THE CENTRAL BUREAU OF INVESTIGATION NEEDS A NEW LAW

THE CENTRAL BUREAU OF INVESTIGATION- A NEW LAW IS NEEDED         
                                                       
The Central Bureau of Investigation (CBI) owes its origin to an organisation called the Special Police Establishment (S P E) established by the government in 1941 through an executive order to deal with corruption involving war time purchases and supplies.  In 1946, the then government enacted the Delhi Special Police Establishment Act to give the organisation a statutory cover. 

The Act of 1946, which continues to govern the CBI, is a very small piece of legislation, consisting of six sections in all.   It permits the investigating agency to investigate only those offences, which are notified by the central government.  The organisation can not exercise its powers and jurisdiction in any area in a state without the consent of the government of that state.  If the state government does not invite the CBI, the only way it can do work there is when the Supreme or some High Court asks it to do so.  The Act vests the superintendence of this important investigating agency in the central government, though now it vests partly in the Central Vigilance Commission (C V C) too. This amendment in the provision about the superintendence over the agency, including the one about the procedure for the appointment of its Director, was introduced by The CVC Act, 2003. 

The CBI is the premier investigating agency of the country.  The CBI figures in the Union List of the Seventh Schedule of the Constitution of India. Sl. No. 8 of this List reads as “Central Bureau of Intelligence and investigation.” Considering the importance that the framers of the Constitution had attached to this organisation, it is rather strange, indeed ironical, that its working is still governed by a highly antiquated piece of legislation enacted during the British rule in this country for a somewhat limited purpose.  India is no longer the country that existed in 1946 and CBI is no longer what the Delhi Special Police Establishment was in those days. The size of the organisation has expanded; the pattern and incidence of crime which it is required to investigate have altered; Its charter of functions has changed and enlarged considerably; the political environment in which it is functioning has been transformed; the expectations of the citizens from this agency have grown; and what is more the norms and standards of police investigation work all over the world have seen a sea change.

The legislation governing an important organisation like the CBI must reflect these developments.  It must recognise the paramount obligation of the organisation to function according to the requirements of the Constitution.  It must mandate them to function to protect and promote the rule of law.  Legislation must define the word ‘Superintendence’ and establish institutional and other arrangements to insulate the organisation from undesirable and illegitimate outside control, pressures and influences.   It must ensure that the central government’s control over the agency is so exercised as to ensure that their performance is in strict accordance with law.  The Act must make it a statutory responsibility of the government to establish a professionally efficient, effective and an impartial system of investigation.  It should set objectives, define performance standards and establish monitoring instruments; prescribe procedures for appointment and removal of officers; delineate CBI’s powers as well as functions; outline the nature, philosophy and practices expected of the agency; and prescribe mechanisms to ensure their accountability. There should be no provision that can be used to provide impunity.

The Parliamentary Standing Committee of the Ministry of Personnel, Public Grievances,  Law and Justice  repeatedly recommended the enactment of a new law to govern the working of CBI in its  5th, 14th and 19th reports on the Ministry’s Demand for Grants. The  Committee in its Twenty Fourth Report on the Working of CBI regretted to note that the enactment of a “separate Act for CBI in tune with the requirement of the time, rather than deriving its powers from the Delhi Special Police Establishment Act, 1946”, had not been done by the Government. “The Committee regrets to note that no proactive steps have so far been taken in this regard in spite of strong recommendations made by this Committee. The Committee strongly opines that unless CBI is suitably empowered statutorily it cannot investigate cases and take it (sic) to logical conclusion.”

The Government of India has been stubbornly resisting the demand for a separate enactment of law for CBI.  In its Thirty Seventh Report, the Department Related Standing Committee on Action Taken Replies of the government felt that sufficient thought had not been given to the recommendations made by the Committee with regard to strengthening CBI in terms of legal mandate.  “The Committee notes that the Ministry, in its reply, has admitted that the functions and operations of the CBI have been enlarged. The Committee fails to understand how such a premier organisation can function efficiently and to its full potential, when it is lacking in terms of legal backing.”

Thus though the CBI was established on 1.4.1963, it is still being regulated by a law that is as anachronistic as the Police Act of 1861, which has governed police forces in the country.  Just as the state governments have shown reluctance to accept National Police Commission’s recommendations to replace the colonial era legislation with a new Police Act that is framed in accordance with the requirements of a modern democratic Constitution, similarly the central government has been equally obstinate in refusing the need for a new law to manage and strengthen the CBI.  The reason for unwillingness to change in both the cases is the same- the political executive must exercise superintendence over the police organsiations so that they can misuse them for illegitimate and partisan purposes.



