Dr. Lenin and Ms. Shruti from PVCHR met with Mr. Rahul Gandhi, Member of Parliament and Natioanal General Secretary,Congress(I) at 10 Janpath,New Delhi on 18 February 2009 and gave follow letter enclosing with the Manual on testimony therapy by PVCHR and Danish organization RCT(www.rct.dk) and the article in relation to reform in Police System.Congress Party mentioned the agenda of police reform in its election manifesto and it was also send to the various political parties
Shri Rahul Gandhi Ji
MP and General Secretary (Congress)
Subject: in relation to reform in Police System
We would feel highly obliged to you if you kindly allow me to draw your attention on the necessity of police reform so that the objective of welfare state of India may be fulfilled up to maximum extent. The police does not have right to take the life of any person. If by his act, the policeman kills a person, he commits an offence of culpable homicide or culpable homicide amounting to murder unless such killing is not an offence under the law. Under the criminal law prevailing in India, nothing is an offence which is done in exercise of right of private defence (section 96-106 of Indian Penal Code). But the right given under these sections of Indian Penal Code is not absolute right and they can be exercised under the restriction given in section 99 and 104 of same Act.
Section 46 of criminal procedure code empowers the police officer to use reasonable force, even extending up to causing death, if found necessary to arrest the person accused of an offence punishable with death or imprisonment of life. Thus, it is evident that death caused in an encounter, if not justify, would amount to an offence of culpable homicide.
So causing death of any person without reasons can not be justified. India is a welfare state and our constitution provides right to life and personal liberty. It includes living with human dignity. It is the duty of state to ensure the fundamental rights for every person.
However the torture of police has been increasing very rapidly from the last decade. The police encounter, custodial death, custodial rape, and the atrocities of police are day to day news. To reduce these events the Janta Party Government set up Soli Sorabji Panel, but before submission of the report the government fell down and the report had not been enforced and the arbitrariness of police had been promoted in every state. Recently Times of India news paper published that largest number of custodial death was registered in UP.
On 22nd September, 2006 the Supreme Court of India in case of Prakash Singh vs Union of India in its historical decision ordered wide reformation in police organization. Due to its impact the police organization would be able to work without political influential and adequate reformation can be made in law and order. It would help in reducing atrocities. Faced with Supreme Court directives to implement the much delayed police reforms, union government has set in motion the process to bring a new police act, incorporating the suggestion of the Soli Sorabji Panel. The report has called for drastic changes in the 145 year old police act to introduce fixed two year tenure for police officers down the line from DGP to SHO, as well as separation of maintenance of law and order from crime investigation, duties.
Police law is continuing from the period of British which is based on police regulation Act, 1861. The object of police administration was to quash the Indian before independence and to maintain the English rule, but today the police administration is the part of India as a welfare state. So there is need to do basic change in Indian police system. The 'police' are the subject comes under state list of seventh schedule. Its provision is given in art. 245. So it is the subject of state and it is the responsibility of state to reform the police system. Following are the main points under police reformation:
o The main objects of these reformations are to establish the accountability and sensitivity of police towards people which should be conducted through rule of law.
o The second object of these reformations is to fix the tenure of police officers. Their tenure is fixed for two year.
o The selection procedure of DGP should be transparent and recommendation of their promotion should be made by Board of Public Services Commission (BPSC).
o The State Government has been ordered to establish a state security commission, so that the State Government may not pressurize the police. This commission will ensure that the police will work according to constitution and law of country.
o There shall be a Police Establishment Board in each state which shall decide all transfers, positions, promotions and other services related matters of officers of and below the rank of Dy. S.P. The State Government may interfere with the decision of the Board in exceptional cases, only after recording its reasons for doing so.
o There shall be Police Complaint Authority at district level to look into the complaints against police officer of and up to the rank of Dy.S.P. Similarly there should be another Police Complaints Authority at the state level to look into complaints against officers of the rank of S.P. and above. The district level authority may be headed by retired district judge and the state level authority is headed by retired judge of High Court.
o The National Government shall also set up a national level commission at the union level to prepare a panel for being placed before the appropriate appointing authority for selection and placement of chief of central police organization, who should be given a minimum tenure of two years.
