ONLY DUE PROCESS

 Arrest of Mr Chidambaram

I read The Editorial “ONLY DUE PROCESS (IE, August 22) on Mr. Chidambaram’s arrest with great interest, but felt it did not measure up to the newspaper’s usually high standard.

There can be no two opinions about what is mentioned in the sub heading: “Case against P Chidambaram must proceed strictly according to the law, and must be seen to do so too.” The general tenor of your reasoning as well as the specific points raised in the editorial seem to suggest this is not being done, but how due process has been violated in the case has not been explained.

The first point raised in the article is that though the prosecution considers it a case of money laundering of “monumental magnitude”; yet the scenes that led up to arrest on 21st evening at Mr Chidambaram’s residence were “ unseemly and unprecedented.” This attempt to link the magnitude of money laundering with the scenes witnessed that evening is not clear.

Even if the scenes were unseemly, they were not unprecedented. One example of a more unbecoming incident that immediately comes to mind is when the Chennai police at midnight on June 30, 2001 dragged the four time Chief Minister of Tamilnadu Mr Karunanidhi out of bed, beat him up before arresting him in a corruption case. The scene of an old man and a former Chief Minister being dragged screaming, crying and kicking had shocked the nation. Nothing like that happened in Mr Chidambaram’s case.

 If incidents of that evening became ungainly, how can the CBI be held responsible for that? If the CBI had to scale the walls, they were forced to do so.  The editorial completely overlooks the behaviour of Mr Chidambaram, who, instead of voluntarily surrendering to the law and thereby obviating the need for any indecorous incident to occur, shut the door of his residence to prevent the entry of the CBI team.  According to the Cr P C, If an accused forcibly resists the endeavour to arrest him, or attempts to evade the arrest, the police are authorised to “use all means necessary to effect the arrest.” Whatever pre arrest “drama” occurred that day, the means used by the CBI to arrest were quite benign and legal. Yet, the editorial tries to “raise serious questions about the CBI’s conduct.” The question raised in the editorial is: what was the need for “high drama”  when the CBI was not dealing with a “declared offender” or a “heinous crime”?  Mr Chidambaram may not have been declared a proclaimed offender, but that he was evading arrest can not be denied.  Mr Chidambaram’s behaviour from the time anticipatory bail was denied to him clearly showed that he was trying to evade arrest. He remained untraceable for 28 hours and avoided facing the CBI.   He is accused of an economic offence, which sometimes causes greater harm to the society than a heinous crime. 

 It was not merely the prosecution that called it a money laundering case of “monumental magnitude.”   The Delhi High Court called him a “kingpin, that is the key conspirator” in a “classic case of money laundering”.  Later, the CBI court, while sending the Congress leader to CBI custody till 26th August also said: “Allegations against Chidambaram are serious in nature and in-depth investigation is required.” Even the apex court did not intervene in the CBI case.

The editorial refers to the Congress allegation that action against Chidambaram was a “show of political vendetta” Every time the CBI has acted against a prominent politician from the opposition, it has invariably been followed by a chorus of noises against the government. The idea is not so much to attack the CBI as to declare the government as the guilty party, thereby simultaneously proclaiming oneself to be  the innocent victim of vendetta politics. This happened in the UPA days and it is happening now. The question is, why has this type of response become a standard practice, and how does it impact the image of the premier investigating agency of the country? No accused in a criminal case ordinarily admits to his or her involvement in the crime. They all claim to be innocent. Therefore, the public should treat such statements as the wild rants of distressed politicians, but it does not always work that way. Over a period of time, the CBI’s image has been dented, partly due to its own performance and partly due to the repeated, standard response that the investigating agency's action in such cases is motivated by political considerations.  It gives rise to a perception that the CBI, like police forces in the country, is influenced in its work by the party in power. Crooked politicians take advantage of this public perception. Even in cases where the action taken against them is perfectly legitimate and as per the law, they invariably pose as victims of political vendetta and witch-hunting.

The editorial  criticises justice Gaur’s recommendation on bail by saying it is a “fundamental right” of citizens to be released on bail. While bail and not jail is a principle that is followed by the judiciary in this country, to call it a fundamental right is somewhat of an exaggeration.  

There is a feeling in the country that the rich and powerful people succeed in getting away with their misdeeds and the criminal justice system generally fails to make them accountable. This editorial would only help in perpetuating that public perception.

Politicised Policing

 

WEST BENGAL EVENTS ARE SYMPTOMATIC OF POLITICISED POLICING

According to a recent news item that received wide publicity, the West Bengal Chief Minister Mamta Banerjee ordered the police to arrest people who were chanting “Jai shri Ram” when her convoy was passing through the road. The police are reported to have apprehended 10 people from Barrackpore the next day. The news item became viral because people enjoyed the sight of a gusty CM losing her cool over a minor event, but no one raised the most relevant and important issue: under what authority did the CM issue such orders to the police. 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. Chanting a slogan like “Jai shri Ram” is no offence under any law and asking the police to arrest people involved in such chanting was completely illegal.  We in this country have become so accustomed to seeing the politicians issuing unauthorized orders to the police that no eyebrows were raised on learning either about CM’s orders or about action taken by the police.

