Open Access Research Article
ADMINISTRATIVE DISCRETION – POLICE- UTTAR PRADESH BY: PEEHU BHARDWAJ
Published Paper
Article Details
ADMINISTRATIVE
DISCRETION – POLICE- UTTAR PRADESH
AUTHORED BY:
PEEHU BHARDWAJ
ABSTRACT
Administrative
Discretion means the flexible decision-making power given to the public
administrators. One such discretion is exercised by Police in their powers of
arrest, investigation, interrogation. However, the unregulated discretion leads
to abuse of power that defeats the very purpose of this discretion. The complaints are narrowed down to
police custody deaths with case study on Uttar Pradesh. The reason of choosing
Uttar Pradesh as case study for police related human right violation is that barring
few instances, UP accounts for more than 60% of total complaints regarding
police excesses.
The paper examines the efficacy of
these structuring methods through the Reports collected from NCRB and NHRC.
Researcher is relying on only government sourced data for making the analysis;
however, the actual figures may or may not be higher than the reports. The
analysis is done through presenting a systemic graph of number of complaints
from period 2003 to 2020, understanding how the pattern has changed in number
of cases registered and chargesheets filed. Further, presenting
INTRODUCTION
The delicate balance in reasonable
exercise of discretion and its freedom from Judicial control was expressed in R.v
Vestry of St Pancras[1]. It
was held that “if the people exercising the discretion to exercise the public
duty are to be guided by the Court then in eye of law they have not exercised
the discretion. But the discretion should be fairly applied and guided by
reasoning that is within the ambit of legality.”[2]
It is important to understand here
the legal and moral tussle. While at one side the Court cautious and perhaps
aware that they may arrive at a different conclusion, but as long as the
authority has exercised discretion within the given parameters, the Court shall
not interfere. However, once the Court get reasons to believe that the
discretion was applied unfairly, it becomes the duty of the Court to intervene.
So, the Court intervenes once the motive (not the act) transgresses the legal
limits.
The discretion allows the
administrator to make a choice among the available course of actions. Thus
discretion is necessary as it allows the administrator to overcome the
technical and political obstacles to implementation. The golden rule guiding
this choice are: ‘just and reasonable’, ‘public interest.’ [3]
However, to what extent these rules
were followed cannot be ascertained provided there are some methods to control
the discretion.
STRUCTURING
AND CONTOLLING DISCRETION IN POWER OF POLICE
To control discretion, the course of
action of the authority needs to be determined minutely that is technically
possible. This is done in following steps:
1. Formalizing discretion by stating
boundaries:
Confining discretion
means fixing boundaries. This may come externally from the legislature and also
internally by administrator’s self-regulation. This is done by stating publicly
how the legislative intent is to be interpreted.
To check discretionary
powers of police, following confining measures are in place:
·
Indian Constitution:[4]
Article 21, 22(1), 22(2), 14, 39 (A), 20(2) are some of the constitutional
safeguards to protect the rights of an arrested person by limiting the powers
of police to some extent. These include the right to free legal aid, right
against self-incrimination, production before a Magistrate within 24 hours.
·
CrPC: The
chapter V of the Criminal Code of Procedure 1973[5]
lays down clear procedure to be followed to prevent the abuse of police power
while search, arrest, and other related matters. The wider discretionary powers
have been confined by various amendments to CrPC and judicial predicaments.
·
Criminal Law Amendments:
a) 2005 Amendment[6]:
Insertion of Section 50A in CrPC making it obligation for the police to inform
about arrest of a person to a nominated person.
b) 2009 Amendment:[7]
Insertion of:
Section 54: examination of arrested
person by medical officer at the time of arrest
Section 55A- Health and safety of
arrested person to be duty of person having custody
Section 60A: All arrests to be made
strictly according to the Code
Section 41: Arrest in non-cognizable
offence not without a warrant or order from the Magistrate.
c) 2013 Amendment[8]:
Insertion of Section 54A: In case the arrested person is mentally or physically
disabled, identification to take place under supervision of Judicial
Magistrate.
