POLICE
ACCOUNTABILITY AND CIVILIAN
OVERSIGHT
By
Sankar Sen
Accountability means answerability for the proper
performance of the assigned job. It means, as
emphasised by the National Police
Commission in its report (Eighth Report of the National Police Commission, page 1). more than mere
responsibility to discharge the duties
involved in a job, but includes the responsibility of doing so in a
manner to the satisfaction of the party for
whose benefit the responsibilities are being discharged. In a democratic society, the police remains
ultimately accountable for its
performance to the people. It has also a proximate responsibility to the
law of the land which in essence expresses the
will of the people. In every stage of their activity the police should be governed and judged by the provisions
of law. Protection of the basic rights
of the people and compliance with law are the twin pillars of good policing in a liberal democratic society'. The relationship of the police to law is,
therefore, instrumental as well as
professional. It is a tool in their hands for initiating action against the
law-breaking members of the community, it also defines the standards of performance by the police themselves in the execution of their public duties.
Law gives powers to the police to exercise
force for the purpose of
peace-keeping. Indeed, the mandate of the police to use force to curb greater violence and disorder
raises the key issue that the police
themselves should not indulge in abuse or misuse of force. Exercise of
police powers must be subjected to checks
and balances. Indeed, no state body with the possible exception of the armed forces stand on a routine
basis between the protection and
endangerment of human rights.
However, checks and balances on
police power, if they are to serve the intended purposes, must
be reliable as well as effective in their nature and operation. They
must also be perceived as such by the members of the community.
Checks and regulations of police misconduct can be
internal as well as external. Many senior
police officers as well as experts like
David Bayley feel that internal control is to be preferred to the external processes. Bayley has argued in his
book. Pattern of Policing—A Comparative International Analysis, that
internal regulation can be more thorough,
effective and efficient than external supervision. A determined police
can hide many things from external
supervision and can make it haphazard and ineffective. However, external control is needed whenever it is felt that the police force on its own cannot
control itself internally. Experience
of dealing with police misconduct in different parts of the world shows that exclusive reliance on
police self-regulation may not be
sufficient. Capacity of the police to regulate itself is limited. And further police self-regulation,
howsoever well-meaning, does not
carry conviction with the people. And that
is the reason why civilian oversight of the police has emerged as one of the legitimate means by state
authorities to exercise checks on
police powers. Public demand for civilian oversight has acquired edge because of the widely held
perception that police supervisors often tend to gloss over the misdeeds
of their subordinate staff.
Turning to the evolution of
civilian oversight bodies in democratic countries, it is seen that
the 1980s represented, to quote Dr. David Bayley, "a
watershed period with respect to the moral dimension of policing". During
those years civilian review bodies were created in many countries.
In sum, the police lost their monopoly in determining whether
the police officers were treating their citizens right.
Object
The record of experience with
civilian oversight in various forms indicates that some important considerations have to
be kept in mind if the system is to operate
successfully and effectively. It has
to be kept in mind that the goal is not primarily the punishment of the
police but the goal is to restore public confidence in the police as well as to ensure police compliance
with rules and regulations. There is very little point in talking in terms of
only punishing the aberrant officers
unless there are efforts for systemic changes
and efforts in the police to persuade the officers, particularly
street-level officers, of the need to change existing practices.
Independent
Investigative Capacity
Any civilian oversight body in order to be effective
should have an independent investigative
capacity. If an independent investigation
can be launched from the moment a serious complaint is received, it will reassure the citizens who may otherwise feel that the police may seek to cover
up serious transgressions. However,
independent investigation should be taken up only in respect of very important
cases. Other cases should be dealt
by mediation, conciliation and internal police investigation. In the investigation set-up there must not only be police officers or ex-police officers, but
investigators with different backgrounds
like lawyers, academics and doctors, who cannot be charged with pro-police sympathies. This does not mean that the
police investigators are to be excluded. The Australian Law Reforms Commission stated in its report that in
complaints which involve serious
criminal charges, investigation can be carried out best by experienced police personnel.