The doctors’ strike in West Bengal is another event that highlights the same problem. The doctors were angry not only because they were assaulted but also because the police are reported to have remained inactive either in preventing the assault or in proceeding against those who were involved in the attack. The doctors raised a big question mark over the objectivity and impartiality of the police and the fact that this has received wide acceptance speaks volumes about how badly the police in the country have been politicised and politically polarised. 

Another recent event and the most deplorable one occurred when the Kolkata Police Commissioner Rajeev Kumar along with other senior officers sat on a dharna with the West Bengal Chief Minister at the Metro Channel in Kolkata. What the senior police officers did was not only violative of the provisions of AIS (Conduct) Rules, 1968/AIS (Discipline & Appeal) Rules, 1969, but also brought a bad name to the entire police force. This incident clearly shows how certain elements in politics and in police have become a strong mutually supporting system.  The existence of a symbolic relationship between politicians in power and the police officers gives rise to a climate of impunity and political patronage that results in creating and perpetuating a system where the best in the service cannot function without impediments and the worst find themselves protected in a way that demoralises ordinary good police personnel from working with honesty and commitment. This shatters the morale of honest officers and creates a general impression that the wrong ones always win the race. This impression percolates down the line and undercuts the will of men at various levels to act courageously and vigorously in conformity with law. It, therefore, no longer remains a question of a symbiotic relationship between some politicians and police officers. The effects of the relationship are felt by the entire organisation. It results in distorting the command structure of the police, erodes discipline, promotes impunity, breeds corruption and leads to the abuse of police authority and miscarriage of justice. It ultimately shakes the confidence of the public not only in the police but also in the entire system of governance. 

Insulating the police from politicisation and  accountability of police are at the heart of police reform and in need of urgent and vital attention from the point of view of addressing public needs and sustaining the constitutional system and rule of law. It is not as if the need for police reform has not been recognised.  We have appointed numerous commissions and committees, including the state police commissions in sixties and seventies, National Police Commission in late seventies and early eighties, Ribeiro Committee on Police Reforms in nineties, Padmanabhaiah Committee on Police Reforms and Malimath Committee on Reforms of Criminal Justice System in 2000, Soli Sorabjee Committee to Draft a Model Police Act in 2006, Second Administrative Reforms Commission in 2007 (Report on Public Order) etc. The Supreme Court stressed the need for police reform in its judgements, like those delivered in the Havala case in December 1998 and the other announced in September 2006. i

Most recommendations made by these high powered bodies have remained unimplemented The resistance to reform is deeply entrenched and it stems from the same consideration that led the colonial rulers to establish the system here. As long as the police remained subservient to the executive, they could always be misused to further the interests of the ruling classes. And misused they have been. The police leadership cannot be absolved of their responsibility as they have gone along with their masters and allowed the status quo to remain.

The existing system is unacceptable.  It has resulted in subverting the rule of law and in   obstructing the growth of a healthy and professional system of policing.  It must change. “The Government should make earnest efforts to depoliticise the institution of police before it becomes too late to retrieve it from the morass of degeneration.  It must be ensured that the police remains accountable only to the law of the land.” The Prime Minister has the reputation of fixing targets and achieving them. Hope he targets this area of reform, which, as the CHRI slogan goes, is too urgent to be delayed and too important to be neglected.     

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.  

 

THE CRIMINAL LAWS (RAJASTHAN AMENDMENT) ORDINANCE, 2017- ANOTHER NAME FOR IMPUNITY

THE CRIMINAL LAWS (RAJASTHAN AMENDMENT) ORDINANCE, 2017- ANOTHER NAME FOR IMPUNITY

The Criminal Laws (Rajasthan Amendment) Ordinance promulgated by Rajasthan Government on
September 6, 2017 requires prior permission of the state government before undertaking any
investigation against a serving or retired judge or a magistrate or a public servant “in respect of any
act done by them while acting or purporting to act in the discharge of their official duties” The
Ordinance also forbids the publication of any material that discloses the identity of the culprit till
the government gives sanction for prosecution.

The Ordinance has already generated considerable controversy. Even a BJP leader of Rajasthan has
called it an assault on democracy. The Congress Vice President has mocked the Rajasthan Chief
Minister by reminding her that we are in the year 2017 and not 1817. He, of course, conveniently
forgets that restrictions on police powers to investigate cognizable crime involving public servants
and on freedom of press were imposed by his father too in eighties. So what is being done by
Vasundhara Raje in 2017 was done by Rajiv Gandhir in 1986 and 1988. In the former year, his
government issued a Single Directive prohibiting the C B I from undertaking any enquiry against
any officer of the rank of Joint Secretary or above without prior sanction of the government. In
1988, his government introduced the Anti-Defamation Bill in the Parliament with the aim to
demoralise the journalists who wrote reports or articles to defame the government. The Bill placed
the entire burden of proof on the accused in defamation suits.

