POLICE BRUTALITY IN SOUTH AFRICA
The Special Assignment telecast by the South African Broadcasting Corporation on November 7, 2000 showed six white policemen setting their dogs on three black persons suspected to be illegal immigrants. The video footage showed that while the dogs were savagely mauling the unarmed defenceless suspects, the policemen were laughing and cheering sadistically and simultaneously kicking the victims. The savagery of the ferocious dogs combined with the sadistic barbarity of the policemen and the supine defencelessness of the victims made it a gruesome and a pathetic sight. Even to the South Africans, who are attuned to witnessing very high levels of violence, brutality and criminality, the sight must have been shocking. The South African Minister of Safety and Security, Steve Tshwete, said he was “horrified and outraged” on seeing the footage.
The incident is reported to have taken place in 1998. The fact that the BBC in 1999 showed film footage of police officers beating suspects and stubbing a cigarette on one man’s head shows that torture in its worst form continues to be practised by the South African Police Service (SAPS) against hapless persons in their custody. The Amnesty International in its reaction to the incident involving six members of SAPS’ East Rand Dog Unit mentioned that the alleged abuses by the security forces in South Africa include the “use of electric shock, suffocation tortures, forced painful postures, suspension from moving vehicles and helicopters, and severe and prolonged beatings”.
Police brutality in South Africa is a legacy of the past. The apartheid regime had built up for its support and survival a system of policing which was militaristic in its structure and training and highly authoritarian in its culture. The police functioned as an instrument of control, guided essentially by the main consideration of meeting any challenge to the apartheid structure. That is why in 1994, when the change occurred, 74% of the police stations were situated in areas inhabited by whites or business districts. Even the limited police resources stationed in black areas were meant more to deal with law and order problems than to provide security to the citizens. The majority of South Africans looked upon the police as an “oppressive enemy”, while the police also viewed some communities as a source of major threat.
The mindset resulting from this legacy should have been changed as a result of various initiatives taken by the government as well as the police themselves. The Police Act of 1995 concretized the policy directions stated in the Green Paper issued by the new Government in 1994, which put emphasis on three key areas- “democratic control, police accountability and community participation in issues of safety and security”. The Constitution of the country in 1997 made it a part of the “political responsibility” to inter-alia “promote good relations between the police and the community,” and investigate any complaint of “breakdown in relations between the police and any community.” By this time, the SAPS had declared the adoption of “community policing” as its operational philosophy, with emphasis on building partnerships between the police and communities. In 1998, the government came out with a White Paper on Safety and Security (1999- 2004), suggesting how it proposed to meet “the challenge of enhancing the transformation of the police so that they are able to function effectively within the new democracy; and enhancing social crime prevention activities to reduce the occurrence of crime.”
It is obvious that the desired transformation of the police has not occurred. The new philosophy of policing has not been fully internalised. There appears to be a resistance to change from many in the 1,30,000 strong police force. This is not surprising. There are hardly any examples in history where the police forces have succeeded in making the type of “radical transformation that the police in South Africa are being asked to make” and that too in so short a period. After all, the new democratic system is only six years and the SAPS in its present form only five years old. It has taken much longer than that even in the democratically advanced countries to break resistance to reforms in their police forces. A very heavy barrier to change is the increasing trend of crime, particularly violent crime in South Africa. The failure of the criminal justice system to deal effectively with the problem has given rise to public fear of crime and criminals. Citizens are increasingly taking law in their own hands and delivering instant ‘lynch justice’ to those who commit crime or are suspected to be criminals. The public fear of crime and criminals and the climate of lawlessness, which it produces provide a license to the police to sometimes indulge in vigilante activities themselves.
Public vigilantism in any form, organised or spontaneous, should never be tolerated. This is a major threat to the establishment of rule of law in South Africa. The White Paper on Safety and Security is unfortunately silent on this issue.
Wednesday, December 17, 2003
Sunday, December 7, 2003
MORAL OF THE STORY: REFORM OR PERISH
THE TELGI SCAM- NEED FOR URGENT POLICE REFORMS
The news about the arrest of some senior Indian Police Service officers of the Maharastra cadre for their involvement in the Telgi scam, though tragic and depressing, does not come as a major surprise. This only confirms what has been distinctly noticeable over the last few years- the trend towards increasing criminalisation of the police force in this country.
The Padmanabhaiah Committee on Police Reforms in its report ( August 2000) admitted that the criminalisation of the police force was growing and considered the existence of linkages between the policemen and the organised criminal gangs as most pernicious, threatening the national security. Some evidence of this is seen in the Teligi case.
This case also provides ample evidence of what Director, Central Bureau of Investigation had reported to the Vohra Committee on Corruption a few years ago: “ All over India, crime syndicates have become a law unto themselves.. ..….The nexus between the criminal gangs, police, bureaucracy and politicians has come out clearly in various parts of the country.” The Vohra Committee report mentioned that the nexus was “ virtually running a parallel government, pushing the state apparatus into irrelevance”. Telgi definitely succeeded in doing this by making the currency and postal departments of the government irrelevant to some extent.
Till a few years ago, deviance was associated with only the lower ranks in the police. The general perception in the police as well as the public was that the senior ranks were by far above reproach. This is no longer true.
