On 22 September 2006, the Supreme Court of India, one of the most proactive courts in the world, directed the governments at the state and the union level to institutionalise ‘best practices’ in the country’s police force. In the landmark judgment Prakash Singh v Union of India, the court stated that given the “gravity of the problem” and the “total uncertainty as to when police reforms would be introduced” if the government were left to its own devices, it felt compelled to issue “appropriate directions for immediate compliance”. Those directions to the government are binding until the state legislatures enact a new Police Act. Police in India continue to be governed by an archaic colonial law from 1861, making it one of the oldest such legislation anywhere. Enacted in the aftermath of the Mutiny of 1857, the Police Act of 1861 sought to create a force that would crush dissent, and in particular any movement for self-determination. The Constitution of Independent India makes policing a ‘state subject’, which means that state governments have the authority to pass more progressive policing legislation. Despite this freedom, most states continue to utilise the 19th century legislation, and even the few that have enacted their own laws have modelled them on the 1861 Act. Retaining outdated, regressive legislation has meant that policing has not kept up with the overall democratic development of Independent India; this has aided the continuing high incidence of custodial torture, extrajudicial killings, illegal detention and corruption. The need for reform in the police force has long been recognised, and how such reform would be carried out is also fairly well understood. Though many committees and commissions have been set up to suggest reform since Independence, none of their recommendations have been implemented. The most recent such committee, headed by former Indian Attorney General Soli Sorabjee, was set up in 2005 to draft a new Police Act. It remains to be seen if its recommendations, submitted to the government in October 2006 in the immediate aftermath of Prakash Singh, will be implemented. Lack of political will remains the greatest obstacle to police reform. Successive governments over the past half-century have retained and in fact encouraged colonial styles of policing. It suits the political elite to have subservient police who will do their bidding. Politicians in India have ensured compliance by retaining powers of appointment, transfer and promotion as potent tools by which to influence the police. The status quo also suits police officers, who realise that so long as they are pliant, they can get away with murder, sometimes literally. The experience of various communal riots across India has illustrated not only how political interference in the functioning of the police can result in huge loss of life and property, but also how police misconduct goes unpunished if the political masters are content. In 2002, the involvement of the state police in the communal riots in Gujarat and their aftermath invited much criticism. The police refused to register complaints, conducted shoddy investigations and fudged evidence – all with impunity. Those officers who upheld the law and tried to stop the attacks on minority communities were punitively transferred by the state government. One police superintendent successfully thwarted an attack on a school, rescued 400 students and registered criminal cases against the attackers, despite pressure from local political leaders to turn a blind eye. He was subsequently transferred five times in a single year. On the other hand, Ahmedabad’s police commissioner, widely believed to have played a biased and compliant role during the riots, was promoted to the position of the head of the state police force’s anti-corruption bureau. The message has long been clear. For a police officer, enforcing the diktat of the politician can be much more rewarding than upholding the rule of law. Given such a scenario, it did not seem likely that the authorities would ever get around to reforming their police squads. With the Prakash Singh judgement, the Supreme Court may have changed this. Autonomy, accountability The Supreme Court’s new directives recognise the need to achieve two basic principles of policing under a democratic system: functional autonomy and accountability. The former implies that the police are free to perform their functions without extraneous pressure. They cannot be directed, say, to arrest a particular person or to investigate a particular incident in a particular manner. Significantly, international norms indicate that appointment, transfer and promotion should all be handled within the police hierarchy, not by politicians. As such, the September court ruling mandates that chiefs of police be selected through a transparent process, and that they, along with other specified officers, should enjoy the security of tenure. In addition, the authorities are directed to create an Establishment Board, comprising the chief of police and four other senior police officers, to decide on promotions and transfers. The court further directs each state government to set up a State Security Commission – comprising elected leaders from both the government and the opposition, the chief of police and others drawn from the government, judiciary or the public – to lay down policy guidelines for the police force, and to ensure that there is no interference with its functioning. To ensure that the powers of the police are not abused, the court mandates that functional autonomy be tempered with accountability. As with any other public service, police must be responsible not only for the services that they are expected to provide and to be answerable for each and every action that affects the lives of citizens, but also for the public money that they spend. The Supreme Court has now directed the new State Security Commissions to evaluate the performances of the police in their respective states. Perhaps more importantly, as an agency of the state entitled to use force against citizens, it is imperative that misconduct on the part of the police be met with consequences. Opaque and non-responsive internal disciplinary systems in India have long failed to inspire any faith in the country’s citizens. While the National Human Rights Commission is empowered to inquire into complaints against the police, it lacks resources – both financial and human – to deal with the large number of complaints that are lodged against the police force as well as other government agencies every year. The Prakash Singh judgment now directs the state governments to put in place Police Complaint Authorities at both the state and district levels, to inquire specifically into complaints against the police. Now for compliance The directions of the Supreme Court are binding on all state governments, which must comply by the end of December. In prescribing such a short timeframe, the court must have been guided by the failure of past governments to implement measures to reform the police. But the proximity of the deadline will pose many challenges. The state governments in India now must decide whether they will comply with the court’s ruling through executive orders or through new legislation. Some of the directions, such as ensuring security of tenure and creating an internal Establishment Board for transfers and promotions, can be complied with immediately through executive instruction. Others, however, such as the creation of State Security Commissions and Police Complaints Authorities, will have to be enshrined in law in order to ensure their independent functioning. In creating these bodies, the state governments will have to face some problems that are inherent in the judgment itself. The judgment mandates, for instance, the creation of a State Security Commission to ensure that “the state government does not exercise unwarranted influence or pressure on the state police”. But in practice, how will the Commission ensure that there is no interference? What skills will the Commission possess by which to evaluate the police, and how will it go about performing this function? Similarly, will inquiries by the Police Complaints Authority lead to criminal charges, or will there be a parallel police investigation? What will be the relation between the criminal investigation undertaken by the police and the inquiry by the Authority? These questions will require thorough consideration, and must be addressed by well-thought-out laws. The end-of-the-year deadline clearly does not provide enough time for the creation of such complex legislation. Governments must nevertheless take definitive steps towards such reform. Changes that do not require legislative basis should be introduced immediately, and a process must begin whereby comprehensive legislation will be enacted. The legislative process is itself fraught with problems. There are dangers that the lack of political will to reform will be reflected in any eventual legislation. It is also possible that the new laws will not have mechanisms by which to ensure police accountability, or that they will create only pliant institutions. If a process of appointment is instituted that is again un-transparent, or if the new state bodies are denied resources, the new mechanisms will be crippled. As such, the onus will be on civil-society groups in each state to ensure that the new laws reflect the spirit of the judgment. A good template to adopt would be the Model Police Act, drafted recently by the Sorabjee Committee. In any case, governments in the process of legislating must be pressured to ensure that the public has the space to debate and present its views on the kind of policing it wants.