Reforms in Police Complaint Authority – A way to prevent custodial violence
By Yugant Rane
Introduction
Maharashtra is becoming a concerning leader in the disturbing trend of rising custodial deaths indicating that custodial violence in the State is rampant. While relatives of deceased inmates have been successful in obtaining compensation and pursuing framing of murder charges against police officers in the case of custodial deaths, laws in Maharashtra have failed to afford justice to victims of custodial violence which do not lead to death.
India is a signatory to the United Nations Convention against Torture and other Cruel, Inhuman, or Degrading Treatment (“UNCAT”) which has a very broad definition of the word ‘torture’. However, India has not ratified the UNCAT.
Police is a matter enumerated in the State List of the Seventh Schedule of the Constitution and therefore, it is the prerogative of the State to legislate on matters related to abuse of power by police and custodial deaths.
Events leading up to Maharashtra’s law on police accountability
Supreme Court Directions
In 1996, Prakash Singh, an ex-IPS officer, approached the Supreme Court through a Public Interest Litigation to introduce reforms in police laws in the country. The petitioner’s case was that the recommendations of the National Police Commission set up in 1977 were not implemented. The petitioners urged the Court to direct the Government of India to draft a new police law to make the police more accountable. The Supreme Court directed six reforms to improve police accountability, one of which was the creation of Police Complaint Authorities (“PCA”) at the district and state levels. The Supreme Court directed that the State Police Complaint Authority (“SPCA”) handle complaints against police officers of the rank of Superintendent of Police and above, and the District Police Complaint Authority (“DPCA”) shall be responsible for investigating complaints against police officers up to the rank of Deputy Superintendent of Police.
As per the directions of the Supreme Court:
- These authorities, comprising three to five members, may include retired police officers, civil servants, civil society members, or officers from other departments.
- They may be selected by the State Government from a panel prepared by the State Human Rights Commission/ Lok Ayukat/State Public Service Commission.
- The SPCA must be empowered to take cognizance of allegations of serious misconduct by police personnel, such as incidents involving death, grievous hurt, or rape in police custody. The DPCA in addition to these cases, may inquire into allegations of extortion, land/house grabbing, or any incident involving a serious abuse of authority.
- The orders of the PCA must be binding on the concerned authorities.
Maharashtra’s intervention to curb custodial violence
Several states like Gujarat, Karnataka, Assam, Kerala including the state of Maharashtra have created PCAs following the Supreme Court’s guidelines. The Maharashtra Police (Amendment and Continuance) Act, 2014 (“Act”) was introduced to implement the Supreme Court guidelines in the case of Prakash Singh. Section 22P and 22S of the Act establishes the SPCA and DPCAs respectively to address allegations against police officers. According to section 22Q of the Act, the SPCA has the power to inquire into complaints made against police officers in case of custodial deaths, grevious hurt, rape or attempt to commit rape, arrest or detention without following procdure. Section 22Q(7) of the Act has given the SPCA powers equivalent to that of civil court to and proceedings before SPCA are deemed to judicial proceedings.
Issues with Mahashtra’s law on custodial violence
Definition of torture
The Act empowers the PCA to inquire into cases of death in custody, grievous hurt, rape and attempt to rape by police officer. However, there are other forms of torture or cruel or inhuman treatment where the PCA cannot exercise its jurisdiction. As per the UNCAT, the definition of torture includes mental or physical pain or suffering inflicted upon a person for the purpose of obtaining information or confession by a public official. Unlike the definition of torture in UNCAT which includes mental or physical pain, the Act does not empower the to SPCA to inquire into matters of hurt or mental torture. While the SPCA can inquire into matters of serious violation of any provision of law, what is “serious violation” has not been defined and there is no clarity whether this provision includes instances of mental torture or hurt.
Independence of SPCA
As per section 22P(2) of the Act, 2 out of 5 members of SPCA are serving police officers. Presence of serving police officers on the SPCA can cause conflict of interest which raises concerns regarding the independence of the SPCA. The Act is also contrary to the directions in Prakash Singh since it empowers the State Government to appoint members of the SPCA whereas the Supreme Court has directed that a panel be formed to select members of SPCA . Additionally, the Act lacks provisions for the removal of the chairperson or members, granting significant power to the State Government. Lastly, the Act does not follow guidelines of Model Police Act 2015 (“Model Act”) to appoint at least one female member in SPCA. The broad discretion given to the State Government to appoint SPCA members is far from the independent nature of PCAs envisaged by the Supreme Court .
Non-binding nature of recommendation
As per the Supreme Court directions, the recommendations made by the SPCA regarding departmental or criminal action against police officers were to be binding on the concerned authority. However, Section 22R(3) of the Act empowers the State Government to reject reports of SPCA in exceptional cases by recording reasons in writing. This is contrary to the Apex Court’s direction. The Bombay High Court highlighted this gap in a 2022 order which noted that the SPCA lacks the power to order the filing of FIRs, rendering the authority somewhat toothless. The non-binding nature of the report increases the risk of ignoring the SPCA’s findings, and eventually undermining its purpose.