·
Significant Judicial Interventions:
a) Joginder Singh vs State of Punjab[9]: This is a landmark case in which the
Apex Court established the guidelines of arrest by Police. These guidelines
were later incorporated through Criminal Law Amendment by insertion of Section
41A to CrPC to prevent police atrocities.
b) Lalita Kumari vs Govt of UP:[10] Mere registration of FIR under
Section 154 does not give power to arrest.
c) Arnesh Kumar
Guidelines[11]: Landmark judgement
of the Indian Supreme Court, stating arrests should be an exception, in
cases where the punishment is less than seven years of imprisonment.
d) D.K.Basu guidelines:[12] These are the most comprehensive and
significant guidelines given by the Court to check rising incidences of
custodial death. Importantly, the Supreme Court obligated the police to follow
certain procedure, and failure to do so will make them liable for contempt of
the Court and departmental action.
2. Formalizing discretion by structuring
it:
The responsibility of
formalizing through structuring is placed upon the administrator. This is done
clarifying the position of using discretion, taking out policy statements, open
plans, departmental rules etc. Departmental enquiries are one such method of
structuring.
3. Formalizing discretion through
Checking –
·
NCRB: The
National Crime Registration Bureau is an Indian Government Agency under the
Ministry of Home Affairs. It is responsible for collecting and analyzing the
data. The data regarding the police excesses are categorized under 6 heads –
death in police custody when not in remand, death in police custody when in
remand, human rights violation complaints against police, cases registered
against police personnel, escapes, reasons of custodial death.
·
NHRC: National
Human Rights Commission is a statutory body that was set up in 1993 through
Protection of Human Rights Act, 1993[13].
The Commission has summarized various human rights complain in the Annual
Reports. Complain against police excesses tops the nature of complaints, and
among them custody death/rape is the main issue. The Commission has passed
various guidelines to the States to check police atrocities, including the
reporting of any custodial death within 24 hours and video-graphing of the autopsy.
·
Independent
Commissions, Human Rights Watch groups: Besides the above standard bodies,
there are other groups, both national and international, that collect, analyze
and summarize the data regarding misuse of discretion by police. These reports
are important in connecting the dots as NRCB and NHRC majorly rely on the
reporting of crime by the State, and thus does not account the incidences that
are not reported for whatever reasons.
ISSUES
ADDRESSED BY THE RESEARCH PAPER
1. Whether formalizing discretion
methods have shown efficacy
2. What are the challenges in
controlling administrative discretion
OBJECTIVE
OF THE RESEARCH PAPER
The Objective of the paper is to
examine the efficacy of formalization of administrative discretion tools. While
highlighting the strength and weaknesses of these tools, it examines the extent
of abuse caused by the discretion. Further, the paper attempts to identify the
technical and grassroot lacunae that leads to these weaknesses and identifies
the best possible solution to close the gaps.
METHODOLOGY
The
paper uses Quantitative data analysis and document review method:
1. By analysing and comparing the Annual
Reports of NHRC and NCRB from period 2003-2020.
2. Verifying and understanding the
recommendations and claim in the report through landmark Judicial judgments.
3. Reference books, Bare Acts, journals,
internet sites and newspaper to broaden the perspective.
