WILL APEX COURT’s SCHEME ENSURE CBI AUTONOMY?
A dispassionate study of the recent judgment of the Supreme Court about the superintendence and control over the Central Bureau of Investigation (CBI) evokes a mixed response. The judgment welcome on two counts-first for focusing on the need to insulate the CBI from “extraneous influences” and secondly, for quashing the infamous “Single Directive” on the grounds of it being bad in law However, the institutional and other arrangements suggested to replace the existing system may not provide the type of insulation required for the CBI to function as an effective but a fair and impartial organization.
The court had felt that allegations of a “definite nexus between a crime and corruption in public life at high places in the country” and the CBI and other investigating agencies showing “inertia” in investigation offences involving influential persons revealed a grave situation that posed a serious threat “even to the unity and integrity of the nation”. It considered it necessary to issue orders that would activate the CBI and other agencies to “at least commence a fruitful investigation.”
It took up the responsibility of monitoring the progress of investigations and directed the CBI not to report progress to the person occupying the “highest office in the political executive.” It reiterated the basic tenet of rule of law: “Be you ever so high, the law is above you” and stressed that investigations into accusations must therefore, be completed expeditiously, irrespective of status or position of the accused.
Another significant result of the judgment has been to quash a part of what is termed as the Single Directive by which the Government had debarred the CBI from undertaking any enquiry against any officer of the rank of Joint Secretary or above in the Central Government, including those in Public Sector Undertakings, Reserve Bank of India, SEBI and nationalized banks, without prior sanction of the Secretary of the concerned ministry / department.
In addition to quashing the Single Directive, the judgment issues directions aimed at insulating the CBI from “extraneous influences” and here it raises more questions than it answers. While the Court entrusts the responsibility of exercising superintendence over the CBI’s functioning to the Central Vigilance Commission (CVC), it simultaneously holds that the concerned minister shall be ultimately responsible for its efficient functioning to Parliament. The charters of responsibility of the Central Government and the CVC to exercise supervision over the CBI are to clear. It appears that the Court has made a distinction between the Government’s general responsibility and the CVC’s specific responsibility to ensure an efficient and impartial functioning of the CBI. The line of distinction, however, is too thin to be observed and maintained in practice.
It has been held by the Court that none of the minister’s powers can extend to interfering with the course of investigation and prosecution in any individual case. Investigation is to be governed strictly by the provisions of law. In fact, the process of investigation, including “the initiation and manner of investigation of the offence.” has not been regarded by the Court as “an area which can be included within the meaning of superintendence in Section 4 (1)” of the Delhi Special Police Establishment Act 1946. In this respect, the CVC’s authority of exercising superintendence would be no different from what has been in case of the Central Government.
At present, the CVC has neither any constitutional nor statutory bases. It was set up by the government of India in February 1964 on the recommendation of the Santhanam Committee on Corruption. The Commission is a part of the executive and has invariably been headed by a senior bureaucrat serving or retired. Its functions are mainly advisory and it is up to the central government to accept its advice in vigilance and corruption cases involving Central Government employees. The fact that corruption amongst public servants at the Centre has increased considerably since the commission was set up indicates that it has not been successful in achieving its objectives.
The CVC’s experience or expertise is limited by its charter of dealing only with corruption or vigilance matters. The CBI on the other hand deals not only with corruption cases but also with major crimes having inter-state or international ramifications.
Thus neither the structure of the Commission nor its charter nor its record inspire any confidence that the new arrangements suggested would really insulate the CBI from wrong and illegitimate influences.
The directions given in the judgment about selecting officers for the posts of Central Vigilance Commissioner and Director CBI only strengthen this apprehension. Selection of the Central Vigilance Commissioner is to be made by a Committee consisting of the Prime Minister, the home minister and the Leader of the Opposition from a panel of “outstanding civil servants and others of impeccable integrity” to be furnished by the Cabinet Secretary. Selection of the CBI Director shall be made by a Committee headed by the Central Vigilance Commissioner with the Home Secretary and Secretary (Personnel) as members. Thus while a committee of politicians will select the central vigilance commissioner, a bureaucrats’ board will choose the CBI Director. This board would also have the power to extend or prematurely terminate the tenure of officers up to the rank of Joint Director in the CBI.
The judgment has the effect of enhancing the powers of civil servants over an important organization like the CBI. This should not cause any worry to politicians as most illegitimate political control over the police organizations in this country has not been direct; it has been exercised through senior bureaucrats.
The judgment directs that the CVC shall be given statutory basis. Legislation enacted for this purpose must provide for enough checks and balances to ensure that the CBI’s functioning serves the law of the land and not the vested interests of politicians or bureaucrats. The minimum that should be done is to give the CVC a quasi-judicial status or to provide that the head of the CVC shall be a judge, serving or retired, at least of the High Court. ( Published in the Times of India dated March 18, 1998)
Wednesday, March 18, 1998
Sunday, December 1, 1996
GROWTH OF POLICE IN INDIA
POLICING SINCE INDEPENDENCE
There has been considerable improvement in manpower and other resources of the police since Independence. The total strength of the police in India in 1947 was 3.81 lakhs. By 1995, the strength of the state police forces had increased to 13.41 lakhs. In addition, the central para-military forces, mostly raised since Independence, had a strength of 5.61 lakhs on 1.1.1995.
In 1947, the police forces were ill equipped without adequate transport and communication facilities. On January 1, 1995 about 73,000 different types of vehicles were available with the state police forces and a network of about 90,000 police wireless stations existed in the country. At the time of Independence, there was not a single full-fledged forensic science laboratory, while now there are 18 State and four Central Forensic Science Laboratories to provide scientific aids to investigation.
At that time, the educational standards of the police were low. Most of constabulary consisted of either illiterate or semi-literate personnel. Now matriculation is the minimum qualification for recruitment as constable and graduation for entry as Sub-inspector. The opportunities for exposure to new ideas and techniques through in-service training courses have also increased.
