COMMANDCOMMAND& &

SUPERIOR SUPERIOR RESPONSIBILITY RESPONSIBILITY

Maj Gen Nilendra Kumar Maj Gen Nilendra Kumar DirectorDirector

Amity Law SchoolAmity Law SchoolNoida Noida

Vertical Interaction CourseVertical Interaction CourseononEthics and Accountability Ethics and Accountability in Police in Police 04 February 201404 February 2014

Key Words Relating to the Key Words Relating to the TopicTopicof Presentation of Presentation

** EthicsEthics** CommandCommand** SuperiorSuperior** ResponsibilityResponsibility** AccountabilityAccountability** Moral courageMoral courage

Each of these words have Each of these words have concise and significant concise and significant import. import.

EthicsEthicsmeansmeansa set of principles of right a set of principles of right conduct; the rules or conduct; the rules or standards governing the standards governing the conduct of a person or the conduct of a person or the members of a profession.members of a profession.

Ethics is knowing the Ethics is knowing the difference between what difference between what you have a right to do you have a right to do and what is right to do.and what is right to do.

Command means

1. to direct with authority, give orders to.

2. to have control or authority over rule.

3. to have at one’s disposal. 4. to exercise dominating

authority or influence over.

Superior means

1.greater in size or higher in position

2.power

An organization like police is manpower oriented. It has different

ranks or posts and having at every

level certain subordinates.

A Police officer exercises command over his subordinates.

A command is an order that one has to follow, as long as the person

who gives it has the authority over

the subordinate who is given the order.

Responsibility means

something for which one is responsible; a duty,

obligation, or burden

You cannot escape the responsibility of tomorrow by evading it today.

Abraham Lincoln

Accountabilitymeans

answerability, liability and expectation of account giving

Dereliction, shirking responsibility or not undertaking it in the desired manner may bring about an unacceptable situation calling for explanation, and where required suitable action against the wrong doer.

Without accountability, power brings out worst in people, and tyrannical behaviour can undermine the trust an organization

has built up over time.

When your have been entrusted with power you are accountable for how you use it.

Rationale & LogicA superior has been provided with trained and disciplined manpower to enable him to accomplish the desired task. Success would be attributed to him for having succeeded in his mission. On the other

hand, failure in mission would entail a

liability .

Moral courage is the courage to

take action for moral reasons despite the risk of adverse consequences.

Moral courage is different than physical courage.

Command responsibility is the

doctrine of hierarchical responsibility.

The terms command responsibility broadly refers to the duty to supervise subordinates and incurs liability for the failure to do so.

Use of Force Doctrine

The doctrine is employed by police

forces to regulate the actions of

police and guards.

Neither exceptional circumstances

nor superior orders may be used

by individual law enforcement officials to justify unlawful conduct.

Law enforcement officials must

know, understand, respect and

apply the law.

A criminally sanctioned A criminally sanctioned burden is placed on burden is placed on superiors to ensure that superiors to ensure that their subordinates comply their subordinates comply with the law.with the law.

A person may use such A person may use such force as is reasonable, in force as is reasonable, in the circumstances, in the the circumstances, in the prevention of crime, or in prevention of crime, or in effecting or assisting in the effecting or assisting in the lawful arrest of offenders lawful arrest of offenders or suspected offenders, or or suspected offenders, or of persons unlawfully at of persons unlawfully at large. large.

The doctrine of superior The doctrine of superior responsibility would be responsibility would be attracted to make a attracted to make a superior criminally liable superior criminally liable for failure to take action for failure to take action in cases of human rights in cases of human rights violation by his violation by his subordinates.subordinates.

The responsibility of The responsibility of preserving peace has to be preserving peace has to be discharged with a sense of discharged with a sense of service and an eye on fair service and an eye on fair play.play.

In the context of In the context of functioning of police or law functioning of police or law enforcement officials, it enforcement officials, it refers to disregard of refers to disregard of human rights. human rights.

For the purpose of this presentation, the command responsibility does not relate to offences like traffic violation or chair snatching or petty thefts but is in the context of human right violations.

