Police Accountability and Legal Reform

Law enforcement in India is imperative to keep justice and order in the nation. Indian law is enforced by any number of agencies. Unlike many federal governments, the constitution of India delegates the maintenance of law and order primarily to the states and territories.

At the federal level, some of India’s paramilitary forces are part of the Ministry of home, which affords and support the states. Larger cities have their own police forces under their respective state police. All senior officers in the state police and federal agencies are members of the Indian police service.

Need for Police Accountability

Custodial violence, corruption, bad behaviour, lack of empathy for the poor and vulnerable sections of society and lack of politeness in the day-to-day work are all the effects of unaccountable behaviour on the part of police. This ultimately leads to a bad police image and a lack of trust in the police work. Perhaps the greatest public resentment and disappointment over bad policing is reserved for impunity - the safety from punishment provided by authorities and supervisors to errant police. This includes a boundless tolerance for poor performance in delivering safety and security and protecting the rule of law. Given that the political executive largely governs the police - and in many jurisdictions closely controlled by it - impunity persists not by accident, but by design. Serious breaches of law and accountability arise out of nurtured relationships of patronage. Undoubtedly, the government is entitled to provide police with policy direction and set standards for performance. However, the distinction between appropriate executive direction and inappropriate political interference in operational matters is frequently transgressed to the detriment of the rule of law. Police, whether in a democratic or dictatorial regime, perform much the same functions. What distinguishes well from bad policing is the commitment to protect the civil and political freedoms of individuals, while helping to create an environment that will maximize the enjoyment of the economic, social and cultural well-being of the citizens. In the Eighth and Concluding Report, the National Police Commission has devoted a perceptive chapter on ``Accountability of police performance'', which indeed should be the key to avoiding police brutality.

The Commission succinctly analyses and recommends the ways and means of ensuring threefold accountability of the police - accountability to the people, accountability to law and organisational accountability. Indeed the three are interlinked the police has to ensure accountability to the people, accountability to law and organizational accountability. This means that accountability is the key to democratic policing. A 'democratic' police organization is one that: is accountable to the law, and not a law unto itself. Democratic policing requires that the police act within the boundaries of domestic and international law. Actions of the police are always subject to court scrutiny and those who break the law face consequences both through internal disciplinary systems and the criminal law. The police are accountable to democratic governance structures and the community. To ensure that the police do not become overly controlled by and identified with a single seat of power, democratic police independently answer to all three branches of governance - the executive, the parliament and the judiciary - as well as to the community. However; its accountability to the people is at a premium, as all kinds of accountabilities ultimately amount to the accountability to the people. Emphasizing the realization of the concept of accountability the Police Commission has said, ``we wish to emphasize that it is ultimately the people whose agents the police functionaries are and to whom they are ultimately accountable... We, however, find that the process of police accountability to the people has suffered considerable distortion in the recent past''.

Governance of a just society depends on the credibility of its institutions. The Rule of Law is the fundamental objective of good governance in a civilized and just society which based on the belief that the law of the land should apply equally to the rich and poor and the powerful and weak in same measures. Democratic Policing is a concept which qualifies the ethics of policing which is based on the supremacy of law and equality before law. Thus, the rule of law becomes the most important factor in the maintenance of a service-oriented policing practice. The two major aspects of democratic policing are Transparency and Accountability. These two factors are important for policing because the police work involves a lot of credibility as it concerns with the liberty and dignity of individuals. For such a sensitive work it is necessary that all police work remains available for scrutiny as the police as a public service is accountable not only to the law which it serves but also to the individuals and the society at large in whose service it is primarily employed.

The concept of democratic policing implies an approach based on norms and values derived from democratic principles. Critical to the success of democratic policing is the principle that the police should be held accountable, not just by government, but by a wider network of agencies and organizations, working on behalf of the interests of the people, within a human rights framework. In a democracy and under the Indian Constitution, the police as representative of a state whose sovereignty lies in the Indian people, are public servants and the police station public property. The conduct within it needs to conform to law, needs to respect basic human freedoms to ensure a basic confidence between the people of a city, state or region on the one hand and the wings of the state, the law-and-order machinery and the police on the other.