The only difference between the Single Directive and this Ordinance is that while the former was
meant to provide protection to officers of the rank of Joint Secretary and above, the latter has a
much wider reach, covering judicial officers and all public servants in the state, serving as well as
retired. However, the idea behind both the initiatives is the same. It is to provide impunity to those
who matter to people in positions of power.

It is surprising that the Rajasthan Government has promulgated such an Ordinance despite repeated
criticism of such protection by the Supreme Court on different occasions. The idea that the police
should not be allowed to investigate public servants without prior permission of the government
came up for hearing before the supreme Court first during the Havala case proceedings. The Court
declared this idea null and void on two counts. One, it required the police to seek permission from
the executive to initiate investigation into a criminal offence, which is contrary to law. Two, it
violated the constitutional canon of equality in the application of law. The Court said “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”. It thus violated Article 14 of the Constitution,
which requires the state to treat all equally before law. By not doing so, the state is violating the rule
of law, on which our whole democratic structure is based. The Rajasthan Government through this
Ordinance is doing exactly that.

The Rajasthan Ordinance seems to have created some confusion about government’s sanction to be
obtained. It incorporates the need to obtain sanction by amending Section 156 of the Criminal
Procedure Code, but requires that it be obtained under Section 197 of the Code. However, Section
153 falls under Chapter XII of the Code, which deals with police powers to investigate, while
Section 197 is covered under Chapter XIV that lays down “Conditions Requisite for Initiation of
Proceedings” in the court. Section 197 thus deals with sanction to prosecute a case, which is
different from sanction to investigate.

Protection against prosecution is already available to all public servants under Section 197 of the
Criminal Procedure Code and section 19 of the Prevention of Corruption Act of 1988. By giving
protection even at the stage of investigation, the Ordinance provides double protection to public
servants- from investigation as well as prosecution.

It has also been seen that such provisions of law are sometimes used to protect public servants even
in cases that have nothing to do with the discharge of their duties. The Central Vigilance
Commission in their Final Draft of the National Anti- Corruption Strategy prepared in September
2010 clearly said that the “need for prosecution sanction even in those offences which have no
connection with the discharge of their official duties and inordinate delay in sanction” is one of the
specific bottlenecks in the effective functioning of the CBI

There is already a culture of impunity that has been built up in this country over a period of time
through a combination of legal provisions and tardy functioning of the criminal justice system. The
Rajasthan Ordinance will only add to this culture of impunity.

PIERCING THE PANCHKULA HAZE- A REJOINDER

PIERCING THE PANCHKULA HAZE- A REJOINDER

The Ideas Page of the Indian Express dated August 31, 2017 is devoted to putting across the views of two police officers about what happened in Panchkula on August 25, 2017.While the senior retired police officer Mr Prakash Singh is of the view that there was a “terrible failure of leadership in Haryana at all levels-political, bureaucratic and police,” the serving and comparatively junior police  officer Mr Abhinav Kumar seems to think that  the blame   being ascribed to Haryana police for their failure to control the violence  is unjust. This view is “at best naïve and ill informed, and at worst maliciously biased. Either way it is wrong”

I read Mr Kumar’s article with great interest but with greater anguish, because, in my view, the article is heavily biased in favour of the police.

Why does Mr Kumar feel that to blame the police entirely for what happened in Panchkula on that fateful day is wrong. The only argument made is that “in the present scheme of things”, the decisions on allowing the crowd to assemble and using force to disperse them are “in the hands of the political executive.” There are two points that need to be made here. Firstly, what Mr Kumar says is contrary to the law and to all the instructions contained in the Police manuals.  Chapter 10 of the Cr P C on Maintenance of Public Order and Tranquility does not recognize any authority to disperse an unlawful assembly other than the police and the magistracy.  Panchkula being a Commissionarte of Police, the responsibility of making preparatory and other arrangements was entirely that of the police. Secondly, if, in the “present scheme of things” the police authority to enforce the law of the land has been completely eroded due to political pressure, the police are as much to blame as the political executive. However, Mr Kumar further seems to think that the “present scheme of things” is somewhat reasonable as he suggests that “one cannot easily take away the right of political executive to make the decision to exercise restraint till the last moment” In other words, if the political executive decides to exercise restraint due to political considerations and the crowd turns into a riotous mob, causing large scale death and destruction, neither the political executive nor the police are to be blamed. Mr Kumar does not suggest who should be held accountable in such a situation. How much restraint is to be exercised and how much force is to be used to ensure that law and order is maintained are the decisions that, according to law and rules and regulations, are to be taken by the law enforcement authorities.

