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Police Commissionerate System

It refers to the Police System first established by the East India Company[i] in the Presidency towns of Kolkata and Mumbai which combines magisterial powers with the powers of the police.

History

On November 1, 1856, Samuel Wauchope was appointed Police Commissioner for the town of Calcutta and William Crawford for the town of Bombay under Act XIII of 1856. The Act provided for regulating the police force of the towns of Calcutta, Madras and Bombay and the Commissioner of Police was appointed as a Justice of Peace for the preservation of peace and detection of crime. Subsequently, separate Acts (the Calcutta Police Act, 1866, the Madras City Police Act, 1888, the Bombay Police Act, 1951) were created to regulate these presidency towns. Ahmedabad in Gujarat was the fourth city to get a Police Commissioner vide the Gujarat Adaptation of Laws (of Bombay) Order, 1960. A police commissionerate was established in Delhi following the recommendations of the Khosla Commission and the enactment of the  Delhi Police Act[ii] in 1978.

While Maharashtra has eleven cities with the police commissioner system, which is the maximum; Hyderabad in Telengana, Kalaburgi in Karnataka (2018); Bidhannagar and Barrackpore in West Bengal (2012); Surat, Rajkot, Vadodara in Gujarat; Jaipur and Jodhpur in Rajasthan (2011); Amritsar, Jalandhar and Ludhiana in Punjab (2010), Gurgaon, Faridabad and Panchkula-Ambala and then Panchkula in Haryana between 2007 and 2011; Bhubaneshwar and Cuttack in Odisha in 2008; Madurai and Coimbatore and Salem, Tiruchirapalli and Tirunelveli in Tamil Nadu in 1990 and 1997 respectively – all gradually came under the police commissioner system.

Advantages

The Panchkula Police Commissionerate  website[iii] informs  that ‘Urban policing require quick police response, higher quality of police investigations, higher sensitivity in redressing public grievances, greater use of technology in policing which can be better addressed by senior officers led Police Commissioner System.’ It further adds that ‘large urban areas require Police Officers intensive policing system. It should have much higher officers to rank ratio. This is possible in Police Commissioner System in which each police functional area such as Traffic, Crime, Security, Law and Order etc. is headed by senior officers of the rank of DCP, resulting in better supervision and control.’

Another argument advanced in favour of the Police Commissionerate system is that it removes duality of control. The Police machinery is no longer under the District Magistrate’s command along with that of the Suprintendent of Police of the district. In the commissionerate system, the Commissioner of Police (CP) is the head of a unified police command structure, responsible for the force in the city, and is accountable to the state government. This leads to faster decision-making especially in times of emergencies.

Constitutionality

‘Police’ is a state subject as per the Constitution of India. It finds mention in list II of the seventh schedule of the Constitution along with Public Order. The states are therefore empowered to legislate on the subject. Most of the state Police Acts also lay down that a police commissionerate system can be set up in a major urban area that has been notified as such by the State Government and that has a population of 10 lakh or more. In practice, however, this stipulation has often been violated[iv].

i) Principle of Natural Justice

The Police is Prosecutor, Judge and Jury in the police commissionerate system.

When prohibitions under section 144 of the Cr.PC[v] have to be imposed a Magistrate issues a written order stating the material facts of the case. As these cases usually involve disturbance of the public tranquility or a danger to human life or safety, these are issued on receipt of information from the Police or from another source. This provides an opportunity for a careful assessment of the facts of the case and the need for promulgation of such an order. Section 144 further provides for application by any person aggrieved by the order to challenge the order. None of this is possible in any of the large cities of this country because the Police sit in judgment over its own orders and the result is predictable. The Karnataka High Court recently struck down the imposition of Section 144 by the Bengaluru Police Commissioner in the city in December 2019 stating that it was illegal[vi]. The Court found that there was no application of independent mind by the Commissioner who was acting as the District Magistrate on the recommendation of the Deputy Commissioner of Police to impose ban orders. The reasons for invoking the orders need to be recorded and the Police Commissioner acting as the DM has to be satisfied about the need for them. It also noted that there was a complete absence of reasons for the decision and that the parameters laid down by the Supreme Court for imposition of restriction were not followed.

In a case where police firing results in deaths of citizens a Magisterial Inquiry is mandatory. It would stand to reason that the Police cannot be sitting in judgment over the necessity of firing at protesters. However, in the large cities of this country which have a Police Commissionerate this is exactly what happens violating the principle that no man can be a judge in his own case.

Similarly, an Executive Magistrate under section 107 Cr.P.C.[vii] may require a person who is likely to commit a breach of peace to execute a bond. This is usually done at the instance of the Police. The failure to ensure public tranquility would result in forfeiture of the bond. The exercise of such powers by the Magistrate allows for an independent application of mind. However, with the Police Commissionerates, the Police officers stand in judgement over the contention made by the Police authorities themselves[viii].

ii) Doctrine of Separation of Powers

The constitution is based on the principle of separation of powers. The Executive is therefore accountable to the Parliament and a loss of confidence of the Parliament in the Government of the day leads to its downfall. Similarly, the Judiciary can declare a law passed by Parliament as unconstitutional if it is not in conformity with the provisions of the Constitution.