The expansion of the police forces and improvement in their resources have led to
considerable increase in expenditure on the police. In 1951-52, the revenue incurred bythe central as well as state governments on the police was only Rs. 58.73 crore. In 1995- 96, on the other hand, the expenditure incurred on the state police forces was as high as Rs.7198 crore.
What have been the returns to the public on the resources invested in policing?
Undoubtedly, the police now are larger in size, better equipped, better educated and presumably better trained than what they were earlier, but has there been an improvement in their professional standards? The public do not think so.
Crime, which causes tremendous human suffering and is a cause for major public
concern, has continued to rise. The total cognizable crime in 1948 was 6,25,909. By 1994, the latest year for which crime statistics are available, cognizable crime under IPC had increased to 16,35,251 i.e. by 161.2 percent. What is more disturbing, form public point of view is the fact that violent crime has increased at a faster rate than total crime. While only 49,578 violent crimes were reported in 1953, this figure had gone up to 2,35,228 in 1994 i.e. an increase of 374.4 percent. The increasing trend in crime had been accompanied by a continuous fall in conviction rate. While in 1961, 64.8 per cent of the IPC cases ended in conviction, by 1971, the conviction rate had declined to 62.0 per cent,by 1981 to 52.5 per cent, by 1991 to 47.8 per cent an 1994 to 42.9 per cent.
The fall in conviction rate indicates a decline in the quality of criminal investigations,though successful convictions do depend upon other factors too. The fact is that investigation work is not receiving adequate attention, with law and order and security duties figuring high in the priority list. It is this factor which has largely shaped the growth and composition of the police as well as the pattern of policing. There has been a rapid expansion of the armed police in the country. A number of new para-military forces have been established since Independence, particularly by the Centre and these forces have seen enormous expansion during the last few years. A huge chunk of central expenditure on police is being spent on the maintenance of these forces.
The record, however has not been entirely dismal. The police have some good achievements to their credit,particularly in dealing with emergency situations. They have handled a variety of law and order situations with reasonable success and their record in dealing with problems of insurgency and terrorism has not been bad. What is most creditworthy is the fact that the policemen have performed their arduous jobs under very tough conditions, making supreme sacrifices at the altar of duty. A large number of policemen have lost their lives in line of duty. The existence of a body of about 19 lakhs police personnel, fairly well disciplined, can be a great boon to society, provided their vulnerability to undesirable illegitimate pressures is reduced, their professional capability enhanced and they are made accountable for what they do and the manner in which they do it.
(Published in the Pioneer dated 01/12/96)
There has been considerable improvement in manpower and other resources of the police since Independence. The total strength of the police in India in 1947 was 3.81 lakhs. By 1995, the strength of the state police forces had increased to 13.41 lakhs. In addition, the central para-military forces, mostly raised since Independence, had a strength of 5.61 lakhs on 1.1.1995.
In 1947, the police forces were ill equipped without adequate transport and communication facilities. On January 1, 1995 about 73,000 different types of vehicles were available with the state police forces and a network of about 90,000 police wireless stations existed in the country. At the time of Independence, there was not a single full-fledged forensic science laboratory, while now there are 18 State and four Central Forensic Science Laboratories to provide scientific aids to investigation.
At that time, the educational standards of the police were low. Most of constabulary consisted of either illiterate or semi-literate personnel. Now matriculation is the minimum qualification for recruitment as constable and graduation for entry as Sub-inspector. The opportunities for exposure to new ideas and techniques through in-service training courses have also increased.
The expansion of the police forces and improvement in their resources have led to
considerable increase in expenditure on the police. In 1951-52, the revenue incurred bythe central as well as state governments on the police was only Rs. 58.73 crore. In 1995- 96, on the other hand, the expenditure incurred on the state police forces was as high as Rs.7198 crore.
What have been the returns to the public on the resources invested in policing?
Undoubtedly, the police now are larger in size, better equipped, better educated and presumably better trained than what they were earlier, but has there been an improvement in their professional standards? The public do not think so.
Crime, which causes tremendous human suffering and is a cause for major public
concern, has continued to rise. The total cognizable crime in 1948 was 6,25,909. By 1994, the latest year for which crime statistics are available, cognizable crime under IPC had increased to 16,35,251 i.e. by 161.2 percent. What is more disturbing, form public point of view is the fact that violent crime has increased at a faster rate than total crime. While only 49,578 violent crimes were reported in 1953, this figure had gone up to 2,35,228 in 1994 i.e. an increase of 374.4 percent. The increasing trend in crime had been accompanied by a continuous fall in conviction rate. While in 1961, 64.8 per cent of the IPC cases ended in conviction, by 1971, the conviction rate had declined to 62.0 per cent,by 1981 to 52.5 per cent, by 1991 to 47.8 per cent an 1994 to 42.9 per cent.
The fall in conviction rate indicates a decline in the quality of criminal investigations,though successful convictions do depend upon other factors too. The fact is that investigation work is not receiving adequate attention, with law and order and security duties figuring high in the priority list. It is this factor which has largely shaped the growth and composition of the police as well as the pattern of policing. There has been a rapid expansion of the armed police in the country. A number of new para-military forces have been established since Independence, particularly by the Centre and these forces have seen enormous expansion during the last few years. A huge chunk of central expenditure on police is being spent on the maintenance of these forces.
The record, however has not been entirely dismal. The police have some good achievements to their credit,particularly in dealing with emergency situations. They have handled a variety of law and order situations with reasonable success and their record in dealing with problems of insurgency and terrorism has not been bad. What is most creditworthy is the fact that the policemen have performed their arduous jobs under very tough conditions, making supreme sacrifices at the altar of duty. A large number of policemen have lost their lives in line of duty. The existence of a body of about 19 lakhs police personnel, fairly well disciplined, can be a great boon to society, provided their vulnerability to undesirable illegitimate pressures is reduced, their professional capability enhanced and they are made accountable for what they do and the manner in which they do it.
