Published on February 11, 2014
COMMAND & SUPERIOR RESPONSIBILITY
Maj Gen Nilendra Kumar Director Amity Law School Noida
Vertical Interaction Course on Ethics and Accountability in Police 04 February 2014
Key Words Relating to the Topic of Presentation * * * * * * Ethics Command Superior Responsibility Accountability Moral courage
Each of these words have concise and significant import.
Ethics means a set of principles of right conduct; the rules or standards governing the conduct of a person or the members of a profession.
Ethics is knowing the difference between what you have a right to do and what is right to do.
1. 2. 3. 4. Command means to direct with authority, give orders to. to have control or authority over rule. to have at one’s disposal. 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
Accountability means 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
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 entrusted with power you accountable for how you use it. been are
Rationale & Logic A 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
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 burden is placed on superiors to ensure that their subordinates comply with the law.
A person may use such force as is reasonable, in the circumstances, in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders, or of persons unlawfully at large.
The doctrine of superior responsibility would be attracted to make a superior criminally liable for failure to take action in cases of human rights violation by his subordinates.
The responsibility of preserving peace has to be discharged with a sense of service and an eye on fair play.
In the context of functioning of police or law enforcement officials, it refers to disregard of 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.
“The police force is far from efficient; it is defective in training and organization; it is inadequately supervised; it is generally regarded as corrupt and oppressive; and it has utterly failed to secure the confidence and cordial cooperation of the people. Sir AHL Fraser, Chairman, Indian Police Commission, July 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 accused of having acted with unwarranted brutality when they overreacted to confrontational situations.
Police excesses include illegal or incommunicado detention, fake encounters, extortion and torture, disappearances, custodial violence and extra judicial executions.
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 police departments usually suppress incidents of misconduct by individual police officers because the revelation of the facts could damage the image of the organization.
World Report 2013; India by Human Rights Watch asserts that members of security forces implicated in serious rights abuses continued to enjoy immunity, in large measure due to India’s laws and policies.
Case Studies On Police Excesses incidents taken cognizance of by the National Human Rights Commission
Enumerated here are six different cases. These relate to different States in India. A study of these incidents would disclose absence of requisite supervision, monitoring and proper command system.
Surely, the incidents would not have been so horrific if the superior officers had exercised proper control and check over their subordinates.
1993 – 94 Atrocity in police custody alleged amputation of male organ of Sri Jugtaram in police custody in Barmer, Rajsthan, one ASI and constable were arrested after the CBI report, and a charge sheet was filed. Simultaneously, they along with one SI and two other constables were placed under suspension.
Custodial torture of Rakesh Kumar Vij, UP case No 12982/96-97, electric shocks were administered to the victim in Varanasi. The individual had been rendered incapable of living normally for the rest of his life. Disciplinary action recommended against five persons including one SSP and one SP.
No 3 1997 – 98 Case of torture of Sri A Ram Singh a member of Cuddalore Bar Association, Tamil Nadu. High Court ordered payment of exemplary cost.
1998 – 99 A college lecturer was beaten mercilessly by the police in Kerela. When he become unconscious, his legs and hands were tied and he was shifted to a mental hospital. A case was made out that he was a violent mental patients.
not admit him because of his serious condition. The reporters and photographer who tried to report the torture were also assaulted by the police. NHRC intervention led to suspension of two sub inspectors, one ASI, one head constable and three police constables.
Department enquiry of Maharashtra Police blamed Senior Police Inspector Lata Dhonde and two police inspectors of Shahu Nagar Police Station for their refusal to lodge an FIR on complaint by one Farooq Shaikh for assault on him on 7 November 2012.
Case was brought before the bench of Justices A S Oka and S S Jadhav of Bombay High Court.
25 April 2013 Taking strong exception to a police officer slapping a young girl during a recent protest against rape of a five year old girl, a bench of Supreme Court headed by Justice G S Singhvi directed the Police Commissioner of Delhi to file an affidavit to explain.
Offences by public servants for breach of command responsibility made culpable under section 14 of the Prevention of Communal and Targeted Violence (Access to Justice and Representation and 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
1. Believe in, foster and support team work 2. Strive to develop mutual respect and trust among subordinates
3.Improve systems and examine processes before placing blame on people. 4.Encourage creativity through risk taking and be tolerant of honest mistakes
mistakes or errors of judgment. 2. Due sensitization and training of police personnel. 3. Case studies be prepared and discussed to bring out suitable lessons. 4. Zero tolerance for 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
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.
SUMMARY Exemplary leadership by the superiors coupled with requisite training and trust in their subordinates is expected to cultivate the desired quality of command.
No alibi will save you from accepting the responsibility. Napoleon Hill
Introduction; General Overviews; Historical Roots; Nature of Command Responsibility; Moral Implications of the Doctrine; Superior and Subordinate Relationship
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SUGGESTED READING: BANTEKAS Ilias, “The Interests of States Versus the Doctrine of Superior Responsibility”, in IRRC, No. 838, June 2000, p.391-402.