The incidence of police brutality, abuse of power and pre-trial detention in India has always remained a serious issue of human rights violations and has increased manifold in the recent past. The police are the most important law enforcement agency entrusted with preventing and detecting crime within a country. The police must maintain law and order in society and ensure peace. More often than not, one comes across news of manhandling and illegal detention by the police of innocent persons. There is mounting national and international pressure to protect and conserve certain basic human rights of all individuals. Transparency and Accountability must be essentially ingrained in day-to-day police work because if there is no transparency and accountability in normal times, that is, at peace time there would not be any accountability, transparency and functioning according to the law at times of outbreaks of violence and stress.

Accountability is understood to mean the relationship “between the bearer of a right or a legitimate claim and the agents or agencies responsible for fulfilling or respecting that right”. This means government must be able to execute its mandate, and indeed explain how it did so. The point has also been made that the normal features of a democracy (eg multi-party elections and universal suffrage) are necessary, but not sufficient to ensure healthy accountability between citizens and the government. Democratic elections therefore do not make for clean government and new democracies remain haunted by human rights violations, nepotism and corruption, which do not disappear with the advent of democratic elections.

Public law liability with respect to police forces finds its source in the Constitution of India and administrative law. For violation of fundamental rights stated in Part III of the Constitution, such as right to life and liberty, protection against arbitrary arrests and illegal detention, protection from discrimination and unequal treatment etc, the courts have repeatedly held the police liable under public law and have imposed pecuniary liability on the State as compensation for the harm caused. A series of Supreme Court judgments beginning from the early 1980’s laid the foundational principles for holding the State liable for police misconduct and abuse of power, making pecuniary compensation a significant remedy for such violation of fundamental rights.

Leading Case laws

Police accountability is a cornerstone of ensuring justice and maintaining public trust in law enforcement. In light of increasing incidents of police misconduct, many police departments around the world have been scrutinized for their internal mechanisms of accountability and transparency. The Prakash Singh v. Union of India case has always been in the limelight. The 2006 judgment in Prakash Singh v. Union of India stands as a turning point in India's efforts to reform its police force and promote accountability. The case, filed by former Director General of Police Prakash Singh, brought to light the deep-rooted issues of political interference, corruption, and the lack of accountability in law enforcement agencies. In response, the Supreme Court issued a series of directives designed to create a more transparent, independent, and professional police force. Among the key reforms were the establishment of a State Security Commission to insulate the police from political influence, the introduction of a minimum tenure for officers in operational posts to prevent arbitrary transfers, and the creation of a Police Complaints Authority at the state and district levels to handle grievances against police misconduct.

This case study delves into the impact of these directives nearly two decades after the judgment, evaluating the level of compliance by different states and the extent to which these reforms have succeeded in achieving their intended objectives. While some states have made significant progress in implementing these changes, others have shown resistance, often circumventing the spirit of the directives. The study also explores how the introduction of accountability measures like the Police Complaints Authority has affected public perception of law enforcement, as well as the challenges that persist in ensuring these reforms are effective. By analysing specific cases and policy shifts, this study aims to assess the overall effectiveness of the Prakash Singhjudgment in fostering a culture of police accountability in India.

The terms and reference of the Commission were wide ranging. The Commission examined all issues in depth, in a period of about three-and-a-half years. The Commission submitted its reports between 1979 and 1981. It was noticed in the reports that the crux of the police reform was to secure professional independence for the police to function truly and efficiently as an impartial agent of the law of the land and, at the same time, to enable the Government to oversee the police performance to ensure its conformity to the law. A supervisory mechanism without scope for illegal, irregular or mala fide interference with police functions had to be devised.[1]

The Prakash Singh v. Union of India (1996) judgment laid the groundwork for comprehensive police reforms in India, emphasizing the need for accountability, transparency, and independence from political influence. Despite the Supreme Court's clear directives, the actual implementation of these reforms has been uneven across states, with many governments failing to fully embrace the spirit of the judgment. While some states have adopted measures like the establishment of Police Complaints Authorities and fixed tenures for officers, political resistance and bureaucratic inertia continue to undermine the effectiveness of these reforms.