 

THE CENTRAL VIGILANCE COMMISSION

 THE CENTRAL VIGILANCE COMMISSION

The Central Vigilance Commission (CVC) was established by the Government of India in 1964 on the recommendations of the Santhanam Committee on Prevention of Corruption.  The Committee envisaged a wide role for the CVC. It recommended that the CVC should be vested with jurisdiction and power, inter alia, to “inquire into and investigate: (a) complaints against acts or omissions, decisions or recommendation, or administrative procedures or practices on the grounds that they are: (i) wrong or contrary to law; (ii) unreasonable, unjust, oppressive or improperly discriminatory; (iii) in accordance with a rule of law or a provision of any enactment or a practice that is or may be unreasonable, unjust, oppressive or improperly discriminatory; or (iv) based wholly or partly on a mistake of law or fact.” The Government of India did not accept this recommendation. The Resolution with which the CVC was set up did not have this clause in its charter of functions.

 From 1964 to 1997, for more than three decades, the CVC rolled along without making any visible dent on the problem of corruption in the country. A very important milestone in its history occurred when the Supreme Court pronounced its judgement in what is popularly known as the Hawala Case in 1997.

The Court felt that the CVC established through a government Resolution had failed to function effectively. It, therefore, recommended that the Central Vigilance Commission (CVC) should be given a statutory status.

The government of the day asked the Law Commission of India for a report. The Law Commission submitted its report to the Government on 13 August 1998 and also sent the draft of the CVC Bill, incorporating the apex court’s recommendations. The Government of India did not accept the draft bill fully. On 25 August 1998, they hurriedly promulgated the Central Vigilance Commission Ordinance,1998 in accordance with a draft prepared by some bureaucrats. As this received considerable criticism, the government promulgated another ordinance, the Central Vigilance Commission(Amendment) Ordinance, 1998 on 27 October 1998.  Finally, the government decided to replace the Central Vigilance Commission Ordinance, 1998 and the Central Vigilance Commission (Amendment) Ordinance, 1998 with regular legislation. It drafted the Central Vigilance Commission Bill, 1998 and introduced it in the Lok Sabha on 12 December1998. The Bill lapsed and introduced again in the Lok Sabha on 20 December 1999 to finally become the Central Vigilance Commission Act of 2003. It thus took about six years for the government to put the CVC on a statutory basis since the apex court pronounced its judgemet and that also after considerably diluting its recommendations..

The CVC Act departed from the Supreme Court’s judgement on several points, but two of these are relevant in today’s context. One was about the procedure for the selection of the Central Vigilance Commissioner and the other was about CVC’s authority to exercise superintendence over the CBI

The Law Commission’s Draft Bill had laid down qualifications for the appointment of vigilance commissioners. The Chief Vigilance Commissioner and the Vigilance Commissioners must be persons known for their “ability, integrity, independence and efficiency.”  The Supreme Court had also decreed that selection for the post of Central Vigilance Commissioner should be made from a “panel of outstanding civil servants and others with impeccable integrity.”   The  Central Vigilance Commission Act, 2003 did not insist on such qualifications. All that Section 3 (3) of the Act requires is that the chief and the other members of the Commission shall be appointed from amongst persons  “(a) who have been or are in an All-India Service or in any civil service of the Union …. having knowledge and experience in the matters relating to vigilance, policy making and administration including police administration” or (b) who have held office or are holding office in a corporation or a company owned or controlled by the Central Government and persons who have “expertise and experience in finance, law, vigilance and investigations”  Thus while the Act  insists on having persons with administrative and other types of experience, it is definitely mute about their integrity antecedents. The Act does not make it necessary for the selected persons to be either “outstanding” or have “impeccable integrity.” Merely being civil servants with experience is enough.  That is how the UPA government could try ad appoint Mr P J Thomas as the CVC in 2010 despite his doubtful integrity till it was finally turned down by the apex court. The appointment of the present CVC K C Chowdhary was also mired in the controversy and challenged in the court, though without success.

