable burking of crime. Further, the Annual Administration Reports generally project only a quantitative assessment. It is not possible to have an accurate idea of the qualitative satisfaction of people from such reports. We, therefore, recommend that the State Security Commission be also provided an independent Cell to evaluate 'police performance, both in quantitative and qualitative terms. This Cell should not be a part of the police and may include experts from other disciplines according to requirements. In addition to the two reports mentioned above, the State Security Commission would also be receiving an assessment report, though not so detailed regarding the state of policing from the Central Police Committee recommended by us in our Seventh Report. In our view, these three reports, each emanating from different channels, should provide a reliable base to enable the State Security Commission to assess the police performance objectively and with an amount of certainty, enough to inspire public satisfaction. The State Security Commission will thus be adequately equipped to prepare its own assessment of the performance of the State police, to be placed before the State Legislature.61.13 The preparation of the final report, to be put up before the Legislature by the State Security Commission itself will lend the report greater acceptability. The Commission will consist of not merely the Home Minister but Members of known integrity and impartiality drawn from various cross-sections of society who would have no temptation not to call a spade a spade. At the same time, the system suggested by us will bring to the notice of the Home Minister a more reliable and more detailed picture of the State policing and will thus enable him to take the necessary corrective steps thereby helping him to discharge his responsibilities as a Home Minister in a much better manner.61.14 We would have liked the accountability of the police to the people to be made more direct and visible by vesting the power in the people to ensure accountability directly to the people themselves. But in a representative democracy like ours we are aware that ensuring such a direct accountability, though desirable, is beset with various difficulties. We are, however, convinced that it is not impossible to introduce a near direct accountability of the police to the people whom they serve. This does exist in a way even today. The Superintendent of Police of a district and the Range DIG get regular feed-back from the people and the press. This enables them to assess the performance of the officers at the Station House and other operational levels.61.15 What we desire is to create the awareness of direct accountability to the people at the various levels in the police hierarchy. In other words, this awareness of accountability to people should not only permeate the system but the officers individually as well as in groups should be sensitized to the idea of the importance of accountability to the people. We have stressed this aspect in our Chapter on 'Training of Police Personnel' also.61.16 Inspections are instrumentalities in introduction of direct accountability to people Officers, therefore, have to take inspections seriously and make them more meaningful by conscious and constant interaction with the people. They should not hesitate to meet the people and the press, nay, they should seek out people during their inspections to get the necessary feed-back to assess the functioning of operational level policing. This should be both at the district and at the Station House level. During the inspections the Inspecting officers should call meetings of the cross-sections of the people and discuss their problems with them. At the district level they should hold meetings not only with the cross-sections of the people but with the representatives of the people at the Municipal, Zila Parishad levels and with the MLAs and MPS of the constituency.61.17 During inspections the inspecting officers should devote special care to scrutinise and review the overall pattern of complaints that are received. If a complaint of a particular kind is repeated or frequent complaints are noticed from a particular area the Inspecting Officer should investigate into the causes. Selective inspection should be carried out so that the complaints as well as the reasons therefor could be ascertained in detail.61.18 We would like to lay emphasis on the point that officers at the level of Superintendent of Police and above should be required to watch the reputation of Station House Officers. Responsibility in this regard must be squarely fixed on them and any failure on their part in this regard should be viewed seriously. However, there may be circumstances where the supervisory ranks may either fail to assess the reputation of the SHO or fail to take appropriate action even after a case of bad reputation has come to their notice. In such circumstances, the people have a right to petition to the State Security Commission. In such cases the State Security Commission should cause appropriate enquiries to be made to gauge the reputation of the SHO concerned and take such action thereafter as may be required.61.19 We have in our earlier Chapters expressed the hope that the future police station will not merely be a point of crime control and prevention but will develop into a service centre. At present, people hesitate to go near police stations but with the introduction of training we have recommended for the police personnel, and the quality of recruitment we have envisaged and the constant sensitising of the police personnel to the problems of the people by the superior officers, it should be possible to convert the police stations into 'service centres' for people with problems.61.20 When the Range DIG or the Supdt. of Police of the district feels that a particular station house or operational level policing is not giving the necessary satisfaction to the people, he should go into the causes in depth and try to remove the same. If the attitude of a particular Station House Officer or his methods of functioning are not in the interests of the people of the locality, the higher officers should not hesitate to shift the officer from that particular area and to take such corrective or disciplinary action against him to mend his attitude and behaviour.