Riot drill teaches the police officers to plan their tactics of dealing with a mob in three stages-the preparatory, action and after action stage.  The inept handling of the Haryana police is seen more at the preparatory than at other stages.  It is learnt that intelligence was available that there was a danger of serious disturbance occurring at Panchkula on that day.  The hooligans came prepared and armed, travelling long distances by trains, buses and other means, but no action was taken to stop them from reaching the trouble spot.  Nothing can justify the failure of the police to take preventive action to control the crowd by saying that they were pressurised by the political executive to do so.

Any censure of police action in such situations is generally dismissed by police officers as unwarranted armchair criticism coming from those who did not have to bear the brunt of mob’s fury in the form of stones and other missiles but who became wise in hindsight after the police controlled the situation.   This response is so common, but is also so shortsighted, as it deprives the police of an opportunity to review different incidents to find what went wrong with their methods and tactics, their training, equipment and command and control.   A review of such incidents would enable them to learn how to develop a high level of riot control capability, which would help in reducing the intensity of confrontations and in managing situations more effectively in future than was done this time. It is this type of review that needs to be done by the police and not to pass on the blame to political executive or to other authorities.

 The number of security personnel deployed by the centre was probably more than the number of state police personnel stationed in Panchkula to control the situation. Despite the Police and Public Order being State subjects under the Constitution of India, the central government has taken interest in policing in the country.   From the very beginning, it has focused on raising and expanding its own para military set up.  Most of its expenditure on Police every year is spent on meeting the requirements of para military forces. This expenditure has been rising every year. There has been very heavy deployment of these forces on law and order duties in states.  While the state governments have found it administratively convenient and economically beneficial to let the central forces handle their serious law and order problems, the availability of central assistance has unwittingly inhibited the development of their police forces.  What is required   is to train and develop the state police forces to become effective enough to deal with such situations on their own.

 The above rejoinder was written in response to an article by Mr Abhinav Kumar, a serving IPS officer and published in the Indian Express dated August 31, 2017. Mr. Kumar’s article is reproduced below:

Piercing the Panchkula Haze

The real tragedy of Panchkula is not the blame game and turf wars. It is the death of nearly 40 citizens at the hands of the state. 

The last week was not a good time to be a godman in India. It was, however, a worse time to be a policeman in India. That the police were cowardly, incompetent and ineffective is a cliché of our times. It can be applied anywhere, most recently to the violence in Panchkula. So whether one believes that the situation was saved by the brave woman deputy commissioner of Panchkula, or by the arrival of the Indian Army, all the different narratives are united in their contempt for the conduct of the Haryana Police and the Central Armed Police Forces (CAPFs) deployed with them. Having seen the challenges faced by the Haryana police over the last week at close quarters, this view is at best naive and ill-informed, and at worst maliciously biased. Either way, it is quite simply, wrong.

The police leadership of Haryana is being criticised for allowing a large crowd to gather in Panchkula in the days preceding the judgment. Within minutes of the verdict, mob frenzy took over. For nearly an hour, the Dera premis went on the rampage, burning vehicles, attacking police personnel on duty and damaging government property. Even the media were not spared. Their reporters were brutally attacked and their OB vans were burnt. The sky above Panchkula turned grey with smoke.

The initial onslaught certainly took the security forces by surprise. Once the order to disperse the mob by any means necessary was given, the sound of gunfire rang out and within a few minutes, the mob ran helter-skelter. An hour of mob fury was followed by an hour of the state displaying its heavy hand. It left 39 persons dead, while scores more were injured.

As with all such things in our country, politics soon overtook any rational analysis and debate about what had just happened, largely in Panchkula, but also in fits and spurts in other parts of Haryana and Punjab. The epicentre of the Dera, Sirsa, saw six deaths. While Punjab, too, was the scene of some destruction of property, thankfully there was no loss of life.

Sit

The events of Panchkula undoubtedly pose many uncomfortable questions for all of us in positions of authority. However, even before the dust has settled, the blame game and scrambling to take credit based on individual ambition and institutional turf has begun. One account would have us believe that but for one brave IAS officer, the ransacking of Panchkula was imminent. Another would have us believe that all was lost till the army arrived and saved the bumbling civilian administration yet again. Both narratives are economical with the truth. The officer was throughout escorted by policemen and the army did not fire a single shot. This is not to deny them their role in bringing the violence under control, but only to place it in perspective and set the record straight. What is more worrying is such simplistic self-serving narratives find takers in public discourse.