The Supreme Court had also directed that the Central Vigilance Commission should be entrusted with the responsibility of exercising superintendence over the functioning of the CBI. The CVC Act, on the other hand, prescribes that the Commission shall “exercise superintendence over the functioning of the Delhi Special Police Establishment in so far as it relates to the investigation of offences alleged to have been committed under the Prevention of Corruption Act, 1988 or an offence with which a public servant ......may, under the Code of Criminal Procedure, 1973, be charged at the same trial.”  The Act thus introduced a system of dual control over the CBI- one exercised by the CVC in respect of corruption cases registered against certain categories of public servants mentioned in the Act and the other by the Central Government in respect of its other cases, which are not corruption related.  The administrative superintendence over the work of CBI in any case rests with the government. The argument given by the government that their recent action against the two top officers of the CBI was taken on the recommendations of the CVC is, therefore, not very convincing. It is not for the CVC to recommend administrative action like sending officers on leave.

The Parliamentary Standing Committee of the Ministry of Personnel, Public Grievances and Pensions, in its Nineteenth Report on Demand for Grants (2007-08) presented to the Lok Sabha and Rajya Sabha on 10 May 2007, recommended that CVC’s problems should be addressed immediately to “ensure independence, impartiality and credibility of the apex anti-corruption body.” Obviously, the  concerns remain unaddressed.

THE POLICE MEMORIAL DAY

LET THE SOCIETY REMEMBER
               
October 21 is a sad and solemn but a proud day for the Indian Police.  It was on this day in 1959 that ten gallant Indian policemen laid down their lives at the altar of duty in the Ladakh region.  These policemen armed only with Rifles tried to repel Chinese troops, superior in number and armed with automatic weapons, grenades and mortars, from the Indian territory where they had intruded.  The Indian policemen held their ground till they were overpowered.  Ten of them lost their lives while nine were taken as prisoners.  Since then, October 21 has been observed every year as a remembrance day to pay homage to police personnel killed in line of duty.

Since independence, 34,418 police personnel in India had sacrificed their lives in line of duty till 2017, which means an average annual loss of about 492 trained persons. This is a very heavy loss, not reported from elsewhere.  Even in the United States of America, where the cops have to deal with armed criminals more often because the “dominant culture is pro-gun,” an average of only 64 law enforcement officers were feloniously killed per year during the period 1980–2014,Ireland was one of the most violent spots in Europe for a long time.  However, only 300 Royal Armed Constabulary officers and men lost their lives over the 30 year period of violence.  In the United Kingdom, about 4,000 police officers have been killed in the line of duty since 1792, when the first salaried constables went on duty. According to the UK Home Office estimates, 250 police officers have been fatally shot since 1945. Since 2010, 11 officers of the Metropolitan Police have lost their lives in the line of duty.

Such comparisons of police fatalities, of course, are not very relevant. The law and order situation differs from country to country, as does the system of police recruitment and training and the quality of police-public relations.  However, when a country keeps on losing such a large number of its police personnel in line of duty every year as we have been doing, it should definitely cause more concern than it does.

The death of a police person at the hands of a criminal is much more than the sum of resources invested in his recruitment, training and maintenance. A policeman is a symbol of law and state authority and when he dies at the hands of a criminal or an insurgent, a part of our “system of law dies with him”. 
Some element of professional risk is involved in a police job.   However, the country cannot afford to keep on losing so many of its policemen every year.  It is absolutely essential to ensure that the police units sent on hazardous duties are fully equipped and trained to deal effectively with situations which they may encounter on such assignments, without losing their men.  The need to develop a high degree of self protection ability and awareness in police personnel is obvious.

One good development that has occurred over the last few decades must be recognised. The government’s response to the unfortunate misery resulting from a policeman’s death in the form of pensionery benefits, ex-gratia grants, financial and other help to the bereaved family has shown considerable improvement. However, the same can not be said of societal reaction, which, except in case of those killed on border duty, remains somewhat phlegmatic and unemotional.   One reason for this is the public perception about the police.  They have a fairly poor opinion about how the police work and behave. The public think of them as being rude, partial, corrupt and brutal. The poor image of the police leads to lack of sympathetic public response and cooperation and that in turn perpetuates that image. The vicious circle keeps on widening the existing chasm between the police and the community. This environment produces two results.  One, it contributes to encouraging public assaults on policemen. Of late, the number of incidents, in which police personnel have been humiliated, abused and even beaten in public has shown significant increase.  Two, genuine sacrifices made by police personnel while performing their duty do not receive adequate recognition.