QUANTITATIVE
DATA RESEARCH
|
|
Total Complaint
Received Against Police
|
|
|
|||||||||||
|
|
Complaint received
|
Case registered
|
Chargesheeted
|
%age of case
registered against received complaint
|
%age of
chargesheeted against complaint received
|
%age of chargesheeted against the
registered cases
|
Conviction of number
of personnel
|
|||||||
|
2003
|
5239
|
1227
|
29
|
23.4
|
0.55
|
2.36
|
0
|
|
||||||
|
2004
|
4935
|
667
|
63
|
13.5
|
1.27
|
9.45
|
8
|
|
||||||
|
2005
|
5284
|
1378
|
54
|
26.07
|
1.02
|
3.93
|
1
|
|||||||
|
2006
|
3503
|
825
|
47
|
23.6
|
1.34
|
5.7
|
0
|
|||||||
|
2007
|
4620
|
1693
|
96
|
36.6
|
2.08
|
5.67
|
0
|
|||||||
|
2011
|
11971
|
9203
|
80
|
76.89
|
0.67
|
0.87
|
0
|
|||||||
|
2013
|
4086
|
119
|
39
|
2.91
|
0.95
|
33
|
9
|
|
0
|
|||||
|
2015
|
2257
|
414
|
62
|
18.3
|
2.74
|
15
|
0
|
0
|
||||||
|
2017
|
No data
|
106*
|
36
|
-
|
-
|
33
|
92
|
|
|
0
|
||||
|
2018
|
No data
|
90*
|
27
|
-
|
-
|
30
|
5
|
|
0
|
|||||
|
2019**
|
No data
|
161*
|
50
|
-
|
-
|
31
|
0
|
|
0
|
|||||
|
2020**
|
No data
|
100*
|
40
|
-
|
-
|
40
|
0
|
|
0
|
|||||
FIGURE- 01
*For this period, the data shows only
the number of complaints registered. Thus, not showing the total numbers of
complaints received.
**For this period, the NHRC data on
complaints against police is not recorded.
Resourced from Annual Reports of NCRB
and NHRC from 2003 to 2020 (please see Bibliography for detail)
FIGURE-02 – Summarization of Figure
One
Observation:
Ø Percentage of cases registered
against received complaints have increased from 2003 to 2011, while dipped
again in the period from 2013-15. The data is missing from 2017 onwards due to
change in data categorization methods of NCRB which stopped including the total
complaint in the reports.
Ø Percentage of chargesheeted cases
against complaint received have remained below the appreciable limit, with
showing noteworthy progress in 2015.
Ø Percentage of cases that were
chargesheeted against the cases registered have improved over the years. 2013
onwards the percentage has improved and maintained.
Analysis:
The investigation of cases that are
charge-sheeted has improved from 2013, showing better implementation of guidelines
and checking mechanism over discretion.
From 2011 onwards the documentation
was done on 4-5 factors including total complaints received, this was modified
in 2017 where only total cases actually registered were mentioned not the total
complaints received, so there could be possibility that number of cases were
higher. However, despite the fact as per the analysis, the researcher identifies that post
2011 there is a steady increase in the number of charge sheets filed against
the cases registered. This shows the change in law that has impacted
this Research Outcome.
However, the conviction rate remains
low in the chargesheets filed, except the year 2017. This leads to the
conclusion that important changes are needed in strengthening the law in this
area. It is discussed in detail in the following part.
OVERALL
ANALYSIS BASED ON ANNUAL REPORTS OF NHRC AND NCRB
Among the nature of complaints, from
the Annual Reports studied by the researcher, consistently the top factors are
– custodial death, torture, fake encounters, police highhandedness. Role of
NHRC as watchdog over human rights violation by police has many challenges.
Firstly, police is a state subject, thus the guidelines issues by the body is
met with minimum compliance by the State and police. Some of the main issues
listed in the annual reports are:
1. Jurisdiction issue: Unclarity in jurisdiction of NHRC
Courts set up under Section 30 of the PHRA Act. [14]
2. Noncompliance:
Among the Cases disposed, the compliance is not met by the States in a
large number of cases, UP tops in the list of non-complying States where the
proof of monetary compensation to the victim’s next of kin is not provided. Non-compliance
with the guidelines: From 2011 onwards, reporting of death within 24 hours
improved but the documents, autopsy and other guidelines not adhered. Validated
by the low or nil conviction rate even after registration of cases.