Civilian oversight has offered a
separate means by which grievances can be made against the
police, and investigation can be monitored and conducted by
independent investigators and some independent assessment can be
made of the results of the investigation. The crucial element here
is the induction of a third non-police party in the resolution of
the grievances against the police, and it offers fresh and new ways
of resolving these grievances. Further, a functional complaints system enables the socially weak and marginalised groups to
articulate their grievances. It thus
gives an opportunity to the common citizens to influence the course of police policy,
procedures and practices. It can
foster communing policing by including
the genuine grievances of those
citizens who are removed from society's institutions.
Resistance
Experience in different
countries shows that attempts to set up civilian oversight mechanisms
have met with stiff police opposition and resistance. There is
always police opposition stemming from the perceived threat to
police professionalism and also from the feeling that
jurisdiction over the discipline of the members of the police force
belongs "'exclusively to the command structure". Police unions in countries like the
United Kingdom, Canada and Australia have argued
that the lay involvement would result in a lack of appreciation of the
police work and the problems faced by the
police including the occupational
hazards of vindictive and vexatious complaints. In the United Kingdom when the
Police Complaints Board (PCB) was established by the Police Act of 1976,
Sir Robert Mark, the well-known Commissioner
of London Metropolitan Police resigned in protest. In Victoria
(Australia) the Police Complaints Authority, which was set up in July 1986, had
to face strong opposition from the Police
Association which sought an injunction from
the Supreme Court in Australia to prevent the Authority from initiating
enquiries in relation to the police conduct. The Australian Supreme Court in the wellknown case (Servy Vs McCrohan)
overruled the objection. The government, however sided with the police, and abolished the Police Complaints Authority in
1989 and replaced it by ombudsman to oversee police internal investigation into
the complaints.
In Canada, the Metropolitan
Toronto Police Force Complaints Act, 1984, set up in Toronto the
Civilian Board of Enquiry comprising members appointed from amongst the distinguished citizens and police officers who must not be
either serving police officers or
nominated by the Police Association. The Police Association challenged
the validity of the Metropolitan Toronto Police
Act and went to the extent of partial withdrawal from service demanding the repeal of the Act. In
Canada, the police officers tried to criticize the Civilian Review Board
as 'Kangaroo Courts'
in which the few basic rights of the police officers and investigators were
honoured. While the merits of some of these criticisms can be questioned,
they go to indicate the type of opposition that is encountered by the
external review mechanisms. For its own success it is necessary for
the outside agency to strive sincerely and continually to persuade the
police to understand
the wider implications of proper handling of the complaints and make them realise that in their own interest they should consider review by external mechanisms as
beneficial. Indeed, willing compliance
is always preferable to exacted deterrence.
The Metropolitan Toronto Police Act, 1984 was repealed. A new Police Service Act, 1989 was enacted which expanded the jurisdiction of the Public
Complaints Commissioner on a mandatory basis throughout the province.
The Toronto complaints system had been the
catalyst for civilianisation of the police complaints procedures
throughout Canada. The Royal Canadian
Mounted Police amended its Act to create a Public Complaints Commission to provide transparency in
the investigation of allegations of
misconduct on the part of the members
of the RCMP.
Despite initial opposition police leaders in many
countries have gradually veered round to
the view that civilian control mechanism
ultimately helps the police in many ways. It helps the police managers to improve service delivery by
identifying the weaknesses in their
programmes and take steps to be more responsive
to the expectations of the communities. This is particularly important in, to quote the Chief of Royal Canadian Mounted
Police, J PR. Murray, a "demand-driven" organisation like the
police. Civilian oversight can also identify policies, guidelines and regulations and even legislative requirements which may be contributing factors in events leading to
public complaints against the police.
