The Home Minister, Shivraj Patil said in November 2005 at a passing out parade of the National Police Academy that the government is working towards a new Police Act. In September 2005, the Government of India had constituted the Police Act Drafting Committee in September 2005 to draft a new Police Act to replace the Police Act of 1861. The Home Ministry's website says that suggestions are invited by everyone for the new Police Act before 31 January 2006. The government's move to cannot but be appreciated as the existing Police Act was enacted in 1861! After 144 years it is time to change the laws governing police in the country.

The members of the Committee include Soli Sorabjee, former Attorney General, Government of India, N C Saxena IAS (Retd.), former Secretary to the Government of India, N R Madhav Menon, Director, National Judicial Academy, Bhopal, Prof. Ranbir Singh, Director, National Law Institute, Hyderabad, Ajay Raj Sharma, IPS (Retd.), Director General, Bureau of Police Research and Development and others. Joint Secretary (Police Modernisation) Harminder Raj Singh is the Convener of the Committee. U N B Rao, IPS, is the Secretary to the Committee.

However, before we begin drafting a new Police Act some pertinent questions need to be answered. Why do we need a new act? What is wrong with the old and existing one? What are the objectives of the new Police Act? What are the objectives of policing in India? What are the challenges facing police in the country and what limitations are being observed in the present police system? Many more such questions come to the mind and these need to be answered before a new Act is promulgated.

It needs to be remembered that The Police Act is a Central Act and ratified by the Parliament. It lays down the basic infrastructure of the police system in the country. The control and governance of policing remains a State subject and states are required to enact their own State Police Acts to give shape to the basic structure in accordance with their regional requirements. The objectives of policing, the powers of the police officers and their administration are all regulated by this Act. Hence, its consequences are far reaching. The state governments cannot violate the main provisions of the Police Act such as the organisational structure that places the IPS on top of the hierarchy and gives control to the DG cum IGP (Director General, Inspector General of Police) as the chief police administrator in every state.

The 1861 Act - a Colonial model

By design, our Police system emphasises maintaining order rather than providing service to the people. This stands in sharp contrast to the principles enshrined in all modern police forces, which are 'to serve and protect' and to prevent crime by working with the people.

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Let us consider the existing Police Act V of 1861. There is considerable evidence to suggest that this represents a colonial model where the objectives of policing are to serve the interests of ruling establishment. The police are 'so shaped in personnel, powers and procedures as to be a terror to the law abiding citizen'. The Police Act of 1861 completely ignored the basic principles of policing which are to be accountable to the citizens, beholden to judicial control and more significantly work for the prevention of crime by winning trust and cooperation of people they serve. In contrast, the colonial police are shaped as an instrument of coercive power of the establishment. The first Police Commission, appointed in 1860 to reorganize the Indian police, was not surprisingly told to bear in mind that the '...functions of police are either protective and repressive or detective', [and the] 'line that separates the protective and repressive functions of the civil police from functions purely military, may not, always, in India be very clear.' Even then the organizational set up was not conceived to last more than a short period of time. It is deplorable that even after 58 years of independence we have not changed the laws governing the police in India.

At this stage it is useful to understand the main provisions of Police Act V of 1861 and why it needs to be repealed. The principles defined in Section 23 lay down that the duties of officers are to promptly obey and execute all orders and warrants lawfully issued by any competent authority; to collect and communicate intelligence affecting the public peace; to prevent the commissioning of offences and public nuances; to detect and bring offenders to justice; and to apprehend all persons for whom sufficient legal grounds exist. The order of importance of these duties is significant - to obey orders of superiors and collect intelligence and then followed by prevention and detection of offences. Nowhere does the Act suggest giving service to the people and working closely to gain their trust.

This stands in sharp contrast to the principles enshrined in all modern police forces, which are 'to serve and protect' and to prevent crime by working with the people. There are other sections in the Act too that suggest a repressive nature of the police system. Section 15 provides for the stationing of additional punitive police in any part of the province found to be disturbed from the conduct of the inhabitants. More significantly, the Act provides that the costs of such additional police can be levied from the inhabitants through distress warrants and sale of confiscated property of the fugitives.

Section 17 provides for the appointment of the residents as special police officers to assist the regular police and Section 19 provides powers to punish people refusing to serve as such. Selected citizens have been appointed as special police officers under section 17 to combat terrorists and naxalites, for example. Section 30 empowers the police to license the assemblies and processions of people that could be refused on grounds of threat to law and order. Furthermore, since Indians filled majority of subordinate ranks, provisions were made to keep their loyalty under constant supervision. Section 44 requires the maintenance of a general diary by the Station House Officer (SHO) to document movement of all officers. The officers could thus not only check the loyalty of subordinates but also wield considerable authority over the general people without direct accountability.

The police system was found to be unsatisfactory even by the British rulers themselves. A Police Commission appointed by Lord Curzon in 1902-03 found that 'the police force is far from efficient; it is defective in training and organization; it is inadequately supervised; [and] it is generally regarded as corrupt and oppressive'. The National Police Commission of 1978 (NPC) pointed that the police performance does not meet the expectations of citizens because of being constrained to function under an outmoded and 'politically more useful' system. It identified politically partisan performance, brutality, corruption and inefficiency as the clear perceptions of the police institution in the country.

Undemocratic by design

Apart from these historical antecedents there are three main design features that have adversely affected police performance in India. The prominent design feature is of maintaining order rather than providing service to the people. All the repressive sections described above shape police to be an order maintaining force rather than as one that serves the people by providing security and preventing crime. Accordingly, there is the continuing emphasis on armed policing within the system. Armed forces, no doubt, play an important role in the maintenance of order due to the volatile social, economic, ethnic, religious, and political conflicts in the country. But they cannot exercise any law enforcement powers, which are in the hands of regular police.

It is a lame excuse that we must establish order first before enforcing law. It is regular police work that defuses conflicts and helps maintain order. Moreover, short term objectives of maintaining order rather than looking into the underlying nature of problems is leading to dangerous situations. The strategies to deal with 'naxalism', political unrest and regional demands have generally used force to curb violence without letting police act as arbitrators. Consequently the police become the 'enemy' and a target of agitators. The police are then not seen as neutral agents of law but as those on the side of entrenched establishment.

It is a lame excuse that we must establish order first before enforcing law. It is regular police work that defuses conflicts and helps maintain order.