Let’s be clear on one count. In the present scheme of things, the decision on whether a large crowd is to be allowed to assemble in the first place, whether preventive measures are to be taken, or whether a punitive response can take place only after violence has happened, is in the hands of the political executive. It is not a decision a chief secretary or a DGP can take on their own. As for the political executive, over the years, a consensus, cutting across party lines, has emerged that the political costs of pre-emptive action are not acceptable. It is to let the administration respond after violence has taken place and not second guess the intention of an assembled crowd and be accused of high-handedness. Legally, too, the bar for using deadly force in self-defence is set much lower than for using it to preempt violence. We can call it cowardice, incompetence, or collusion. But one cannot easily take away the right of the political executive to make the decision to exercise restraint till the last possible moment. This issue requires a more nuanced discussion and debate.

The second issue is about the capacity of the state to deal with such crowds. Over the years, the states of India have simply not invested enough in the police. As a result, for anything more than a routine, local law and order problem, the states end up seeking assistance from the Centre. This is usually provided in the form of CAPFs, and in extreme cases, by the Indian Army. Over the years, the CAPFs have grown to number nearly a million and provide crucial support to local police forces in a range of situations. However, other than the CRPF, the deployment of all other CAPFs comes at the cost of their primary mission and training. Similarly, the preparedness of the army is also affected by frequent interventions in civil emergencies. We really need to have a national mission to build state police capacities. A better-staffed, better-trained and better-equipped police force with its ear to the ground would be a more effective bulwark against law and order problems than central forces.

Last but not the least is the role of the Indian Army in such situations. In the aftermath of Panchkula, a section of our military veterans took to the media with uncompromising expressions of contempt and ridicule for civil authorities and the police. This is not only unfortunate, but also betrays a profound ignorance about civil-military relations. These self-styled custodians of the Indian Army seem to exist in a sociological and historical bubble. More worryingly, they think that military tactics and value systems are the best way to assess the response of civil authorities in law and order situations. They forget that the crowds we face are not our enemy, retreating before them and showing restraint in the face of their violent provocations is not cowardice. Shoot first ask questions later may be a sound military dictum, but it would be a poor policing tactic. The army coming to the aid of civilian authority is not a favour extended by the former to the citizens; it is an integral part of the charter of duties of any armed forces in a democracy.

The real tragedy of Panchkula is not the blame game and turf wars. It is the death of nearly 40 citizens at the hands of the state. They were not demanding the break-up of India. They were blinded by their faith in a conman, who, perhaps, gave some sense of meaning and purpose in their life. By all accounts, they came from the poorest and most marginalised sections of our society. Instead of chest thumping and finger pointing, it is important we find ways and means to ensure that such a tragedy is not repeated.

THE CBI AND THE POLITICIANS

THE CBI AND THE POLITICIANS

Two recent raids by the CBI on the properties of prominent politicians have received wide publicity.  In one case, the CBI raided 14 residential premises owned by former Union Finance Minister P Chidambaram and his son Karti Chidambaram. In the other case, the raids were conducted on the properties of Lalu Prasad and his family members.

 Action taken by the CBI elicited similar sharp reactions from the affected parties and their supporters.   It was done to silence the voices that were critical of the government and it was motivated by political considerations.  Chidambaram said :”The government’s aim is to silence my voice and stop me from writing…”  Lalu Prasad said that the entire exercise was a political vendetta aimed at intimidating and preventing him from organising the opposition parties against the BJP.  Many political parties have supported what Lalu Prasad has said.

Politicians accused in criminal cases often come out with another reaction.  “Let the law take its own course”- they fearlessly and condescendingly proclaim from the roof top. They say this because they know that law in many cases fails to take its proper course, primarily due to three reasons.  Firstly, the justice system is cumbersome, dilatory and badly flawed. Secondly, the anti-corruption agencies do not function effectively, particularly against rich or politically influential people.  Thirdly, law itself leaves scope for the guilty to escape unharmed by having provisions that provide impunity and can always be manipulated.

Every time the CBI has acted against a prominent politician from the opposition, it has invariably been followed by a chorus of noises against the government.   The idea is not so much to attack the CBI as to declare the government as the guilty party, thereby simultaneously proclaiming oneself as an innocent victim of the vendetta politics. This was happening in the UPA days and it is happening  now.  The question is why has this type of response become a standard practice and how does it impact on the image of the premier investigating agency of the country.

No accused in criminal cases ordinarily admits to his or her involvement in crime.  They all claim to be innocent.  Therefore, the public should normally treat such hullaballoo as the wild ranting of the politicians in distress situations, but it does not always work out that way. Over a period of time, the CBI’s image has been very badly dented, partly due to their own performance and partly due to the repeated standard response that the CBI’s action in such cases is motivated by political considerations.

