After a lot of dithering, the draft bill that will govern the functioning of over one lakh strong state police force is finally on the web. It will be debated by the lawmakers and passed once the state citizenry reacts to the provisions it embodies. Kashmir Life requested three experts to go through the bill and see what it intends to make out of the police force.
By Anonymous
The bill’s preamble uses the phrases ‘power’ and ‘empowering the police’ in such a way as if the authors of the bill want cops at the top of the system. It lacks an unambiguous statement about the duties, responsibilities, accountability and overall control of the police by the civilian government. It must go to a select committee of the lawmakers after every stakeholder is consulted.
Surprisingly, the bill has deleted section 4 of the Police Act 1860 about superintendence and control of the police and the law and order at the district level by district magistrate. If not changed, this will reinforce the belief that J&K police is a ‘state within the state’, a police state literally. Most of the draft is collated from RPC, IPC, CRPC, AFSPA and Disturbed Areas Act.
The bill must define vexatious arrest, non-rendering of assistance to police in the definition of serious misconduct, failure to register FIRs and failure to communicate the fact of arrest to family of the detainee within six hours.
There are grey areas that any law knowing person can detect and so easily:
Section 4, for instance, does not make a distinction between the core and non-core functions of the police. The authors, under Section 10 want cops to keep some information confidential and this clause needs to be deleted as Section 8 of RTI already deals with such matters. Section 14 seems medieval as it proposes arrest if an adult does not assist a police officer.
The functions that the police intends to exercise under Section 16 must be permitted under the magistrate to maximum practical extent. It should be district magistrate who will issue character certificates to the people after getting a report from District SP and not vice-versa, as Section 28 suggests.
Section 33 seeks introduction of rewards to police and its informers. Either it should be deleted or a sub-clause should be added that fixes individual or organizational responsibilities for misusing the official positions and making them liable to pay costs for it. Under Section 37 that tackles police stations, the DM should be authorized to inspect Police Stations, as has been the legal position so far. By the way, what is the fun of having Section 38 that legalizes comforts that police stations otherwise have.
Special Police Stations (Section 43) must spell out the establishment of Women Police Stations in every District in a time bound manner and the minimum number of lady cops in every station must be part of law. Section 45 must be flexible enough so that Police Station Diary could be shared with DM as well as the SHRC.
Authors of the bill must understand the larger reality that the police in the existing framework functions in aid of civil administration. Under 50 (2), SP has to be at the apex of police administration in districts but the overall control must stay with DM. This section excludes DM completely from the scene. Section 54 (4) suggests that no officer above a DGP should be appointed by the government. It is like creating a parallel system within a system and putting handcuffs on civilian authority that is elected to administer. Authors go a point beyond in Section 59 (1) by saying “.. the Government may in order to assist DGP and Police in general……”. The line is not bad drafting but indicates a different mindset that evolved in last two decades. Section 66 must get DM into the clear picture and not skip its principle responsible role.
Under Section 60 that suggests creating Commissionerate for Jammu and Srinagar, the bill indicates the police will have all the magisterial powers. Put simply, it means police wouldn’t need any permission to fire or to disperse processions by force. It could have larger consequences.
Interestingly, the bill sought to legalize many extra-constitutional things that it created suo moto over the years. Under Section 62, Village Defence Committees get a statutory recognition. The bill permits the VDC arming. Same is the case with Special Police Officers (SPO), a system that apex court banned in Naxal areas and not in J&K. Section 63 leaves many things untouched about SPOs including their hiring and firing.
In the appointment of State Security Commission (Section 68) the opinion of leader of opposition should also be taken. Section 77 must offer a time frame for the establishment of Police Establishment Boards.
Apparently copying the Special Economic Zones, the bill (Section 82) suggests creation of Special Security Zones (SSZ), a la AFSPA style Disturbed Areas. Authors must explain what they mean from SSZs. Section 86 says the DGP will create SOP for SSZs after approval by Government. If at all J&K needs SSZs, government must recommend it rather than vice-versa.
Section 87 needs time frame for separating the investigation from law and order. Section 92 is interesting. It says Police Officers shall always be on duty. Read with Section 142, it means whatever they do, it will be construed as done in the line of duty. It will create a larger harm to the society.
Proposed State Police Complaints Authority (Section 101) must comprise inter-alia of retired officers not below the rank of Principal Secretary and retired ADGP. Given the under representation of State Subjects in the Civil Services, it will be difficult for any local retired officer to qualify and be a member of the authority. The qualification should instead be a retired Commissioner/Secretary or a retired IGP. Leader of the opposition needs to be involved in this (Section 102). The requirement of Sworn Affidavit (Section 107-A) along with a complaint needs to be done away with. It should have more powers (Section 111 A&B) so that it is not another toothless tiger. While there is requirement of having an appellant apparatus, there is absolutely no requirement for hearing DGP before the PCA pronounces a decision. District Police Complaints Authorities (Section 114) are toothless triggers. They can only forward the complaints, that too through SP or DGP. The limitation period that Section 120 tries to enforce a time period on entertaining complaints to state and district Police Complaint Authorities must be done away with.
Section 121 that deals with the functions, there is absolutely no need to consult the police because these are core administrative functions. Sub section (f) tries to redefine co-ordination between police and other departments which makes police more important at the cost of civilian authorities. In fact, Section 122, seeks to devour power under 129/133/144 CRPC from Magistrates for Sub Inspectors and above ranked police officers. It means a Police Officer can declare any procession as unlawful and use force to disperse it. Public Nuisance Removal under CRPC envisages a role for DM but the bill (Section 123) gives this role to police. Section 125 tries to empower police to act against nuisance by noise without the authorization by a Magistrate.
Section 128 is interesting. Under sub section (i), the bill gives DMs the authority to coordinate between his controlling departments, a power that is inherent to DM. The proposed bill wants to make it a concession! Section 128 (2-D) that wants DM to ensure that departments render assistance to SP is ridiculous. Authors have unnecessarily included (Section 131) things in the bill which are otherwise taken care of by IPC and RPC.
Punishment for vexatious arrest and torture (Section 133) must be seven years and not one year, as the draft bill suggests. Two years punishment (Section 134) for “interfering with the duties of a police officer” (RPC 353) should be reduced because it can be misused. Section 135 must have a special clause for those police officers who are convicted of crimes against women and the minimum punishment should be seven years.
Section 136 seeks to include many backdoor offences to increase the criminal liability of the public that negates social policing and larger public morality. If this section stays unchanged, then a person has to go to jail for wrong parking, cleaning furniture in a public place, urinating on the road side, not caring for pets, overtaking and breaking a queue for essential supplies! This must be done away with.
Under 140 (i) offences should be non-bailable in cases of torture and Section 141 that empowers SP to compound certain offences must be done away with because a cop can not play a judge and jury.
Section 142 reiterates the notoriously famous line that J&K remembers – the protection to the actions taken “in good faith”. The proposed bill suggests no prosecution without the sanction of state government. While it is otherwise in vogue, these “protections” need to be qualified.