GROUND REALITYGROUND REALITY

““The police force is far from The police force is far from efficient; it is defective in efficient; it is defective in training and organization; it is training and organization; it is inadequately supervised; it is inadequately supervised; it is generally regarded as corrupt generally regarded as corrupt and oppressive; and it has and oppressive; and it has utterly failed to secure the utterly failed to secure the confidence and cordial confidence and cordial cooperation of the people. cooperation of the people.

Sir AHL Fraser, Chairman, Indian Police Commission, July Sir AHL Fraser, Chairman, Indian Police Commission, July 1902 1902

The Police Act of 1861 still guides and governs our police system. Because of their colonial mindset, the distrust people had for the police in British India has continued to date.

The above legislation introduced immediately after the 1857 unrest was meant to suppress the natives by use of brute force.

Police has been at times Police has been at times accused of having acted accused of having acted with unwarranted brutality with unwarranted brutality when they overreacted to when they overreacted to confrontational situations. confrontational situations.

Police excesses Police excesses include include illegal or incommunicado illegal or incommunicado detention, fake encounters, detention, fake encounters, extortion and torture, extortion and torture, disappearances, custodial disappearances, custodial violence and extra judicial violence and extra judicial executionsexecutions. .

Encounter Killings

An encounter is a euphemism to describe extra judicial killings in which police or armed forces shoot down suspected gangsters and terrorist in gun battles. The police officers engaged in such incidents came to be called as “encounter specialists”.

Law enforcement officials may use force only when strictly necessary and to the extent required for performance of their duty.

When the use of force cannot be avoided, the principles of legality, necessity and proportionality must be observed.

It is generally believed that It is generally believed that police departments usually police departments usually suppress incidents of suppress incidents of misconduct by individual misconduct by individual police officers because the police officers because the revelation of the facts revelation of the facts could damage the image of could damage the image of the organization. the organization.

World Report 2013; India World Report 2013; India by Human Rights Watch by Human Rights Watch asserts asserts that members of security that members of security forces implicated in serious forces implicated in serious rights abuses continued to rights abuses continued to enjoy immunity, in large enjoy immunity, in large measure due to India’s measure due to India’s laws and policies.laws and policies.

Case Studies Case Studies

On Police Excesses On Police Excesses incidents taken cognizance incidents taken cognizance of by the National Human of by the National Human Rights Commission Rights Commission

Enumerated here are six Enumerated here are six different cases. These different cases. These relate to different States in relate to different States in India. A study of these India. A study of these incidents would disclose incidents would disclose absence of requisite absence of requisite supervision, monitoring supervision, monitoring and proper command and proper command system. system.

Surely, the incidents would not have been so horrific if the superior officers had exercised proper control and check over their subordinates.

No 1 No 1

1993 – 941993 – 94

Atrocity in police custody alleged Atrocity in police custody alleged amputation of male organ of Sri amputation of male organ of Sri Jugtaram in police custody in Jugtaram in police custody in Barmer, Rajsthan, one ASI and Barmer, Rajsthan, one ASI and constable were arrested after the constable were arrested after the CBI report, and a charge sheet CBI report, and a charge sheet was filed. Simultaneously, they was filed. Simultaneously, they along with one SI and two other along with one SI and two other constables were placed under constables were placed under suspension. suspension.

No 2 No 2

Custodial torture of Rakesh Custodial torture of Rakesh Kumar Vij, UP case No Kumar Vij, UP case No 12982/96-97, electric shocks 12982/96-97, electric shocks were administered to the were administered to the victim in Varanasi. The victim in Varanasi. The individual had been rendered individual had been rendered incapable of living normally incapable of living normally for the rest of his life. for the rest of his life. Disciplinary action Disciplinary action recommended against five recommended against five persons including one SSP and persons including one SSP and one SP. one SP.

No 3 No 3

1997 – 981997 – 98Case of torture of Sri A Ram Case of torture of Sri A Ram Singh a member of Singh a member of Cuddalore Bar Association, Cuddalore Bar Association, Tamil Nadu. High Court Tamil Nadu. High Court ordered payment of ordered payment of exemplary cost.exemplary cost.