Accountability to Law61.21 The principal criminal laws in the country are the Indian Penal Code and the Criminal Procedure Code. There are also some special/local laws making certain acts penal offences. The Police Act which is one of the special laws spells out powers functions and duties of the police.61.22 The Police Organisation is subject to the superintendence of the State Government We have analysed the nature of this superintendence in our Second Report in paragraphs 15.36 to 15.42. We have explicitly mentioned therein that "the investigative tasks of the police are beyond any kind of intervention by the executive or non-executive." Therefore, so far as the police-activities pertaining to investigation of offences are concerned, they have professional independence whereby they are to be entirely governed by the provisions of law. No authority except the supervisory ranks of the police themselves are authorised to issue an executive order to the police official to investigate or not to investigate a criminal offence, arrest or not to arrest an alleged offender or decide a case under investigation in a particular way. Any executive instructions issued in this regard would be contrary to the law. With regard to preventive tasks and service oriented functions, we have said that "in the performance of preventive tasks and service-oriented functions, police should be subject to 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 corners of the overall guidance and broad policies should be unfettered."61.23 The police accountability, therefore, is to the law as established by the people in all areas of law enforcement. In the area of investigation they are exclusively governed by the laws, both substantive and procedural. They are not subject to the directions of any authority not recognised by the law. In other areas of law enforcement, the police accountability continues to be to the law as enacted. In the latter areas, however their functions are subject to such broad policies as may be laid-down under the law by the recognised authorities. Even here the broad policies can be laid-down only under the law and not beyond or against it.61.24 Although the laws are ultimately the wishes of the people themselves, neither the people nor the elected representatives have any authority to intervene or interfere in the activities of the police in the discharge of the duties under the laws once enacted though the people through elected representatives may amend the law if they deem so necessary.61 25 The above-mentioned factors are essential for ensuring police accountability to law ; but we observe that there has been a continuous erosion by undue interference in the exercise of the discretionary authority and statutory duties of the police. Extraneous interference is damaging the police accountability to law. In this context Professor David H. Bayley expressing his views on the subject has observed :—"In India today a dual system of criminal justice has grown up — the one of law the other of politics. With respect atleast to the police, decisions made by the police officials about the application of law are frequently subject to partisan review or direction by elected representatives. This autonomy of police officials in specific and routine applications of law has been severely curtailed. This is not only true of law and order situations. People accused of crimes have grown into the habit of appealing to political figures for remission from the sanctions of law. Police Officers throughout India have grown accustomed to calculating the likely political effect of any enforcement action they contemplate. Fearing for their careers and especially their postings, they have become anxious and cynical. But everywhere officers expect to be held personally accountable by politicians even more than by superior officers for enforcement actions taken in the course of duty."He has further observed —"Altogether, then, the rule of law in modern India, the frame upon which justice hangs, has been undermined by the rule of politics. Supervision, in the name of democracy has eroded the foundations upon which impartiality depends in a criminal justice system."The findings of Prof. Bayley support our own observations of the situation in the country.61.26 While police functionaries have been accorded wide powers under the law, many of them affecting the freedom and liberty of an individual, provision has also been made for strict scrutiny by the courts over the manner in which the police exercises these powers. Almost all preventive and investigative activities of the police are Subject to scrutiny by law and adverse observations by courts on police conduct call for a mandatory enquiry attended with follow-up action. At the same time any member of public who feels that the police in a particular situation has acted contrary to the law, can move the courts for redress. In order to secure fuller accountability of the police to the laws, we have already recommended in our First Report, mandatory judicial inquiry into certain categories of police "misbehaviour" through a District Inquiry Authority. We have in the same report also recommended creation of a Complaint Cell under the District Superintendent of Police and Special Cells under the Range Deputy Inspector General of Police an Inspector General of Police to handle complaints against the police personnel.61.27 On occasions, however, it is seen that false and frivolous complaints are made against police officers before criminal courts, to embarrass and demoralise them so that they desist from taking stern action against an offending party. Sometimes such complaints are got filed through third parties by influential persons