The landmark judgement of the Supreme Court in the Keshvananda Bharti v Union of India[ix] case in 1973 declared that amending power of the Parliament was subject to the basic structure of the Constitution. Hence, any amendment tampering these essential features will be struck down as unconstitutional. Beg, J. added that separation of powers is a part of the basic structure of the constitution[x].

The principle permeates not only the constitutional scheme but also the functioning of the entire government. These checks and balances are visible in a separate constitutional body (UPSC) making appointments to high offices of the state or an independent Election Commission conducting elections. The criminal justice system is another example of the operation of the principle of separation of powers. The Police has the authority to investigate a crime but the prosecution is done by the State (notice that all cases are filed as State vs XYZ) while the Judiciary finally convicts or acquits the accused.

The principle is so interwoven that while the judiciary can order a criminal investigation to be initiated through filing of an FIR, it cannot issue any directions on how the Police investigation should be conducted[xi]. Similarly, while the prosecution by the State is made on the basis of the charge sheet filed by the Police, the Prosecution is not a mere mouth-piece of the Police, but a friend of the Court with a responsibility to separate the chaff from the grain.

These checks and balances are absent in the Commissionerate system.

Performance

The figures collated by the National Crime Record Bureau (NCRB) for the year 2019 lists 19 Metropolitan cities. It provides the crime rates which are calculated as crime per lakh of population. The three cities which have the highest rate of heinous ( IPC ) crimes in the country – Delhi, Kochi and Jaipur- are all Commissionerates![xii] The top three cities with the highest total crime rates in the country are again all Commissionerates-  Delhi, Chennai and Mumbai[xiii]. Ghaziabad, located next to the national capital and a city which does not have a police commissioner has a total crime rate (559) about one-third of Delhi (1906)[xiv]. It need not be mentioned that the resources at the disposal of the Ghazibad Police are but a fraction of those available with the Delhi Police. Both the Uttar Pradesh and Delhi Police have the facility of online registration of FIRs for certain category of offences like vehicle theft etc.

Maharashtra has the maximum number of cities as Police Commissionerates. It stands to reason that this highly effective policing system would make Maharashtra a state with very low crime. The average rate of total violent crimes in the entire country in 2018 as per NCRB was 31.9[xv] (crime per lakh of population). The rate for Maharashtra was 37.7![xvi] Madhya Pradesh with not a single police commissionerate but with large cities like Indore and Bhopal had a crime rate of 33.3[xvii], lower than Maharashtra.

A  ‘higher quality of police investigation’ is expected in a Police Commissionerate. This would be reflected in the number of accused charge-sheeted. The charge-sheeting rate as per NCRB was 16.2%[xviii] for Delhi, and 50.3 % for Ghaziabad in 2019[xix]. Thus, out of the total number of IPC crimes reported during the year Delhi Police could get sufficient evidence to prosecute only 16.2 % cases. This force of 80,976[xx] personnel and scores of senior officers with a budget of over 8,000 crore rupees came to the conclusion in more than two lakh twenty thousand cases that the cases were true but they had insufficient evidence to prosecute the offenders.

Indore in Madhya Pradesh without the better supervision and guidance of dozens of senior police officers had a charge-sheeting rate of 68.1%[xxi], higher than 64.7%[xxii] achieved by Mumbai.

Jaipur became a Police Commissionerate in 2011[xxiii]. Before 2011, the city and the adjoining rural areas used to be policed by a force led by an SP rank officer. In the last seven years, the police acquired a brand-new Police Commissionerate office, scores of new vehicles and a team of 6 SP rank officers, 3 DIGs  and an Additional DG and the crime rate increased from 719 in 2010 to 740 in 2018[xxiv].

Anecdotal evidence about the performance of the Police Commissionerate system is also available. On 26th November  2008, LeT terrorists held the entire city of Mumbai to ransom for 4 days[xxv]. The toll at the end was 166 innocents! 10 terrorists had the entire city and powerful Mumbai Police Commissionerate down on its knees.

The High Level Enquiry Committee instituted by the Government of Maharashtra concluded in its report- what we have found are instances of lack of: intelligent appreciation of threats, handling of intelligence, maintaining high degree of efficiency in instruments specifically set up to deal with terrorist attacks and certainly lack of overt and visible leadership in carrying out operations to face multi-targeted attacks[xxvi].

Other instances include the North-east Delhi riots in 2020[xxvii] and the breakdown of the law and order machinery in Panchkula in the wake of the sentencing of Guru Ram Rahim[xxviii].

Dual-control of the Police

Another argument advanced in favour of the Police Commissionerate system is that it removes duality of control[xxix]. The Police machinery is no longer under the District Magistrate’s command and that of the police hierarchy headed by the Director General (DG) of Police. However, no instances are on record to show that the District Magistrate has intervened in the operational autonomy of the district police or in fact, in the  functioning of any other department or directorates. Transfers and postings are done by the DG or the state government as per laid down norms, FIRs are filed, arrests made and investigations done as per law and the DM has no role to play in these matters.

