Bihar Police Act: ‘Reforming the Police’, or Protecting it from Reform?Protest against Police Act in Patna

(The Nitish Kumar Government in Bihar has recently passed the Bihar Police Act 2007 – a move that has been met with protests all over the State. The people of Bihar are apprehensive that the new Act is actually meant to be used as a draconian weapon to crush people’s struggles. Bihar is not new to State repression. Political patronage for private armies and mafias has meant that it is the rural poor and agrarian labourers who have been at the receiving end of the police’s bullets, batons and jails. Heads of private armies, perpetrators of massacres of agrarian poor and mafia MPs have gone scot-free while dalit organisers of agrarian labour movements have been jailed under TADA, faced torture in police custody, their peaceful protests have been in the line of police fire, entire settlements of agrarian labourers have born the brunt of combing operations, have watched police preside over their villages being burnt down. Police Reform, for the people of Bihar, could only mean safeguards to ensure punitive action against Government and police in case of such actions. The Bihar Police Act 2007 has therefore evoked massive protests. One of its more dangerous provisions is that it allows for ‘Special Police Officers’ to “assist” the police force – which from Kashmir to Chhattisgarh play a notorious role of unbridled abuse of human rights. Even the Model Police Act drafted by the Sorabjee Committee allows for such a force. The latter allows it in case demanded by the local population, while the Bihar Act allows police to set it up when they judge necessary. Its upkeep would be borne by the local people. In effect this ‘special’ force would be a privatised police force. When one recalls the role of private armies like Ranveer Sena in Bihar and remembers that the Nitish Government disbanded the Amir Das Commission in order to shield JD (U) and BJP leaders accused of links with the Sena, one cannot help being apprehensive that the privatised police force might take on the ‘special’ role of the Ranveer Sena!
The Bihar Act’s provision of declaring an area ‘disturbed’ is also prone to abuse – as in Manipur, Kashmir and elsewhere too, areas with people’s movements would be declared ‘disturbed’ in order to justify additional police force.    
In this article Swati Mehta examines some aspects of the Bihar Police Act 2007. She was closely involved with the working of the Soli Sorabjee Committee that drafted the Model Police Act, 2006. She also argued for police reform in the Prakash Singh vs Union of Indiacase)

