THE PONTIFF, POLICE AND POLITICS
Jayendra Saraswati’s case is becoming more and more intriguing everyday. Has there ever been a murder case where the Prime Minister of the country writes to the Chief Minister, advising caution in arresting an accused? In this case, he does, gives the same advice again when he meets her in person in Chennai and his office later brings it on record and makes that advice public. The Chief Minister replies the next day and informs the PM and others that what she has done is “in furtherance of due processes of law”
And probably it is in furtherance of the same due processes that Vijayendra Swarasti is arrested on the same charges immediately after the senior pontiff is released on bail by the Supreme Court. It took Tamilnadu Police more than a couple of months to realise that the junior man is also involved in crime and has committed the same offences as his elder guru.
It will be for the courts to decide who is guilty and who is not and one should leave it at that. However, this case, like so many other past cases of its ilk reported from Tamilnadu and other states, clearly brings into focus a highly disturbing fact- the increasing politicisation of police that has occurred in the country over a period of time and the fact that this is now readily accepted by all. The general public perception is that whatever is happening to Kanchi mutt pontiffs is because the Chief Minister wants it to happen. It is accepted unquestionably that the police would always be ready to do whatever right or wrong they are asked to do by their political masters. It’s too bad if someone becomes a victim. The police credibility is so low that even where action taken against a person is perfectly legitimate and is as per the law, the public suspect the police of mischief.
It was sad to see the headlines of one of the national newspapers of January 11: “Jaya arrests Kanchi Jr”, as if Jaya is a Sub Inspector of Police. We in this country have become so accustomed to seeing the politicians issuing unauthorized orders to the police that no eyebrows are raised on seeing such headlines. Because of the ugly realities of governance in this country, we forget the statute book. It is none of the business of the Chief Minister to decide who should be arrested or not arrested. It is wrong to think that it is an executive decision; it is not. 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. The criminal procedure code does not empower any person or agency outside the law enforcement machinery to take such decisions.
The villain to some extent is that old and archaic piece of legislation governing the police in this country called the Police Act of 1861. The Act gives the government the authority to exercise superintendence over the police, without defining the word ‘Superintendence’ or prescribing some guidelines to ensure that the use of power will be legitimate. The Act does not mandate the police to function as a professional organization; nor does it establish any institutional and other arrangements to insulate the police from undesirable and illegitimate outside control, pressures and influences. The result is that the politicians have found it very easy to misuse the police for furthering their own partisan and vested interests. That is why though the country has been independent for more than 57 years, till now, no government, central or state, has taken the initiative to replace the Police Act of 1861 with new legislation, which would be in tune with the requirements of democratic policing, insisting that the police should be subject to the rule of law, rather than the wishes of a powerful leader or party; that they should intervene in the life of citizens only under carefully controlled circumstances; and that they should be publicly accountable. In the absence of such a law, Jayalalitha and other politicians succeed in getting whatever they want done through their police forces.
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 being eager to implement all orders, right or wrong, to get and retain coveted postings is often exploited by the politicians to bring the whole organisation to act at their bidding. Transfer is an important weapon used by the politicians to bend the police officers to their will. In the Jayendra Saraswati’s case, the DGP gets transferred the day after the Supreme Court’s judgement in the bail case is delivered. The DGP of course cannot be held responsible for grant of bail to the accused, but the idea in all such decisions is to send a message to the next incumbent and through him down the line that extra efforts must be made to see that the politician’s wishes are complied with.
It’s time we realized the wisdom of what a very eminent and seasoned police officer of the earlier years, late Mr. P.R.Rajgopal wrote: “When the police at different levels are used by the people in authority to break or even to bend the law to sub-serve doubtful ends, those concerned will have set the police on the high road to many more serious violations of law and in more important areas.” The tragic events that happened in Gujarat a few years ago have proved Mr Rajgopal correct, but we have not learnt our lessons.
Thursday, January 13, 2005
Wednesday, September 29, 2004
MANAGING HUMAN RESOURCES IN THE POLICE
MANAGERIAL PHILOSOPHY OF THE POLICE IN INDIA
The most important task of management in any organisation is to motivate people to develop team spirit, which fulfils the needs of individual employees and simultaneously helps in achieving organisational goals. The extent to which the management succeeds in performing this task depends upon the broad managerial philosophy that shapes its policies and programmes of action. The managerial philosophy of the leaders in turn is actually conditioned by their beliefs about human nature, particularly of their subordinates.