who have a grouse against the police but do not themselves want to come out in the open. They only make funds available and exercise their influence to create and produce evidence. Law takes notice of such vexatious prosecutions and has provided protection to police officers, as also to other Government servants, for acts done or purported to be done in the discharge of their official duties.61.28 Section 132 of Cr.P.C. 1973 gives protection to members of the armed forces of the Union, executive magistrates and police officers against prosecution for acts done under section 129, section 130 and section 131 Cr.P.C. which relate to dispersal of unlawful assembly by use of force etc. According to sub-section 1 of section 132, no prosecution can be launched against a police official except with the sanction of the State (Government. Section 132(2) provides that police officials acting under good faith in connection with dispersal of unlawful assembly would be deemed to have thereby committed no offence.
61.29 Section 197 of the Cr.P.C. provides protection to judges, magistrates and all public servants not removable from their office except by or with the sanction of the Government. Thus no court is authorised to take cognizance of an offence against a public servant, if the alleged offending act has been committed while acting or purporting to act in the discharge of duties, except with the previous sanction of the State Government. Sub-section 3 of section 197 empowers the State Government to make any class or category of members of the force charged with the maintenance of order immune from prosecution except with the previous sanction of the State Government.61 30 The difference between the provisions of the above two sections are firstly that while section 132 Cr.P.C. gives protection to police officers of all ranks, section 197 Cr.P.C. generally covers only the officers who are not removable from their office save by or with the sanction of the appropriate Government. Secondly, section 132 Cr.P.C covers only acts purported to be done under section 129, 130 and 131 Cr.P.C. while the other section provides for omnibus protection for all acts done or purported to be done in the discharge of official duty.61.31 The above provisions in actual practice seem to have made neither the public nor the police officer happy. The public feel that the restriction placed by the law are dilatory and undue. Obtaining permission for prosecution from the competent authority takes considerable time and the consequent delay provides an opportunity to the accused police officer to suborn witnesses and even pressurise the complainant. The common man feels that he should have an unfettered right to seek redress for an injustice done to him by a public servant, from a court of law. The police officers, on the other hand, feel that the law as it has been interpreted and applied hardly provides them any protection worth the name. The police officers, whom we met, repeatedly drew our attention to many occasions when they got no legal protection, even though the acts in question were done in the discharge of their duties.We have given anxious consideration to the two opposite views stated above While we feel that on the one hand the police officers are exposed to frivolous prosecutions and there is need for help from the Government so that they do not feel helpless or abandoned, we also at the same time see merit in the plea that the public should be free to seek the verdict of a court of law if he has a grievance against a Government servant.Section 197 Cr.P.C. suo moto makes a distinction between officers not removable save by or with the sanction of the appropriate Government an other ranks of police officers. Though in some States (like Delhi) the protection has been extended to other ranks charged with the maintenance of public order under the provisions of sub-section (3) of this section, we see no justification for making a distinction between the various ranks of police officers and would like the recommendations which we will be making in this chapter later on to be made applicable to all ranks equally.Police has vast powers which may affect even the liberty of an individual. Stigma attaches to any person, action against whom is taken by the police. Similar powers are not enjoyed by officers of other departments and hence we feel that the police should also have a greater measure of accountability. The public complainant should, in our opinion, be free to press his complaint against a police officer for a judicial pronouncement without there being a need to obtain permission from any body. At the same time we feel the necessity for certain measures for the protection of police officers against vexatious and frivolous prosecutions. While we advocate that the public complainant should have the liberty to go ahead with his case in a court of law, we would recommend that the police officer should be defended at the cost of the Govt. According to the existing rules and instructions in some States the permission of the Government has to be obtained for such a defence. We do not consider this to be necessary. We feel that officers of and above the rank of Superintendent of Police should be empowered to order defence of their subordinates. The Government orders should be necessary only in cases when a complaint is filed against an officer of the rank of Inspector General of Police or Director General of Police and also in case the complaint against the police officer is of rape or murder. Such defence at Government cost should extend upto the appellate stage. We have examined the propriety of the suggestion that in case the officer is convicted by a court of law, the expenses incurred by the Government in such cases should be recovered from him. In the case of conviction of a Government servant he will automatically be subjected to some other departmental penalty which may extend up to his dismissal. We think that such a departmental penalty should be enough and the recovery of expenses