(Published in the Pioneer dated 01/12/96)
Tuesday, November 12, 1996
COMMUNAL BIAS IN THE POLICE
SECTARIAN VIRUS IN THE POLICE FORCE
The Union Home Minister, Mr. Indrajit Gupta, seems to have a penchant for expressing some bitter truths frankly. A couple of months ago, he expressed his helplessness in breaking the politics-crime nexus which, according to him, had struck deep roots in the country. More recently, while addressing the contingent of IPS probationers at the National Police Academy, Hyderabad, he expressed distress at the fact that the UP police had been affected by the forces of casteism and communalism.
An observation of this type should have raised many eyebrows. It was made by no less a person than the Union Home Minister whose Ministry deals with police problems. Besides, the statement goes against the very fundamentals of the police philosophy, which require the force to function impartially as an agent of law, unaffected by caste or communal considerations. The statement, however, did not create even a ripple of excitement in political, academic, or in police circles. This happened probably because nobody found anything new or surprising in what Mr. Gupta said.
Members of the minority communities or those belonging to lower castes have often perceived the police as a biased and partisan agency. A number of judicial enquiry commissions set up to enquire into communal and caste riots have commented adversely on the police for showing discrimination in the handling of such disturbances. The National Police Commission in its sixth report referred to the stringent criticism received by it from many responsible quarters that the police often did not act impartially and objectively. To some extent, the increasing perception of the police force as communal or casteist is a reflection of the sharpening of the divide amongst the communities on communal or caste
lines. Earlier, it was hoped that the virus of communalism and casteism dividing the Indian society would meet its eventual end once the liberal institutions and value systems took roots. This has not happened. Religion and caste have, in fact, emerged as stronger dividing forces. The religious and caste affiliations and feelings existing in our traditional society have been manipulated and exploited by politicians to create, retain and expand their vote banks.
This has resulted in further strengthening the communal and casteist feelings amongst vast sections of the community. Policing such an environment becomes a difficult task as it requires the police to remain unaffected by the forces which are influencing the attitudes, values and behaviour of large sections of population with whom they interact closely in their day-to-day work. A sizeable chunk of constabulary comes from the traditionally conservative families and bring with them a set of ‘muffasil’ values and attitudes at the time of joining the police force.
Shedding off some of the accumulated prejudices becomes a difficult task when the same set of prejudices is entrenching its stranglehold on other segments of population. The problem of police being affected by communalism or casteism is linked not only to the problem of increasing hold of communal forces over others in society, but also to that of gradual and continuous erosion of the authority of police as an agency of law which has occurred in this country over a period of time. The philosophy of police neutrality is embedded in the concept of the rule of law. That concept has not merely been devalued but, in fact, subverted to serve the interests of powerful people and sections of society.
This has been done by manipulating the police and not letting it function as an agency of law. One of the methods used for this purpose is to post such officers in important or sensitive districts as are always willing to toe the line. Appointments and postings of officers in States like UP are governed not by their secular credentials or professionalism but by their caste or religious affiliations and by their pliability to accept and implement all types of orders- right or wrong.
The police being the, most visible arm of the State, loss of confidence on the part of members of any community in its ability, resulting from its partisan behaviour, leads to the erosion of faith in the credentials of the States. The problem to which the Union Home Minister referred has thus serious implications not merely for the police department but for the entire society. The problem is too important to be neglected and deserves to be tackled in right earnest.
One of the remedial measures suggested by some is to increase the representation from minority communities and Scheduled Castes in the police. At present, the police forces in all States and Union territories have a total strength of 13,51,047, out of which as many as 1,66,779 (12.3 per cent) belong to Scheduled Castes and 78,799 (5.8 per cent) are Muslims. It is felt by some that this representation is rather low and needs to be increased. While people from all communities should be recruited to give a composite character to the police force,
this should not be done by diluting the standards of recruitment. It is unfortunate that deliberate attempts were made recently in some States, like UP during Mr. Mulayam Singh’s Chief Ministership, to raise new police forces under special legislative enactments, which permitted dilution of standards so that people belonging to a certain community could be recruited in large numbers. This is the surest way to spread communal or caste virus. If the spread of the virus of communalism in the police forces has to be checked the standards of
recruitment must be high vigorously enforced.
A lasting solution of the problem, however, would require establishment of arrangements through which the police administration can be insulated against undesirable and illegitimate interferences. As long as appointments, postings, transfers and promotions are guided by communal and caste considerations, it will not be possible to stop the spread of communal virus in the force. A clean force would require a clean administration.
(Published in the Hindustan Times dated 12.11.96)
The Union Home Minister, Mr. Indrajit Gupta, seems to have a penchant for expressing some bitter truths frankly. A couple of months ago, he expressed his helplessness in breaking the politics-crime nexus which, according to him, had struck deep roots in the country. More recently, while addressing the contingent of IPS probationers at the National Police Academy, Hyderabad, he expressed distress at the fact that the UP police had been affected by the forces of casteism and communalism.
An observation of this type should have raised many eyebrows. It was made by no less a person than the Union Home Minister whose Ministry deals with police problems. Besides, the statement goes against the very fundamentals of the police philosophy, which require the force to function impartially as an agent of law, unaffected by caste or communal considerations. The statement, however, did not create even a ripple of excitement in political, academic, or in police circles. This happened probably because nobody found anything new or surprising in what Mr. Gupta said.
Members of the minority communities or those belonging to lower castes have often perceived the police as a biased and partisan agency. A number of judicial enquiry commissions set up to enquire into communal and caste riots have commented adversely on the police for showing discrimination in the handling of such disturbances. The National Police Commission in its sixth report referred to the stringent criticism received by it from many responsible quarters that the police often did not act impartially and objectively. To some extent, the increasing perception of the police force as communal or casteist is a reflection of the sharpening of the divide amongst the communities on communal or caste
lines. Earlier, it was hoped that the virus of communalism and casteism dividing the Indian society would meet its eventual end once the liberal institutions and value systems took roots. This has not happened. Religion and caste have, in fact, emerged as stronger dividing forces. The religious and caste affiliations and feelings existing in our traditional society have been manipulated and exploited by politicians to create, retain and expand their vote banks.
