At the core of the current disagreements between the Center and some ten states lies the unpleasant reality that the politicians in India who hold ministerial offices do not want to let the police slip out of their absolute control. The Constitution places the police under the states as the thinking at that time was that police was primarily for managing law and order problems. The Police Act of 1861 had laid down that the police will function under the superintendence of the provincial authorities. The constitutional provision was thus in line with the prevailing environment.
This environment was however to change soon. The Police Act of 1861 was intended to keep the British Raj and its officers safe through control over the police. Though India gained independence in 1947 the methods of governance and the attitudes towards instruments of governance remained largely derivatives of the British legacy.
The changed environment brought about a rapid rise in the political consciousness of the citizens and their quest for economic, social and democratic rights. Over a period of time powerful groups in opposition to the ruling dispensations came into existence. While awareness for distributive and social justice was on the ascendancy, poverty and lack of education among large sections of people ensured that those who wielded power were also those who were able to carry the largest influence over vast masses of the people. And police became a handy instrument for extending spheres of influence of such elements.
Unbiased observers of the national scene were quick to realize that the lordship over police needed to be ended and autonomy provided to them to function objectively in the interest of the citizens. Thus the ideas about police reforms were born.
A spate of efforts followed to identify the changes needed to make police people friendly and influence resistant. Notable among the commissions set up to recommend reforms in the legal and departmental systems and practices and to change police culture are the National Police Commission under Dharma Vira, Padmanabhaiah Commission and Malimath Commission. A new Model Police Act to replace the 1861 Act was also proposed. However, legislative and executive actions did not follow as the political class could not imagine a world without their having an absolute control over the police.
Finally, a PIL in the Supreme Court resulted in mandatory orders on Sept. 26, 2006. These asked for creation of three entities in each state aimed at better management and governance, developing citizens’ confidence in police and safeguarding human rights. A State Security Commission would outline and oversee policies with regard to preventive tasks and relationship issues. A Police Establishment Board would take care of transfers, promotions etc. of subordinate cadres. Police Complaint Authority at state and district levels would probe complaints of misconduct against police personnel. Another key court directive was for all operational police officers up to the level of SHOs to have a minimum tenure of two years. A National Police Commission was also to be set up for selecting the heads of Central Police Organisations. These orders were to be implemented by March 31, 2007.
Sad to say, the mandatory reforms as ordained in the Supreme Court judgment remain to be implemented in a majority of states including territories ruled directly by the Centre. It is ironic to note that state authorities are prepared to face contempt notices rather than carry out Supreme Court orders to give functional autonomy to the state police.
Meanwhile, the challenges before the police have been growing both in complexity and intensity. The law and order problems that they face are no longer crime or crowd control related. The original framers of the Constitution had not envisaged growth of externally inspired terrorism, insurgency or ideological rebellion against the state. The 1861 Police Act had not envisioned rise of criminality which would be in the nature of federal or politically motivated crimes having ramifications across state borders. The Constitution, by giving authority to the states over police, also left a lacuna which made the Centre helpless in acquiring a direct role to investigate such crimes across state borders. The only exception it made was in the setting up of an Intelligence Bureau for collection of intelligence that could maintain subordinate offices anywhere in the country. The Bureau has no power of arrest, search or seize. It can only collect, analyze and disseminate intelligence. If it receives actionable intelligence about terrorism, insurgency or rebellion against the state, it has to deliver the intelligence to state authorities having jurisdiction for field action. If the state does not move in the matter there is little the Centre can do.
There have occurred numerous instances of actionable intelligence, failing to trigger corresponding field actions. There has been lack of coordination or cooperation, sometimes willful, and reluctance for joint analysis of the pool of information. This malady has been occurring among central agencies also even where no state actor is involved. With terrorism and Naxalism rising, an impossible situation was developing over ways to tackle security issues. It was not that the gravity of the evolving scenarios was not appreciated by the governing authorities all across the country. Only, there was no meeting of minds how a solution could be hammered out.
The Centre, therefore, looked around how other democracies of the world had solved similar problems. The US model looked attractive. The Home Minister himself traveled to the country to study its systems first hand.
The US model of governance is distinctly different from that of India. It has a presidential form of government with totally autonomous criminal administration systems. Federal crimes are defined and the FBI has legal power of investigation, search, seizure and arrest all over the country to deal with such crimes and all home based threats. Until 9/11 foreign inspired terrorism was unknown to US and no mechanisms existed to counter it holistically. After some trial and error and experimentations a National Counter Terrorism Centre (NCTC) was created in 2004 with autonomous systems to function under the newly created office of Director of National Intelligence who himself was placed on the personal staff of the US President. The NCTC was primarily a data collecting and analysis institution with no police or executive powers but with authority to suggest lines of action. The executing machinery was under another new entity, Department of Homeland Security, which set up 72 fusion centers spread over the country which also had representatives from FBI and local police to carry out necessary field work. Officers of fusion centers met daily, examining all inputs including those from NCTC and planning intelligence or ground level overt and covert operations as required, to neutralize the emerging dangers. Often such coordinated analysis of all data from all sources led to sting operations, resulting in red handed captures of terrorists before any damage could be done by them.. Both NCTC and Department of Homeland Security came into existence after new laws were enacted by US Congress on bi-partisan support.
The concept of US NCTC appealed to the Home Minister but the constitutional distribution of powers between the States and Centre in India rules out the possibility of creating institutions like the FBI or the Department of Homeland Security. And yet the growing menace of terrorism required urgent action.
After deliberations lasting over three years the Centre has come out with a hybrid model of an Indian NCTC which is proving unacceptable to several states of the Indian Union. Since Intelligence Bureau is the only security outfit constitutionally allowed to the Centre to operate in the states the Indian NCTC has had to be placed under the IB. But the anomaly is that while the IB has no police powers the NCTC will have powers of investigation, search, seizure and arrest, sanctioned by an executive order, (and not by a fresh legislation), drawn from the 1967 Unlawful Activities Prevention Act. The states see this as a subterfuge by the Centre to arm itself with new powers to wield a new stick over them. The NCTC will also be creating an unheard of situation for the IB which has no police powers but will now be getting them indirectly through NCTC. Two other unwholesome consequences can follow. The IB staff will be liable to summons by courts in cases launched after NCTC investigations. The immunity from RTI processes which IB enjoys now may end.
Recent events of coercive investigative agencies like CBI, Income Tax and Enforcement Directorate, springing suddenly into action, against individuals and others have widened the mistrust between the Centre and the states. The fear is that NCTC could become another instrument for sinister use. Many states are, therefore, unlikely to agree to the NCTC scheme as currently formulated.
The way forward will become easier if police in India is given autonomy as mandated by the Supreme Court. The police can then perform its duties without being influenced by external pressures. Recent examples of police moving against highly placed individuals for infringements when protection is extended to them by High and Supreme Courts, demonstrate their inherent integrity for lawful action. If transparency becomes a hallmark in the appointment of DGPs and police officers are guaranteed statutorily fixed tenures, external influences will have minimal effect on them. They will then carry out their duties in accordance with their conscience and the law of the land, generating confidence among the citizens. Consequently, the mistrust between the Centre and the states will tend to disappear. This will become self evident during a detailed National Counter Terrorism Strategy. Sadly, no such exercise appears to have been ever undertaken despite four decade long terrorist threats to India. The reason for this neglect is also evident, the fear of the political class of losing absolute control over the police apparatus.
The writer is a former Chief of R&AW of the Cabinet Secretariat.