To take examples from a small state like Haryana, the record of past few years shows that an officer of the rank of Director General of Police was caught red handed while accepting bribe and another was involved in getting a person in custody killed. A third one was accused of molesting a teen-aged girl who later committed suicide. An officer of the rank of Inspector General was arrested on a charge of getting a woman journalist murdered and another one was arrested for running a smuggling operation. Two officers of the rank of SP were sentenced to imprisonment for committing perjury by filing false affidavits. There is no use in multiplying such instances, which have come to notice from other states too.
The process of criminalisation of politics that has occurred in this country so rapidly and on such a big scale has already shaken the faith of the public in politics and politicians. The loss of public faith gets accentuated when the process of criminalisation engulfs the law enforcement officers too. A police officer committing a crime not only dishonours himself and his department but causes loss of public faith in the system of law and justice which he represents. It is this loss of public faith in the system of law and justice that shakes the foundations of a democratic system and turns a country into a banana republic.
The police are a hierarchical organization where messages emanating from top travel very fast to the bottom. The seniors are supposed not only to control but also to inspire. The effectiveness of the leadership gets undermined when its weaknesses get exposed. This, in fact, makes the entire force vulnerable to wrong illegitimate influences and the functionaries at different levels start looking elsewhere for protection and rewards. Besides breeding indiscipline in the force, it promotes a climate in which impunity flourishes. A small time travel agent like Telgi could not have become such a big time crook and extended his illegal activities to about ten states in less than ten years unless he enjoyed patronage of people in positions of power and this patronage could not have come to him unless those who extended it were sure of keeping the system subverted. It is this politicised culture of patronage and impunity prevailing in the country that ensures that the corrupt officers, particularly those of senior ranks, do not come to grief.
One important lesson to be drawn from the Telgi case is to recognize that police reforms are too important to neglect and too urgent to delay. The idea of police reforms has to be pursued in two directions simultaneously. Steps have to be taken for both internal reforms and external oversight. The internal reforms package should include measures that lead to improvement in recruitment, training and leadership standards, besides raising the status of policeman and improving his working and living conditions. The external oversight should come in the form of statutory institutional arrangements that help in insulating the police from outside illegitimate pressures and influences and in constantly monitoring police performance, with a view to identifying their inadequacies and shortcomings and suggesting corrective measures from time to time, and that hold the police officers accountable for what they do and sometimes for what they do not do. What is required is to develop a culture of openness and accountability that is intolerant of wrong doers and supports good officers, of which there is no shortage in the police force in this country even now.
(Original version of article published in the Indian Express dated 7.12.2003)
The news about the arrest of some senior Indian Police Service officers of the Maharastra cadre for their involvement in the Telgi scam, though tragic and depressing, does not come as a major surprise. This only confirms what has been distinctly noticeable over the last few years- the trend towards increasing criminalisation of the police force in this country.
The Padmanabhaiah Committee on Police Reforms in its report ( August 2000) admitted that the criminalisation of the police force was growing and considered the existence of linkages between the policemen and the organised criminal gangs as most pernicious, threatening the national security. Some evidence of this is seen in the Teligi case.
This case also provides ample evidence of what Director, Central Bureau of Investigation had reported to the Vohra Committee on Corruption a few years ago: “ All over India, crime syndicates have become a law unto themselves.. ..….The nexus between the criminal gangs, police, bureaucracy and politicians has come out clearly in various parts of the country.” The Vohra Committee report mentioned that the nexus was “ virtually running a parallel government, pushing the state apparatus into irrelevance”. Telgi definitely succeeded in doing this by making the currency and postal departments of the government irrelevant to some extent.
Till a few years ago, deviance was associated with only the lower ranks in the police. The general perception in the police as well as the public was that the senior ranks were by far above reproach. This is no longer true.
To take examples from a small state like Haryana, the record of past few years shows that an officer of the rank of Director General of Police was caught red handed while accepting bribe and another was involved in getting a person in custody killed. A third one was accused of molesting a teen-aged girl who later committed suicide. An officer of the rank of Inspector General was arrested on a charge of getting a woman journalist murdered and another one was arrested for running a smuggling operation. Two officers of the rank of SP were sentenced to imprisonment for committing perjury by filing false affidavits. There is no use in multiplying such instances, which have come to notice from other states too.
The process of criminalisation of politics that has occurred in this country so rapidly and on such a big scale has already shaken the faith of the public in politics and politicians. The loss of public faith gets accentuated when the process of criminalisation engulfs the law enforcement officers too. A police officer committing a crime not only dishonours himself and his department but causes loss of public faith in the system of law and justice which he represents. It is this loss of public faith in the system of law and justice that shakes the foundations of a democratic system and turns a country into a banana republic.