3. Misuse of Section 154: According to the NHRC Annual report,
among major complaint against police inaction was the misuse of Section 154 of
CrPC regarding cognizable offences,[15]
where police allegedly, avoided registration of complaint, registered case
under lesser gravity of offence
4. Negligible criminal accountability of
the abusers of discretion: Monetary compensation is paid. In a large majority, the offenders get
away with minimum conviction.
5. Under-reporting in NCRB data: because it is collecting only that
data in which FIR is registered.
6. Alarming low conviction rate: The
conviction rate is very low or zero in all the years except 2017. This
signifies the grey areas in reporting, collecting evidence and cooperation of
the police during the enquiry. The Supreme Court in State of Madhya Pradesh Vs. Shyamsunder Trivedi &
Ors addressed the reasons of this low conviction: “Police
makes every effort to hide the death in custody. In most cases, the reason of
death is shown ‘suicide.’ Because of brotherhood ties, the police suppress any
complaint against their colleague. No first information report at the instance of the
victim or his kith and kin is generally entertained and even the higher police
officers turn a blind eye to such complaints. Even where a formal prosecution
is launched by the victim or his kith and kin, no direct evidence is available
to substantiate the charge of torture or causing hurt resulting into death as
the police lock-up where generally torture or injury is caused is away from the
public gaze and the witnesses are either police men or co- prisoners who are
highly reluctant to appear as prosecution witness due to fear of letaliation by
the superior officers of the police. Another problem is inquiry, as the police
is in better position to hide the evidences. This is validated by the fact that
hardly any conviction has resulted from the enquiries.” [16]
7. Low registration of cases: Despite higher number of
complaints, about one tenth portion is registered and much lower percentage
chargesheeted. This highlights the further possibility of police highhandedness
in coercing the complainants to withdraw complain.
CONCLUSION
AND SUGGESTIONS
The complaints and cases against
police have consistently increased over the years, with Uttar Pradesh occupying
top position in the reports. To get actual figure there is need to modify the
methodology of collection of data, as it relies on State’s reporting and the
cases in which FIR is filed.
If we focus only on the cases that
are registered, the number of cases in which chargesheets are filed has
improved from 2011 onwards. This collaborates with NHRC’s report that the
State’s are showing better adherence to guidelines. However, low conviction
rate and still very high number of custodial deaths (reported and unreported)
presses for the need of certain reforms. These are summarized below.
Recommendations:
1. Special Tribunals for such
violations: In
Kamlesh Kumar Singh case[17]
of suspicious suicide in police custody, the enquiry by Commission revealed
that the death of victim was homicide not suicide. However, the case filed by
deceased’s mother against police was withdrawn and despite the clear evidence
of foul play, it was closed. There is need of special Tribunals to deal with
such crimes where the Police and other Authority are under the radar of serious
crime.
2. SOP for independent tool of
investigation must be adopted and incorporated in day to day functioning of
police.
3. In case of complaint against torture,
investigation to be done by a person rank higher than the accused.
4. Amendment to PHRA: Suitable amendment in PHRA needed to
make NHRC recommendation binding on the respondents.
5. Amendment to Indian Evidence Act: Insertion of Section 114B in the
Indian Evidence Act, as recommended by 113rd Report of the Law Commission[18].
This will shift the burden on proof on police in custody death cases.
6. UN laws: If India becomes signatory to UN
Convention Against Torture, 1984, this ensure better compliance with these
guidelines as Police being state subject, remains out of reach of NHRC as it
remains within ambit of State Human Right Commissions.
7. Ensuring implementation of Supreme
Court guidelines like D.K.Basu, Prakash Singh case, installation of CCTv
camera.
8. Departmental action to be stringent.
In majority of the cases, the offenders get away with minimum departmental
action which is not effective in deterring them.