This has resulted in further strengthening the communal and casteist feelings amongst vast sections of the community. Policing such an environment becomes a difficult task as it requires the police to remain unaffected by the forces which are influencing the attitudes, values and behaviour of large sections of population with whom they interact closely in their day-to-day work. A sizeable chunk of constabulary comes from the traditionally conservative families and bring with them a set of ‘muffasil’ values and attitudes at the time of joining the police force.
Shedding off some of the accumulated prejudices becomes a difficult task when the same set of prejudices is entrenching its stranglehold on other segments of population. The problem of police being affected by communalism or casteism is linked not only to the problem of increasing hold of communal forces over others in society, but also to that of gradual and continuous erosion of the authority of police as an agency of law which has occurred in this country over a period of time. The philosophy of police neutrality is embedded in the concept of the rule of law. That concept has not merely been devalued but, in fact, subverted to serve the interests of powerful people and sections of society.
This has been done by manipulating the police and not letting it function as an agency of law. One of the methods used for this purpose is to post such officers in important or sensitive districts as are always willing to toe the line. Appointments and postings of officers in States like UP are governed not by their secular credentials or professionalism but by their caste or religious affiliations and by their pliability to accept and implement all types of orders- right or wrong.
The police being the, most visible arm of the State, loss of confidence on the part of members of any community in its ability, resulting from its partisan behaviour, leads to the erosion of faith in the credentials of the States. The problem to which the Union Home Minister referred has thus serious implications not merely for the police department but for the entire society. The problem is too important to be neglected and deserves to be tackled in right earnest.
One of the remedial measures suggested by some is to increase the representation from minority communities and Scheduled Castes in the police. At present, the police forces in all States and Union territories have a total strength of 13,51,047, out of which as many as 1,66,779 (12.3 per cent) belong to Scheduled Castes and 78,799 (5.8 per cent) are Muslims. It is felt by some that this representation is rather low and needs to be increased. While people from all communities should be recruited to give a composite character to the police force,
this should not be done by diluting the standards of recruitment. It is unfortunate that deliberate attempts were made recently in some States, like UP during Mr. Mulayam Singh’s Chief Ministership, to raise new police forces under special legislative enactments, which permitted dilution of standards so that people belonging to a certain community could be recruited in large numbers. This is the surest way to spread communal or caste virus. If the spread of the virus of communalism in the police forces has to be checked the standards of
recruitment must be high vigorously enforced.
A lasting solution of the problem, however, would require establishment of arrangements through which the police administration can be insulated against undesirable and illegitimate interferences. As long as appointments, postings, transfers and promotions are guided by communal and caste considerations, it will not be possible to stop the spread of communal virus in the force. A clean force would require a clean administration.
(Published in the Hindustan Times dated 12.11.96)
Saturday, April 13, 1996
ROLE OF CENTRAL GOVERNMENT IN CONTROLLING CRIME
THE CENTRAL GOVERNMENT AND CRIME CONTROL
Crime in India has shown an increasing trend during the last few decades. The total IPC crime in the country, which was only 6.26 lakh in 1961, rose to 16.30 lakh. While the population of the country registered an increase of 101.90 per cent during this period, IPC crime increased by 160.3 per cent. Crime has thus been rising at a rate faster than that of the population growth.
What is more ominous is the trend of violent crime. The incidence of violent crime increased from 55,726 in 1961 to 2,32,554 in 1993, thus rising by 317.3 per cent during this period. The increase in crime has been accompanied by a gradual fall in the conviction rate. While in 1971, 62 per cent of the IPC cases ended in conviction, in 1993, it had fallen to 45.9 per cent.
Another disturbing trend is the increasing pendency of cases under trial. The total number of criminal cases pending in the magistrates and sessions courts in the country had gone up from 45.5 lakh in 1976 to 136.5 lakh in 1992-93. In addition, 3.04 lakh cases were pending in high courts as on December 31,1993.
The data thus reveals a rising trend in crime, more so in violent crime, a declining rate of convictions and an increasing pendency of cases under trial. This means that more and more people are committing crime and getting away with it. Cases are settled after a long time. Justice is being delayed and denied. Obviously, the criminal justice system has failed in achieving its objectives.
How has the Central Government responded to the problem of controlling crime? Controlling crime is, of course, not the direct responsibility of the Central Government, as the police and other agencies of the criminal justice system, like courts, prisons etc. are placed by Article 246 of the Constitution in the State List. The Central Government has very often taken refuge behind these provisions of the Constitution and tried to wash its hands off the responsibility in such matters.
This, however, is a very narrow and short-sighted approach. These are certain provisions in the Constitution itself, which suggest an important role for the Centre in strengthening and improving the criminal justice system. Some awareness of its role was shown by the Central government in the recent past when it organized a conference of the Chief Ministers on the administration of criminal justice on November 13, 1992. Some important problems relating to the administration of criminal justice at the district level, including that of criminalisation of politics, were discussed. However, like all such conferences, what started with a bang ended with whimper. The resolution passed by the conference remained unimplemented for the lack of follow-up action.
It is rather interesting to note that the inadequate concern shown by the Central Government towards the problem of controlling crime has not been repeated in the area of maintenance of law and order, even though ‘Public Order’ is the first item in the State List of the Seventh Schedule of the Constitution. In fact, the brunt of major law and order disturbances, which have occurred in different States, has been borne by the Central paramilitary forces. The heavy dependence of the State governments of the Centre to maintain law and order is responsible for the huge expansion of the Central paramilitary forces. This has naturally led to tremendous increase in the Central expenditure on police.
Most of the expenditure by the Central Government is being incurred on the expansion and maintenance of the Central forces which, strictly speaking, are not doing a policing job, particularly insofar as crime control is concerned.
There has been considerable public criticism of the police performance in the country. This is as it should be. It is, however, necessary to remember that the police is only one part of the criminal justice system. The other very important part is constituted by the courts and their performance should be kept equally under constant public watch. The record of the courts in dealing with crime and criminals has not been very bright. The way the courts function is an important reason for the delay in disposal of criminal cases. If there can be a time limit for completion of investigation in law, there is no reason why similar time limit should not be prescribed for completing trial in criminal cases.