The police are a hierarchical organization where messages emanating from top travel very fast to the bottom. The seniors are supposed not only to control but also to inspire. The effectiveness of the leadership gets undermined when its weaknesses get exposed. This, in fact, makes the entire force vulnerable to wrong illegitimate influences and the functionaries at different levels start looking elsewhere for protection and rewards. Besides breeding indiscipline in the force, it promotes a climate in which impunity flourishes. A small time travel agent like Telgi could not have become such a big time crook and extended his illegal activities to about ten states in less than ten years unless he enjoyed patronage of people in positions of power and this patronage could not have come to him unless those who extended it were sure of keeping the system subverted. It is this politicised culture of patronage and impunity prevailing in the country that ensures that the corrupt officers, particularly those of senior ranks, do not come to grief.
One important lesson to be drawn from the Telgi case is to recognize that police reforms are too important to neglect and too urgent to delay. The idea of police reforms has to be pursued in two directions simultaneously. Steps have to be taken for both internal reforms and external oversight. The internal reforms package should include measures that lead to improvement in recruitment, training and leadership standards, besides raising the status of policeman and improving his working and living conditions. The external oversight should come in the form of statutory institutional arrangements that help in insulating the police from outside illegitimate pressures and influences and in constantly monitoring police performance, with a view to identifying their inadequacies and shortcomings and suggesting corrective measures from time to time, and that hold the police officers accountable for what they do and sometimes for what they do not do. What is required is to develop a culture of openness and accountability that is intolerant of wrong doers and supports good officers, of which there is no shortage in the police force in this country even now.
(Original version of article published in the Indian Express dated 7.12.2003)
Friday, August 22, 2003
THE POLICE AND POLITICIANS
THE POLICE AND THE RULE OF POLITICS
A couple of months ago, the Punjab Police raided the properties of Mr Badal, the former chief minister of Punjab. Mr Badal called the vigilance raid at his premises an act of “political vendetta.” Mr Advani called it “sheer intolerance against the opposition and against the values of democracy.” A few days ago, Mr Amar Singh expressed the same sentiment about the raids at his father’s factory in Gaziabad saying that there was an undeclared emergency under Mayawati’s rule in UP.
The raids and reactions ring a familiar bell. The scenes witnessed on TV by Indians all across the country two years ago when Mr Karunanidhi’s house was raided in the dead of night are still vivid. One public perception at that time was that Jayalalita did to Karunanidhi what was done to her earlier by the latter. Sometime ago, Mayawati had slapped charges against Mulayam Singh too. Numerous cases were registered against him by the police for offences committed when he was the Chief Minister. In the beginning of this year, the UP MLA Raja Bhaiya, who is reported to have a criminal record longer than the arm of law, faced the wrath of Mayawati. Till the other day, Raja Bhaiya considered himself above the law and this was well accepted by others, including the law enforcement machinery. This position changed the day he tried to organise a revolt of MLAs against Mayawati and failed. His residence was raided, two skeletons of murdered people were unearthed from a lake in the complex and large quantities of illegal arms and explosives were reportedly seized. Since then, the Raja of Pratapgarh has been in prison.
Whether it is Jayalalitha or Karunanidhi, Amrinder Singh or Badal, Mayawati or Mulayam Singh, the common man is not much concerned. He has more or less come to accept such events as inevitable. He has nothing but contempt for politicians and he knows that the police in this country act at the behest of the politicians in power. The general perception is that the police would always be ready to do whatever they are asked to do by their political masters. If they are asked to bend, they will be willing to crawl. It is not the rule of law but the rule of politics that prevails. Its too bad if someone becomes a victim. The police credibility is so low that even where action taken against a politician is perfectly legitimate and is as per the law, the public do not always accept it. The politician knows it and therefore always quotes scriptures and poses as a victim of political vendetta and witch hunting.
Why do we have such a police force? The police as an organised institution in this country was established by the Britishers with the Police Act of 1861. It was supposed to function as a regime police, totally subservient to the political executive and considerably distant from the community and it continued to remain so even after Independence. When the country became Independent, we adopted a democratic structure of polity, but the police as an institution and in its basic philosophy, remained unchanged. The police, set up by a colonial piece of legislation, continued to be governed by it. The transition from the colonial regime police to a democratic police has never occurred in this country. That is why it has been so easy for the politicians to manipulate the organisation for their narrow selfish ends. The situation has become worse during the last few decades because of increasing criminalistion of politics. The police, instead of becoming an instrument of law and service to the community, slowly but surely, have degenerated into becoming a tool in the hands of politicians to serve their selfish interests. This brings not merely law into disrepute but shakes the very foundations of the democratic system of governance.
If these ideas sound too big to our politicians, why can’t they at least realise that it is in their own interests to reform the police? The police right since the Emergency days have been easily and conveniently used as a stick with which to beat one’s opponents into submission. What the politicians in power forget is that the same stick can be used against them too when they are out of power. The chief ministers may come and go but the police go on forever. If it is easy for one chief minister to misuse the police for narrow selfish considerations, it is easier for his follower to do the same. What is not realised is that till the police are reformed and insulated from the illegitimate control of the politicians, nobody in this country is safe. The common citizen in this country has not always felt safe in the presence of the policeman. It is for the politicians to realise that they too can be very unsafe once they are out of power.