Democratising the police system is a powerful and popular demand in our country. The overwhelming public outrage over abuse of police powers, violations of human rights, communalising of the police force, and use of the police force as a political tool to crush dissent has created an insistent demand for police reform. How to reform is well known. Over 5 committees at the Union level alone have recommended ways to reform the police. Recently, the Supreme Court also gave a blueprint for institutionalising police reform.
Some States like Bihar have chosen to enact a new law replacing the colonial legislation of 1861. But the intention does not seem to be to provide the people with democratic policing but rather to overcome the Supreme Court’s directives. It does not even begin to address the two root causes of the policing problems - illegal (political) interference with police functioning and lack of police accountability.
The Gujarat Genocide was a dramatic instance of how political interference with police functioning resulted in communal carnage by the ruling political formation being directed from police stations. Even problems like non-registration of cases can be related to political interference when political leaders direct the police to ensure that statistics do not reflect any increase in crime scenario. It is interesting to note the official crime figures that show that the highest rate of crime under the Indian Penal Code is in Kerala. Do we really think that this is so or does this indicate that Kerala police records more cases as compared to other states? If police officers are told that registration of crime would result in their transfer or even suspension, it is more than likely that they will turn away the complainants. And of course, we routinely see direct pressure on police not to take action against powerful political figures, or against socially dominant sections which command political clout.  
The political class across the country has been shouting from rooftops that if their control over the police is removed, the police will go berserk. This is not so. There is a difference between controlling an organisation’s actions and holding them to account for their actions. No mature democracy allows the political executive to interfere in individual cases. So no police officer can be directed whom to arrest, when to arrest, whether to register a case or not. This must be the decision of the police. If they make wrong decisions or malafide decisions, they must of course be held to account. But their decisions in operational matters itself should not be influenced by political or partisan interests.
How do we address the problem of political interference? There are many ways of doing this. Sorabjee Committee and the Supreme Court suggested that one way would be to ensure that there should be an independent buffer body – comprising the government, police and public – between the police and the political executive that lays down policy decisions for the police. The Supreme Court said that the decisions of this body should be binding on the government. Even if the government is right in arguing that a non-elected body should not be empowered to pass binding decisions on elected government, there were other ways of overcoming this. The Bihar law, for instance, could have said that where the government disagrees with the body, it will record reasons. This would have shown the good intention of the government and the transparency of the process would have ensured that the government would not abuse its overriding powers.
What does Bihar do? It does create a buffer body. It, in fact, goes a step further (read backwards) and says that the police will be under total “control and supervision” of the government. This makes the situation even worse than the 1861 law that said that the “superintendence of the police” shall be “exercised” by the state government. Not only will the police now function under the supervision of the government but is now also “controlled” by it. Neither the word “superintendence” nor “control” are defined. The Model Police Act makes it the “responsibility of the state government to ensure an efficient, effective, responsive and accountable police” and for this purpose vests the power of superintendence in it. Superintendence shall be exercised over the police “in such manner and to such extent as to promote professional efficiency of the police and ensure that its performance is at all times in accordance with the law”.
The Bihar police Act gives no responsibility to the government but gives it powers to control the police. For what purpose and to what extent – it does not say or may be does not want to say? The law also retains the provision of the archaic 1861 Act where the police remain under the “general control and direction” of the district magistrate without defining the terms. Ambiguity does help when police is to be used as a tool of oppression. It also helps when no one wants to be held accountable.  If no one has the responsibility, there is always a blame game and no accountability. If during, say, riots, police fails to disperse rioting mobs, they can say “they had no orders from the DM”; the DM can say he was out of town and the government can say “we’ll suspend the DM and DSP” and then get them back into service in another place without their record showing anything. What other reasons could be there to keep powers of transfer, promotion, and disciplinary action with the government, if this is not to be used as a tool to manipulate police officers?
           Clear delineation of roles and responsibility of the government and the police is important to ensure accountability of each. Independence to make decisions in operational matters goes hand in hand with accountability for those decisions. Police must be accountable not only for their misconduct but also for their performance. Do we have any scientific method to judge police performance in India? No. Usually police performance is judged by crime statistics. If crime statistics increase, it is presumed that police did not perform well – media highlights it and legislators get questioned. There is no one pointing out that increase in crime statistics could be because police are doing their job properly and registering all cases. Or that people have more faith in the police and are reporting more crime. The statistics from Kerala mentioned above are an indication. Do we need an expert to tell us that crime situation is worse in U.P. and Bihar?
The Sorabjee Model Police Act gives detailed methods and mechanisms to evaluate police performance. The state level independent buffer body assisted by an Inspectorate of Performance Evaluation (which is headed  by a retired DGP and comprises experts from amongst serving and retired police officers, social scientists, police academics and crime statisticians) - evaluates performance on well-established criteria such as public satisfaction with police, victim satisfaction with police response and investigation, accountability, observance of human rights standards, and optimum use of resources. The Bihar Act circumvents and dilutes this provision too. Well, it cites the above-mentioned criteria but it changes the composition of body that is evaluating the police. A body comprising the Chief Secretary, the DGP and the Home Secretary will be more concerned with showing how good and efficient the police is under a particular government rather than genuinely evaluating the police performance and suggesting ways to improve it.
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. Given that the police are largely governed by the political executive – and in many states closely controlled by them – impunity persists not by accident, but by design.
Presently the accountability mechanisms, though they are many, are weak.  Parliamentary oversight is weak.  The oversight of the Human Rights Commission is narrow; and internal disciplinary mechanisms are so un-transparent that even the police don’t believe in them, what to speak to the population. Therefore we need mechanisms that are re-established with civilian participation. Both the Supreme Court and Sorabjee Model Act recognise this and in keeping with international best practice, introduce the concept of civilian complaints agencies to deal with complaints against the police. These bodies at the state and the district level would ensure accessibility as well as independent oversight of the police. Bihar that does not even have a human rights commission rejects this model totally and creates a body at the district level which is not at all independent. Comprising the District Magistrate, district SP and the ADM, this body will not inspire faith in the ordinary person who will either be too awed of the body to approach it or whose complaint would be against these very officials.
The chapter entitled accountability does not do anything to ensure police accountability, rather it provides protection to police officers against all legal actions and court proceedings for acts done in good faith. This is even worse than Section 197 Cr.P.C. that requires government sanction to prosecute officers. As far back as 1981, the National Police Commission had recommended that protection available to officers under section 197 Cr.P.C. should be withdrawn. Instead of doing this, the Bihar Police Act ensures that police cannot be held accountable at all.
If this does not convince some of the readers that accountability is not high on the list of Bihar government’s priorities, a look at the chapter on general offences should clinch it. The Sorabjee Model Act had a discrete chunk on common offences committed by the police. From non-registration of FIR; to unlawful search, seizure, arrest, and detention; to torturing or inflicting inhuman or unlawful personal violence were all offences. Obviously, these would be criminal offences under criminal law also but including them in the Police Act clearly brings it to the attention of the police that their actions are unacceptable. Yet the Bihar Act throws all of this out and police offences just include disciplinary matters and not offences against the public.

All this clearly indicates that the new Bihar Police Act is not the attempt of a democratically elected government to provide the people with an efficient, responsive and accountable police service. It rather appears to be the attempt of a regime to protect and consolidate its power against what it perceives the “unconstitutional” attempt of Supreme Court to prioritise the needs of the people to have good policing. How can a government that promised good governance to the people of Bihar justify imposing a police Act on them without consulting them at all?