Freeing the CBI

Can the CBI be made independent?

The recent debate on the Lok Pal Bill has thrown up three propositions. One, retain the status quo; two, transfer the control to the Lok Pal; and three, make the CBI an independent organisation.

Presently, the CBI is governed by an outdated Act of Second World War vintage, called the Delhi Police Establishment Act, which was enacted in 1946 to regulate the functioning of the Special Police Establishment. Section 4(1) of this Act vests the superintendence of the CBI in the central government, just as Section 3 of the Police act of 1861 vests the control of the state police force in the state government.

Since the word ‘superintendence’ has not been defined in any law, both the central and the state governments have misused the police forces to serve their partisan interests. There is a general public perception that the CBI, like other police forces in the country, is influenced in its work by political considerations. The fact that every government at the centre has misused the CBI to serve its political interests can hardly be denied

Can any government ever think of making the CBI an independent organisation? If one plays the devil’s advocate, one can think of two arguments that the central government can cite in favour of retaining its control over the CBI. One, any police force, including the CBI, is a part of the executive and in the Westminster model of governance that we have adopted, the Minister concerned is responsible to the parliament for the efficient and honest functioning of his departments. Two, the police, including the CBI, enjoys tremendous powers and it is important for the government to ensure these powers are used judiciously.

While the first argument can be considered valid, the second can be contested. It is true that in a democratic system, the police powers need to be controlled to prevent their misuse, but then it has to be realised that controlling the police itself becomes a source of tremendous powers that can be misused to serve partisan interests, as has happened so frequently in this country. What is needed is to set up institutions and mechanisms to balance these two requirements.

In the Havala case judgement, the Supreme Court tried to make one such attempt. While the Court transferred the responsibility of exercising superintendence over the CBI’s functioning from the government to the Central Vigilance Commission (CVC), it simultaneously held that the concerned minister should be ultimately responsible for its efficient functioning to Parliament. The Court maintained that none of the minister’s powers could extend to interfering with the course of investigation and prosecution in any individual case. Investigation is to be governed strictly by the provisions of law.

Unfortunately, the government did not implement the judgement of the Supreme Court either in letter or in spirit. The Central Vigilance Commission Act of 2003 derailed the judgement in three important ways. One, it resurrected the Single Directive despite the fact the Court had held it null and void, being bad in law. Two, It did not transfer superintendence to the CVC fully. The CVC Act, 2003 prescribed that the CVC shall exercise superintendence not over the CBI but over the Delhi Special Police Establishment (DSPE) only, regarding cases registered under the Prevention of Corruption Act, 1988. Three, in exercising superintendence over the organisation, the government did not keep itself within the boundaries as defined in the judgement. It continued to influence decisions regarding the initiation as well as the process of CBI’s investigations.


The manner in which the central government thwarted the implementation of the Supreme Court’s judgement in the Havala case is similar to the manner in which the state governments have continued till now to defy the apex court’s directives in the judgement delivered on September 22, 2006 in Prakash Singh’s case.

The possibility of misuse of police by the government of the day has caused concern in other countries too. They have found solutions by developing traditions of good governance and setting up new institutions. In the United Kingdom, they appear to have successfully implemented a very subtle distinction between the police as an organisation and policing as a set of activities. While the police as an organisation is the responsibility of the government, the policing as a set of functions is the responsibility of the head of the police force. Government’s role is to formulate policies, provide budget, set standards and monitor performance, but it cannot give any operational direction to the police chief. The Police Acts in some other countries have dealt with this problem by clearly defining the role and responsibilities of the government and the police department.

Keeping our system and environment in view, the team Anna should advocate for mechanisms and institutions that will ensure the CBI’s functional autonomy, as no government will ever agree to relinquish its control over an organisation like the CBI. It should of course insist on the Lokpal to have its own independent investigating agency, which need not necessarily be CBI.

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This article was published in the Indian Express dated December 28, 2011



Some ideas that figured in the above article formed a part of the proceedings of the Rajya Sabha on Lokayukta Bill. Relevant extracts from the speech of Shri D Raja, CPI (M) member delivered in the Rajya Sabha on December 29, 2010 are given below;

"Finally, Sir, about CBI, I would like to say that CBI as an
investigative agency should have independence. It should be freed
from political interference. At the same time, we should be
cautious; we cannot give absolute autonomy to an organization like CBI and CBI must be made accountable and answerable to some
authority.

SHRI D. RAJA (CONTD.): Sir, I am finishing after one point. In an
Article "Freeing the CBI" by G.P. Joshi, former Director of Bureau of Police Research and Development, it is pointed out, Sir, "The United Kingdom has successfully implemented a very subtle distinction between the Police as an organization and policing as a set of activities. While the Police as an organization is the responsibility of the Government, policing as a set of functions is the responsibility of the police force. Government's role is to formulate policies, provide Budget, set standards and monitor performance, but it cannot give any operational direction to any Police Chief." (Time bell)

In Queensland, Australia, communication between the Minister and the Commissioner of Police is guided by clear provisions in the Police Act. Directions from the Minister have to be given in writing and the Commissioner of Police is bound to comply with directions but keep a record of all correspondence which is later placed on the floor of the Assembly.