It is in the interest of the politicians to reform the police for another reason. The combined strength of the central and state police forces in this country is about two millions. It has not been realised that the capacity of the police to do good to society can be as great as, if not greater than, their capacity to do harm. This huge reservoir of trained manpower can do enormous good to society provided they are utilised to serve the community and not merely the elite class and people in positions of power. A professionally efficient and an honest police force can give far better returns in terms of winning public support for the political party in power than a force, which is misused for selfish purposes. A misused police force gets corrupt and brutalised and in turn abuses its powers. In the words of a very eminent and seasoned police officer of the earlier years, late Mr. P.R.Rajgopal: “When the police at different levels are used by the people in authority to break or even to bend the law to sub-serve doubtful ends, those concerned will have set the police on the high road to many more serious violations of law and in more important areas. Once this happens, there is no stopping the police from helping themselves in diverse devious ways.” The victims in such cases are mostly the common poor persons who constitute the vote bank.
It is sad that we have not learnt our lessons from the tragic events that took place in Gujarat last year. Police reforms are simply too important to neglect and too urgent to delay.
A couple of months ago, the Punjab Police raided the properties of Mr Badal, the former chief minister of Punjab. Mr Badal called the vigilance raid at his premises an act of “political vendetta.” Mr Advani called it “sheer intolerance against the opposition and against the values of democracy.” A few days ago, Mr Amar Singh expressed the same sentiment about the raids at his father’s factory in Gaziabad saying that there was an undeclared emergency under Mayawati’s rule in UP.
The raids and reactions ring a familiar bell. The scenes witnessed on TV by Indians all across the country two years ago when Mr Karunanidhi’s house was raided in the dead of night are still vivid. One public perception at that time was that Jayalalita did to Karunanidhi what was done to her earlier by the latter. Sometime ago, Mayawati had slapped charges against Mulayam Singh too. Numerous cases were registered against him by the police for offences committed when he was the Chief Minister. In the beginning of this year, the UP MLA Raja Bhaiya, who is reported to have a criminal record longer than the arm of law, faced the wrath of Mayawati. Till the other day, Raja Bhaiya considered himself above the law and this was well accepted by others, including the law enforcement machinery. This position changed the day he tried to organise a revolt of MLAs against Mayawati and failed. His residence was raided, two skeletons of murdered people were unearthed from a lake in the complex and large quantities of illegal arms and explosives were reportedly seized. Since then, the Raja of Pratapgarh has been in prison.
Whether it is Jayalalitha or Karunanidhi, Amrinder Singh or Badal, Mayawati or Mulayam Singh, the common man is not much concerned. He has more or less come to accept such events as inevitable. He has nothing but contempt for politicians and he knows that the police in this country act at the behest of the politicians in power. The general perception is that the police would always be ready to do whatever they are asked to do by their political masters. If they are asked to bend, they will be willing to crawl. It is not the rule of law but the rule of politics that prevails. Its too bad if someone becomes a victim. The police credibility is so low that even where action taken against a politician is perfectly legitimate and is as per the law, the public do not always accept it. The politician knows it and therefore always quotes scriptures and poses as a victim of political vendetta and witch hunting.
Why do we have such a police force? The police as an organised institution in this country was established by the Britishers with the Police Act of 1861. It was supposed to function as a regime police, totally subservient to the political executive and considerably distant from the community and it continued to remain so even after Independence. When the country became Independent, we adopted a democratic structure of polity, but the police as an institution and in its basic philosophy, remained unchanged. The police, set up by a colonial piece of legislation, continued to be governed by it. The transition from the colonial regime police to a democratic police has never occurred in this country. That is why it has been so easy for the politicians to manipulate the organisation for their narrow selfish ends. The situation has become worse during the last few decades because of increasing criminalistion of politics. The police, instead of becoming an instrument of law and service to the community, slowly but surely, have degenerated into becoming a tool in the hands of politicians to serve their selfish interests. This brings not merely law into disrepute but shakes the very foundations of the democratic system of governance.
If these ideas sound too big to our politicians, why can’t they at least realise that it is in their own interests to reform the police? The police right since the Emergency days have been easily and conveniently used as a stick with which to beat one’s opponents into submission. What the politicians in power forget is that the same stick can be used against them too when they are out of power. The chief ministers may come and go but the police go on forever. If it is easy for one chief minister to misuse the police for narrow selfish considerations, it is easier for his follower to do the same. What is not realised is that till the police are reformed and insulated from the illegitimate control of the politicians, nobody in this country is safe. The common citizen in this country has not always felt safe in the presence of the policeman. It is for the politicians to realise that they too can be very unsafe once they are out of power.
It is in the interest of the politicians to reform the police for another reason. The combined strength of the central and state police forces in this country is about two millions. It has not been realised that the capacity of the police to do good to society can be as great as, if not greater than, their capacity to do harm. This huge reservoir of trained manpower can do enormous good to society provided they are utilised to serve the community and not merely the elite class and people in positions of power. A professionally efficient and an honest police force can give far better returns in terms of winning public support for the political party in power than a force, which is misused for selfish purposes. A misused police force gets corrupt and brutalised and in turn abuses its powers. In the words of a very eminent and seasoned police officer of the earlier years, late Mr. P.R.Rajgopal: “When the police at different levels are used by the people in authority to break or even to bend the law to sub-serve doubtful ends, those concerned will have set the police on the high road to many more serious violations of law and in more important areas. Once this happens, there is no stopping the police from helping themselves in diverse devious ways.” The victims in such cases are mostly the common poor persons who constitute the vote bank.