Though the public do not hold the politicians in this country in high esteem, this type of criticism does create a seed of doubt in the public mind that action of the CBI against government’s opponents is not always straight and honest.  There is a public perception that the CBI, like other police forces in the country, is influenced in its work by the party in power.   The crooked politicians take advantage of this public perception.  Even where action taken against them is perfectly legitimate and is as per the law, they invariably pose as victims of political vendetta and witch hunting.   It is easy and convenient to attack the CBI by calling it a handmaiden of the party in power. Becoming a victim of political revenge fetches them greater sympathy than other arguments.

 Regrettably, the public perception about the CBI becoming highly politicised is supported by facts.  In some cases against ruling party politicians, the CBI has shown either reluctance to take up investigation or when forced to do so, adopted dilatory tactics.  It has also shown considerably uncharacteristic zeal in pursuing cases against politicians in opposition and has sometimes been shamelessly brazen in shifting its stand depending on the accused’s equation with the party in power.  CBI’s dealings with cases involving Mayawati and Mulayam Singh during UPA’s rule often invited scathing criticism from the Supreme Court on this ground.

 The CBI is a central police organisation and it is the central government’s responsibility to make it professionally strong and impartial.   Lamentably enough, it has not done much in this direction.  On occasions, the central government has, in fact, issued orders scuttling the powers of the CBI, making it dependent on the government in conducting its operations.  

 The CBI figures in the Union List of the Seventh Schedule of the Constitution of India.  Considering the importance that the framers of the Constitution had attached to the organisation, it is rather strange, indeed ironical, that its working is still  governed by an outdated Act of Second World War vintage, called the Delhi Police Establishment Act, which was enacted in 1946 for a limited purpose.

 If the CBI has to function as an impartial and effective organisation, certain measures are essential.  One of these is to enact a law, which must define the status, functions and powers of the CBI and its relationship with the government, not allow anyone to enjoy impunity and establish effective institutional arrangements to insulate the organisation against illegitimate outside pressures and influences.  The Supreme Court on occasions made attempts to provide it the type of insulation it requires, but unfortunately failed. Let the law do it now.

TEJ BAHADUR YADAV & THE BSF

TEJ BAHADUR YADAV’S VIDEOS-
SYMPTOMATIC OF A DEEPER MAILAISE

Few months ago, Tej Bahadur Yadav, a BSF constable, figured prominently in the news, as he had posted two videos in the social media, complaining about the poor quality of food served to jawans and also alleging that the food supplies meant for them were being siphoned off by officers. The other day he was dismissed from service by the BSF.

Tej Bahadur Yadav was charged with certain offences under the BSF Act.  He was tried by a Summary Security Force Court and found guilty of the charges leveled against him. He was dismissed from the service, thereby depriving him of the pensionary benefits which would have accrued to him in case his application seeking voluntary retirement from service had been accepted.  Probably, the idea was not merely to punish but also to teach him and others of his ilk a lesson so that such acts are not repeated.

The purpose of writing this piece is not to examine whether the allegations made by Yadav   were true or false; nor is it to appraise whether what was done to him was right or wrong.  This case is important for reasons that go beyond what the videos show. The videos are merely symptomatic of a much deeper malaise that afflicts the para military forces, like the BSF.

The BSF is a huge force, that was set up on December 1, 1965 by amalgamating twenty five and a half state armed police battalions posted on the Indo-Pak border. Since then it has expanded very fast and on January 1, 2016, it had 179 battalions, having sanctioned strength of 2,57,025.  Expansion has not merely been rapid but also unplanned, leading to various problems of discipline and morale resulting from poor career planning and managerial policies.  In almost every central para military force, there is considerable stagnation not only at lower levels, but also of departmental officers, who were taken from a wide variety of sources, including the army, state police forces and directly from the market. Lack of adequate career opportunities for them has often led to discontent, with departmental officers going to courts on a few occasions. This naturally does not produce an environment that is conducive to maintaining and enhancing the morale of the lower ranks.

  In any case, the BSF job is stressful. It is risky and hazardous. According to data maintained in the Martyrs’ Book of the BSF, as many as 573 BSF personnel died in action during the 15 year period from 2000 to 2014.  In addition, suicides, cardiac problems, ulcers, depression and other stress related diseases also take a toll of lower ranks.  The problem of alcoholism (of which Yadav was also accused), marital discord and domestic violence are other manifestation of the job related stress.