The police is a hierarchical organisation, with its structure having the shape of a pyramid. The base of the pyramid is very wide, but the cone keeps on tapering as it attains height. The constabulary (Constables & Head Constables) accounts for about 88% of the total police strength. Inspectors, Sub-Inspectors and Assistant Sub-Inspectors constitute about 11% of the total police strength. The officers i.e DySP/ASP upward to DGP account for less than 1% of the police strength. It is a very small group of officers belonging to senior ranks, who decide the policies of the organisation, issue instructions to be followed by the rest of the force and supervise the work of the subordinates.
As long as the quality of communication between the seniors and junior subordinate ranks in the police is good, things work out smoothly. Unfortunately, a big gap exists between the senior and lower ranks in the police in this country and the quality of communication between the two is generally very poor. Indeed over a period of time, it has only become poorer. Sometimes, one gets an impression that the seniors and lower ranks constitute two opposite camps, with a fairly big gulf of distrust dividing them. The problem needs to be discussed in its historical perspective.
The British raised the police in this country on a militaristic and authoritarian pattern. There was tremendous emphasis on maintenance of a type of discipline, which bordered on regimentation, requiring the lower ranks to obey orders blindly. The system did not require the constabulary to put on their thinking caps while performing their duties. They in fact were not supposed to have any. That is why recruitment to constabulary stressed on the requirements of brawn and not brain. The taller and heftier the recruit, the better. He need not be educated, but he must have an intimidating presence. During training, his physical fitness and endurance must improve. It was for this reason that the training programme of the constabulary was always biased heavily in favour of outdoor activities, like drill.
The British also structured the organisation in a way so that the senior positions in the force would be occupied by them and the junior slots would be kept for ‘natives.’ Even when the senior posts were Indianised in due course, the elitist bias was not forsaken. Family background always weighed heavy in picking candidates for senior vacancies. They realised that a system based on feudal values prevalent in the Indian society would work effectively in ensuring that the rank and file, which constituted the bulk of the force, remained loyal and subservient to their seniors within the organisation and outside.
This gave rise to a managerial philosophy, which was based on distrust of the lower ranks in the organisation. The natives were not to be trusted. The only way to make them work was to keep on showing the rod and occasionally dangle a carrot before them. This distrust of the police station staff is seen in the system of records maintained at the police station level. A large number of records, with the same entry figuring in more than one, were deliberately prescribed, so that the seniors during formal inspections or even on casual visits to the police station could catch the lower staff on the wrong foot. The same distrust is reflected in the provisions of law also, like those relating to the FIR, maintenance of Case Diary, Station Diary, recording of statements of witnesses, confessions etc.
Even after Independence, this mind set has not changed. The managerial values are still feudal. In fact, nothing has ever been done to change them. The system of recruitment and training has remained the same. A very senior retired police officer Ved Marwah has mentioned that all that happened after Independence was that “the brown sahibs replaced the white sahibs.” According to Mr. Marwah, “ a sort of caste system has developed… An artificial distinction has been created between the supervisory ranks and the ranks actually performing police duties. As a result, professionalism in the force has suffered.”
A large chunk of the force is recruited from the lower strata of society, while the seniors joining the organisation come from educated upper strata. The culture gap between the lower and senior ranks further reinforces the feelings of distrust between the two.
An IPS officer joins the organisation at the level of Assistant Superintendent of Police. He has thus already jumped over five ranks (i.e Constable, Head Constable, Assistant Sub-Inspector, Sub-Inspector and Inspector of Police) without doing even one day’s police work. This deprives the officer of the practical experience of doing field police work in all those ranks and understanding the problems faced by lower ranks working at grass root level. The type of field-work done during the district training can never substitute the actual experience gathered while working in different ranks as a part of normal progression of career, accepting all the responsibilities attached to the job at various levels.
