Laws Governing "Private Security Agencies" in India and Suo Moto Petition

In a recent development, Supreme Court has decided to initiate a suo moto petition questioning the working of “private security agencies” in India. In the light of this petition, following issues have been framed by the court –

1. What is the legal regulatory framework under which the private security agencies operate?

2. What are the parameters/norms that are considered for issue of firearm/weapon licences to private security personnel?

3. What are the guidelines, if any, governing the use of such firearms/weapons, by private security personnel; if not, whether it is necessary to frame definite parameters on the subject? 

4. What are the rights and duties of private security agencies under the law, particularly, vis-a-vis the criminal law of the land?

Petition was initiated following the demise of Liquor Baron Ponty Chanda in a firing mishap. The said firing saw involvement of some of the private security guards. The reason for which an individual employs private security is the protection. If this purpose turns out to be the reason of death, then consequences can be grave. Police cannot provide protection to everyone personally, and hence, some have resorted to the middle path by employing private security guards. These private security guards are usually provided by the Private Security Agencies (“PSA”). According to 2010 records of National Crime Records Bureau, the number of police personnel per lakh population is 133 with Mizoram placed on the top of the ladder (1065). On the other hand, Bihar, with 64 policemen per lakh population has been placed at the bottom. Report can be accessed here – Download

“The ‘Actual’ strength of Civil Police, including District Armed Police in the country during 2011 stood at 12,81,317 against the ‘Sanctioned’ strength of 16,60,953” – 2011 Statistics, National Crime Records Bureau

Above data of National Crime Records Bureau does show a reason why some individuals prefer private security, but lacuna still remains over the functioning of PSA.

In India, PSA are governed by The Private Security Agencies (Regulation) Act, 2005 (“Act”). Section 3 of the Act leaves to the state the power to appoint Controlling Authority for regulating PSA. Section 10 of the Act provides that no PSA shall employ a person unless he is a citizen of India, completed 18 years of age, satisfies his antecedents, trained etc. The Section also provides for a preference (“may give”) to be given to the persons already served in a force such as Army, Navy, and Air Force etc. Section 25 of the Act leaves it to the respective state government to enact rules for carrying out the provisions of the Act. Unfortunately, the Act does not answer the questions framed by the Supreme Court in this petition. It has rather left to the respective state governments to make rules, if there be any. In pursuance of the Act Delhi Government, in 2009, passed the rules governing PSA. Similarly, Haryana in 2009, Tamil Nadu in 2008, Odhisa in 2009, Maharashtra in 2007 etc.  Interestingly, in 1981, Maharashtra seemed to have enacted a law “Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act” for the welfare of Private Security Guards employed in factories and establishment.

Unfortunately, none of the rules or act mentioned above provides a sufficient answer to the questions raised by the Supreme Court. In light of another lacuna of the Act, a petition was filed by Security Association of Goa in 2008 pertaining to employment issues. Because of these reasons, Supreme Court has rightly initiated the petition.

PSA provides service to an individual and comes under the ambit of service sector. Over a period of time, this sector has been able to provide employment a large of number of people. Hence, a proper legal framework is also necessary given the number of people employed in the sector. As far as employment conditions are concerned, those who work in this sector need to be put under a proper rules and conditions. The outcome of this suo moto petition can expected to be a milestone in the area related to PSA, both for the security of an individual and also that of the person working an as employee in this sector. 

Death Penalty - Uncertain Procedure and Life of an Individual

“The judgment does not, with respect, indicate the material that led this Court to conclude what aroused the intense and extreme indignation of the community. Except the nature of the crime, it is not clear on what basis it concluded that the criminal was a menace to society and “shall continue to be so and he cannot be reformed” ( Supreme Court in “Sangeet & Ors. v. State of Haryana” )

Given the grave nature of certain crimes, imposition of Death Penalty has, for a long time, come out to be a proper way of their valid redressal. But, what constitutes this grave nature that will make a crime qualify to be a “rarest of the rare crime”? This has rather been a matter of dispute.