The fact that men in central para military forces are unhappy with their living and working conditions can hardly be denied.  This is obvious from the large exodus of personnel, which has been taking place every year from these forces.  According to a media report dated   October 22, 2012, more than 44,000 para military personnel had quit their forces since 2009.  The high attrition rate in the para military forces so unnerved the central government that they commissioned the Indian Institute of Management, Ahmedabad to study the reasons for high exodus and suggest measures to halt the migration. The study, according to the media report, found that “continuous posting in difficult areas, long working hours, sleep deprivation, denial of leave, lack of healthcare facilities and delay in promotions and pay parity were all leading to unbearable stress among personnel”. That the situation did not improve much is obvious from another media report of August 29, 2013, according to which a whopping 35513 personnel of the central armed police forces  opted for voluntary retirement in the last two years.. Significantly, the highest number of personnel to seek VRS were from the BSF (15990). As per the latest report dated February 7, 2017: “In the last three years, nearly 20,000 CAPF personnel have resigned from six forces: CRPF, BSF, ITBP, SSB, CISF and Assam Rifles”

In such a situation the manner in which the leadership handles men and their problems becomes highly important and that is where things usually go wrong.  The quality of communication that takes place between the senior officers and junior ranks in these organisations is generally poor.  Indeed over a period of time, the gap between them has become wider and the quality of communication has become poorer.  Consequently, there is either less understanding of the problems faced by the lower ranks or inadequate sensitivity towards the lot of the people who are at the lowest rungs even though they constitute the bulk of the force.

 What Pratap Bhanu Mehta said in a different context in a brilliant article titled “Honour Among Cops” published in the Indian Express dated September 21, 2010 is apt here too: “The lives of policemen and paramilitary forces are cheap in every respect, as if they were simply an army of surplus labour. A state that does not take the lives of those who discharge its sovereign functions seriously is unlikely to be able to send a signal to anyone else in the society that it takes their lives seriously.”  l

 This article was published by the Daily O, a periodical of The India Today group, on 27.04.2017

POLICE REFORM- NEED OF THE HOUR

POLICE REFORM- NEED OF THE HOUR

The recent attack on the army base in Uri has caused widespread public rage.  While the army and the NIA will be investigating the failures that allowed the terrorists  to infiltrate into the camp, it is important to reflect on our vulnerabilities that make it possible for such incidents to occur again and again.  It is obvious that we do not learn from our weaknesses and fail to take corrective measures in time.

The main responsibility of controlling terrorism in the country is of the police force and it is here that our failures are so strikingly noticeable.  We did inherit a bad system of policing from the British, but over a period of time, we have made it worse.

The need for police reform has been realised in many countries. In some, important police reform initiatives have been born either out of conflict situations, like those that occurred in South Africa, Northern Ireland, Eastern Timor,  or out of major corruption scandals, like the appointment of the Royal Commission on Policing in the UK, Fitzerald Commission in Queensland in Australia and Knapp Commission in the USA.  Even an incident of murder, like that of Stephen Lawrence in London in April 1993, gave a big jolt to the collective conscience of people in the United Kingdom, leading to major reforms in the laws,  structure  and  functioning of the police in that country.. 

In this background, it is remarkable that a major event like the violent terrorist attack on  Mumbai in 2008 did not give rise to major police reforms.  No other incident in post independent India exposed the glaring deficiencies in the functioning of police in this country as this incident.  It created furore inside and outside Parliament.  About eight years have passed, but there has been no perceptible improvement in terror fighting capability of the police force.  Since the Mumbai incident, numerous terror related incidents in different parts of the country have taken place and the police forces’ response has been as good or as bad as it was during the Mumbai terror attack.  

After the Mumbai massacre, steps taken by the central government included the setting up of a new agency like the NIA, establishing new hubs of NSG, making the provisions of anti terror law more stringent and setting up of counter insurgency and anti terrorism training schools. However, the central and state governments forgot that there was a huge existing police force waiting to be reformed. It was not realised it would not be possible for the police forces to deal with such incidents in future unless the police were depoliticised and professionalised and their requirements met without delay. In 2002, the Department related Parliamentary Standing Committee of Home Affairs in its Eighty Eight Report on The Demand for Grants  of the Ministry of Home Affairs advised the government to “make earnest efforts to depoliticise the institution of police before it becomes too late to retrieve it from the morass of degeneration.  It must be ensured that the police remain accountable only to the law of the land.” The advice fell on deaf ears of the government of the day and of the subsequent governments.

Preventing and fighting terrorism requires a police force that is foundationally strong to function in an efficient and effective but also unbiased manner. What will really win the war against terror is public faith and confidence in the efficiency and integrity of the police agencies- a faith that leads to increasing inflow of intelligence and a willing cooperation being provided to the security forces. The police therefore have to make a conscious effort to win the hearts and minds of the citizens of all communities. This can happen only when they start doing their basic job in a professionally efficient, honest and impartial manner and the government provides the police the environment and the enabling capacity to do so.   

We are about to complete the ten years of the Supreme Court’s verdict on police reforms on September 22.   It was on this day in 2006 that the Supreme Court delivered its long pending judgment in Prakash Singh’s case.  The judgement directed the state governments to comply with a set of six directives to kick-start police reform.   Most state governments have not shown any inclination to implement the judgement  They have found numerous methods to thwart its implementation. One can understand the unwillingness of the governments not to implement the directives that impinge on their powers to control the police, but even some innocuous directives have not been acted upon.