It is sad that we have not learnt our lessons from the tragic events that took place in Gujarat last year. Police reforms are simply too important to neglect and too urgent to delay.
Saturday, January 11, 2003
SINGLE DIRECTIVE
SECTION 26 ( C ) OF THE CENTRAL VIGILANCE COMMISSION ACT, 2003 (25 OF 2003)- CHALLENGING ITS VALIDITY
JUDGEMENT OF THE SUPREME COURT IN THE WRIT PETITIONS ( CRIMINAL)NOS. 340-343/ 93
The Supreme Court vide its judgement dated December 18, 1997 in Criminal Writ Petitions Nos. 340-343/ 93 Vineet Narain and other versus Union of India and others (popularly known as the Jain Havala Case) issued directions to establish institutional and other arrangements aimed at insulating the Central Bureau of Investigation (CBI) from outside influences. These directions included giving a statutory status to the Central Vigilance Commission (CVC); entrusting the CVC with the responsibility of exercising superintendence over the CBI; prescribing procedures for appointment to the post of Director CBI; giving a minimum secure tenure of two years to Director CBI etc. The judgement also declared the Single Directive null and void.
THE SINGLE DIRECTIVE
The Single Directive was a set of executive instructions issued to the CBI by the central government, prohibiting the investigating agency from initiating inquiry/investigation against officers of the rank of joint secretary and above without obtaining prior permission of the government.
EXAMINATION OF THE SINGLE DIRECTIVE BY THE SUPREME COURT
The Supreme Court examined the Single Directive when the Havala case came up for hearing. The Court was informed that the main objective of the Directive was to protect the decision making level officers from the threat and ignominy of malicious and vexatious inquires/ investigations, so that they could take their decisions without fear of being victimized. The Attorney General of India stated that the officers at the decision making level needed this protection if they had to function efficiently, honestly and without fear.
The Attorney General of India cited two earlier decisions of the apex court to support the legal validity of the Directive. One was the decision in the case State of Bihar and Another etc. vs. Saldanha and others, 1980 (1) SCC 554. The decision in this case pertained to Section 3 of the Police Act of 1861, according to which superintendence of the state police vests in the state government. It was decided in the case that the power of superintendence of the government included its power to direct further investigation in a case under Section 173 (8), Cr. P.C. The Supreme Court, however, did not accept the argument that this decision of the Court could be used to support the legal validity of the Single Directive. According to the Court, the government exercised superintendence in the Saldanha case to promote the cause of justice by directing further investigation of an offence where investigation done earlier was unsatisfactory. The Court ruled that the effect of the Single Directive would be to thwart investigation and not to promote justice and therefore the earlier decision could not be used to support the validity of the Single Directive.
The other case cited by the government was K. Veeraswamy vs. The Union of India and others, 1991 (3) SCC 655. It had been held in that case that though the Prevention of Corruption Act applied to the judges of the Supreme Court and High Courts, no criminal case could be registered against them without the consent of the Chief Justice of the Supreme Court. The Attorney General contended that this decision of the Court supported the proposition that high-ranking officers should not be prosecuted without the prior permission of the government. The Supreme Court did not accept this argument on the ground that judges were constitutional functionaries and their decision in the case was guided by the need to maintain the independence of the judiciary. It would be wrong to rely on that judgement to uphold the validity of the Single Directive.
INTERPRETATION BY THE COURT OF THE WORD “SUPERINTENDENCE”
The working of the CBI is governed by the Delhi Special Police Establishment Act of 1946. Section 3 of the Act authorises the central government to specify the offences or classes of offences, which are to be investigated by the Delhi Special Police Establishment ( which is a part of the CBI). Section 4 vests the superintendence of this organisation in the central government. The Court examined these provisions of law and concluded: “Once the CBI is empowered to investigate an offence by its specification under Section 3, the process of investigation, including its initiation, is to be governed by the statutory provisions which provide for the initiation and manner of investigation of the offence. This is not an area which can be included within the meaning of ‘superintendence’ in Section 4 (1).” The Court further stated: “The word ‘superintendence’ in Section 4 (1) can not be construed in a wider sense to permit supervjsion of the actual investigation of an offence by the CBI contrary to the manner provided by the statutory provisions.” It is settled that statutory jurisdiction cannot be subject to executive control.
EQUALITY OF ALL BEFORE LAW
The Supreme Court ruled the Single Directive as invalid in law also on the ground that it violated the principle of equality of all before laws. “The law does not classify offenders differently for treatment there under, including investigation of offences and prosecution of offences, according to their status in life. Every person accused of committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone. The Single Directive is applicable only to certain persons above the specified level who are described as ‘decision making officers.’ The question is whether any distinction can be made for them for the purpose of investigation of an offence of which they are accused”. The Court concluded that no such distinction could be made.
In view of the above, the Court declared the Single Directive null and void.