To some extent, the police departments response to police deaths in line of duty is lacking in some ways, particularly in dealing with the trauma and other problems that the bereaved families undergo. Recently, Arifa Tausif, the wife of a J&K police constable, wrote a very moving account of the hurts and sufferings that the families of police personnel have to undergo in that state. She has written how most wives of policemen raise their children on their own like a single parent and have no one to support them with their husbands being away on duty.   “The risks and dangers are increasing day by day. Every single casualty of a policeman elsewhere makes our life additionally insecure and worrisome” is what she wrote.

Though welfare branches exist in police organisations, there are no departmental guidelines to provide continued emotional support and counselling for long to the shattered families of police personnel killed in line of duty.

 It is important to recognise that a  routine, formal and cursory recognition of police sacrifices on October 21 is not enough. October 21 should not be regarded merely as an occasion for laying down wreaths by politicians and doing ceremonial parades in police lines. The ceremony must not remain confined to the police lines; it must become an occasion for remembrance by others in the society and also for the department to recognise that the needs of the families of police persons killed in line of duty extend beyond immediate financial help.
 

 

FAKE POLICE ENCOUNTERS

THE COWBOYS OF THE U P POLICE
                             
The recent killing of Apple executive Vivek Tiwari by a Lucknow policeman is another example in the long list of illegal police encounters that occur in different parts of the country. 
The NHRC is reported to have registered 1,782 fake encounter cases between 2000-2017; Uttar Pradesh alone accounting for 44.55% of these extra judicial killings. The present government in Uttar Pradesh has been blamed and rightly so for almost encouraging the police to go in for such short cut methods to solve the crime problem.

As usual, and this is another reason for our failure to take serious note of the problem and find solutions, the incident has been politicised. The political parties have used the incident to call the present dispensation in Lucknow a ‘rogue’ government  These parties forget that the record of their governments is equally bad, if not worse. In fact, no government or state can really claim to have a clean record in respect of fake police encounters.  As long as the incident remains hidden, neither the government nor the police department shows concern.  The hue and cry is raised only when the entire story comes out in public.

Every time an encounter death occurs, the police supported by the state government show it as the result of police acting in self-defence, as has been done in this case also. This is done because the Criminal Procedure Code authorises the police to use force to the extent of killing a person only in two situations- to disperse unlawful assembly when there is imminent danger to life and property and the assembly can not be otherwise dispersed and to arrest a person who is resisting arrest and is involved in the commission of an offence punishable with death or imprisonment for life.  Since these circumstances can not be cited in defending the killing of alleged criminals, the only way is to project the police as using such force in self defence.

Some police officers, as has been done by DGP, UP in this case too, tend to explain away any evil in the police department in terms of “rotten apples” theory.  They claim that but for a few rotten apples, the basket is otherwise clean.  A few instances of brutality or other crimes do not justify, they say, wholesale condemnation of the entire force.  This may be true, but it does not reckon with popular psychology.  The good which the force does dies, while the evil which an individual policeman perpetrates lives for ever, producing cumulative  hostility in the public.  When he commits a crime, it gives rise to a feeling of betrayal, amounting to a breach of trust.

Why do such killings take place.  There are various reasons.  One is the support that the culture of encounters receives from different quarters.  It is supported by the politicians when it suits them.  When controlling crime or dealing with law and order problems effectively becomes highly important from political point of view, fake encounters get state encouragement and protection, with complete assurance of impunity granted in advance. Mostly, such assurance is implicit; but occasionally even clear directions are also given. This is not the first time that the police in UP have been asked to ‘thok do.’  It has happened earlier too. An example of this is the address given on April 30, 1998 by the then Chief Minister of UP Mr. Kalyan Singh.  The Chief Minister while addressing the state police officers at a law and order review meeting in Lucknow said: "I want performance, results. I want you to take a vow that you will create a dhamaka (explosion) in the state. If noted criminals can be liquidated in encounters, do it. If you take the life of one person who has taken the lives of 10 others, then people will praise you. And I am here to protect you." 