Here, the Centre cannot even take shelter behind the provisions of the Constitution for not taking initiatives. Criminal law and criminal procedure are items in the Concurrent List of the Seventh Schedule of the Constitution. This is an area which cries for reforms. The police in this country are still being governed by the Police Act of 1861. In addition, some other major laws are outdated. The three major laws, i.e. the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act were enacted by the British during the second half of the last century. Out of these, the only Act which has been subjected to a thorough major review after Independence is the Code of Criminal Procedure. The other two laws, except for some minor amendments, have remained unchanged.
The Central Government has not evolved a coherent, well knit national policy to deal with crime and criminals. The working of the Central Government in these areas has been characterised by a narrow, fragmented and ad hoc approach. This becomes clear from the administrative set-up in the Centre itself.
The National Police Commission had recommended the establishment on statutory basis of a Criminal Justice Commission at the Centre which should have the authority and the requisite facilities to maintain a constant and comprehensive look at the entire system, to monitor its performance and suggest necessary corrective measures from time to time, keeping in view the overall objective of the system. The need to implement this recommendation of the National Police Commission can hardly be over-emphasised.
(Published in the Hindustan Times dated April 12, 1996)
Crime in India has shown an increasing trend during the last few decades. The total IPC crime in the country, which was only 6.26 lakh in 1961, rose to 16.30 lakh. While the population of the country registered an increase of 101.90 per cent during this period, IPC crime increased by 160.3 per cent. Crime has thus been rising at a rate faster than that of the population growth.
What is more ominous is the trend of violent crime. The incidence of violent crime increased from 55,726 in 1961 to 2,32,554 in 1993, thus rising by 317.3 per cent during this period. The increase in crime has been accompanied by a gradual fall in the conviction rate. While in 1971, 62 per cent of the IPC cases ended in conviction, in 1993, it had fallen to 45.9 per cent.
Another disturbing trend is the increasing pendency of cases under trial. The total number of criminal cases pending in the magistrates and sessions courts in the country had gone up from 45.5 lakh in 1976 to 136.5 lakh in 1992-93. In addition, 3.04 lakh cases were pending in high courts as on December 31,1993.
The data thus reveals a rising trend in crime, more so in violent crime, a declining rate of convictions and an increasing pendency of cases under trial. This means that more and more people are committing crime and getting away with it. Cases are settled after a long time. Justice is being delayed and denied. Obviously, the criminal justice system has failed in achieving its objectives.
How has the Central Government responded to the problem of controlling crime? Controlling crime is, of course, not the direct responsibility of the Central Government, as the police and other agencies of the criminal justice system, like courts, prisons etc. are placed by Article 246 of the Constitution in the State List. The Central Government has very often taken refuge behind these provisions of the Constitution and tried to wash its hands off the responsibility in such matters.
This, however, is a very narrow and short-sighted approach. These are certain provisions in the Constitution itself, which suggest an important role for the Centre in strengthening and improving the criminal justice system. Some awareness of its role was shown by the Central government in the recent past when it organized a conference of the Chief Ministers on the administration of criminal justice on November 13, 1992. Some important problems relating to the administration of criminal justice at the district level, including that of criminalisation of politics, were discussed. However, like all such conferences, what started with a bang ended with whimper. The resolution passed by the conference remained unimplemented for the lack of follow-up action.
It is rather interesting to note that the inadequate concern shown by the Central Government towards the problem of controlling crime has not been repeated in the area of maintenance of law and order, even though ‘Public Order’ is the first item in the State List of the Seventh Schedule of the Constitution. In fact, the brunt of major law and order disturbances, which have occurred in different States, has been borne by the Central paramilitary forces. The heavy dependence of the State governments of the Centre to maintain law and order is responsible for the huge expansion of the Central paramilitary forces. This has naturally led to tremendous increase in the Central expenditure on police.
Most of the expenditure by the Central Government is being incurred on the expansion and maintenance of the Central forces which, strictly speaking, are not doing a policing job, particularly insofar as crime control is concerned.
There has been considerable public criticism of the police performance in the country. This is as it should be. It is, however, necessary to remember that the police is only one part of the criminal justice system. The other very important part is constituted by the courts and their performance should be kept equally under constant public watch. The record of the courts in dealing with crime and criminals has not been very bright. The way the courts function is an important reason for the delay in disposal of criminal cases. If there can be a time limit for completion of investigation in law, there is no reason why similar time limit should not be prescribed for completing trial in criminal cases.
Here, the Centre cannot even take shelter behind the provisions of the Constitution for not taking initiatives. Criminal law and criminal procedure are items in the Concurrent List of the Seventh Schedule of the Constitution. This is an area which cries for reforms. The police in this country are still being governed by the Police Act of 1861. In addition, some other major laws are outdated. The three major laws, i.e. the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act were enacted by the British during the second half of the last century. Out of these, the only Act which has been subjected to a thorough major review after Independence is the Code of Criminal Procedure. The other two laws, except for some minor amendments, have remained unchanged.
The Central Government has not evolved a coherent, well knit national policy to deal with crime and criminals. The working of the Central Government in these areas has been characterised by a narrow, fragmented and ad hoc approach. This becomes clear from the administrative set-up in the Centre itself.
The National Police Commission had recommended the establishment on statutory basis of a Criminal Justice Commission at the Centre which should have the authority and the requisite facilities to maintain a constant and comprehensive look at the entire system, to monitor its performance and suggest necessary corrective measures from time to time, keeping in view the overall objective of the system. The need to implement this recommendation of the National Police Commission can hardly be over-emphasised.