Recent decision of the apex court in the case of Sangeet & Ors v. State of Haryana (decided on Nov. 20, 2012) has once again thrown light on the debate surrounding the issue of death penalty. In this case, an entire family but one was brutally murdered. Considering the nature of crime to be heinous, appellants were sentenced to death by the trail court which, on appeal, was confirmed by the Punjab & Haryana High Court. While discussing the issue, Supreme Court referred to the two landmark judgments Jagmohan Singh v. State of U.P. (1973) 1 SCC 20, decided in accordance with former CrPC Code (1898), and Bachan Singh v. State of Punjab (1980) 2 SCC 684, decided in accordance with the fresh CrPC Code (1973). A number of other cases were also discussed in the judgment.

Change in the nature of Sentencing w.r.t “Death Penalty”- Since 1974, when a fresh CrPC (1973) came into force, the nature of sentencing in cases, where maximum punishment is death penalty, has significantly changed. In earlier code, death penalty appears to be the rule and life sentence an exception (as also other sentences).[1] Contrary to this, under the fresh code, death penalty appears to be exception and life imprisonment a rule.[2]

Ultimately, considering the uncertainty in the procedure governing death penalty in this case, appeal was allowed by the Supreme Court and death sentences were converted into life imprisonment.


"The Constitution Bench made it absolutely clear that the suggestions given by learned counsel were only indicators and not an attempt to make an exhaustive enumeration of the circumstances either pertaining to the crime or the criminal. The Constitution Bench hoped and held that in view of the “broad illustrative guide-lines” laid down, the Courts “will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3) [of the Cr.P.C.] viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception." - para 28 

Earlier this year, I came across an article titled “A case against the death penalty”, published on Frontline, which thoroughly examined the issue of death penalty and inconsistencies therein. If one compares this article with the judgment in Sangeet case, the debatable issues are principally the same. Article highlighted a group of retired judges who came in rescue of those wrongly convicted with death sentences. Unfortunately, two of the convicts, who were wrongly convicted, were already executed in 1996 and 1997. According to the retired judges, this “constituted the gravest known miscarriages of justice in the history of crime and punishment in independent India.”

Article 21 of the Constitution of India, 1950, provides to every person a life and personal liberty. This right of life and personal liberty can only be taken away by a procedure established by law. In the light of Maneka Gandhi v. Union of India, it has now become clear that this procedure cannot be “arbitrary, unfair, oppressive or unreasonable”. In India, Code of Criminal Procedure, 1973, empowers the judges to provide a death penalty, and for doing so, reasons are to be noted. But what are the criteria for providing these reasons? Seeing the absence of any such proper mechanism, Supreme Court, in the case of Bachan Singh (supra), came up with certain principles. Unfortunately, these principles have not been followed uniformly. In Bachan Singh (supra), court was of the opinion that due weightage should be given to both the crime and the criminal, instead of crime alone. It was also held that death penalty should be given only in rarest of rare crime. Further, Section 235 of CrPC empowers the judge for giving a judgment once the arguments are heard. Of Course, discretion should be left to the judge deciding a particular case. But, should the life of a person be made subject only to this discretion? Should not there be certain basic principles to be followed with certainty? In the absence of such a certainty, life of a person will depend merely on the what a judge thinks of. There can be a situation when one judge may provide a death sentence, but other judge, on the same facts and circumstances, may not. Whether it should be crime and criminal, or the criminal alone, is a matter which needs thorough deliberation. Reverting back, do all these circumstances leave the procedure under Article 21 of the Constitution  as reasonable? In my opinion, the substantive part of the procedure under Article 21 needs more clarity as far as the death penalty is concerned. In the absence of such a clarity, the life of an individual, though an accused, will be at stake. It is true that certain crime are so grave that death penalty may be warranted for it. Nonetheless, procedure of providing death penalty should have some certainty

From the judgment of the Court in Sangeet Case, and also other cases mentioned therein, it is clear that  in awarding death sentence, there has not been a consistency in the principles followed. Much discretion is provided to the judge in determining what constitutes rarest of rare crime. This uncertainty in the decisions is also because of the change in the judges serving the apex and other courts. It is high that that, if not abolition, then a uniformity should appear in such grave convictions.

contact - abhinav.s@nujs.edu

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[1]See Code of Criminal Procedure, 1898, Section 367(5)

[2] See Code of Criminal Procedure, 1973, Section 354(3)