Police act Elaborate

1. CONSTITUTIONAL MANDATE FOR POLICE CONTROL
Art. 312
Art. 246
7th Schedule
The 2nd item listed in State List says that Police (including railway and village police)
subject to the provisions of Entry 2-A of List-I shall be the subject matter of State.
Union List: 2A- Deployment of any armed force of the Union or any other force subject
to the control of the Union or any contingent or unit thereof in any State in aid of the
civil power; powers, jurisdiction, privileges and liabilities of the members of such
forces while on such deployment.

2. THE POLICE ACT, 1861
•Colonial Legacy- After the revolt of 1857, the police system in India
was completely overhauled as governance passed from the Company
to the British government.
•A Police Commission was set up in 1860 (the first of its kind) and it
gave its report in a mere 22 days. The Police Act, 1861, was based on
a draft that was put forward by the 1860 committee. It was
authoritarian in nature, coming as it did in the aftermath of the 1857
Sepoy Mutiny. This act remains in force even today.
•The Police Act of 1861 was legislated by the British right after the revolt
of 1857 to bring in efficient administration of police in the country and to
prevent any future revolts. This meant that the police were to always
comply with those in power.
•The police was professionalized on the basis of the Indian Police Act of
1861.

3. SALIENT FEATURES OF THE POLICE ACT, 1861
1. Scope of the Act:
The Police Act 1861 is not the sole or only law in relation to police functions. The maintenance of public
order and the criminal justice system are based on the Indian Penal Code (IPC), Criminal Procedure Code
(Cr.PC), Indian Evidence Act as well as a large number of special legislations including special laws including
Prevention of Terrorism Act (POTA, now repealed ) or Unlawful Activities Prevention Act (in which many
of the provisions of repealed POTA have been incorporated ) or Control of Organized Crimes Act (COCA)
as in Maharashtra or Scheduled Castes and Scheduled Tribes (Prevention of Atrocities ) Act, apart from
the provisions of the Indian Constitution itself. In addition to the laws, there are Police Regulations (e.g. PRB,
1943 in West Bengal) and Police Manuals (e.g. Tamil Nadu) in every state laying down clear guidelines and
instructions in regard to the exercise of police powers and duties.
2. The preamble of the Act:
The preamble of the Police Act of 1861 states that ‘enacted to reorganize the Police and to make it a
more efficient instrument for the prevention and detection of crime’. The preamble of the act makes it
clear that the role of the police is just as an instrument for prevention and detection of crimes. The
police plays no role in preserving the rights of the people and responding to the democratic aspiration
of the people. The role of the police is just confined to the law enforcement function.

4. 3. Control and Supervision of Police:
Under the Police Act 1861, the superintendence of the police vests in the State Government and it is exercised
by the State Government to which the Police Officer is Subordinate [Section 3). The administration of the Police
according to the act vests in the Inspector-General of Police and in such Deputy Inspectors-General and
Assistant Inspector-General, as the State Government considers fit [Section 4).
4. Provisions regarding Director General of Police:
The Police Act, 1861 does not contain any provision regarding the appointment of Director General of Police but
under the Model Police Act, the police is under administration of Director General of Police so provision has been
incorporated for appointment of Director General of Police who shall be appointed by State Government from
amongst three senior-most officers of the state Police Service, empanelled for the rank [ Section 6 of Model
Police Act, 2006].
5. Security of Tenure:
The Police Act, 1861 does not contain any provision regarding the security of tenure. It provides that
the Inspector General, Deputy Inspector-General, Assistant Inspector-General and District
Superintendents of Police may at any time dismiss, suspend or reduce any police officer of
subordinate ranks whom they think remiss or negligent in the discharge of duty , or unfit for the
same[Section 7 of P.A.].