(Published in the Hindustan Times dated April 12, 1996)
Saturday, October 28, 1995
POLICE & POLITICS
POLICE & POLITICS:CALL FOR FREEDOM FROM INTERFERENCE
Considerable publicity was given recently to a news item, according to which Mr. Rajesh Pilot, the former Minister for Internal Security, had issued written orders to the Central Bureau of Investigation to arrest the controversial godman Chandraswami. An attempt was also made to link the action of Mr. Pilot to the internal squabbles within the party in power. The news item raises some vital issues concerning the relationship between politics and policing as it has evolved in this country since Independence. A relevant question to ask is: under what authority, did the Minister issue orders to the CBI? If Mr. Pilot could order the premier investigating agency of the country to arrest a person, he obviously also had the powers to ask the police not to arrest somebody.
We in this country have become so accustomed to seeing the politicians and bureaucrats issuing unauthorized orders to the police that no eyebrows were raised on learning about action taken by Mr. Pilot. 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 or agency outside the law enforcement machinery to take such decisions.
INTERVENTION
Frequent outside interventions in the operational jurisdiction of the police, not supported by law, have not been confined merely to the field of crime investigation, but have also been noticed in the area of police work pertaining to the maintenance of law and order. There have been numerous occasions when instructions or orders, written or verbal, have been issued to the police, suggesting how they should act in controlling a particular riot.
Though law does not give the authority to any outsider, orders to use or not to use force or to prohibit the police from taking recourse to the use of firearms have often been given by outsiders. Prior to the demolition of the Babri Masjid, the then Chief Minister of U.P. announced that he had passed orders to the police not to open fire on the riotous crowd which had gathered there. The result was there for the entire world to watch In situations like the ones mentioned above, the police find themselves on the horns of a dilemma-to follow the dictates of the law or the political or bureaucratic masters. This dilemma is invariably resolved in favour of the latter, which produces two immediate interlinked consequences-(i) erosion of the authority of the police as an agency of law, and (ii) undermining of public faith and confidence in the neutrality and impartiality of the police.
The senior leadership in the police in this country cannot be absolved completely of their responsibility in contributing to this state of affairs. The desire of some of them to beat their colleagues in the race to the top and to get and retain coveted postings has been responsible for creating a climate within the organization in which their own authority to exercise command and control gets eroded, with the functionaries at different levels also looking elsewhere for protection an rewards.
An attempt is often made by us to explain, if not to justify, by mentioning that the problem being faced by us is not something peculiar to India and that what is happening here has already occurred in other countries. It is true that there has been considerable political and administrative manipulation of the police in other countries also, even in the highly advanced and democratic ones. The history of policing and political development in some cities in the USA, for instance, reveals numerous instances of the police being used as a tool by politicians in power. As early as in 1931, the National Commission on Law Observance and Enforcement, USA, popularly known as the Wickersham Commission, in their Report on Police, had referred to the “corrupting influence of politics” over the police organization. The Commission not only pointed out the example where the Mayor of a city had “appointed his tailor as the Chief of Police because he had been his tailor for 20 years and he know he was a good tailor and so necessarily would make a good Chief of Police”, but showed as to how “limiting the powers of the police executive by placing absolute control of police under the Mayor. Commissioner or city manager has opened the door to every conceivable type of incompetence, political corruption and organizational demoralization.”
RULE OF LAW
The type of situation prevailing in our country appears to be fairly close to what the Wickersham Commission pointed out in 1931. What happened in history in some countries however can hardly be a source of consolation for the ills that affect our system today. In this country, we have adopted a democratic system, with a written constitution which enshrines the basic tenets of the Rule of Law. In a system based on the Rule of Law, according to Dicey, there is absolute supremacy of laws as opposed to the influence of arbitrary powers, equal subjection of all citizens to the laws of the land and equal protection of laws. We have also prescribed a code of conduct for the police in this country, which lays down that the police derive their powers from the law and must function according to its dictates. This, however is all on paper only, as in practice, the police have not functioned according to their Code. The police in this country have never been made functionally independent, free from interferences, influences and pressures of different kinds.
It is this functional independence, which is the hallmark of the police in the U.K Lord Dening, in the 1968 case of R.V. Commissioner of Police of the Metropolis, ex-parte Blackburne emphasized this doctrine in these works “I hold it to be the duty of the Commissioner of Police as it is of every Chief Constable to enforce the law of the land…but…he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must or must not prosecute this man or that one. Nor can the Police Authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.” The Royal Commission on Police, U.K., in their repot in 1962, recommended that the independent status of the police officer must continue.
UNHOLY NEXUS
The increasing criminalization of politics in this country has been a subject-matter of debate recently. Feelings of disquiet and concern have been expressed by many, including the politicians. Suggestions have been made to deal with this problem. The package of measures adopted, if any, must include delinking policing from politics. Without granting functional independence to the police, it would not be possible to break the nexus between politics and crime. Functional independence, however does not mean lack of accountability. The police are armed with tremendous powers and exercise wide influence over the lives of the citizens. There is, therefore, a definite need to impose proper checks on their powers. They must be accountable to the community for what they do and, what is more important, how they do it. It would, therefore, be wrong to question the propriety of political control and interference in all situations. The problem ultimately is one of making a distinction between the legitimate and illegitimate political influences.
The involvement of politics in policing must remain confined to providing adequate, well-equipped and an efficient police force to the community and to improving suitable effective checks on the powers of the police to ensure that they discharge their functions cleanly and in accordance with the law of the land. Any other control or interference must be treated as illegitimate. Functionally, the police must be independent and for this they must resist all illegitimate pressures. The distinction between legitimate and illegitimate control may appear to be thin but, with the passage of time, it may not remain so, particularly once there comes into existence an alert, mature and enlightened citizenry in the community.
(Published in the Statesman dated 28/10/1995)
Considerable publicity was given recently to a news item, according to which Mr. Rajesh Pilot, the former Minister for Internal Security, had issued written orders to the Central Bureau of Investigation to arrest the controversial godman Chandraswami. An attempt was also made to link the action of Mr. Pilot to the internal squabbles within the party in power. The news item raises some vital issues concerning the relationship between politics and policing as it has evolved in this country since Independence. A relevant question to ask is: under what authority, did the Minister issue orders to the CBI? If Mr. Pilot could order the premier investigating agency of the country to arrest a person, he obviously also had the powers to ask the police not to arrest somebody.