The CHRI recently did a study on Police Public Interface in nine selected police stations in three states, viz. Assam, Rajasthan and Tamilnadu. Perceptions of police personnel of lower ranks were studied. The perceptions clearly indicated the existence of a feeling amongst the lower ranks that their problems are not appreciated by their seniors; that they are often left in the lurch; and that they do not get support even when they have done no wrong. The police personnel at the station level are highly dissatisfied with their working and service conditions. Their salaries are low; they do not have any fixed hours of work; family accommodation is not available to majority; and they have very little to look forward to in terms of career advancement. There is a feeling amongst them that while the seniors keep on getting their promotion in due time, the lower level police station staff have to wait long and even then only few get what is their due.
They are always under constant pressure to produce results according to what their seniors want. The requirements of seniors are often determined by what the politicians want. Adoption of short cuts by the police station staff or malpractices in which they sometimes indulge, according to them, is generally the result of these pressures.
The lower level staff in the police also feel that decisions regarding their postings, transfers, rewards, suspensions, dismissals and other punishments are often taken on extraneous considerations and are not merit or justice based.
The lower ranks in the police also complain that their self-esteem is affected by the behaviour of their superior officers. There are two main grievances. One, they are often asked to attend to the personal chores of the seniors and their family members. Constables posted at the residences of senior officers as orderlies are even required to do menial tasks. Two, the seniors’ treatment of the junior police officials is rough and rude. They often shout and do not hesitate to use abusive language even in the presence of others. As observed by the National Police Commission in its Fifth Report, the manner in which police personnel behave towards public is largely conditioned by the manner in which they are themselves treated by their own higher officers within the force. There is a need for reforms in behaviour and conduct of police officers towards one another.
The most important task of management in any organisation is to motivate people to develop team spirit, which fulfils the needs of individual employees and simultaneously helps in achieving organisational goals. The extent to which the management succeeds in performing this task depends upon the broad managerial philosophy that shapes its policies and programmes of action. The managerial philosophy of the leaders in turn is actually conditioned by their beliefs about human nature, particularly of their subordinates.
The police is a hierarchical organisation, with its structure having the shape of a pyramid. The base of the pyramid is very wide, but the cone keeps on tapering as it attains height. The constabulary (Constables & Head Constables) accounts for about 88% of the total police strength. Inspectors, Sub-Inspectors and Assistant Sub-Inspectors constitute about 11% of the total police strength. The officers i.e DySP/ASP upward to DGP account for less than 1% of the police strength. It is a very small group of officers belonging to senior ranks, who decide the policies of the organisation, issue instructions to be followed by the rest of the force and supervise the work of the subordinates.
As long as the quality of communication between the seniors and junior subordinate ranks in the police is good, things work out smoothly. Unfortunately, a big gap exists between the senior and lower ranks in the police in this country and the quality of communication between the two is generally very poor. Indeed over a period of time, it has only become poorer. Sometimes, one gets an impression that the seniors and lower ranks constitute two opposite camps, with a fairly big gulf of distrust dividing them. The problem needs to be discussed in its historical perspective.
The British raised the police in this country on a militaristic and authoritarian pattern. There was tremendous emphasis on maintenance of a type of discipline, which bordered on regimentation, requiring the lower ranks to obey orders blindly. The system did not require the constabulary to put on their thinking caps while performing their duties. They in fact were not supposed to have any. That is why recruitment to constabulary stressed on the requirements of brawn and not brain. The taller and heftier the recruit, the better. He need not be educated, but he must have an intimidating presence. During training, his physical fitness and endurance must improve. It was for this reason that the training programme of the constabulary was always biased heavily in favour of outdoor activities, like drill.
The British also structured the organisation in a way so that the senior positions in the force would be occupied by them and the junior slots would be kept for ‘natives.’ Even when the senior posts were Indianised in due course, the elitist bias was not forsaken. Family background always weighed heavy in picking candidates for senior vacancies. They realised that a system based on feudal values prevalent in the Indian society would work effectively in ensuring that the rank and file, which constituted the bulk of the force, remained loyal and subservient to their seniors within the organisation and outside.
