India’s Police Complaints Authorities: A Broken System with Fundamental Flaws A Legal Analysis CHRI Briefing Paper September 2020 Commonwealth Human Rights Initiative The Commonwealth Human Rights Initiative (CHRI) is an independent, non-governmental, non- profit organisation headquartered in New Delhi, with offices in London, United Kingdom, and Accra, Ghana. Since 1987, it has worked for the practical realization of human rights through strategic advocacy and engagement as well as mobilization around these issues in Commonwealth countries. CHRI’s specialisation in the areas of Access to Justice (ATJ) and Access to Information (ATI) are widely known. The ATJ programme has focussed on Police and Prison Reforms, to reduce arbitrariness and ensure transparency while holding duty bearers to account. CHRI looks at policy interventions, including legal remedies, building civil society coalitions and engaging with stakeholders. The ATI looks at Right to Information (RTI) and Freedom of Information laws across geographies, provides specialised advice, sheds light on challenging issues, processes for widespread use of transparency laws and develops capacity. CHRI reviews pressures on freedom of expression and media rights while a focus on Small States seeks to bring civil society voices to bear on the UN Human Rights Council and the Commonwealth Secretariat. A growing area of work is SDG 8.7 where advocacy, research and mobilization is built on tackling Contemporary Forms of Slavery and human trafficking through the Commonwealth 8.7 Network. CHRI has special consultative status with the UN Economic and Social Council and is accredited to the Commonwealth Secretariat. Recognised for its expertise by governments, oversight bodies and civil society, it is registered as a society in India, a trust in Ghana, and a public charity in the United Kingdom. Although the Commonwealth, an association of 54 nations, provided member countries the basis of shared common laws, there was little specific focus on human rights issues in member countries. Thus, in 1987, several Commonwealth professional associations founded CHRI. Through its research, reports, advocacy, engagement, mobilisation and periodic investigations, CHRI draws attention to the progress and setbacks on rights issues. It addresses the Commonwealth Secretariat, the United Nations Human Rights Council members, media and civil society. It works on and collaborates around public education programmes, policy dialogues, comparative research, advocacy and networking on the issues of Access to Information and Access to Justice. CHRI’s seeks to promote adherence to the Universal Declaration of Human Rights, the Commonwealth Harare Principles and other internationally recognised human rights instruments, as well as domestic instruments supporting human rights. International Advisory Commission: Alison Duxbury, Chairperson. Members: Wajahat Habibullah, Joanna Ewart-James, Sam Okudzeto and Sanjoy Hazarika Executive Committee (India): Wajahat Habibullah, Chairperson. Members: B. K. Chandrashekar, Jayanto Choudhury, Kishore Bhargav, Maja Daruwala, Nitin Desai, Kamal Kumar, Madan B. Lokur, Poonam Muttreja, Jacob Punnoose, Vineeta Rai, A P Shah, and Sanjoy Hazarika Executive Committee (Ghana): Sam Okudzeto, Chairperson. Members: Akoto Ampaw, Kofi Quashigah, Emile Short, Juliette Tuakli and Sanjoy Hazarika Executive Committee (UK): Joanna Ewart-James, Chairperson. Members: Owen Tudor, Pralab Barua, Hannah Ratcliffe, Emma Kerr and Sanjoy Hazarika. Sanjoy Hazarika, International Director This paper is an updated edition of CHRIs Rapid Assessment on Police Complaints Authorities in India, published in 2012. Original Research (2012): Devika Prasad Revised Edition (2020) – Research and Writing: Pavani Nagaraja Bhat, with inputs from Raja Bagga Review (2020): Devyani Srivastava Commonwealth Human Rights Initiative, 2020. Material from this report may be used, duly acknowledging the source. CHRI Headquarters, New Delhi CHRI London CHRI Africa, Accra 55A, Third Floor Room No. 219 Dr. Stanley Marbell Plaza Siddharth Chambers School of Advanced Study H/No. 158/2 Asylum Down Kalu Sarai, New Delhi 110 017 South Block, Senate House Accra. India Malet Street, London WC1E 7HU Tel: +91 11 4318 0200 United Kingdom Tel/Fax: +233 302 971170 Fax: +91 11 4318 0217 E-mail: Email: E-mail: [email protected] [email protected] [email protected] www.humanrightsinitiative.org CONTENTS Pg. No. Introduction 1 Chapter 1 Legal Framework and Standards 3 Supreme Court Directives, 2006 3 The Model Police Act 2006 3 The Model Police Bill 2015 4 Chapter 2 Police Complaints Authorities: Gaps in Design 1. Failure to constitute multi-tier authorities 7 2. Political executive dominates the authorities 9 