The judgment’s intent to bring about a depoliticized and accountable police force remains a work in progress, with mixed outcomes in different regions. The creation of oversight mechanisms like the State Security Commission and the Police Complaints Authority have brought some level of transparency, but their success largely depends on the political will of state governments and the autonomy granted to these bodies.

Overall, while the Prakash Singh case represents a significant step toward police accountability, its long-term impact will depend on sustained pressure for reform, greater public awareness, and consistent judicial enforcement. The challenges faced in fully realizing the court's vision highlight the complexity of transforming deeply entrenched institutional practices, but the judgment remains a critical reference point in the ongoing discourse on police reforms in India.

The Police Complaints Authority (“PCA”) is a mechanism that was introduced in the Prakash Singh v. Union of India judgment of the Supreme Court in 2006. As per the Model Act, which incorporates the recommendations of the Supreme Court, the PCA is essentially a body that can receive and hear complaints against officers of all ranks. It is to be established at the State and the District level. The State level authority is supposed to look into allegations of “serious misconduct” against officers of the rank of Superintendent of Police and above, while the district level is to look into all complaints against police officers of and up to the rank of Deputy Superintendent. Interestingly, there is a distinction between the types of complaints that can be heard against officers; while for the higher-level officers, only complaints of serious misconduct can be entertained, against the lower-level officers, complaints of any nature can be heard. As per the Supreme Court judgment, the PCA can take cognizance of complaints made either by the victim or the victim’s representative. Some State laws allow the PCA to initiate inquiry Suo moto. The authority is to have the powers of the civil court under the Code of Civil Procedure, 1908 including power to summon witness, compel appearance, inquiries, compel registration of First Information Report (FIR) against errant officers or initiate departmental inquiries.

Following the Soli Sorabjee report which drafted the Model Police Act, it recommends that the Commission should have five members – a retired High Court judge, a retired police officer, a person with minimum 10 years of experience (judicial officer, public prosecutor, practicing advocate, or a professor of law), a person of standing from the civil society member and a retired officer with public administration experience.[2] It also recommends that at least one member should be a woman and the not more than one member should be a retired police officer in the rank of the DGP.[3]

The Prakash Singh v. Union of India (1996) judgment laid the groundwork for comprehensive police reforms in India, emphasizing the need for accountability, transparency, and independence from political influence. Despite the Supreme Court's clear directives, the actual implementation of these reforms has been uneven across states, with many governments failing to fully embrace the spirit of the judgment. While some states have adopted measures like the establishment of Police Complaints Authorities and fixed tenures for officers, political resistance and bureaucratic inertia continue to undermine the effectiveness of these reforms.

The judgment’s intent to bring about a depoliticized and accountable police force remains a work in progress, with mixed outcomes in different regions. The creation of oversight mechanisms like the State Security Commission and the Police Complaints Authority have brought some level of transparency, but their success largely depends on the political will of state governments and the autonomy granted to these bodies.

Overall, while the Prakash Singh case represents a significant step toward police accountability, its long-term impact will depend on sustained pressure for reform, greater public awareness, and consistent judicial enforcement. The challenges faced in fully realizing the court's vision highlight the complexity of transforming deeply entrenched institutional practices, but the judgment remains a critical reference point in the ongoing discourse on police reforms in India.

Conclusion

The ongoing debates surrounding qualified immunity, police accountability, and legal frameworks for police reform highlight the urgent need for systemic changes in law enforcement. Qualified immunity, a legal doctrine that shields officers from personal liability unless they violate "clearly established" rights, remains a contentious issue, as critics argue it impedes accountability. Calls for reform emphasize that holding police officers accountable for misconduct is essential to restoring public trust and ensuring justice. Legal reforms, including revising use-of-force policies, enhancing transparency, and improving oversight mechanisms, are seen as necessary steps. Ultimately, addressing these issues requires balancing the need for effective law enforcement with the protection of individual rights, and fostering a system that prioritizes justice, fairness, and accountability.

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[1] Prakash Singh v. Union of India, (2006) 8 SCC 1

[2] See Section 160, The Model Police Act, 2006

[3] Centre for Law and Policy Research

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Author:: -Sumbul Zohra, Law Student, Lloyd Law College