THE GOVERNMENT’S RESPONSE
The Court issued the directions in the case on December 18, 1997. Numerous attempts were made by the Government of India right from the beginning to thwart the implementation of the judgement. This note is concerned only with the part of the judgement relating to Single Directive and thus gives information only about the developments that occurred in respect of this part. A few important developments in this regard are as follows:
• The Law Commission of India prepared a Bill known as the Central Vigilance Commission Bill, 1998. The Bill made no mention of the Single Directive since the Supreme Court had declared it null and void. However, the Government in the meantime, in disregard of the Bill prepared by the Law Commission, promulgated the Central Vigilance Commission Ordinance, 1998. The Ordinance brought this infamous Directive back by putting a specific provision that proscribed the CBI from registering a case for inquiry/ investigation against officers of the rank of Joint Secretary and above without permission of the central government.
• The matter came to the notice of the Supreme Court when Shri Anil Diwan, the amicus curiae in Writ Petition (Civil) No. 38/97 filed written objections to certain provisions of the Ordinance. The Attorney General assured the Court that the Government would reexamine the matter and fine-tune the Ordinance.
• On October 27, 1998 another Ordinance was promulgated called the Central Vigilance Commission (Amendment) Ordinance, 1998 (No. 18 of 1998). The Amendment deleted the provision relating to the Single Directive.
• The Central Vigilance Commission Bill, 1998 was drafted by the Government to replace the two Ordinances. This Bill did not have any provision proscribing regarding the Single Directive
• The CVC Bill 1998 was introduced in the House of People on December 7, 1998 and passed by the Lok Sabha on March 15, 1999. Before the Bill could be considered and passed by the Rajya Sabha, the 12th Lok Sabha was dissolved and the Bill lapsed
• Since the CVC Bill, 1998 could not be passed by the Parliament, the Government promulgated another Ordinance on January 8, 1999 known as the CVC Ordinance, 1999. This Ordinance lapsed on April 5, 1999 and the Government had to issue a Resolution to continue the CVC as a non- statutory body.
• To confer statutory status on the CVC, the CVC Bill, 1999 was again introduced in the Lok Sabha on December 20, 1999.
• The Bill was finally referred to a Joint Committee of both Houses of Parliament. Shri Sharad Pawar was appointed the Chairperson of the Committee on December 28, 1999.
• The Committee presented its report to both Houses of Parliament on November 22, 2000. The report also included a draft Bill.
• The Bill drafted by the Committee resurrected the Single Directive.
The Central Vigilance Commission Act 2003 as finally passed by the Parliament implemented the recommendation of the Committee and retained the provision implementing the Single Directive in the form of Section 26 (c). This Section added Section 6 A to the Delhi Special Police Establishment Act, 1946. This Section is reproduced below:
“ 6A Approval of Central Government to conduct inquiry or investigation- (1) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988) except with the previous approval of the Central Government where such allegation relates to-
a) The employees of the Central Government of the level of Joint Secretary and above; and
b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government.
(2) Notwithstanding anything contained in sub-section (1), no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c) of the Explanation to section 7 of the Prevention of Corruption Act, 1988 (49 of 1988).”
ADDITIONAL POINTS
The CVC Act, 2003 goes beyond what was attempted earlier through the CVC Ordinance of 1998. While the Ordinance prescribed that approval prior to undertaking any inquiry or investigation against officers of the level of joint secretary and above would have to be obtained by the CBI from the CVC, the Act lays down that this approval would have to be obtained from the central government. This is contrary to the spirit of Section 8 (a) of the Act itself that says that the CVC shall exercise superintendence over the functioning of the Delhi Special Police Establishment Act in so far as it relates to investigation of offences under the Prevention of Corruption Act, 1988.
As already mentioned, this provision in law is based on the recommendation made by the Joint Committee of the Parliament. The Committee was guided in this decision by the “the need to protect the bonafide actions at the decision making level.” The Committee felt that “no protection is available to the persons at the decision making level. In this regard, the Committee note that earlier, the prior approval of the Government was required in the form of a ‘Single Directive’ which was set aside by the Supreme Court. The Committee feel that such a protection should be restored in the same format…” In the Havala case, this argument was discussed by the apex Court in great detail and rejected.
Protection against prosecution without sanction of the government is already available to all public servants under Section 197 of the Code of Criminal Procedure and Section 19 of the Prevention of Corruption Act, 1988. The Act provides protection even at the stage of conducting inquiry or investigation into an allegation of corruption against senior officers. The implications of providing this type of impunity were spelt out in the dissenting note of a member of the Committee, Shri Kuldip Nayar, Member, Rajya Sabha. According to him, the pliable public servants “who carry out the errands of the political masters will go scot free” and “corrupt officers will rule the roost due to their proximity to the seats of power.”
The Single Directive earlier consisted of executive instructions. The CVC Act, 2003 gives it the legal sanctity.
According to the Cr.P.C, the police are legally bound to register FIR on receiving information about the commission of a cognizable case, irrespective of the status of the person accused of having committed that offence. Law also requires them to make necessary inquiry/investigation and no permission is required to do so. The Single Directive violates this basic principle of law and goes against various judgements of the Supreme court and High Courts, which say that investigation of criminal cases is the sole and exclusive preserve of the police and no outside authority can direct the police when to initiate or how to proceed with investigation. This was made clear by the Supreme Court in the Havala Case.