3. Limited number and profile of independent members 10 4. Non-transparent selection process 12 5. Not enough independent investigators 13 6. Arbitrary grounds for removal 15 7. Diluted mandate 16 8. Binding powers frustrated 19 9. No rules of procedures 21 10. Timeframe for completing inquiries not specified 21 11. No attention on training 22 12. Accountability to the legislature ignored 23 13. Proactive disclosure obligations unfulfilled 24 Chapter 3 Litigation on Police Complaints Authorities: A Summary 27 Chapter 4 Conclusion and Recommendations 31 List of Tables Table 1: Supreme Court Directive on Police Complaints Authorities 3 Table 2: Provisions on Police Accountability Commission in the Model 5 Police Act 2006 and Model Police Act 2015 Table 3: Manner in which the PCAs have been constituted 7 Table 4: Levels at which PCAs have been constituted across states 8 Table 5: Inclusion of provisions in state police acts on different functions 18 of the state police complaints authority as provided in the Model Police Act 2006 India’s Police Complaints Authorities: A Broken System with Fundamental Flaws A Legal Analysis Introduction Police Complaints Authorities (PCAs) were introduced in India in 2006 when the Supreme Court ordered their creation in the Prakash Singh & Ors versus Union of India & Ors case.1 Their mandate is to inquire into complaints of serious misconduct including incidents involving death, grievous hurt and rape in police custody, as well as allegations of extortion, land/house grabbing or any incident involving serious abuse of authority by police officers. Creation of dedicated police complaints bodies has been a long-standing recommendation in relation to police reform in India. In 2006, the apex Court finally provided the push for its implementation by directing states and union territories to constitute Police Complaint Authorities both at the state and at district levels. It also laid down broad standards in terms of their composition, mandate and powers. These standards were further fleshed out in the Model Police Act 2006 (later revised as the Model Police Bill 2015) prepared by a high-level committee constituted by the Ministry of Home Affairs.2 Together, the Court’s directive and the Model Police Act provided sufficient guidance for developing a robust legal framework. However, successive state and union governments have failed to adopt the proposed legal standard in constituting their complaints authorities. On paper, it may look impressive: 23 states have constituted State Police Complaints Authorities (SPCAs) since 2006 and 16 have constituted District Police Complaints Authorities (DPCAs), either as provisions within their new/amended police acts or through government orders. Yet, not a single authority constituted complies fully with the Court’s directions. Instead of reflecting a balanced composition, the authorities are dominated by members of the political executive, thereby defeating the very purpose of serving as an external, independent oversight body. Their mandates have been reduced in scope. With very few civil society representatives, no independent investigators, no binding powers and no rules of procedures, the authorities seemed to have been designed to fail. This stands as true for states that established the authorities immediately following the Court’s judgment, as it is of those that have constituted them more recently. Discouragingly, not just the states but even successive union governments have ignored the guidance laid down in the Model Police Act despite having itself constituted the committee for formulating the model act. The cumulative picture that emerges is political will not to act and which appears connected to a deep resistance in the police leadership to uphold accountability, address police misconduct and act under law against errant officials. PCAs have an important role to play not just in holding individual officers to account but also in identifying patterns of criminality within the police and pushing for systemic improvements. The failure to create truly independent police complaints authorities with the requisite resources will only perpetuate impunity and stunt any measure at transforming police behavior and performance. 1 Prakash Singh and Others vs. Union of India, 2006 (8) SCC1. 2 Bureau of Police Research and Development, The Model Police Bill 2015: https://bprd.nic.in/WriteReadData/Orders/Model%20Police%20Bill%202015_21st%20Aug%20(1).pdf. 1 The Commonwealth Human Rights Initiative (CHRI) has monitored and reported on the police complaints authorities in India since the court’s judgment in 2006. It published its first national- level report on the authorities in 20093 in which it pointed to gaps both in the legal