Police in Kashmir,UNDER the Indian constitution ‘police’ is a state subject.

UNDER the Indian constitution ‘police’ is a state subject. The police force is established by law and it is permissible for the executive to give direction to the police as to how it should exercise the discretion vested in it by the law.

No minister has the right to instruct or order the police to arrest a particular person. The correct legal position was admirably stated by Jeevan Lal Kapur of the Lahore bar before Partition. As a judge of the Supreme Court of India, he sat as commission of inquiry to probe into the conspiracy to assassinate Gandhi. A question arose as to whether a minister could have ordered the arrest of some suspects.

Justice Kapur said: “In the opinion of the commission, although the home minister is in charge of the police and police administration and answerable to parliament about it, still he has no power to direct the police how they should exercise their statutory powers, duties or discretion. The minister can and could only pass on the information of the commission of an offence to the police to investigate; so also in regard to the threats of the commission of an offence. If the minister were to give orders about arrests, to arrest or not to arrest, that would be an end of the rule of law.”

‘Administrative control’ is altogether different from ‘political control’. “It is the constitutional duty of the minister, as head of the department in charge of the police, who are instruments of the maintenance of public order and enforcement of criminal law, to ensure that the police discharge their functions and exercise their powers properly and diligently. But beyond that the minister cannot go and issue specific instructions as to the manner of exercise of their statutory powers. That would amount to interference.”

The celebrated Lord Denning ruled “I hold it to be the duty of the commissioner of police of the metropolis, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought. But in all these things he is not the servant of anyone, save of the law itself. No minister of the Crown can tell him that he must, or must not, keep observation of this place or that, or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone….”

But in reality, the police force is controlled by the governments at the centre and in the states. On Nov 12, 1977, the Government of India set up a National Police Commission (NPC). Far-reaching changes have taken place in the country since the Indian Police Act 1861 was enacted. The commission submitted as many as eight reports from February 1979 to May 1981, giving precise recommendations on all the matters concerning reforms in the police force; from housing pay scales to political interference.

All governments ignored the recommendations. In 1996, two retired directors general of police went to the Supreme Court for recommendations of the NPC to be implemented by the states and the centre. The court passed a set of seven directions in September 2006. It directed the states to establish the state security commission to ensure that a state government does not exercise “unwarranted influence or pressure on the police and instead lays broad policy guidelines on the issue and evaluates the performance of the state police”.

The commission was to be headed by the chief minister or home minister and should also have as members the leader of the opposition; the director general of police of the state to be the ex-officio secretary. The other members of the commission shall be chosen in such a manner that it is able to function independent of government control. “The recommendations of the security commission shall be binding on the state government.”

Predictably, the government of Jammu & Kashmir did not set up a security commission. A former police officer told Greater Kashmir, a Srinagar daily that “The close connection between police and political power has destroyed the ability of the police to do their main work of upholding the law without fear or favour. So it is a good idea that there should be a state security commission that chooses the police officers in a transparent way through a process that is public and also lays down policy for the police; sees how it is working throughout the year and pulls up the police officers if they have not performed”.

The grim reality was fully exposed on Sept 30 by the chief minister of Indian-held Jammu & Kashmir Omar Abdullah, when he ruthlessly flouted the settled law and the dicta of eminent judges. He summoned to his house Haji Mohammed Yusuf, a 61-year-old ‘sympathiser’ of his party to confront him with a charge that he had taken money from two party leaders on the promise of getting them a ministership and a seat in the Legislative Council. He denied the charge.

Omar told Muzamil Jaleel of Indian Express the next day “I told him that either he should give some property papers (collateral) or nothing doing”. He claimed to have asked the minister of state for home to call the IG, crime. He was taken to a room in the chief minister’s premises from which he emerged in a pitiable condition and was taken to the police hospital where he died, Omar claims, due to a heart attack. The family alleges torture in the chief minister’s house. Simultaneously, three officers of his personal staff were transferred.

Omar had no right to summon a suspect, parley with him and hand him over to the police in his own house after he had mentioned that Farooq Abdullah, a union minister, had received the money. All commissions of inquiry depend on the police for prior investigation. Only a CBI probe or a special investigation team set up by the Supreme Court will work. Britain’s home secretary Reginald Maudling resigned on July 18, 1972 because an associate had come under police investigation. Omar and Farooq Abdullah cannot remain in office. They must resign.

The writer is an author and a lawyer.