Additionally, the SPCA lacks the power to monitor departmental inquiries and/or criminal investigations initiated on the basis of their reports, due to which keeping a track and ensuring the implementation of their recommendations difficult.
Lack of Accountability
There is no dedicated website for filing or tracking of complaints before the SPCA or the DPCA making this grievance redressal mechanism extremely opaque. Regulation no. 13 of Maharashtra State Police Complaints Authority (Administration and Procedure) Regulations, 2017 (“Maharashtra SPCA Regulations”) made under the Act mandates SPCA to submit an annual report to the State Government containing the number of complaints inquired into, reports submitted to concerned authority etc. However, findings of Commonwealth Human Rights Initiative 2020 shows that SPCA does not prepare these annual reports.
Administrative problems with the SPCA
Maharashtra has been slow in filling vacancies in the SPCA, which prompted a plea in the Bombay High Court, seeking directions to fill the vacancies promptly. The plea highlighted the problem of vacancies in the SPCA, understaffing and funding of SPCA. The plea also sought directives for adequate and timely release of funds, and the removal of anomalies in pay scales between chairperson and members of PCAs. The Court then directed the state by order dated 6th September 2023 to fill the vacancies promptly and requested a response from the state.
Suggested reforms in SPCA to prevent and redress instances of torture
Empowering the PCA in accordance with Supreme Court directions can effectively address the issue of police torture and curtail potential misuse of power by the police. In India, the public generally do not trust the police which is highlighted by various reports, including reports of the National Police Commission and Second Administrative Reforms Commission. The involvement of the police in crimes like torture further erodes public confidence. The wide discretionary powers, insufficient public accountability, poor transparency and negligible third-party oversight erodes public confidence in the police. Implementing the Supreme Court’s directives and making the PCAs truly independent oversight bodies can potentially win back trust in police as well as prevent police torture. The following measures must be considered to assuage the situation:
- Empowering SPCA
The PCA’s reports must be made binding on state authorities. The PCA must be empowered to direct the filing of FIRs against police personnel involved in torturing inmates. The State Government must act on the SPCA’s reports and take disciplinary action or initiate criminal investigations against police officers. As highlighted by the Bombay High Court in its judgments, trial courts must frame murder charges in case of custodial deaths.
Additionally, to strengthen its oversight capabilities, the SPCA must be empowered to monitor the progress of departmental inquiries or criminal investigations related to complaints. This aligns with Section 81(3)(a) of the Model Act.
- Ensuring Independence of the PCA
The selection process of PCA members should be transparent and must adhere to the guidelines of the Supreme Court and the Model Act. The panel for selection of SPCA members must be set up promptly and independent members having expert knowledge of law, human rights, criminology etc., should be included on the panel following section 77 of Model Act. At least one member of SPCA must be a woman. The inclusion of independent members would enhance the independence of the SPCA from the influence of serving officers.
- Improving Accountability
Section 87 of the Model Act, outlining the rights of complainants to track progress in complaints, departmental inquiries, or criminal investigations, should be incorporated into the state’s legislation to ensure implementation of SPCA reports.
The SPCA should be required to table annual reports, a practice followed by many states, including Punjab and Assam. The annual report should be made public by following regulations under Maharashtra SPCA Regulations. The SPCA should have an independent website where annual reports, mechanism to file complaints, mechanism to track status of complaint are all available..
- Power to award compensation
The SPCA must be authorised to award compensation to victims in cases of police misconduct and to the families of victims of custodial deaths. Several states, such as Meghalaya, Mizoram, Sikkim, and Tripura, have already granted such powers to their respective SPCAs. This power to award compensation will also decrease pendency in courts.
- Creating Awareness
The state’s Home Department should undertake initiatives to create public awareness about the functions and powers of the SPCA based on the guidelines of the Bombay High Court. The High Court directed to publicise the nature of functions performed and nature of complaints taken up by SPCA in two newspapers and use all methods to disseminate information relating to function of the SPCA.
Conclusion
PCAs stand as a potent solution to curb not only custodial deaths but also to ensure accountability within the police force. Urgent reforms are essential for Maharashtra’s PCA to align with the Model Act and Supreme Court guidelines. Beyond legal amendments, the state must prioritise allocating adequate funds and infrastructure to enhance the PCA’s efficacy. Filling vacancies, bolstering administrative capabilities, and ensuring a robust investigative staff will render the PCAs more functional and responsive. Maharashtra’s commitment to implementing these comprehensive reforms will not only strengthen the PCAs but also reinforce the protection of human rights and foster public trust in law enforcement.
The Author of this blog is Yugant Rane, a fourth-year student at Government Law College, Mumbai, who was an intern with Vidhi Maharashtra.