We in this country have become so accustomed to seeing the politicians and bureaucrats issuing unauthorized orders to the police that no eyebrows were raised on learning about action taken by Mr. Pilot. 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 or agency outside the law enforcement machinery to take such decisions.
INTERVENTION
Frequent outside interventions in the operational jurisdiction of the police, not supported by law, have not been confined merely to the field of crime investigation, but have also been noticed in the area of police work pertaining to the maintenance of law and order. There have been numerous occasions when instructions or orders, written or verbal, have been issued to the police, suggesting how they should act in controlling a particular riot.
Though law does not give the authority to any outsider, orders to use or not to use force or to prohibit the police from taking recourse to the use of firearms have often been given by outsiders. Prior to the demolition of the Babri Masjid, the then Chief Minister of U.P. announced that he had passed orders to the police not to open fire on the riotous crowd which had gathered there. The result was there for the entire world to watch In situations like the ones mentioned above, the police find themselves on the horns of a dilemma-to follow the dictates of the law or the political or bureaucratic masters. This dilemma is invariably resolved in favour of the latter, which produces two immediate interlinked consequences-(i) erosion of the authority of the police as an agency of law, and (ii) undermining of public faith and confidence in the neutrality and impartiality of the police.
The senior leadership in the police in this country cannot be absolved completely of their responsibility in contributing to this state of affairs. The desire of some of them to beat their colleagues in the race to the top and to get and retain coveted postings has been responsible for creating a climate within the organization in which their own authority to exercise command and control gets eroded, with the functionaries at different levels also looking elsewhere for protection an rewards.
An attempt is often made by us to explain, if not to justify, by mentioning that the problem being faced by us is not something peculiar to India and that what is happening here has already occurred in other countries. It is true that there has been considerable political and administrative manipulation of the police in other countries also, even in the highly advanced and democratic ones. The history of policing and political development in some cities in the USA, for instance, reveals numerous instances of the police being used as a tool by politicians in power. As early as in 1931, the National Commission on Law Observance and Enforcement, USA, popularly known as the Wickersham Commission, in their Report on Police, had referred to the “corrupting influence of politics” over the police organization. The Commission not only pointed out the example where the Mayor of a city had “appointed his tailor as the Chief of Police because he had been his tailor for 20 years and he know he was a good tailor and so necessarily would make a good Chief of Police”, but showed as to how “limiting the powers of the police executive by placing absolute control of police under the Mayor. Commissioner or city manager has opened the door to every conceivable type of incompetence, political corruption and organizational demoralization.”
RULE OF LAW
The type of situation prevailing in our country appears to be fairly close to what the Wickersham Commission pointed out in 1931. What happened in history in some countries however can hardly be a source of consolation for the ills that affect our system today. In this country, we have adopted a democratic system, with a written constitution which enshrines the basic tenets of the Rule of Law. In a system based on the Rule of Law, according to Dicey, there is absolute supremacy of laws as opposed to the influence of arbitrary powers, equal subjection of all citizens to the laws of the land and equal protection of laws. We have also prescribed a code of conduct for the police in this country, which lays down that the police derive their powers from the law and must function according to its dictates. This, however is all on paper only, as in practice, the police have not functioned according to their Code. The police in this country have never been made functionally independent, free from interferences, influences and pressures of different kinds.
It is this functional independence, which is the hallmark of the police in the U.K Lord Dening, in the 1968 case of R.V. Commissioner of Police of the Metropolis, ex-parte Blackburne emphasized this doctrine in these works “I hold it to be the duty of the Commissioner of Police as it is of every Chief Constable to enforce the law of the land…but…he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must or must not prosecute this man or that one. Nor can the Police Authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.” The Royal Commission on Police, U.K., in their repot in 1962, recommended that the independent status of the police officer must continue.
UNHOLY NEXUS
The increasing criminalization of politics in this country has been a subject-matter of debate recently. Feelings of disquiet and concern have been expressed by many, including the politicians. Suggestions have been made to deal with this problem. The package of measures adopted, if any, must include delinking policing from politics. Without granting functional independence to the police, it would not be possible to break the nexus between politics and crime. Functional independence, however does not mean lack of accountability. The police are armed with tremendous powers and exercise wide influence over the lives of the citizens. There is, therefore, a definite need to impose proper checks on their powers. They must be accountable to the community for what they do and, what is more important, how they do it. It would, therefore, be wrong to question the propriety of political control and interference in all situations. The problem ultimately is one of making a distinction between the legitimate and illegitimate political influences.
The involvement of politics in policing must remain confined to providing adequate, well-equipped and an efficient police force to the community and to improving suitable effective checks on the powers of the police to ensure that they discharge their functions cleanly and in accordance with the law of the land. Any other control or interference must be treated as illegitimate. Functionally, the police must be independent and for this they must resist all illegitimate pressures. The distinction between legitimate and illegitimate control may appear to be thin but, with the passage of time, it may not remain so, particularly once there comes into existence an alert, mature and enlightened citizenry in the community.
(Published in the Statesman dated 28/10/1995)
Saturday, October 14, 1995
CRIMINALISATION OF POLITICS
THE DECLINING STANDARDS IN PUBLIC LIFE
For many years after Independence, the expectations of the citizens from the political system remained high. It is not as if no crime was committed by the politicians in the fifties and sixties. Some scandals did take place, but these did not lead to frustration and cynicism on a wide scale. They were dismissed as individual aberrations.
All this has changed. The process of criminalisation of politics has been gradual, marked by events and policies which led to the curtailment of inner-party democracy,
concentration of power in a few hands, devaluation of political and administrative
institutions and dismantling of value-based politics.
The first major event in this context was the Congress split of 1969, when a call was
given to vote according to ‘conscience’ during the presidential election. The next major event was the proclamation of Emergency- and the subsequent unbridled misuse of
authority by persons in power for self-aggrandisement. This was the period when the
culture of sycophancy reached its peak, when the bureaucracy became absolutely supine
and started crawling before its political masters. This was the era of commitment-not to the principles but to the principal actors on the political scene, not to ideals but to the idols or cult figures.
