Watching the Watchdogs
**Divyansh Nautiyal
The culture of impunity for police excesses in India needs to be reined in. The Police Complaints Authorities need to work in letter and spirt for the same.
What happens when the police, the organised civil force of a state, detracts from its responsibility of maintaining law and order? What recourse does one have when the police commit the same crimes it is supposed to prevent? These questions become even more pertinent with the seismic shift in the criminal laws of our country. With effect from July 1, the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagrik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam (BSA) have replaced the erstwhile Indian Penal Code, 1860, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872.
The new criminal laws have raised apprehensions about the true intent of the reforms being carried under the cloak of decolonisation. It has been argued that they promote a police state by not only overcriminalisation through loose and vaguely worded provisions but also diluting procedural safeguards. This needs to be read in light of the relationship of the police with the common citizen in India which continues to remain fraught and has been the subject of many reports and commissions. With the police administration built on the bedrock of the Indian Police Act, 1861, it has continued the colonial legacy of being a tool of state violence. Rather than fostering a relation of trust and confidence, the police machinery has created an atmosphere of fear and terror for the citizens. Reports such as the 2nd Administrative Reforms Commission and the National Police Commission have repeatedly highlighted the low confidence which the police enjoy with the public.
Time and again, India has been alarmed by the excesses of police with cases of custodial deaths, police brutality and extra-judicial killings. The problem is further exacerbated by a culture of impunity, poor transparency and the low levels of accountability. The forums for addressing these grievances like the State Human Rights Commission or the police departmental inquiries have failed to yield any positive results. While the State Human Rights Commissions continue to remain overburdened and inaccessible, police departmental inquiries have failed to maintain transparency and accountability in their functioning. The story of the Police Complaints Authority, a fourth branch institution proposed to hold the police accountable, kicks in at this juncture.
Police complaints authority: a fourth branch institution
The concept of a fourth branch institution stems from the field of constitutional law and has been theorised by scholars like Bruce Ackerman and Mark Tushnet in the American context and Tarunabh Khaitan among others in the Indian context. Broadly, fourth branch institutions fall out of the tripartite division of powers – that of the legislature, executive and judiciary. These awkwardly hybrid institutions, which are in charge of protecting key constitutional values, maintain institutional accountability from the executive. Rooting this in India, a fourth branch institution like the Election Commission of India is responsible for conducting free and fair elections in a multi-party parliamentary democracy while a body like the National Human Rights Commission enquires into infringements of human rights by public (or even private) actors. The office of the Comptroller and Auditor General scrutinises public expenditure of the Union and the states and the Lokpal investigates into corruption by public officials. While these are only a few of the many institutions, their integrity and autonomy are maintained through the three pillars of operational independence and impartiality, accountability to the legislature, and multi-partisan appointments.
Devised as a fourth branch institution, the Supreme Court (SC) in Prakash Singh and Ors. vs. Union of India and Ors. (2006) directed the formation of a Police Complaints Authority (PCA) in every state to hold the police accountable for its excesses which range from custodial deaths to abuse of power through unlawful arrests and detentions. A multi-tiered institution, the State Police Complaints Authority (SPCA) is required to investigate into complaints against officers of the rank of Superintendent of Police and above, and the District Police Complaints Authority (DPCA) is in charge of complaints against officers of the rank of Deputy Superintendent of Police and below. The mandate of the authority is to inquire into the allegations of serious misconduct by the police officials which include cases of grievous hurt, death or rape in police custody. To protect the independence and integrity of the body, the Supreme Court stated that a retired judge of the Supreme Court or High Court and the District Court should head the State and District Police Complaints Authority respectively. Furthermore, the Model Police Act, 2006 recommends that the 5 members of the authority should be selected from a diverse set of backgrounds by a panel comprising of the Chairpersons of the Police Accountability Commission, State Public Service Commission, and the State Human Rights Commission. In the absence of the last one, the member should be the Lokayukta or the Chairperson of the State Vigilance Commission.
To give teeth to the authority, the SC held that its recommendations for departmental or criminal action will be binding on the state government. The recommendations of the Model Police Act, 2006 and the Model Police Bill, 2015 aim to minimise any interference from the executive by strengthening the institutional independence of the PCAs. They increase the jurisdiction of inquiring into police misconduct, stipulating a diverse composition of members and maintaining the independence of the selection panel. Over time, the PCAs have been instituted in 9 states through executive orders and 17 states through new police acts and legislative amendments. However, the ground reality of their working and impact as a watchdog institution reveals an uninspiring tale.