That this argument is fallacious is also borne out by the fact that all directorates and departments continue to function in a district under ‘dual control’. The Principal Agricultural Officer who heads agricultural operations in the District is under the dual control of the District Magistrate and also of the state Agriculture Department. This has not impaired the functional autonomy of the Agriculture Department or affected its efficiency.

During the Covid-19 pandemic, it was the District Magistrate who was spearheading the campaign against the virus. This did not impact the decision of the health professionals who to admit, which medicines to administer and which treatment protocol to follow. The District Magistrate primarily plays a coordinating role in a district and it cannot be denied that there will always be the need for a central coordination authority.

Magisterial Powers

The Police Commissionerate system differs from the regular policing system in that it concentrates in the Commissioner the power of the Magistrate too. Magisterial powers are provided in chapter VIII of the CrPC[xxx] which deals with security for keeping the peace and for good behaviour. This in simple language means that an Executive Magistrate may require a person who is likely to commit a breach of peace to execute a bond. The failure to ensure public tranquility would result in forfeiture of the bond. This action is, therefore, preventive in nature. A similar provision exists under Section 151 where the Police itself can arrest a person to prevent the commission of cognizable offences. Another component of Magisterial powers is Section 133 which empowers a Magistrate to remove public nuisance in urgent cases. These could be the disposal to any substance or structure which is likely to fall and thereby likely to cause injuries or the conduct of any trade or occupation etc. These powers are not related to public order but more in the realm of municipal issues. The third category of magisterial powers is those under Section 144 CrPC which prohibit specific actions by the public (and not only assembly of more than 5 persons as is generally believed). It is, therefore, clear that magisterial powers are not of critical importance in controlling or prevention of crime.

[i] https://indianexpress.com/article/explained/why-ts-a-good-idea-to-have-police-commissioners-in-the-bigger-cities-6259456/?utm_source+whatsapp_web&utm_medium+soical&utm_campaign+soicalsharebuttons

[ii] https://legislative.gov.in/sites/default/files/A1978-34.pdf

[iii] https://panchkula.haryanapolice.gov.in/note-cp-sys_htm

[iv] In Panchkula Police Commissionerate the population is 5.61 lakhs as per 2011 Census

[v] https://indiankanoon.org/doc/930621/

[vi] https://www.thehindu.com/news/national/slapping-section-144-during-caa-protests-illegal-karnataka-high-court/article30814253.ece

[vii] https://indiankanoon.org/doc/1914745/

= [viii] Police can’t act as executive magistrates: Supreme Court: Article by Dhananjay Mahapatra in TOI- https://timesofindia.indiatimes.com/india/sc-cops-cant-act-as-executive-magistrates/articleshow/61193048.cms   = [ix] https://main.sci.gov.in/jonew/judis/29981.pdf

[x] https://www.drishtiias.com/daily-updates/daily-news-analysis/basic-structure-doctrine-kesavananda-bharati-case, https://main.sci.gov.in/jonew/judis/29981.pdf

[xi] http://www.legalserviceindia.com/legal/article-3535-powers-of-police-in-investigation.html

[xii] https://ncrb.gov.in/sites/default/files/CII%202019%20Volume%201.pdf Chapter 1B

[xiii] https://ncrb.gov.in/sites/default/files/CII%202019%20Volume%201.pdf Chapter 1B

[xiv] https://ncrb.gov.in/sites/default/files/CII%202019%20Volume%201.pdf PAGE 83

[xv] https://ncrb.gov.in/sites/default/files/Crime%20in%20India%202018%20-%20Volume%201.pdf page 153

[xvi] https://ncrb.gov.in/sites/default/files/Crime%20in%20India%202018%20-%20Volume%201.pdf page 153

[xvii] https://ncrb.gov.in/sites/default/files/Crime%20in%20India%202018%20-%20Volume%201.pdf page 153

[xviii] https://ncrb.gov.in/sites/default/files/CII2019-Volume-3.pdf page 1064

[xix] https://ncrb.gov.in/sites/default/files/CII2019-Volume-3.pdf page 1064

[xx] https://www.mha.gov.in/sites/default/files/DetailedDemandsforGrantsVol1_09022021.pdf page 182

[xxi] https://ncrb.gov.in/sites/default/files/CII2019-Volume-3.pdf page 1064

[xxii] https://ncrb.gov.in/sites/default/files/CII2019-Volume-3.pdf page 1064

[xxiii] https://home.rajasthan.gov.in/content/homeportal/en/jaipurcitypolice#

[xxiv] https://home.rajasthan.gov.in/content/homeportal/en/jaipurcitypolice# page 81

[xxv] https://en.wikipedia.org/wiki/2008_Mumbai_attacks

[xxvi] https://thewire.in/security/26-11-mumbai-terror-attack-inquiry-committee

[xxvii] https://en.wikipedia.org/wiki/2020_Delhi_riots

[xxviii] https://en.wikipedia.org/wiki/2017_Northern_India_riots

[xxix] https://www.drishtiias.com/loksabha-rajyasabha-discussions/the-big-picture-police-commissioner-system

[xxx] https://indiankanoon.org/doc/1914745/