When the assurance of impunity comes from the highest quarter in the state, policemen become emboldened to misuse their powers or to become silent spectators to incidents involving major violations of law. They know that they cannot be asked to account for their  misdeeds or acts of dereliction of duty.
Fake encounters are sometimes supported by the public too, particularly when crime and violence increase in society.   Police deviance is bound to increase whenever the fear of crime whips up the rhetoric of war against crime and criminals. The danger of the public turning a blind eye towards the use of custodial or illegal violence by the police was seen in UP also when they lapped up the media headlines of February, 2018 “Scared of encounter, goons walk with placards in hands saying they will behave” or ‘Encounters send scared UP goons to jails.”  A dirty Harry of Mumbai police, as per an article titled “Urban Cowboys” published in the Time Magazine of January 06, 2003, said “I don’t enjoy killing. But after we shoot some mobster, his victims look at me like God. That's the best part of the job."

The policy of fake encounters is wrong not only because it is contrary to law, but because it generally proves counter productive.  It does not solve the crime problem. You do not kill crime by killing criminals illegally.  What is worse is that this policy has the effect of criminalising the police force to an extent that they develop nexus with gangs and brutalising them to an extent that they do not hesitate to kill even innocent persons to extort money or to get awards and promotions.

To deal with the problem of fake encounters, there must be zero tolerance towards it from all quarters, particularly from the government and the police department.  Don’t let the guilty men escape.  Find out the truth and set up accountability mechanisms to punish them.  Prompt disciplinary action should be followed by prosecution where it is required.  NHRC’s guidelines, particularly with regard to registration and investigation of such cases, must be scrupulously followed.

PREVENTION OF CORRUPTION (AMENDMENT) ACT, 2018

PREVENTION OF CORRUPTION (AMENDMENT) ACT, 2018
         
The Prevention of Corruption (Amendment) Act, 2018, recently enacted, introduces major changes in the main anti corruption law of the country. For example, it makes giving of bribe an offence; redefines ‘criminal misconduct’; prescribes the powers and procedures to confiscate property obtained through corruption; and extends provisions requiring sanction to prosecute to former officials too.  There are many provisions of this new law, but the one that needs discussion is contained in Section 12 of the Act.  This Section says: “No police officer shall conduct any enquiry or investigation into any offence alleged to have been committed by a public servant under this Act.....in discharge of his official functions or duties, without the previous approval” of the concerned government. It thus requires the police to obtain prior approval of the government before conducting investigation into an alleged offence of corruption committed by a public servant.

This provision in law rings a familiar tune, as the central government implemented it on two occasions in the past. Firstly, the Rajiv Gandhi government did so by issuing executive directions in the form of a ‘Single Directive’ to the CBI in 1986. The Vajpayee government later incorporated it in the Central Vigilance Commission Act of 2003.  Both prohibited the CBI from undertaking any enquiry or investigation against any officer of the rank of Joint Secretary and above in the central government, including those in the public sector undertakings and nationalised banks, without prior sanction of the concerned government or departmental authority.

The present provision is different from the earlier stipulation in two ways. One, it is applicable to  all police officers and not merely to those of the C B I.  Two, it provides protection to all public servants and not only to the officers of the rank of Joint secretary and above. No public servant, not even the one at the clerical level involved in a corruption case, can be investigated without prior approval of the government. 

Whenever the earlier law was challenged in the Supreme Court, the government defended it by saying it was done to protect ‘decision making level’ officers from vexatious and malicious proceedings, but this argument was never accepted by the Supreme court. The Court found it bad in law. It violated  the principle of equality enshrined in the Constitution.“ The law does not classify offenders differently for treatment, 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 government’s intention to provide protection to all public servants and not only to senior officers above a certain rank appears to have been guided by this criticism by the court.
 
There is also a public perception that this law was used more to protect the guilty than to help the innocent officers take their decisions without fear or favour. There are some additional objections to this legal provision. According to the Criminal Procedure Code, the police are legally bound to register FIR on receiving information about the commission of a cognizable case. Law also requires them to make necessary inquiry/investigation and no permission is required to do so. The present law violates this basic principle of law and goes against various judgements of the higher 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 through its judgement in the Havala Case.

The Constitution bench of the Supreme Court, in its judgement delivered on May 06, 2014 on the two writ petitions- one filed by Dr Subramanian Swamy and the other by the Centre for Public Interest Litigation on the subject- mentioned that the provision requiring prior approval “thwarts an independent, unhampered,  unbiased, efficient and fearless investigation to track down the corrupt public servants.” The court further observed: “The very nexus of the criminal-bureaucrat-politician which is subverting the whole polity would be involved in granting or refusing prior approval before an inquiry or investigation can take place”.

