Kerala Police Performance and Accountability Commission Report: A Critique

The Kerala Police Performance and Accountability Commission, set up in November 2003 on the initiative of A.K Anthony – former Chief Minister of the southern Indian state – was widely welcomed by many, including civil society. The Commission was given a threefold mandate: to evaluate the general performance of the police during the years 2002 and 2003; to examine the effectiveness of the autonomy given to the police and comment on its merits and demerits; and to make recommendations on improving the functioning and accountability of the police. Expectations were high that the contribution of the Commission (comprised of a former Supreme Court judge, former chief of Kerala police, and a former high-ranking civil servant from the state) would enhance the steady momentum of police reform in the state. Sadly, the recently released report of the Commission has failed to substantively address its terms of reference. In addition, it puts forward a series of controversial recommendations with negative implications for human rights and accountability.

To ensure that the police are effectively discharging their responsibilities – for which they are allocated public money and granted extraordinary powers – it is imperative to regularly review their performance. Assessing performance means looking at the police in terms of the results they deliver, particularly in tackling criminality, responding to victims’ needs and creating a safe environment for the public.

A significant part of the Commission’s mandate was to evaluate police performance. But nowhere in its report does the Commission clearly mention the particular areas where police performance was poor, or conversely where it was good. The Commissioners did identify ten “broad parameters” for reviewing performance but did not use any specific indicators or formula to properly base an evaluation. No statistics about the percentage of respondents who are satisfied or dissatisfied with policing have been included in the report. Nor is there any reference to how the police are viewed by different socio-economic groups in the state. An “assessment” of public feedback on police performance has been simplistically passed off as “a mixed bag ranging between accusation and adulation”. The Commission’s broad assessment of the police reads, “while some improvement in the overall police performance during 2002 and 2003 was noticed, there was a disturbing tendency towards deterioration subsequently”. This “deterioration” is apparently based on recorded crime, which increased in 2004. Clearly, any “deterioration” in police performance should have been gauged by the police response to the increased recorded crime, but this aspect was notably absent in the report.

The Commission was given an unprecedented opportunity to consider a weighty issue in the quest for better policing - the value of functional autonomy - particularly as this was the first real initiative by any state government in India to attempt to free the police of illegitimate political interference. Officers were assured that they need not fear whimsical transfers if they declined interference by politicians in doing their duty by law. It was therefore expected that the Commission would examine how the policy impacted on specific aspects of police work, such as registration and investigation of crime; crime prevention; maintenance of law and order; police-public interface; and human rights protection. The Commission responded by oversimplifying the issues into sweeping generalisations. Its comments on the merits of the policy were simply that the police were emboldened to act according to the dictates of their conscience, and people were free to approach the police without power brokers. The demerits were that ordinary people who feared to approach to the police by themselves were denied the assistance of a political power-broker, and also that some police officers used the autonomy to misuse their vast powers. Interestingly, the final opinion of the Commission holds that it is “not a useful exercise to work out the cumulative effect of the new policy” (in asserting this, the Commission violates a central aspect of its own mandate). Saying “autonomy to the police is the ideal, but it should be tempered with measures to prevent its misuse”, without explaining or elaborating these measures, amounts to blatant abdication of responsibility.

To top it all, the Commission puts forward controversial recommendations that have implications for key human rights. For one, it suggests an amendment to the Code of Criminal Procedure to make it mandatory for witnesses and accused persons to sign statements made to police officers, in the course of an investigation. The logic given is that this will ensure that they stick by their statements in court, and also prevent police officers from tampering with statements. This line of argument does not take into account the likelihood of witnesses being coerced (sometimes through torture) to sign statements in support of the police case, and then being put under undue pressure to stand by them simply because their signatures are affixed.

To tide over staff shortages, the Commission proposes that magistrates can visit prisons for routine judicial proceedings, like remand extension, not involving hearing or presentation of evidence. This will free a number of officers from the responsibility of escorting prisoners back and forth from the jail to the courts. But in situations where an undertrial prisoner appears to be a security risk, the Commission has made an alarming suggestion: “trial can be proceeded with either dispensing with his personal appearance and substituting a photograph for his identity or by resorting to video conferencing”. If accepted, this recommendation will violate the fundamental right to a fair trial that strictly requires the accused to be physically present to defend the charges against her/him.

Another contentious suggestion is that Assistant Public Prosecutors should be accountable to Superintendents of Police who will have a say in the writing of their performance appraisals (known as annual confidential reports). This goes against well established principles of the criminal justice system. Though the prosecution may work in close coordination with the police, it must be able to weigh the merits of a case independently. The Supreme Court of India has categorically affirmed that the Prosecutor is not part of the investigating agency and is an independent statutory authority appointed under the Code of Criminal Procedure.

On the question of accountability, the Commission has dismissed the suggestion to set up an independent police complaints body to investigate complaints against police officers because it is “likely to be expensive”. Instead, they have recommended installing police complaint boxes in offices of all local self government bodies (panchayats, municipalities et al). Complaints would be forwarded by the heads of the local bodies to the district police chief. This suggestion does not address vital issues – the public have no faith in the internal disciplinary systems of the police and there is a tendency within the police itself to protect its staff and image. It is the considered view of this organisation that in the long run, the money spent on setting up an independent oversight body – to receive complaints against the police – actually saves government money. A police force subject to strict external accountability is more efficient and less prone to waste precious resources.

Some recommendations of the Commission are noteworthy. These are: clear transfer norms and a fixed tenure of two years for all police officers; separation of law and order and investigation duties at the station house level; greater emphasis on traffic management at training institutions; increased use of information technology; emphasis on community policing; and greater powers and autonomy for the Vigilance and Anti-Corruption Bureau. However, in the final analysis, the Commission has not lived up to its mandate. It has skirted the real issues – accountability, transparency and public participation – overemphasising what is already known, for instance, that training should be given greater attention or that recruitment should be streamlined. Civil society expected the Commission to make a strong case for dedicated and periodic evaluation of the police against set indicators; institutionalisation of public input in annual policing plans; and the establishment of an independent, well resourced disciplinary mechanism to deal with officers accused of violating rights.