9. Grievance Redressal System and
Permanent Commission: Huge gap in cases reported in NCRB and in NHRC. This highlights the gaps
in structuring administrative discretion and calls for an independent and
powerful body to regulate departmental enquires, complaints received and
reported to the collating bodies. Setting up of Digitalized Grievance redressal
system for Police related complaints
BIBLIOGRAPHY
Cases
1. R.v Vestry of St
Pancras, (1890), 24 Q.B.D. 371
2. Lalita Kumari vs Govt of UP, AIR,
2014, SC 187
3. Arnesh
Kumar vs State of Bihar, (2014) 8 SCC 273
4. D.K.Basu
vs State of WB, AIR 1997 SC 610
5. Joginder
Singh vs State of Punjab, 1994 AIR 1349
6. State of Madhya
Pradesh Vs. Shyamsunder Trivedi & Ors.
1995 (3) Scale, 343
Articles:
7. H. KENEETH HIBBELN and DOUGLAS H.
SHUVAMON, Methods of structuring administrative discretion, Vol. 15, pp
124-129, state and local government review, 1983
8.
G.E.Treves,
Administrative Discretion and Judicial Control, The Modern Law Review , Jul.,
1947, Vol. 10, No. 3 (Jul., 1947), pp. 278
Acts/ Statutes:
9. India Constitution
10. The Code of Criminal Procedure, 1973,
Acts of Parliament (India)
11. Criminal Law Amendment 2005, Act No.
25 of 2005, Acts of Parliament (India)
12. Criminal Law Amendment 2009, Act No.
5 of 2009, Acts of Parliament (India)
13. Criminal Law Amendment 2013, Act No. 5
of 2013, Acts of Parliament (India)
14. The Police Act, 1861, Act No. 5 of
1861
15. Protection
of Human Rights Act, 1993, No. 10 of 1994, Acts of Parliament (India)
Reports
1. INJURIES
IN POLICE CUSTODY, 113rd Report, Law Commission of India, 1985. Accessible at: https://lawcommissionofindia.nic.in/101-169/Report113.pdf
2. Annual Reports 2020-21
a) NHRC: No data recorded for this
period
3. Annual Reports 2019-20
a) NHRC: No Data recorded for this
period
4. Annual Reports 2018-19
c) NCRB:
5. Annual Reports 2017-18:
6. Annual Reports 2015-16:
7. Annual Reports 2013-14:
c) NCRB:
8. Annual Reports: 2011-12:
9. Annual Reports: 2007-2008
10. Annual Reports: 2006-2007
11. Annual Reports: 2005-2006
12. Annual Reports: 2004-05
13. Annual Reports: 2003-04
[2] G.E.Treves,
Administrative Discretion and Judicial Control, The Modern Law Review , Jul.,
1947, Vol. 10, No. 3 (Jul., 1947), pp. 278
[3] H. KENEETH
HIBBELN and DOUGLAS H. SHUVAMON, Methods of structuring administrative
discretion, Vol. 15, pp 124-129, state and local government review, 1983
[4]Indian Constitution
[5] The Code of
Criminal Procedure, 1973, Acts of Parliament (India)
[6] Criminal Law
Amendment 2005, Act No. 25 of 2005, Acts of Parliament (India)
[7] Criminal Law
Amendment 2009, Act No. 5 of 2009, Acts of Parliament (India)
[10] Lalita Kumari vs
Govt of UP, AIR, 2014, SC 187
[11]Arnesh Kumar vs
State of Bihar, (2014) 8 SCC 273
[13] Protection
of Human Rights Act, 1993, No. 10 of 1994, Acts of Parliament (India)
[14] Protection of Human Rights Act,
1993, No. 10 of 1994, Acts of Parliament (India)
[15] Id At… Report 2007-08, pp 34
[17] Case No. 16296/24/6/2011-pcd
[18] INJURIES IN POLICE CUSTODY, 113rd
Report, Law Commission of India, 1985. Accessible at: https://lawcommissionofindia.nic.in/101-169/Report113.pdf
Article Information
ADMINISTRATIVE DISCRETION – POLICE- UTTAR PRADESH BY: PEEHU BHARDWAJ
Authors: PEEHU BHARDWAJ
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/04
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.