Adding salt to police wounds, the central government in the last budget decided to reduce the funds for the modernisation of the police forces. The Police Modernisation Scheme has been in existence for more than four and a half decades now.  It has definitely succeeded in improving the mobility, communication and other facilities available to the police, but it has yet to succeed in giving a comprehensive modern look to the police forces. This is the time the government must take all steps to enhance the capability of the police to deal with the problem of terrorism in a professional manner.  The Police Modernisation Scheme can play an important role in augmenting the police ability to handle the problem of terrorism effectively.

The country cannot afford to keep on neglecting the police.  On this anniversary of the Supreme Court’s judgment, the governments need to be reminded that the need for police reform in the country is too important to neglect and too urgent to delay.

POLICE POWERS TO ARREST

POLICE POWERS TO ARREST

Recently, the CBI arrested Mr. B. K. Bansal, Director General in the Ministry of Corporate Affairs for allegedly accepting bribe money from a pharmaceutical company.  A day after the arrest, his wife and daughter committed suicide because they were not able to bear the ignominy resulting from the incident.

The court, while granting bail to Bansal, raised a very important question.  Was it necessary to arrest him in the case?

The CBI has explained that the arrest of Mr. Bansal was according to law.  Of course, it was according to law.  The CBI has powers under the law to arrest the accused in such cases.  But power to arrest is one thing; justification to do so is another.

An answer to the question raised by the court is necessary not because two innocent lives were unnecessarily lost, but because it raises some important concerns. The discussion on this issue needs to go beyond Mr Bansal’s case to include an analysis of police powers of arrest and the indiscriminate way these powers are used.

The police arrest a large number of people in their day-to-day work.  According to the Crime In India, they arrested 85, 95,194 persons under the Indian Penal Code and the local and special laws during 2014.

To what extent are the arrests made by the police justified? This issue has been examined on various occasions. For example, the National Police Commission in its Third Report (January 1980) observed that a large number of arrests made by the police were not only unnecessary from the point of view of controlling crime, but needlessly imposed avoidable burden on the state exchequer in the form of expenditure on harbouring and maintaining the arrested persons in jails. The Commission estimated that 43.2% of the jail expenditure was incurred on prisoners who “need not have been arrested at all.”

A study conducted by the Law Commission of India on the basis of empirical data collected from different states in India confirmed these findings.  It showed that the number of preventive arrests and arrests for petty offences was substantially large; the percentage of under trial prisoners was unusually high and most of them were there because they were not able to post bail or furnish sureties. The Law Commission recommended that the police should not be allowed to arrest people involved in certain categories of offences.

The Supreme Court of India in its judgment of Arnesh Kumar vs. State of Bihar and Others Laid down the principles for making arrest and detention under the Code of Criminal Procedure.  It held that no arrest should be made in a routine, casual and high-handed manner  
 Both the National Police Commission and the Supreme Court in its judgments have prescribed the circumstances in which an arrest may be justified.  Broadly, the list says that an arrest may be justified :
•in a heinous crime like murder, robbery, rape etc where it is necessary to restraint the movement of the accused to “infuse confidence among the terror stricken victims;” or
•to prevent the accused from absconding and evading the processes of law; or
•to prevent destruction of or tampering with evidence by the accused; or
•to prevent such person from committing any further offence; or
•to ensure presence of the accused in the court; or
•where arrest  is necessary for proper investigation of the case.

Most of the above circumstances mentioned cannot be applied convincingly to Mr. Bansal’s case. The offence allegedly committed by Mr Bansal falls in the category of white collar crime where the evidence to be collected by the investigating agency is mostly documentary in nature.  In such cases, the investigating officers can carry out their investigation without  arresting the offenders.

While the CBI Manual wants the investigating officers to be cautious in arresting accused, the Manual suggests extra care to be taken while affecting the arrest of a public servant.  Paragraph 12.4 of the chapter 12 of the Manual says: “Public servants should be placed under arrest only when it becomes necessary to do so in the interest of investigation or to satisfy the requirements of law or to prevent the accused from absconding or after a decision has been taken to launch a prosecution and necessary sanction for it has been obtained.”.   None of the eventualities mentioned in this paragraph seemed to have arisen in the case of Mr Bansal. He was a public servant with a high position in the government service and could not have been expected to run away.

The arrest of Mr Bansal becomes particularly unnecessary in view of the amended law of arrest as embodied in Section 41 A of the Cr PC.  According to this Section of law, in cases where an arrest is not considered necessary, the police officer can require the accused person to appear for investigation by issuing a notice to him.  It is mandatory for the accused to comply with the terms of the notice. In case of failure to comply, it is lawful for the police officer to arrest him.  Mr. Bansal’s examination could have been done by summoning him, whenever needed.

In Mr. Bansal’s case, the court asked the CBI to “rethink” if the arrest was necessary.  Actually, all police forces should rethink before making arrests.