Crippling the watchdog
A briefing paper by the Commonwealth Human Rights Initiative in 2020 analysed the functioning of the PCAs across states in India. Only 18 states in India have constituted a Police Complaints Authority at both the state and district levels while states like Uttar Pradesh and Jammu and Kashmir are yet to set up the authority at either level. Moreover, there was an alarming presence of the executive in the PCAs of 9 states which had serving police officers or civil servants as members of the panel. 8 states deviated from the mandate of having a retired judge as the head of the SPCA. The aim behind placing a retired judge as the head of the authority and retired police officials and civil servants as members of the panel was to remedy any institutional bias which might prevent a free and impartial investigation. The cardinal principle of natural justice – nemo judex in causa sua (no one should be a judge in their own cause), is blatantly violated in cases where serving police officers or the civil services head the authority. Institutional bias deters victims from seeking redressal and impedes their access to justice, which has been has been affirmed as a fundamental right under Article 21 by the Supreme Court in Anita Khushwa v. Pushpa Sadna.
While the Prakash Singh judgement and the Model Police Act, 2006, aimed to diversify the composition of the authority by including independent members, the proportion of members from the academia or civil society is miniscule compared to that of retired civil servants and police officers in many states. The report also flagged the issue of transparency in the selection process with numerous state governments directly appointing the chairperson instead of forming an independent selection panel as per the mandate. Moreover, numerous states have not constituted the District Police Complaints Authority. The objective behind setting up a multi-tiered body to increase the accessibility and efficiency of the PCA by distributing its workload fails in the states with single tiered authorities.
Even if the states have gone ahead to form a PCA, a second set of issues distinctly cripple the working of the PCA. The Model Police Act, 2006 increased the mandate of the SPCA by expanding the definition of serious misconduct to include arrest or detention without due process of law. It also empowered the SPCA to take suo moto notice of alleged misconduct apart from receiving formal complaints. A majority of states have diluted these powers to inquire into complaints against police personnel by either excluding offences or taking away the power of suo moto notice. Moreover, numerous states continue to shield police departmental inquiries from being monitored by the PCAs while also divesting them of the power to recommend monetary compensation and protection to victims of police brutality. In only 9 states are the recommendations of the PCA binding, which leaves the PCAs in other states foundationally weak with no concrete powers to enforce their recommendations. Additionally, only 7 states table their annual reports before the state assemblies and make them available to the public. The opaqueness in their functioning and lack of institutional and public accountability reflects poorly on the PCAs as public institutions.
It clearly appears that there has been an institutional resistance to reforms in the police. The three pillars of operational independence, accountability to the legislature and multi-partisan appointments for a robust and effective fourth branch institution have been systematically ignored or circumvented in the case of the PCAs.
The way ahead
The loss of public trust in the police is rooted in numerous factors like low levels of public accountability, excessive discretion and poor oversight. The police continue to operate in a colonial fashion where the primary responsibility is to maintain law and order through violent and oppressive means. The functioning of the police needs to be re-imagined from a citizen-oriented perspective which shuns away the institutionalised master-subject attitude of the police establishment. To seek accountability from the police is a crucial step in that direction.
The working of the PCAs, with its singular aim to hold the police accountable, needs to take life beyond the directives of the Supreme Court and the various legislations for the same. The PCAs need to be headed by independent members, empowered with binding powers and equipped with the resources and personnel to conduct robust and impartial investigations. Additionally, the PCAs should table their reports before state legislatures as a measure of accountability and publicise their work through mandated RTI reports.
The efforts of decolonising our criminal justice system will remain incomplete without institutionally reforming the police establishment responsible for its implementation. The idea of decolonisation cannot be restricted to a set of reforms ushered in at a point of time through a legislation. It’s a broader idea which reflects the need to change a deep-seated colonial mindset through everyday practices which seek to challenge and uproot it. Revitalising the fourth branch institution of the Police Complaints Authority remains a much-needed step in that direction!
**Divyansh Nautiyal is a fourth year student at the NALSAR University of Law, Hyderabad. He is interested in politics, constitutional and criminal law.