Caste has always played an important role during elections in India. Selection of
candidates and distribution of party tickets have often been governed by caste
considerations. However, the manipulation of the caste factor for political gains on a wide scale reflected in the attempts to ‘Mandalise’ politics by creating caste animosities added a sinister touch to the political scene. The next important milestone in the history of criminalisation of politics was the deliberate use of religion to promote fundamentalist attitudes and practices. It is this factor, which led to the emergence of a Frankenstein’s monster in the form of Bhindranwale in Punjab, the demolition of Babri masjid in UP,communal riots and bomb blasts in Bombay and other places and intensification of
terrorist violence in J& K and other States.
During the early years after Independence, it was hoped that the virus of casteism and communalism dividing Indian society would meet its eventual end once the modern
liberal institutions and value systems took root. This has not happened and, in fact, caste and religion have emerged as stronger dividing forces. It is mainly the manipulation of these forces for narrow political gains which has reinforced caste animosities and unleashed religious fundamentalism.
In the recent debate on criminalisation of politics, one argument was heard quite
frequently. It was pointed out that the problem was not peculiar to India and that scandals involving Presidents, Prime Ministers and other politician have occurred with regular frequency in many countries. This reminds one of the famous observations of Indira Gandhi that corruption was a global phenomenon. Nexus between politics and crime may exist in other countries too, but there is one important difference. In other countries,politicians have been forced to leave office and even been convicted on charges of having received kickbacks or of being associated with mafia gangs. This points towards the existence of an alert and enlightened public opinion and an effective criminal justice system in those countries.
In our country, the influence of public opinion as a potent instrument to regulate the behaviour of the politicians appears to have declined considerably. The politicians have become brazenly indifferent towards allegations of corruption and other crimes leveled against them. More than the failure of the system to prevent crime, it is its ineffectiveness in dealing with those who commit crimes, particularly when they happen to be influentialpersons, that is really responsible for the loss of public confidence. The tendency to release persons, even those who are involved in non-bailable cases, on bail, becomes more liberal when the accused happen to be politically influential. Most of them, in fact,succeed in obtaining anticipatory bail. This explains why so many legislators have numerous cases pending against them.
In the absence of strong public opinion and an honest and effective criminal justice
system, it is not at all surprising that no important politician occupying a seat of power in this country in recent times has even been forced to resign, what to talk of being proceeded against in a court of law. They have continued to commit their misdeeds with impunity.
(Published in the Indian Express dated 14th Oct 95)
For many years after Independence, the expectations of the citizens from the political system remained high. It is not as if no crime was committed by the politicians in the fifties and sixties. Some scandals did take place, but these did not lead to frustration and cynicism on a wide scale. They were dismissed as individual aberrations.
All this has changed. The process of criminalisation of politics has been gradual, marked by events and policies which led to the curtailment of inner-party democracy,
concentration of power in a few hands, devaluation of political and administrative
institutions and dismantling of value-based politics.
The first major event in this context was the Congress split of 1969, when a call was
given to vote according to ‘conscience’ during the presidential election. The next major event was the proclamation of Emergency- and the subsequent unbridled misuse of
authority by persons in power for self-aggrandisement. This was the period when the
culture of sycophancy reached its peak, when the bureaucracy became absolutely supine
and started crawling before its political masters. This was the era of commitment-not to the principles but to the principal actors on the political scene, not to ideals but to the idols or cult figures.
Caste has always played an important role during elections in India. Selection of
candidates and distribution of party tickets have often been governed by caste
considerations. However, the manipulation of the caste factor for political gains on a wide scale reflected in the attempts to ‘Mandalise’ politics by creating caste animosities added a sinister touch to the political scene. The next important milestone in the history of criminalisation of politics was the deliberate use of religion to promote fundamentalist attitudes and practices. It is this factor, which led to the emergence of a Frankenstein’s monster in the form of Bhindranwale in Punjab, the demolition of Babri masjid in UP,communal riots and bomb blasts in Bombay and other places and intensification of
terrorist violence in J& K and other States.
During the early years after Independence, it was hoped that the virus of casteism and communalism dividing Indian society would meet its eventual end once the modern
liberal institutions and value systems took root. This has not happened and, in fact, caste and religion have emerged as stronger dividing forces. It is mainly the manipulation of these forces for narrow political gains which has reinforced caste animosities and unleashed religious fundamentalism.
In the recent debate on criminalisation of politics, one argument was heard quite
frequently. It was pointed out that the problem was not peculiar to India and that scandals involving Presidents, Prime Ministers and other politician have occurred with regular frequency in many countries. This reminds one of the famous observations of Indira Gandhi that corruption was a global phenomenon. Nexus between politics and crime may exist in other countries too, but there is one important difference. In other countries,politicians have been forced to leave office and even been convicted on charges of having received kickbacks or of being associated with mafia gangs. This points towards the existence of an alert and enlightened public opinion and an effective criminal justice system in those countries.
In our country, the influence of public opinion as a potent instrument to regulate the behaviour of the politicians appears to have declined considerably. The politicians have become brazenly indifferent towards allegations of corruption and other crimes leveled against them. More than the failure of the system to prevent crime, it is its ineffectiveness in dealing with those who commit crimes, particularly when they happen to be influentialpersons, that is really responsible for the loss of public confidence. The tendency to release persons, even those who are involved in non-bailable cases, on bail, becomes more liberal when the accused happen to be politically influential. Most of them, in fact,succeed in obtaining anticipatory bail. This explains why so many legislators have numerous cases pending against them.
In the absence of strong public opinion and an honest and effective criminal justice
system, it is not at all surprising that no important politician occupying a seat of power in this country in recent times has even been forced to resign, what to talk of being proceeded against in a court of law. They have continued to commit their misdeeds with impunity.
(Published in the Indian Express dated 14th Oct 95)
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