This is the experience. Now, I am asking the Minister and the
Government. ...(Interruptions)... Are they going to treat CBI like this?

MR. CHAIRMAN: Your time is over. ...(Interruptions)... There is
no time left. ...(Interruptions)...

SHRI D. RAJA: The Government will have to consider these points
with all seriousness. Otherwise, this Bill will remain a weak Bill. We want a strong and effective Bill for which we have given
amendments. Our amendments need to be considered with all
seriousness by the Government, by the House."

The UK Riots

The UK Riots- Impact on Policing

This appears to be a season of protests in many countries. But what happened in some cities of the United Kingdom recently was a very ugly kind of protest, if at all it can be called that. It was rioting in its worst form, in which buildings and vehicles were burnt; shops were looted; property was vandalized; and people were killed and injured. What added to the ugliness of the disturbances was the ease with which people, including young children and women, joined in the looting and vandalising spree. It was “criminality, pure and simple,” as the British Prime Minister called it, whatever its root causes might have been.

The police came in for considerable criticism. This had to happen, as they were involved in the event that triggered the riots. Their initial response to the rioting that followed was weak and incompetent. They took considerably long to reclaim the control of the streets and to bring some semblance of order. In the beginning, the deployment of strength was inadequate and their tactics were softer than what the situation required. Though the Metropolitan Police deputy assistant commissioner, Steven Kavanagh denied the police were soft on rioters, the fact that their initial tactics left a lot to be desired was acknowledged by the government. The British Prime Minister, on returning from holidays, referred to the inadequacy of deployment and said “the tactics they were using weren’t working.” Michael Gove, the education secretary, told Channel 4 News “the police response had not been robust enough...” Even the Home Secretary Theresa May told the Parliament “…police only retain the confidence of the wider community if they are seen to take clear and robust action in the face of open criminality”, clearly implying action taken by police was not strong and forceful enough to deter the rioters.

This critical assessment about the initial handling of riots by the police created unnecessary tensions between the political executive and police officers. There was a sharp reaction from Sir Hugh Orde, president of the Association of Chief Police Officers who felt the attacks on policing were totally unjustified and negative. He also opposed the Prime Minister’s decision to invite former LAPD Chief Bill Bratton to advise the government on policing in the UK. Occasionally one got an impression as if these riots had created a wall of distrust between the political executive and the police.

Will the widespread mayhem that occurred in some cities of the United Kingdom (from August 6 to 10, 2011) and the criticism of the police that followed their initial handling of the riots change the face of public order policing in the UK? The British Police till now have enjoyed the reputation of policing by consensus as opposed to doing it by fear. They believe in the principle of using minimum force and always tried to implement it uniformly throughout the UK in the last few decades while dealing with public order disturbances. Is this likely to change now? The question becomes relevant as increasing violence in that country has produced responses, some of which are disturbing.

In the United Kingdom at present, there is an overwhelming public sentiment in favour of hard and tough public order policing. The government is definitely giving an impression that police can no longer afford to be soft in dealing with violent disturbances and want them to change their tactics as well as their response equipment. The Prime Minister gave his support to “whatever tactics” the police officers considered necessary to control riots. The police are authorised to use baton rounds and plastic pellets and contingency plans to use water cannon to break up disturbances are in place. The government is even considering the use of CS gas on such occasions, if necessary. In addition, they feel it is time to consider whether the police need powers "to impose a general curfew in a particular area" and also to impose curfews on individual teenagers under the age of 16.

The Prime Minister said they would not let “phony human rights” obstruct the criminal justice system to bring rioters to justice. The courts are swift and harsh in inflicting punishment on those who took part in rioting. Even Social networks were not spared, and two young men who instigated others through entries in Facebook and Twitter were sentenced to four years imprisonment.

The government is not content with subjecting the rioters merely to the rigours of the criminal justice system. They want to cut off government benefits to offenders and this includes evicting them and their family members from publicly subsidised housing. This form of punishment reminds one of Section 15 of our Police Act of 1861, which authorised the colonial government in India to impose collective fine on all the inhabitants of an area that suffered disturbances, requiring the deployment of additional police. The government’s action to evict the offenders and their family members who had nothing to do with the disturbances has been called draconian by many within as well as outside Britain. What is at stake is much more than just the image of the British government and of their police force. As the New York Times states in an editorial piece, "Fair play is one traditional British value we have always admired. And one we fear is increasingly at risk."

NATIONAL ADVISORY COUNCIL'S BILL ON COMMUNAL VIOLENCE- A FLAWED PIECE OF LEGISLATION

The National Advisory Council’s Communal Violence Bill - Odd and flawed

Going by the statement of Kapil Sibal, the UPA II appears intent on taking forward the Prevention of Communal and Targeted Violence (Access to Justice and reparations) Bill, 2011 drafted by Sonia Gandhi’s National Advisory Council. He says the central government is determined to make individuals and state governments accountable for “the kind of things that happened in the past.”