However, functioning of Civilian
Review bodies has not always been acclaimed by the complainants
themselves. In a major study evaluating the work done by the Police
Complaints Authority in the UK, Maguire and Corbett pointed out that the system failed to command
public confidence because in most of the
cases allegations against the police remained unsubstantiated. Substantiation rate has always appeared to the
outsiders far too low to constitute an effective deterrent. This happens
because obtaining evidence against the
malpractice of the police is difficult. Very often, malpractice occurs in police territory and the police officers who break the law always have the
opportunity to hide the misconduct from the civilian witnesses. There is also a
code of silence among the police
officers. Maguire study also showed that some of the complainants were making
their first complaints against the
police in their lives and "felt that it is like walking upto a
six-feet man". They expected some kind of relief or an assurance that steps would be taken to prevent such
recurrence.
Why
Police Resort to Shortcut Methods?
Now the question arises as to why
the police resort to shortcut and illegal methods in the performance
of their duties. Maurice Punch in a perceptive study called "Conduct
Unbecoming" has stated that the roots
of police deviance are deep-seated and multidimensional. Its stems
from, as seen in various countries of the world, ambiguous legislation,
vulnerability to legal sanctions, occupational culture and a desire to produce
quick results. In countries like India, the public expect the police to take
laws in their hands because of the working
of the criminal justice system at a
snail's pace. There is demand for ruthless counter-measures in spite of the price to be paid in terms of human
rights. It is the responsibility of
the police leaders to resist such pressures and check drifts of this kind. They have to keep in mind that in any democratic society order maintained by
repression is the worst form of
disorder. It establishes a linkage between social order and atrocity.
National
Human Rights Commission
In India, the National Human Rights
Commission since its inception has been receiving a large number of
complaints against the police. Some of the complaints have been found
to be frivolous but there is substance in many of the complaints. In a
number of cases the Commission has awarded compensation to the
victims and suggested disciplinary action against the errant
police officers. The Commission, however, has strongly felt that
punishment or disciplinary action against the errant police officials will not
be adequate unless there is a systemic change. For this purpose, the
Commission strongly recommended the insulation of the police from extraneous
pressure and influence. In its submission before the Supreme Court in the Writ
Petition (Writ Petition No. 310 of 1996, Prakash Singh and others Vs
Union of India), the Commission referred to the doctrine of
constabulary independence in the U.K. and endorsed the
observations of the Royal Commission of Police, 1962 and Lord
Denning regarding constables' responsibility and answerability to law alone. The Commission referred to the observation of Sir
Robert Mark, a well-known Commissioner of London Metropolitan Police, that the
police in Great Britain is answerable to law and this makes them "the least powerful, the most
accountable and the most acceptable
police in the world". Police in democratic society should be low in
authority and high in accountability'. The Commission
also endorsed the recommendation of the National Police Commission for the constitution of a State Security Commission to oversee police work and insulate the
police from unnecessary and avoidable
interference.
The State Security Commission
will have representatives from cross-sections of the society and the
accountability' of the police to the people will be brought through
this mechanism. Further, accountability will be ensured when
people become aware of their rights and are willing to
exercise them through available mechanisms and agencies. Awareness does
not mean only awareness
of rights but also awareness of the problems and constraints within which the police have to function.
The National Human Rights
Commission further pointed out in its submission before the Apex
Court that altogether the "rule of law in modern India, the frame upon
which justice hangs, has been undermined by the rule of politics.
Supervision in the name of democracy has eroded the
foundations on which impartiality depends in the criminal justice
system". For better accountability of the police, the Commission suggested
the formation of District Complaints Authority' to examine complaints from the public
of police excesses, arbitrary arrests and
detentions and make recommendations to the government and the State or
National Human Rights Commission and
institution of lay-visitors for visiting
jails and police lock-ups.
In the ultimate analysis,
essential features of democratic policing are responsiveness and
accountability. A democratic police force, to quote Dr. Bayley,
'"responds the needs of individuals and private groups as well
as the needs of the government. It is accountable to multiple audience and multiple mechanisms". Strengthening of these
mechanisms will strengthen the quality
of democratic policing.