would not be necessary.We have considered another suggestion which was made to us, namely, making it obligatory for the public complainant to deposit a certain amount of money along with his complaint in the court of law which amount should be subject to forfeiture in the event of the complaint being found false. We think that such a provision will prevent the weaker sections of the society from going to courts for the redressal of their grievances. As an alternative, we feel that in case the court comes to a finding that the complaint is unfounded, it should by law be empowered to take the explanation of the complainant and if it finds the explanation unsatisfactory, it should have power to inflict suitable punishment on the complainant. The Law Reforms Commission appointed by the Australian Government in its Report on 'Complaints against police' has recommended that "where the complaint filed against a police officer concerning action taken by him is false or misleading in a material particular, it should be treated as an offence punishable with fine upto Rs.500 or/and imprisonment upto six months". We are in general agreement with this approach and would suggest the introduction of a suitable legal provision in this regard. We would also add that it might be impressed upon courts by the High Courts concerned that such complaint cases against police officers should be disposed of on a priority basis. Delay not only causes frustration to the complainant but also brings the police force as such into disrepute. Further, we would suggest that the High Courts might draw the attention of the lower courts to the provisions of section 202 Cr.P.C. and advise them generally to ask for a report from the District Superintendent of Police on the complaints filed before them. It should be the responsibility of the District Superintendent of Police to either make an inquiry himself or have it made by a sufficiently senior officer and submit a factual report to the court before the court decides to proceed further with the case. Objectivity of such a report must be ensured at all costs and there should be no attempt to white-wash or cover up the lapses. A fair and impartial report will enhance the confidence that the court may repose in police.
61.36 We would like to add a word of caution in this regard. Sometimes the main purpose of filing a complaint in a court of law is to secure the transfer of the officer concerned and once the transfer has been ordered, the complainant loses interest in the case. We feel that on mere filing of a complaint transfers should not be made unless there is a prima facie case and justification for the same.
Organisational accountability 61.37 In the system of accountability internal to the organisation also we have noticed equally serious drawbacks which have led to distortions and which would require suitable corrective measures. In a hierarchical system like the police, accountability is determined at various levels with reference to the next higher level. For instance, the SHO is accountable for his individual performance as well as collective performance of the Police Station to the Superintendent of Police. So far as the performance appraisal of individual functionaries are concerned, we have dealt with that in a separate Chapter in our Seventh Report. In this Chapter we are confining ourselves to evaluation of collective performance. This is because in our opinion individual performance appraisal requires a more detailed and exclusive discussion and the evaluation of group performance may be more appropriately dealt with in the context of police-accountability. Evaluation of group performance is conducted by various levels of supervisory police officers by the exercise of periodic inspections. For instance the District Superintendent of Police inspects police-stations under his charge periodically. Similar inspections are carried out in respect of the District Police by the D.I.G. and the Chief of the State Police. We note that the yard-sticks adopted for evaluation of group-performance are generally similar in most States with regard to the major areas of police activities. For instance the most commonly used parameter relates to assessment of police efficiency by comparison of crime-statistics of the period under review with those of the previous years. If the number of offences registered during the period under review is more than those in the preceding years, a facile conclusion is drawn that the police of the area has failed to control crime. Firstly, statistics of reported cases of crime do not reflect the true position regarding police efficiency, as the police by themselves do not exercise control over all crimogenic factors. Secondly, adoption of this parameter leads to large-scale non-registration of offences at the police station level. Since free-registration of all cases reported at Police Station would mean swelling of crime figures, under-registration at the Police Station level has become a prevailing practice. We would like to add even at the risk of repetition, that supression of crime-statistics is not a malady afflicting the Police Station level only ; it has taken into its sweep the supervisory authorities at all levels also. Since the crime situation is discussed every year on the floor of the State Legislatures primarily on the basis of crime statistics, State Governments in the majority of the cases are also interested in presenting a rosy picture of crime incidence Therefore, the State Governments and the senior police-officers frequently connive at under-reporting of cases. 