 This provision of new law is suspect on two other counts. One, the authority of the police in this country has been considerably eroded over a period of time. The new law will further deplete the capacity of the anti- corruption agencies to take their own decisions in doing their investigative work.  They will become more dependent on the government than they already are. Two, it will add to the climate of impunity that prevails.  There is already a provision of law, which requires the police to obtain sanction from the concerned government before prosecuting public servants involved in corruption cases.  In many cases, there is considerable delay in receiving sanction and in some it never comes.  Investigation into corruption cases may also meet the same fate. Now public servants will enjoy double protection- from investigation as well as prosecution. This government is not satisfied by providing impunity merely to serving officers; it has included even the retired public servants within the ambit of these provisions of law.    

A CHIEF MINISTER vs A SCHOOL PRINCIPAL

A CHIEF MINISTER vs A SCHOOL PRINCIPAL

The spat that occurred between the Chief Minister of Uttarakhand and an elderly lady school teacher should have sparked greater public indignation than it did.  This highly ungainly incident took place on June 27, 2018 during an open public forum meeting being held by the CM to hear the citizens’ grievances

According to the brief details of the incident reported by the media, the lady called Uttara Pant   Bahuguna has been continuously serving in remote locations of Uttarakhand for more than two decades.  On June 27, she went to the Chief Minister’s janta darbar, requesting for her transfer to Dehradun so that she could look after her two children, who were stationed there.  Her husband had died in 2015. Her argument was that she could not afford to leave her job and also not allow her children to be deprived of parental care ( unko anath nahin chor sakti.)

The lady’s grievance appeared legitimate and her demand genuine. A mature response would have been to assure her that her request would be examined and she would be informed of the decision in due course. Instead the CM unnecessarily lost his cool and tried to be dismissive towards her.   In the beginning, the school principal was stating her case calmly and confidently.  What apparently disturbed the CM was that her tone was not submissive.  The politicians are used to expect such petitioners to cringe and grovel before them.  This is what the lady teacher did not do and this probably hurt the C M ‘s ego. He exploded, asking her to leave, threatening her with suspension and even arrest. The video clearly shows him shouting “Suspend her immediately; take her into police custody.” A policeman tried to snatch the mike from the lady, asking her to leave the place.  It was only at this stage that the teacher got very agitated and used a few offensive words

The government was very quick to suspend the teacher next day.  The order stated two grounds for suspension.  One, she attended the CM’s janta darbar without permission and, two, her undignified behaviour was a violation of employees’ code of conduct.

 Rule 4 of the Uttarakhand Government Servant (Discipline and Appeal) Rules, 2003, states:
"(1) A Government Servant against whose conduct an inquiry is contemplated, or is proceeding may be placed under suspension pending the conclusion of the inquiry in the discretion of the Appointing Authority:
Provided that suspension should not be resorted to unless the allegations against the        Government Servant are so serious that in the event of their being established may ordinarily warrant major penalty”
None of the two grounds stated in the suspension order would warrant major penalty proceedings.  The High Court of Uttarakhand has clearly ruled in a case (S.K. Goel v. State of Uttaranchal & Another, 2005 (2) U.D. 11): “Hence, an order of suspension should not be passed lightly, casually or without proper application of mind." It is clear that the suspension order in the teacher’s case was more a result of the Chief Minister’s pique than any application of mind.

According to a media report, the lady was also arrested, but later released.  In case this was done, a relevant question to ask is: under what authority, could the Chief Minister issue orders to arrest a person, who had not committed any crime.  We in this country have become so accustomed to seeing the politicians and bureaucrats issuing illrgal orders that no eyebrows are raised.   Arresting a person suspected to be involved in the commission of a cognizable offence is a part of the process of law enforcement and has, therefore, to be governed by the provisions of law. Law does not empower any person, however high he may be, outside the law enforcement machinery to take such decisions.

The Chief Minister’s summary disposal of lady teacher’s request for transfer brings another harsh reality into focus.. An RTI query reveals that the Chief Minister’s own wife Sunita is a teacher and has been continuously posted in Dehradun since 1996. She was not posted out even after she was promoted. It shows that persons with right connections succeed in manipulating transfers and postings of their choice. It is this unequal application of rules, that creates helpless bitterness of the type exhibited by Ms Bahuguna. 



