Analysis | What happens when executive power shifts from IAS to IPS

The police in two of Kerala's biggest cities, Thiruvananthapuram and Kochi, may soon get magisterial or executive powers now wielded mostly by IAS officers.

Police commissionerates have already been formed in both the cities, and an officer in the rank of an IG has been made the commissioner; till now the post of commissioner was held by an officer in the lower rank of an SP or DIG. Nonetheless, magisterial powers have not yet been vested in the new scaled-up commissioners.

The IAS officials are putting up stiff resistance. Their big charge is that, once the supervisory role of the district collector is taken away, human rights violations will worsen.

"Even now there is no answer why people are being shot dead in Wayanad in the name of fighting Maoism. Police atrocities are increasing and more authoritarian powers are being given to the police. God save Kerala," a top serving bureaucrat told Onmanorama on the condition of anonymity.

Essential vs excessive

Former DGP Jacob Punnoose, the man who was mainly instrumental in drawing up the Kerala Police Act, 2011, scoffs at the charge. "The police has not asked for any magisterial powers. They have sought only executive powers associated with the management of law and order," Punnoose said.

"When a riot is on, for instance, the police should have the powers to shut down bars in the area. When there is a tense situation, the police should have the power to clear an area and earmark it for pedestrians. The police is only asking for this essential authority, necessary for the quickness of action," the former DGP said.

De facto rights

But these are powers that the police had already snatched even if they are not sanctioned by the law. "The police cannot wait for the collector's order for a lathicharge when there is a sudden and unprovoked escalation," Punnoose said. A retired IAS official, who once was the Thiruvananthapuram collector, agreed.

"There were many instances when the decision to go for a lathicharge or a tear-gas round was presented to the collector as a fait accompli, that is after the action was taken," the former bureaucrat said. "Not to create an inter-services rift, and also understanding the compulsion of the situation, we would invariably give our approval," he said. The former bureaucrat is therefore not averse to giving more powers to the police in certain areas.

Camel in the tent

"It is even inevitable that the police is given more powers in areas like law and order, and crime," he said. "Problem is they are now asking for powers they don't require. For instance, why would they want to meddle in the parking of multi-storeyed buildings," the former civil servant said.

The police has essentially sought powers under Criminal Procedure Code (CrPC) sections 102 and 107 (power to make a person marked as a potential threat to public peace execute a bond of good behaviour), 109, 110 and 133 (power to make habitual offenders execute a bond of good behaviour), 144 and 145 (power to issue urgent orders when a dispute is likely to blow up peace in an area), and 174 and 175 (power to summon people).

Apart from this, the department also wants the power to order preventive custody under Goonda Act, and also of habitual offenders. It has also sought two other rights, which on the face of it is not directly linked to policing. One, it wants the right to seal and attach a property if there is a dispute. Two, before granting a TC number to a multi-storeyed building, the corporation should get from the police a certificate that attests to satisfactory parking facilities in the building.

The former bureaucrat is suspicious of this seeming attempt by the police to sneak into new areas. "The police could turn out to be the proverbial camel in the tent. This commissionerate concept looks like a precursor to asking for more sweeping powers in the future," he said.

Turbo-charged

However, serving police officers Onmanorama talked to said the need for a commissionerate was prompted by the need for what Jacob Punnoose called "quickness of action." "The police, for instance, cannot right away detain a criminal in the goonda list if he is seen as an immediate threat," an ADGP level officer said.

"For this we will have to first get the approval of the district collector by submitting all the painstakingly collected evidence. The process of evidence-gathering itself would have alerted the criminal. And then by the time the collector's approval comes, a criminal with excellent connections would have left the state's shores," the ADGP said. He cites the flight of Om Prakash, accused in the murder of Paul Muthoot, to Dubai as example.

Such a delay happens in the case of executing bonds of good behaviour also. "Now when a person is picked up as part of preventive detention, we will have to wait for the convenience of the sub-divisional magistrate to get the bond executed. The poor guy who has been caught is left in a limbo, and is this not a violation of his fundamental rights," the officer said.

Complainant as judge

The argument is theoretically sound but the civil administration questions the neutrality of the police. The police cannot even pretend to be neutral, a serving bureaucrat said. He said that in cases taken under various CrPC sections, especially the ones related to public nuisance, the police will be a party to the case or a witness. "Imagine what happens if magisterial powers are granted to the police. The complainant or the witness will become the judge," the official said.

The performance of the police is not encouraging either, according to the opponents of the commissionerate system. "Section 118(a) of Kerala Police Act (dealing with threat to public order) is being increasingly misused for mass preventive arrests," a serving IAS official said.

The representatives of the civil administration allege that this was the result of targets imposed on lower level police officials from above. Official figures also show that the police is more enthusiastic about detention than pursuing the cases.

After detention, amnesia

The home department's analysis of preventive detention cases for six months till February 2019 in Fort Kochi shows that 38 of these cases (22.22 per cent) were rejected because the police did not conduct any inquiry after rounding up the accused. In 73 or 42.69 per cent of these cases the police had not even furnished the mandatory statement.

Ditto for Thiruvananthauram sub-division. In 231 preventive detention cases (74.03 per cent) documents were not produced by the police nor deposition given. An indication that the police lose interest after rounding up suspects.

The fate of Kerala Anti-Social Activities (Prevention) Act (KAAPA) is also instructive. Nearly 75 per cent of the cases charged under the Act in Kochi during 2017-18 were rejected. The rejection was over 50 per cent in Thiruvananthauram during the same period. "These figures reveal that the local administration had stood as the corrective force," the official said.