61 38 Another commonly used parameter is the so-called 'preventive measures' taken by the police during the period of review. Incidence of reported offences under Local and Special Laws is generally considered to be an index of the extent to which 'preventive measures' were taken by the police. The higher the number of reported cases under Local/Special Acts (e.g. Police Act, Arms Act, Excise Act, Gambling Act, Supression of Immoral Traffic Act etc.), the more creditable it is considered to be for the police. The logic behind this practice appears to be that the acts punishable under Local and Special Laws are the breeding-grounds for more serious offences and the arrest and prosecution of offenders at this stage acts as a deterrent against major offences. The obvious flaw in this assumption cannot escape notice. But more than that, adoption of this determinant of evaluating police performance leads to large-scale and unwarranted arrests, and initiation by police of false cases against innocent persons.Another yard-stick adopted in some States pertains to police-encounters with the gangs of dacoits and robbers. Total number of encounters during the period of review total number of criminals apprehended and killed in police-encounters, fire-arms etc recovered from the outlaws are the parameters by which the police efficiency is assessed This yardstick also often leads to police staging fake encounters and at times killing of criminals after they are caught by the police. Fire-arms are often planted in the hands of dacoits and to acquire them, unscrupulous police officials connive at the illicit manufacture of such fire-arms.The above are the most frequently used yardsticks on which the police efficiency is assessed. A few other yardsticks common to all States are —(i) Recovery of stolen property during the period of review, as compared to previous years;(ii) Successes in investigation of offences determined by the percentage of chargesheeted cases to those registered by the Police during the period of review;(iii) Successes in criminal cases in the courts of law determined by percentage of cases successfully convicted to those decided, etc.In adopting these determinants, a lack of correlation between the determining factors and yardsticks which are supposed to measure police efficiency is apparent. But more than that, these parameters encourage the police to adopt questionable means of recording and controlling crime and even resorting to illegal acts. One modern yardstick adopted in some big cities is the 'response-time' which is the time-lag between the receipt of a call by the police and the arrival of the police at the place of the caller But we note that the average response-time of the police-car in big cities does not provide a realistic picture, as the police records appear to be manipulated frequently to show a quicker response-time.Due to a faulty system of monitoring police performance at various levels, we have come across a number of odd situations. For instance, in one major State the sense of security in the community has been lacking during the last decade or so, but crime statistics create an impression that it is a very peaceful area. In another major State there is a similar situation, but the crime figures of today in that State are much below those recorded 10 years back. In this State several thousands of dacoits have been shot dead during the police encounters during last 5-6 years, but the dacoity menace remains unchecked.Great harm has been caused to the image of the police department due to laying down of faulty determinants for evaluating police performance, which has led to a misplaced sense of accountability and questionable methods of crime control adopted by police. In our opinion, the parameters of performance evaluation act as reference points for determining police-performance which ultimately help delienate the coordinates of police accountability. Therefore, we have addressed ourselves to the possible yardsticks which may be the desirable indicators of police performance. While determining these yardsticks we have two considerations in our view :—(a) that these should help the authorities to have an objective evaluation of police performance ;(b) these yardsticks should not encourage the police to resort to extra-legal methods.
We recommend the following determinants to be adopted by the State Police organisations :—(1) Prevention of Crime :(i) Sense of security prevailing in the community.(ii) People's willing cooperation and participation secured by the Police in preventing crime.(2) Investigation of Crime :(i) Correct registration of crime (ii) Prompt visit to the scene of occurrence (iii) Speedy investigation (iv) Honesty and impartiality in investigation.(3) Law and Order:(i) Extent to which law and order is maintained, taking into account the forces which promote lawlessness.(ii) The manner in which law and order is maintained. Two factors have to be judged — (a) People's cooperation, (b) Use of force.(4) Traffic Management: (i) Smooth flow of traffic in urban areas and control of fatal and serious accidents by prosecution of persistent offenders.(5) Service :(i) General spirit of service, especially to weaker sections, physically handicapped, women and children.(ii) Quality of service rendered in a distress situation like cyclone-havoc flood-damage, famine etc.(iii) Specific instances of service-oriented functions performed by the Police which drew special appreciation and gratitude from the public.(6) Reputation of integrity and courtesy :(i) General reputation.(ii) Police collusion with criminals organising illicit distillation, gambling economic crimes, prostitution etc.
