Police reform and guide lines of National Human Right Commission

The police does not have right to take the life of any person. If by his act, the
policeman kills a person, he commits an offence of culpable homicide or culpable
homicide amounting to murder unless such killing is not an offence under the law. Under
the criminal law prevailing in India, nothing is an offence which is done in exercise of
right of private defence (section 96-106 of Indian Penal Code). But the right given under
these sections of Indian Penal Code is not absolute right and they can be exercised under
the restriction given in section 99 and 104 of same Act.
Section 46 of criminal procedure code empowers the police officer to use
reasonable force, even extending up to causing death, if found necessary to arrest the
person accused of an offence punishable with death or imprisonment of life. Thus, it is
evident that death caused in an encounter, if not justify, would amount to an offence of
culpable homicide.

So causing death of any person without reasons can not be justified. India is a
welfare state and our constitution provides right to life and personal liberty. It includes
living with human dignity. It is the duty of state to ensure the fundamental rights for
every person.
However the torture of police has been increasing very rapidly from the last
decade. The police encounter, custodial death, custodial rape, and the atrocities of police
are day to day news. To reduce these events the Janta Party Govenmenat set up Soli
Sorabji Panel, but before submission of the report the government fell down and the
report had not been enforced and the arbitrariness of police had been promoted in every
state. Recently Times of India news paper published that largest number of custodial
death was registered in UP.
On 22nd September, 2006 the Supreme Court of India in case of Prakash Singh vs
Union of India in its historical decision ordered wide reformation in police organization.
Due to its impact the police organization would be able to work without political
influential and adequate reformation can be made in law and order. It would help in
reducing atrocities. Faced with Supreme Court directives to implement the much delayed
police reforms, union government has set in motion the process to bring a new police act,
incorporating the suggestion of the Soli Sorabji Panel. The report has called for drastic
changes in the 145 year old police act to introduce fixed two year tenure for police
officers down the line from DGP to SHO, as well as separation of maintenance of law
and order from crime investigation, duties.
Police law is continuing from the period of British which is based on police
regulation Act, 1861. The object of police administration was to quash the Indian before
independence and to maintain the English rule, but today the police administration is the
part of India as a welfare state. So there is need to do basic change in Indian police
system. The ‘police’ are the subject comes under state list of seventh schedule. Its
provision is given in art. 245. So it is the subject of state and it is the responsibility of
state to reform the police system. Following are the main points under police reformation:
• The main objects of these reformations are to establish the accountability
and sensitivity of police towards people which should be conducted
through rule of law.
• The second object of these reformations is to fix the tenure of police
officers. Their tenure is fixed for two year.
• The selection procedure of DGP should be transparent and
recommendation of their promotion should be made by Board of Public
Services Commission (BPSC).
• The State Government has been ordered to establish a state security
commission, so that the State Government may not pressurize the police.
This commission will ensure that the police will work according to
constitution and law of country.
• There shall be a Police Establishment Board in each state which shall
decide all transfers, postions, promotions and other services related
matters of officers of and below the rank of Dy.S.P. The State Government
may interfere with the decision of the Board in exceptional cases, only
after recording its reasons for doing so.
• There shall be Police Complaint Authority at district level to look into the
complaints against police officer of and up to the rank of Dy.S.P. Similarly
 there should be another Police Complaints Authority at the state level to
look into complaints against officers of the rank of S.P. and above. The
district level authority may be headed by retired district judge and the state
level authority is headed by retired judge of High Court.
• The National Government shall also set up a national level commission at
the union level to prepare a panel for being placed before the appropriate
appointing authority for selection and placement of chief of central police
organization, who should be given a minimum tenure of two years.
As per the amendment made in criminal procedure code, section 176 makes the provision
that if any dies or disappear or rape is alleged to have been committed on any women,
when such person or women is in the custody of police or in any other custody authorized
by magistrate or court under this code in addition to the inquiry or investigation held by
police , any inquiry shall be held by Judicial Magistrate or Metropolitan Magistrate as the
case may be within whose jurisdiction the offence has been committed. The Judicial
Magistrate or Metropolitan Magistrate or Executive Magistrate or police officer holding
an inquiry or investigation shall within 24 hours of death of such person, forward the
body of deceased with a view to its being examined to the nearest civil surgeon or other
qualified medical person appointed in this behalf by the state government unless it is not
possible to so for reasons to be recorded in writing.
Apart from this, National Human Right Commission issued guide lines to all chief
secretaries of state and administration of union territories in dealing with death occurring
in encounters with police on 29/03/1997 and on 2/12/2003 a revised guidelines have been
issued and it was emphasized that state must send information to the commission of all
cases of death arising out of police encounters. Following are the revised guidelines:
• When the police officer in charge o f a police station receives information
about the death in an encounter between the police party and others, he
shall enter that information in the appropriate register.
• Where the police officer belonging to the same police station are
members of the encounter party, whose action resulted in death, it is
desirable that such cases are made over for investigation to some other
independent investigating agency, such as State CBCID.
• Whenever a specific complaint is made against the police alleging
commission of a criminal act on their part, which makes out a cognizable
case of culpable homicide, am FIR to this effect must be registered under
appropriate sections of the IPC. Such case shall invariably be investigated
by State CBCID.
• A magisterial inquiry must invariably be held in all cases of death which
occur in the course of police action. The next of kin of the deceased must
invariably be associated in such inquiry.
• Prompt prosecution and disciplinary action must be initiated against all
delinquent officers found guilty in the magisterial enquiry/ police
investigation.
• Question of granting compensation to the dependents of the deceased
would depend upon the facts and circumstances of each case.
• No out of turn promotion or instant gallantry rewards shall be bestowed on
the concerned officers soon after the occurrence. It must be ensured at all
costs that such reward are given / recommended only when the gallantry
of the concerned officers is established beyond doubt.
• A six monthly statement of all case of death in police action in the State
shall be sent by the Director General of Police to the Commission so as to
reach its office by the 15th of January and July respectively. The statement
may be sent in the following format along with the postmortem reports
and inquest reports wherever available and also the inquiry reports:
1. Date and place of occurrence
2. Police station and district
3. Circumstances leading to deaths
i. Self defence in encounter.
ii. In the course of dispersal of unlawful assembly.
iii.In the course of effecting arrest.
4. Brief facts of the incident
5. Criminal case no.
6. Finding of the magisterial inquiry by senior officers
 a. disclosing in particular names and designation of police
officials, if found responsible for the death; and
b. whether use of force was justified and action taken was
lawful.
Along with above guidelines the then CJI send their request to all the state and territories
to adhere these guidelines in letter and spirit both.
National projects on torture in India: demands that
• Ratified the un convention against torture and its optional protocol
• Enact legislation to prevent corporal punishment in schools.
• Enact a domestic legislation that makes torture a punishable offence and provides
for the protection and care of victims and witnesses.
• Enforce strict implementation of the Preventation Of Atrocities Act,1989
• Establish District Human Right Courts under the protection of Human Right Act,
1993
Now the time has come to reform the entire police system to prevent the police torture of
innocent people. The constitution of India establishes the India as a welfare state, which
can be achieved only after following the police reformation and implement the ruling of
the apex court. The police should be people friendly. The efforts should be made at every
level and the parliament should pass the law and new Police Act should be made by
parliamentarians. This will be helpful in reducing the police torture and it will fulfill the
real sense of policing.