As per the amendment made in criminal procedure code, section 176 makes the provision that if any dies or disappear or rape is alleged to have been committed on any women, when such person or women is in the custody of police or in any other custody authorized by magistrate or court under this code in addition to the inquiry or investigation held by police , any inquiry shall be held by Judicial Magistrate or Metropolitan Magistrate as the case may be within whose jurisdiction the offence has been committed. The Judicial Magistrate or Metropolitan Magistrate or Executive Magistrate or police officer holding an inquiry or investigation shall within 24 hours of death of such person, forward the body of deceased with a view to its being examined to the nearest civil surgeon or other qualified medical person appointed in this behalf by the state government unless it is not possible to so for reasons to be recorded in writing.
Apart from this, National Human Right Commission issued guide lines to all chief secretaries of state and administration of union territories in dealing with death occurring in encounters with police on 29/03/1997 and on 2/12/2003 a revised guidelines have been issued and it was emphasized that state must send information to the commission of all cases of death arising out of police encounters. Following are the revised guidelines:
When the police officer in charge o f a police station receives information about the death in an encounter between the police party and others, he shall enter that information in the appropriate register.
Where the police officer belonging to the same police station are members of the encounter party, whose action resulted in death, it is desirable that such cases are made over for investigation to some other independent investigating agency, such as State CBCID.
Whenever a specific complaint is made against the police alleging commission of a criminal act on their part, which makes out a cognizable case of culpable homicide, am FIR to this effect must be registered under appropriate sections of the IPC. Such case shall invariably be investigated by State CBCID.
A magisterial inquiry must invariably be held in all cases of death which occur in the course of police action. The next of kin of the deceased must invariably be associated in such inquiry.
Prompt prosecution and disciplinary action must be initiated against all delinquent officers found guilty in the magisterial enquiry/ police investigation.
Question of granting compensation to the dependents of the deceased would depend upon the facts and circumstances of each case.
No out of turn promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs that such reward are given / recommended only when the gallantry of the concerned officers is established beyond doubt.
A six monthly statement of all case of death in police action in the State shall be sent by the Director General of Police to the Commission so as to reach its office by the 15th of January and July respectively. The statement may be sent in the following format along with the postmortem reports and inquest reports wherever available and also the inquiry reports:
1. Date and place of occurrence
2. Police station and district
3. Circumstances leading to deaths
i. Self defence in encounter.
ii. In the course of dispersal of unlawful assembly.
iii. In the course of effecting arrest.
4. Brief facts of the incident
5. Criminal case no
6. Finding of the magisterial inquiry by senior officers
a) disclosing in particular names and designation of police officials, if found responsible for the death; and
b) Whether use of force was justified and action taken was lawful.
Along with above guidelines the then CJI send their request to all the state and territories to adhere these guidelines in letter and spirit both.
National projects on torture in India: demands that
1) Ratified the UN convention against torture and its optional protocol
2) Enact legislation to prevent corporal punishment in schools.
3) Enact a domestic legislation that makes torture a punishable offence and provides for the protection and care of victims and witnesses.
4) Enforce strict implementation of the Preventation Of Atrocities Act, 1989
5) Establish District Human Right Courts under the protection of Human Right Act, 1993.
However irony is that the guidelines of Supreme Court and National Human Right Commission are not being followed and the cases of police torture are increasing very rapidly.
Now the time has come to reform the entire police system to prevent the police torture of innocent people. The constitution of India establishes the India as a welfare state, which can be achieved only after following the police reformation and implement the ruling of the apex court. The police should be people friendly. The efforts should be made at every level and the parliament should pass the law and new Police Act should be made by parliamentarians. This will be helpful in reducing the police torture and it will fulfill the real sense of policing.
Therefore most respectfully it is submitted that kindly make an arrangement to reform the police system as per the guidelines of Supreme Court and National Human Right Commission so that the objective of welfare state enshrined in our constitution may be fulfilled up to maximum extent.