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.