Section 26 ( c ) of the Central Vigilance Commission Act, 2003 is against the principle of equality of all before law and thus defies the main standards on which the rule of law is based. It can be interpreted as a violation of Article 14 of the Constitution too.
JUDGEMENT OF THE SUPREME COURT IN THE WRIT PETITIONS ( CRIMINAL)NOS. 340-343/ 93
The Supreme Court vide its judgement dated December 18, 1997 in Criminal Writ Petitions Nos. 340-343/ 93 Vineet Narain and other versus Union of India and others (popularly known as the Jain Havala Case) issued directions to establish institutional and other arrangements aimed at insulating the Central Bureau of Investigation (CBI) from outside influences. These directions included giving a statutory status to the Central Vigilance Commission (CVC); entrusting the CVC with the responsibility of exercising superintendence over the CBI; prescribing procedures for appointment to the post of Director CBI; giving a minimum secure tenure of two years to Director CBI etc. The judgement also declared the Single Directive null and void.
THE SINGLE DIRECTIVE
The Single Directive was a set of executive instructions issued to the CBI by the central government, prohibiting the investigating agency from initiating inquiry/investigation against officers of the rank of joint secretary and above without obtaining prior permission of the government.
EXAMINATION OF THE SINGLE DIRECTIVE BY THE SUPREME COURT
The Supreme Court examined the Single Directive when the Havala case came up for hearing. The Court was informed that the main objective of the Directive was to protect the decision making level officers from the threat and ignominy of malicious and vexatious inquires/ investigations, so that they could take their decisions without fear of being victimized. The Attorney General of India stated that the officers at the decision making level needed this protection if they had to function efficiently, honestly and without fear.
The Attorney General of India cited two earlier decisions of the apex court to support the legal validity of the Directive. One was the decision in the case State of Bihar and Another etc. vs. Saldanha and others, 1980 (1) SCC 554. The decision in this case pertained to Section 3 of the Police Act of 1861, according to which superintendence of the state police vests in the state government. It was decided in the case that the power of superintendence of the government included its power to direct further investigation in a case under Section 173 (8), Cr. P.C. The Supreme Court, however, did not accept the argument that this decision of the Court could be used to support the legal validity of the Single Directive. According to the Court, the government exercised superintendence in the Saldanha case to promote the cause of justice by directing further investigation of an offence where investigation done earlier was unsatisfactory. The Court ruled that the effect of the Single Directive would be to thwart investigation and not to promote justice and therefore the earlier decision could not be used to support the validity of the Single Directive.
The other case cited by the government was K. Veeraswamy vs. The Union of India and others, 1991 (3) SCC 655. It had been held in that case that though the Prevention of Corruption Act applied to the judges of the Supreme Court and High Courts, no criminal case could be registered against them without the consent of the Chief Justice of the Supreme Court. The Attorney General contended that this decision of the Court supported the proposition that high-ranking officers should not be prosecuted without the prior permission of the government. The Supreme Court did not accept this argument on the ground that judges were constitutional functionaries and their decision in the case was guided by the need to maintain the independence of the judiciary. It would be wrong to rely on that judgement to uphold the validity of the Single Directive.
INTERPRETATION BY THE COURT OF THE WORD “SUPERINTENDENCE”
The working of the CBI is governed by the Delhi Special Police Establishment Act of 1946. Section 3 of the Act authorises the central government to specify the offences or classes of offences, which are to be investigated by the Delhi Special Police Establishment ( which is a part of the CBI). Section 4 vests the superintendence of this organisation in the central government. The Court examined these provisions of law and concluded: “Once the CBI is empowered to investigate an offence by its specification under Section 3, the process of investigation, including its initiation, is to be governed by the statutory provisions which provide for the initiation and manner of investigation of the offence. This is not an area which can be included within the meaning of ‘superintendence’ in Section 4 (1).” The Court further stated: “The word ‘superintendence’ in Section 4 (1) can not be construed in a wider sense to permit supervjsion of the actual investigation of an offence by the CBI contrary to the manner provided by the statutory provisions.” It is settled that statutory jurisdiction cannot be subject to executive control.
EQUALITY OF ALL BEFORE LAW
The Supreme Court ruled the Single Directive as invalid in law also on the ground that it violated the principle of equality of all before laws. “The law does not classify offenders differently for treatment there under, including investigation of offences and prosecution of offences, according to their status in life. Every person accused of committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone. The Single Directive is applicable only to certain persons above the specified level who are described as ‘decision making officers.’ The question is whether any distinction can be made for them for the purpose of investigation of an offence of which they are accused”. The Court concluded that no such distinction could be made.
In view of the above, the Court declared the Single Directive null and void.
THE GOVERNMENT’S RESPONSE
The Court issued the directions in the case on December 18, 1997. Numerous attempts were made by the Government of India right from the beginning to thwart the implementation of the judgement. This note is concerned only with the part of the judgement relating to Single Directive and thus gives information only about the developments that occurred in respect of this part. A few important developments in this regard are as follows:
• The Law Commission of India prepared a Bill known as the Central Vigilance Commission Bill, 1998. The Bill made no mention of the Single Directive since the Supreme Court had declared it null and void. However, the Government in the meantime, in disregard of the Bill prepared by the Law Commission, promulgated the Central Vigilance Commission Ordinance, 1998. The Ordinance brought this infamous Directive back by putting a specific provision that proscribed the CBI from registering a case for inquiry/ investigation against officers of the rank of Joint Secretary and above without permission of the central government.