(iii) Reputation for courteous behaviour (iv) Prompt and satisfactory enquiry into complaints against policemen.However, the problem likely to be faced in this connection by the police authorities will be fixation of specific determinants to evaluate the performance of the police relevant to each of the above-mentioned heads. These determinants would have to be evolved in due course after some experimentation and experience.61.43 With regard to the departmental accountability, we would like to lay down as a guiding principle that a functionary in the department at a particular level should be held accountable only with respect to functions and duties assigned to him ; conversely the accountability should not extend to duties over which he has no direct control. Such duties and functions are assigned to police-officers at various level from time to time by virtue of various laws and departmental rules. Great damage has been done, in our view, by not taking note of this important principle, and holding functionaries at each level (e.g. SP. DIG and IG) responsible for everything happening throughout his jurisdiction. To elaborate our point, the IG is responsible for generally maintaining law and order throughout the State, generally maintaining integrity and morale of the force, personnel management including training of personnel etc. But he cannot be held responsible for each isolated incident in a particular district unless it is proved that the particular incident occurred because of some acts of omission or commission on the part of the Chief of Police, or such incidents have been widespread and the latter has failed to react adequately. In a similar manner, it would be wrong to hold the SP or the SHO accountable for each isolated incident in their respective jurisdictions.61.44 Finally, with regard to the departmental accountability we strongly disapprove of the practice of fixing unreasonable or impossible targets which cannot be achieved except through irregular or illegal means. Examples of these are the categories of orders to 'reduce' crime within a fortnight, or clear the area of outlaws, particularly dacoits and robbers, within a short time or to create a sense of security in the community within a similar period or to work out a sensational offence within an unreasonably short time. More often than not, these are the very orders which induce policemen at the Police Station level to resort to such unlawful means as indiscriminate arrests, adoption of third-degree methods, staging fake encounters etc. Often targets of the kind indicated above are promised by the Government in the State Assembly after a hue and cry has been raised regarding law and order/crime situation in a particular area or in the State. Such instructions filter down to the Police Stations through the various levels of police hierarchy. In our opinion such instructions and directions which are instrumental in creating a distorted sense of accountability among the police functionaries should be controlled effectively and avoided.61.45 The necessity for accountability of the police organisation is not far to seek. As mentioned earlier, it is too much to expect the political executive alone to account for the acts of the Government departments under their control and the individuals in those departments. The very remoteness of the political executive from the grass-root functioning of the Governmental agencies makes it imperative that the accountability has not only to be defined but prescribed precisely for various levels of the Government organisation. Again the concept of ministerial responsibility to the people through the Parliament and Assemblies presupposes anonymity of the Governmental agencies. In progressive democracies, the concept of anonymity has given way to direct accountability of the various constituents of the Government to the people.61.46 We want to emphasise that accountability can be ensured only by active supervision. Accountability also depends upon the awareness of the people of their rights and their willingness to exercise the same in a responsible manner by activating the mechanisms worked out by us. At the same time that awareness should also include clear understanding of the limitations and constraints within which the police has to function. Police on their part should also clearly understand that the ultimate accountability is to the people and to the people alone. Their accountability to law and to their organisation are only complementary to the ultimate objective of accountability to the people. If the people are not prepared to assert their rights through the various agencies prescribed by us apart from the Courts, if the State Security Commissions are not established, if the media remains biased and not constructive and inspections continue to be a farce, nothing much can be expected from the mechanism of accountability.

Conduct Rules for Police in india

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 Legislators15.63 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 appointment15.64 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.
Training15.65 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.
Conclusion15.66 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".

Oral orders to police in india

.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 officerin 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 police15.61 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.

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 police15.57 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 personnel15.58 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.

Amendment to Section 3 of the Police Act, 1861

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 police15.55 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.

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.

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 interestAppointment 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 .

Police tasks—categorisation

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 independence15.40 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 thepolice 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 Government15.42 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. '

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 police15.36 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.

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 democracies15.27 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.Remedial measures
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.
Some definitions15.34 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.

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 personaland 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."