 

HUMAN RIGHTS AND LAW ENFORCEMENT IN A DEMOCRATIC SOCIETY

HUMAN RIGHTS AND LAW ENFORCEMENT IN A DEMOCRATIC SOCIETY
                                             
Frequent police encounters in UP, some of which are alleged to have been fake, raise very pertinent issues about the relationship between human rights and law enforcement in a democratic society.

Every constitution of a democratic society is based on the recognition of three basic values: freedom, equality and justice.  These are the values, which the concept of human rights also embodies.  A democratic society for its survival, therefore, depends not merely on control of crime and maintenance of order but also on the preservation of citizens’ rights.

A study of the history of law enforcement shows that in some democratic countries, control of crime was given less importance than preservation of rights. When Sir Robert Peel introduced his Bill for the Metropolitan Police in the English Parliament, there was considerable opposition to his idea. A Select Committee of the Parliament had earlier expressed in 1822 its opposition in these terms: “It is difficult to reconcile an effective system of police with that perfect freedom of action, and exemption from interference, which are the great privileges and blessings of society in this country.”   It thought that the “forfeiture or curtailment of such advantages would be too great a sacrifice for improvements in police, or facilities in the detection of crime, however desirable in themselves if abstractedly considered.”  When the Bill was passed in 1829, its application was confined only to Metropolitan London area.   Despite its early success, the expansion of police to other areas was gradual.  The Municipal Corporations Act of 1835 mandated all incorporated boroughs to set up police forces, but by 1853 only 22 counties of 52 in England had established police forces. Till then crime had not emerged as a big problem.

This, however, did not last long.  Along with the spread of democratic ideas, crime and violence increased all over the democratic world and this brought about a change in the relationship between the government, police and public. 

There is an increasing feeling that the democratic system in most parts of the world has failed to provide a feeling of security to the common man. The establishment of a feeling of security is extremely important because without it, one can not enjoy one’s basic needs and rights. As the UN Commission on Crime Prevention and Criminal Justice in 1995 said: “To feel safe from crime is as important to a person as access to food, shelter, education and health.” 

The philosophy of policing prescribed for the police forces in almost all democratic countries, including India, require them to be sensitive, responsive and uphold human rights.  The constitution, laws and police rules and regulations in our country propound a philosophy that is based on recognition of human rights. This poses a challenge before the police- how to provide a feeling of security from crime by operating within the framework of a constitutional or a legal system that recognises the philosophy of human rights. The police in most countries, including ours, have failed to operate in such a manner. Why?

The police generally think that human rights philosophy is antithetical to effective law enforcement.   Human rights are impediments to effective policing.  The only argument given so far to challenge this thinking of the police is to say that successful policing requires voluntary cooperation from the public and they cannot get it unless they respect citizens’ rights.  The police do not find this argument very convincing.

The police, in fact, are not sure if the public themselves have an abiding faith in the human rights philosophy.  In areas where and in times when crime is high and law and order disturbances are frequent and complex, the public feel insecure and want the police to provide them a climate free from crime or fear of crime and for this they are willing to pay a price even in terms of restriction of their rights. This has been proved by considerable research done by the Washington Office of Latin America (WOLA). Whenever crime increased in some Latin American countries, people demanded and extended support to tough policing. A similar finding emerges from the observations made by the Economist in its feature on Crime and Justice published in the Indian Express dated March 15, 2018

The State always uses the opportunity provided by the accelerating fear of crime to arm itself with repressive powers- to introduce black laws; enhance powers of the police; overlook use of third degree methods by state agencies and curtail citizens’ rights.  In such an environment where popular opinion supports authoritarian responses to crime and violence, the human rights movement suffers a set back. It faces an erosion of political support because the human rights groups are accused of coddling the criminals and ignoring the rights and needs of the citizens to live in a climate of peace and stability. That is why the onset of terrorism or organised violence in different parts of the world has led to curtailment of civil liberties and the public have finally accepted it. This has happened even in countries where democracy has taken roots. 

In emergency situations marked by violence or terrorism, some violations of human rights are bound to take place because the public and the police there live and operate in a climate of fear.  The chances of reacting with excessive use of force by the police in such situations can not be ruled out. As the Economist’s article referred to earlier says: “In general, the more murderous the country, the more deadly are its police”.

The problem, however, is that  complaints of human rights violations by the law enforcement agencies come not only from violence ridden places but also from areas which are normal and not facing emergency situations or insurgency.