No 4 No 4

1998 – 991998 – 99A college lecturer was A college lecturer was beaten mercilessly by the beaten mercilessly by the police in Kerela. When he police in Kerela. When he become unconscious, his become unconscious, his legs and hands were tied legs and hands were tied and he was shifted to a and he was shifted to a mental hospital. A case mental hospital. A case was made out that he was was made out that he was a violent mental patientsa violent mental patients. .

The mental hospital did The mental hospital did not admit him because of not admit him because of his serious condition. The his serious condition. The reporters and reporters and photographer who tried to photographer who tried to report the torture were report the torture were also assaulted by the also assaulted by the police. NHRC intervention police. NHRC intervention led to suspension of two led to suspension of two sub inspectors, one ASI, sub inspectors, one ASI, one head constable and one head constable and three police constables.three police constables.

Case No 5 Case No 5

Department enquiry of Department enquiry of Maharashtra Police blamed Maharashtra Police blamed Senior Police Inspector Lata Senior Police Inspector Lata Dhonde and two police Dhonde and two police inspectors of Shahu Nagar inspectors of Shahu Nagar Police Station for their Police Station for their refusal to lodge an FIR on refusal to lodge an FIR on complaint by one Farooq complaint by one Farooq Shaikh for assault on him Shaikh for assault on him on 7 November 2012.on 7 November 2012.

Case was brought before Case was brought before the bench of Justices A S the bench of Justices A S Oka and S S Jadhav of Oka and S S Jadhav of Bombay High Court.Bombay High Court.

Case No 6 Case No 6

25 April 201325 April 2013Taking strong exception to Taking strong exception to a police officer slapping a a police officer slapping a young girl during a recent young girl during a recent protest against rape of a protest against rape of a five year old girl, a bench five year old girl, a bench of Supreme Court headed of Supreme Court headed by Justice G S Singhvi by Justice G S Singhvi directed the Police directed the Police Commissioner of Delhi to Commissioner of Delhi to file an affidavit to explain. file an affidavit to explain.

Offences by public servants Offences by public servants for breach of command for breach of command responsibility made responsibility made culpable under section 14 culpable under section 14 of the Prevention of of the Prevention of Communal and Targeted Communal and Targeted Violence (Access to Justice Violence (Access to Justice and Representation and and Representation and Reparations) Act 2011.Reparations) Act 2011.

The police should be trained to improve professionalism and enhance operational efficiency. They should serve as a model for conduct and efficiency.

APJ Abdul Kalam

PRINCIPLES OF PRINCIPLES OF QUALITY QUALITY LEADERSHIP LEADERSHIP

1.1. Believe in, foster and Believe in, foster and support support team work team work2.2. Strive to develop mutual Strive to develop mutual

respect and trust respect and trust among among subordinates subordinates

3.Improve systems and 3.Improve systems and examine examine processes processes before before placing blame on people. placing blame on people.4.Encourage creativity 4.Encourage creativity through through risk taking and be tolerant risk taking and be tolerant of of honest mistakes honest mistakes

Recommendations Recommendations

1.1. Due protection for Due protection for bonafied bonafied mistakes or errors of mistakes or errors of judgment.judgment.2.2. Due sensitization and Due sensitization and training of training of police personnel. police personnel.3.3. Case studies be prepared Case studies be prepared and and discussed to bring out discussed to bring out suitable suitable lessons. lessons.4.4. Zero tolerance for Zero tolerance for excesses.excesses.

Reporting and review procedures must be observed and the misuse of force-particularly that resulting in death – must be promptly, thoroughly and impartially investigated and, if the evidence warrants, the use of force must be punished as a violation of criminal laws.

Accountability should flow from the higher level of the police force down to the police constable.

APJ Abdul Kalam

It is not only for what we do that we

are held responsible, but also for

we do not do.

SUMMARYSUMMARY

Exemplary leadership by Exemplary leadership by the superiors coupled the superiors coupled with requisite training with requisite training and trust in their and trust in their subordinates is expected subordinates is expected to cultivate the desired to cultivate the desired quality of commandquality of command. .

No alibi will save you from accepting the responsibility.

Napoleon Hill

CONCLUSIONCONCLUSION