• The matter came to the notice of the Supreme Court when Shri Anil Diwan, the amicus curiae in Writ Petition (Civil) No. 38/97 filed written objections to certain provisions of the Ordinance. The Attorney General assured the Court that the Government would reexamine the matter and fine-tune the Ordinance.
• On October 27, 1998 another Ordinance was promulgated called the Central Vigilance Commission (Amendment) Ordinance, 1998 (No. 18 of 1998). The Amendment deleted the provision relating to the Single Directive.
• The Central Vigilance Commission Bill, 1998 was drafted by the Government to replace the two Ordinances. This Bill did not have any provision proscribing regarding the Single Directive
• The CVC Bill 1998 was introduced in the House of People on December 7, 1998 and passed by the Lok Sabha on March 15, 1999. Before the Bill could be considered and passed by the Rajya Sabha, the 12th Lok Sabha was dissolved and the Bill lapsed
• Since the CVC Bill, 1998 could not be passed by the Parliament, the Government promulgated another Ordinance on January 8, 1999 known as the CVC Ordinance, 1999. This Ordinance lapsed on April 5, 1999 and the Government had to issue a Resolution to continue the CVC as a non- statutory body.
• To confer statutory status on the CVC, the CVC Bill, 1999 was again introduced in the Lok Sabha on December 20, 1999.
• The Bill was finally referred to a Joint Committee of both Houses of Parliament. Shri Sharad Pawar was appointed the Chairperson of the Committee on December 28, 1999.
• The Committee presented its report to both Houses of Parliament on November 22, 2000. The report also included a draft Bill.
• The Bill drafted by the Committee resurrected the Single Directive.
The Central Vigilance Commission Act 2003 as finally passed by the Parliament implemented the recommendation of the Committee and retained the provision implementing the Single Directive in the form of Section 26 (c). This Section added Section 6 A to the Delhi Special Police Establishment Act, 1946. This Section is reproduced below:
“ 6A Approval of Central Government to conduct inquiry or investigation- (1) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988) except with the previous approval of the Central Government where such allegation relates to-
a) The employees of the Central Government of the level of Joint Secretary and above; and
b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government.
(2) Notwithstanding anything contained in sub-section (1), no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c) of the Explanation to section 7 of the Prevention of Corruption Act, 1988 (49 of 1988).”
ADDITIONAL POINTS
The CVC Act, 2003 goes beyond what was attempted earlier through the CVC Ordinance of 1998. While the Ordinance prescribed that approval prior to undertaking any inquiry or investigation against officers of the level of joint secretary and above would have to be obtained by the CBI from the CVC, the Act lays down that this approval would have to be obtained from the central government. This is contrary to the spirit of Section 8 (a) of the Act itself that says that the CVC shall exercise superintendence over the functioning of the Delhi Special Police Establishment Act in so far as it relates to investigation of offences under the Prevention of Corruption Act, 1988.
As already mentioned, this provision in law is based on the recommendation made by the Joint Committee of the Parliament. The Committee was guided in this decision by the “the need to protect the bonafide actions at the decision making level.” The Committee felt that “no protection is available to the persons at the decision making level. In this regard, the Committee note that earlier, the prior approval of the Government was required in the form of a ‘Single Directive’ which was set aside by the Supreme Court. The Committee feel that such a protection should be restored in the same format…” In the Havala case, this argument was discussed by the apex Court in great detail and rejected.
Protection against prosecution without sanction of the government is already available to all public servants under Section 197 of the Code of Criminal Procedure and Section 19 of the Prevention of Corruption Act, 1988. The Act provides protection even at the stage of conducting inquiry or investigation into an allegation of corruption against senior officers. The implications of providing this type of impunity were spelt out in the dissenting note of a member of the Committee, Shri Kuldip Nayar, Member, Rajya Sabha. According to him, the pliable public servants “who carry out the errands of the political masters will go scot free” and “corrupt officers will rule the roost due to their proximity to the seats of power.”
The Single Directive earlier consisted of executive instructions. The CVC Act, 2003 gives it the legal sanctity.
According to the Cr.P.C, the police are legally bound to register FIR on receiving information about the commission of a cognizable case, irrespective of the status of the person accused of having committed that offence. Law also requires them to make necessary inquiry/investigation and no permission is required to do so. The Single Directive violates this basic principle of law and goes against various judgements of the Supreme court and High Courts, which say that investigation of criminal cases is the sole and exclusive preserve of the police and no outside authority can direct the police when to initiate or how to proceed with investigation. This was made clear by the Supreme Court in the Havala Case.
Section 26 ( c ) of the Central Vigilance Commission Act, 2003 is against the principle of equality of all before law and thus defies the main standards on which the rule of law is based. It can be interpreted as a violation of Article 14 of the Constitution too.
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