5. 6. Transfers:
Under the Police Act 1861, there is no specific provision regarding transfers. The police being under the State
Government is always subject to frequent transfers on the wishes of the State Government.
7. Promotion:
Under the Police Act 1861, there is no specific provision for promotion.
8. Appointment
The Police Act, 1861 states that appointment of the police officers is subject to Article 311 of the
constitution and such rules as the State Government may from time to time make under the act
[Section 7].
9. Strengthening police investigations
Under the Police Act, 1861 the preamble clearly states that “whereas it is expedient to reorganize
the Police and to make it a more efficient instrument for the prevention and detection of
crime[Preamble, Police Act 1861]. The Police Investigation conducted are governed by the provision
of Code of Criminal Procedure and there are no specific section in the Police Act, 1861 which
provides for it.

6.  Police Offences :
The list of offences committed by a police officer under the Police Act, 1861 includes:
 wilful breach or neglect of any rule or regulation or lawful order;
 withdrawal from duties of the office or being absent without permission or reasonable cause;
 engaging without authority in any employment other than police duty; cowardice;
 Causing any unwarrantable violence to any person in her/his custody.
 The penalty for these offences is fine up to three months’ pay or imprisonment up to three months or
both[Section 29 of the Police Act, 1861].

7. Conclusion
 The Police Act, 1861 may be replaced with legislation that reflects the democratic nature of India’s polity
and the changing times. The Act is weak in almost all the parameters that must govern democratic police
legislation. The Act has made it easier for others to abuse and misuse the police organization. It has been
possible for people in positions of power to do so because of the following reasons:
1. The Act gives the government, the authority to exercise superintendence over the police, without defining
the word. Superintendence. or prescribing some guidelines to ensure that the use of power will be
legitimate.
2. The Act does not establish any institutional and other arrangements to insulate the police from undesirable
and illegitimate outside control, pressures and influences.
3. The Act does not recognize the responsibility of the government to establish an efficient and effective police
force.
4. The Act does not make it necessary to outline objectives and performance standards, nor does it set up
independent mechanisms to monitor and inspect police performance.
5. The Act is antiquated in its charter of duties, which is narrow and limited.
6. The Act does not mandate the police to function as a professional and service oriented organization.

8. A Critique of the Indian Police Act, 1861
The Indian Police Act of 1861 was legislated by the British right after the revolt of 1857 to bring in
efficient administration of police in the country and to prevent any future revolts. This act has
continued despite Indian being transformed from a British colony to a sovereign Republic. The National
Police Commission, 1979-81 (NPC) felt the need for reform and hence it went on draft a Model Police
Act in its Eighth Report submitted in 1981. Unfortunately, this proposed bill, which was developed as a
response to the context of the times, and addressed to end some of the ills that plague policing has
not been adopted by any state. Nevertheless, it has served as the template for nascent initiatives for
many who are trying to replace the out of date Police Acts in their states with more relevant
legislation. A few glaring examples from the recent history of the erosion of the rule of law or of
major violations of citizens’ rights resulting from the wrong type of political control over the police
are the anti-Sikh riots of 1984, demolition of Babri Masjid on 6-12-1992, inaction in registering or
pursuing cases of corruption, scams and frauds involving politicians. The police was also blatantly
misused for political purposes during the Emergency (1975-1977). This problem of political
interference was also dealt with by the NPC in its 1979 report. The National Police Commissions in
2000 identified indiscriminate arrests by the police as a chief source of corruption. The Report said
the power of arrest must be used only in the rarest of rare cases and that an allegation of commission
of an offence cannot constitute as a ground for arrest.