But what happened in the past is much more than what happened in Gujarat. The Bill has obviously been shaped by the experience of 2002 Gujarat riots.

The Bill is distinctive in many respects, but there are some areas where the Bill’s peculiarities stare you at your face.

The Bill presumes that the victims of communal violence in all cases and circumstances are people belonging to minority communities. This presumption results from three definitions given in Section 3 of the Bill. One, it defines “communal and targeted violence” as any act or series of acts which cause injury or harm to the person and or property and are knowingly directed against that person “by virtue of his or her membership of any group, which destroys the secular fabric of the nation.” Two, the “group” means a “religious or linguistic minority” or Scheduled Castes and Scheduled Tribes in any State. Three, “Victim” means “any person belonging to a group” who has suffered harm due to violence.

So if a victim of communal violence does not belong to a religious or linguistic minority, that person is not covered by the provisions of the Bill. It also means that no person belonging to the minority can be accused of committing an offence of communal and targeted violence unless the victim also belongs to that group, which is highly unlikely.

It is reasonable for the government in a democratic society to legislate to protect the interests of disadvantaged groups, but in that case the legislation should state the objective clearly, as was done when the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was passed. If that is not done, the intention behind the piece of legislation is always questionable.

Chapter II of the Bill catalogues a few offences, like sexual assault, hate propaganda, continuing unlawful activity, aiding the commission of an offence, torture etc, but lists many offences of the Indian Penal Code 1860 in Schedule III. Section 11 of the Bill says that all such IPC offences shall be deemed to be offences of communal and targeted violence and dealt with accordingly. Chapter VIII prescribes penalties for these offences, ranging from three years imprisonment with fine or both for indulging in hate propaganda to rigorous imprisonment for life and fine for committing an offence of organised and targeted violence. All offences under the Act are cognizable and non-bailable.


Section 13 lists various failures by a public servant in dealing with the communal situation which would be treated as dereliction of duty, an offence punishable with imprisonment for two years which may extend to five years and fine. In addition to dereliction of duty, the Bill describes an offence of “breach of command responsibility” applicable to officers of armed or security forces, who fail to exercise control over persons under their command resulting in commission of offences under the Act. Officers guilty of such offences are punishable with rigorous imprisonment for life when such failure relates to organized targeted violence and in any other case with imprisonment for a term of ten years and fine.

Section 75 of the Bill says that the defence of sovereign immunity will not be available for offences committed under this Act. Sanction to prosecute public servants, as required by Section 197 of the Cr P C, shall not apply to offences mentioned in Schedule III. There is nothing wrong in marking a complete departure from the legal position stated in the Cr P C where no prosecution can be launched against a public servant for dealing with unlawful assemblies without permission from the government. However, the breach of command responsibility is too difficult to be proved in riotous situations and the penalty prescribed is unreasonably harsh. It would also lead to demoralisation of on-the- spot officers in controlling communal riots.

The Bill sets up a multiplicity of agencies to deal with the problem of communal violence. The National Authority for Communal Harmony, Justice and Reparation shall be set up to prevent and control the spread of communal violence and to monitor investigation, prosecution and trial of offences and payment of due relief and reparation. It shall also “observe, monitor and review the performance of duties by public servants” and also “postings, transfer and replacement” of individual officers “that affect areas where outbreaks of communal and targeted violence’ are reported or anticipated. A very tall order indeed. The creation of National Authority shall be supplemented with establishment of State Authorities for functions, which are more or less similar

The State Authorities may appoint Human Rights Defender for Justice and Reparations in each district. In addition, the Bill sets up State Assessment Committee and also District Assessment Committee to assess the quantum of compensation to be given to victims of communal violence.

The establishment of this highly unwieldy institutional framework raises more questions than it answers. It shows lack of faith in the existing administrative machinery, but some provisions of the Bill show that the new architecture will obviously be superimposed on what exists and not supplant it? If one goes by the past experience, such high powered bodies fail to function viably for long periods and generally end up by becoming post retirement benefit-accruing sanctuaries for politicians and bureaucrats.

The state governments have not shown any keenness to set up institutions that impinge on their powers. The reluctance of states to set up state security commissions suggested in the Supreme Court’s judgment in Prakash Singh’s case as a part of police reform programme is a clear example.

The state governments will have a stronger reason to oppose this Bill. Police and Public Order are subjects in the State List in the Seventh Schedule of the Constitution. Section 20 of the Biil

attempts to encroach on this domain of the state governments by authorising the centre to treat the occurrence of organised communal and targeted violence in a state as “internal disturbance” within the meaning of Article 355 of the Constitution of India and take suitable steps to deal with the situation accordingly. This is very dangerous provision for it will fracture the scheme of federal polity enshrined in the Constitution. How can one be sure that every incident of communal violence will not be interpreted as internal disturbance? After all, the tribe of governors like Buta Singh and H.N Bhardwaj is not yet extinct.