9.  … The lack of any effective accountability mechanisms and periodic review of performance is causing the
police to lose confidence of the public. Another problem is that the widespread indiscipline and cavalier
attitudes towards law and procedures are eroding the faith of people in the police. The people nowadays
have little or no trust in the police. The Police Act, 1861 vests the superintendence of the police directly
in the hands of the state government. At the present time, the Head of Police (Director General/
Inspector General) enjoys her/his tenure at the pleasure of the Chief Minister. S/he may be removed from
the post at any time without assigning any reasons. Such a state of affairs has resulted in wide-spread
politicization of the police where increasingly, allegiance is owed not to the law but to the ruling political
elite. Another problem with the present legislation is that the only independent authority with the
capacity to oversee or investigate police excesses is the National Human Rights Commission (NHRC). The
Commission has the power to only advise the Government. If any state government refuses to accept the
NHRC’s advice, there is no provision in law that empowers the Commission to force the government to
implement its advice. It can of course approach the higher courts and seek directions. The NHRC had
issued four summons to the Director General of Police, Bihar, over the last eight months for the two
wrongful arrests of activists, only to be met with a wall of silence. The Government had set up the Soli
Sorabjee committee to suggest police reforms and they came up with a draft bill which was never passed
by the Parliament, for unknown reasons. Even the J.S Verma Committee which was set up after the
Nirbhaya Rape case suggested police reforms. There is a need to bring in police reforms so that the police
can be made accountable by the citizens. More power in the hands of the police will not help, but more
responsible use of the abundant power that they already have. The Police Act, 1861 needs to be replaced
with legislation that reflects the democratic nature of India’s polity and the changing times. The Act is
weak in almost all the parameters that must govern democratic police legislation.

10. Dr. Soli J. Sorabjee led Committee on draft a new
Police Act (2005)
 The Ministry of Home Affairs, Government of India, having visualized the long-felt need to replace
the 146 year old Police Act 1861, set up a Committee of Experts, under the Chairmanship of Dr. Soli
J. Sorabjee, former Attorney General, Government of India. in September 2005 to draft a new Police
Act that could meet, inter alia, the growing challenges to policing and to fulfil the democratic
aspirations of the people. The Committee had been tasked to draft a new Police Act in view of the
changing role/responsibility of police and the challenges.
 The Preamble to the new Act stresses that "the police has a paramount obligation and duty to
function according to the requirements of the Constitution, law and the democratic aspirations of
the people", and requires it "to be professional and service-oriented and free from extraneous
influences and yet accountable to the people.“

17. MODEL POLICE ACT, 2006
 http://ssglawfirm.in/police-act-1861-and-model-police-act-2006-an-
analysis/#:~:text=Under%20the%20Model%20Police%20Act,and%20illegal%20arrest%20or%20detention.
 https://www.legalserviceindia.com/article/l253-Analysis-Of-The-Police-Act.html
 Compliance Statistics of the Directive issued by Supreme Court : So far, only 14 states have either
enacted the new Police Act or amended their existing laws to incorporate suggestions of the SC.

18.  Prakash Singh and Ors v Union of India and Ors1 ; (2006) 8 SCC 1

19. THE SEVEN DIRECTIVES IN A NUTSHELL
 Directive One:
Constitute a State Security Commission (SSC) to: (i) Ensure that the state government does
not exercise unwarranted influence or pressure on the police (ii) Lay down broad policy
guideline and (iii) Evaluate the performance of the state police.
 Directive Two:
Ensure that the DGP is appointed through merit based transparent process and secure a
minimum tenure of two years.
 Directive Three: Ensure that other police officers on operational duties (including
Superintendents of Police in-charge of a district and Station House Officers in-charge of
a police station) are also provided a minimum tenure of two years.
 Directive Four:
Separate the investigation and law and order functions of the police.

20.  Directive Five
Set up a Police Establishment Board (PEB) to decide transfers, postings, promotions
and other service related matters of police officers of and below the rank of Deputy
Superintendent of Police and make recommendations on postings and transfers above
the rank of Deputy Superintendent of Police.
 Directive Six
Set up a Police Complaints Authority (PCA) at state level to inquire into public
complaints against police officers of and above the rank of Deputy Superintendent of
Police in cases of serious misconduct, including custodial death, grievous hurt, or
rape in police custody and at district levels to inquire into public complaints against
the police personnel below the rank of Deputy Superintendent of Police in cases of
serious misconduct.
 Directive Seven:
Set up a National Security Commission (NSC) at the union level to prepare a panel
for selection and placement of Chiefs of the Central Police Organisations (CPO)
with a minimum tenure of two years.