This gave rise to a managerial philosophy, which was based on distrust of the lower ranks in the organisation. The natives were not to be trusted. The only way to make them work was to keep on showing the rod and occasionally dangle a carrot before them. This distrust of the police station staff is seen in the system of records maintained at the police station level. A large number of records, with the same entry figuring in more than one, were deliberately prescribed, so that the seniors during formal inspections or even on casual visits to the police station could catch the lower staff on the wrong foot. The same distrust is reflected in the provisions of law also, like those relating to the FIR, maintenance of Case Diary, Station Diary, recording of statements of witnesses, confessions etc.
Even after Independence, this mind set has not changed. The managerial values are still feudal. In fact, nothing has ever been done to change them. The system of recruitment and training has remained the same. A very senior retired police officer Ved Marwah has mentioned that all that happened after Independence was that “the brown sahibs replaced the white sahibs.” According to Mr. Marwah, “ a sort of caste system has developed… An artificial distinction has been created between the supervisory ranks and the ranks actually performing police duties. As a result, professionalism in the force has suffered.”
A large chunk of the force is recruited from the lower strata of society, while the seniors joining the organisation come from educated upper strata. The culture gap between the lower and senior ranks further reinforces the feelings of distrust between the two.
An IPS officer joins the organisation at the level of Assistant Superintendent of Police. He has thus already jumped over five ranks (i.e Constable, Head Constable, Assistant Sub-Inspector, Sub-Inspector and Inspector of Police) without doing even one day’s police work. This deprives the officer of the practical experience of doing field police work in all those ranks and understanding the problems faced by lower ranks working at grass root level. The type of field-work done during the district training can never substitute the actual experience gathered while working in different ranks as a part of normal progression of career, accepting all the responsibilities attached to the job at various levels.
The CHRI recently did a study on Police Public Interface in nine selected police stations in three states, viz. Assam, Rajasthan and Tamilnadu. Perceptions of police personnel of lower ranks were studied. The perceptions clearly indicated the existence of a feeling amongst the lower ranks that their problems are not appreciated by their seniors; that they are often left in the lurch; and that they do not get support even when they have done no wrong. The police personnel at the station level are highly dissatisfied with their working and service conditions. Their salaries are low; they do not have any fixed hours of work; family accommodation is not available to majority; and they have very little to look forward to in terms of career advancement. There is a feeling amongst them that while the seniors keep on getting their promotion in due time, the lower level police station staff have to wait long and even then only few get what is their due.
They are always under constant pressure to produce results according to what their seniors want. The requirements of seniors are often determined by what the politicians want. Adoption of short cuts by the police station staff or malpractices in which they sometimes indulge, according to them, is generally the result of these pressures.
The lower level staff in the police also feel that decisions regarding their postings, transfers, rewards, suspensions, dismissals and other punishments are often taken on extraneous considerations and are not merit or justice based.
The lower ranks in the police also complain that their self-esteem is affected by the behaviour of their superior officers. There are two main grievances. One, they are often asked to attend to the personal chores of the seniors and their family members. Constables posted at the residences of senior officers as orderlies are even required to do menial tasks. Two, the seniors’ treatment of the junior police officials is rough and rude. They often shout and do not hesitate to use abusive language even in the presence of others. As observed by the National Police Commission in its Fifth Report, the manner in which police personnel behave towards public is largely conditioned by the manner in which they are themselves treated by their own higher officers within the force. There is a need for reforms in behaviour and conduct of police officers towards one another.
Saturday, September 4, 2004
LYNCH JUSTICE
LYNCH JUSTICE AND THE RULE OF LAW
The incident that occurred in Nagpur city on August 13, involving the women of Kasturba Nagar in the murder of a notorious criminal of that colony inside the court premises, has been prominently in the news.
Details of what happened are not very clear. The police have kept a tight lip and in the absence of information, all types of rumours are flowing thick and fast. The initial reaction in some quarters was to see a police hand in the engineering of the incident, if not in its execution. The talk of this being the result of a gang rivalry, with women providing a cover up, was also heard. Some felt that caste played a role in the entire incident- a predominantly dalit community finally taking its revenge against a goon belonging to a backward caste. Different types of questions are being asked. How could this happen inside the court premises? Why couldn’t the police escort rescue him from the mob? If a similar attempt had been made earlier, why couldn’t the attack be foreseen and adequate arrangements made to safely escort him? Why couldn’t the man do anything to defend himself? Was he unable to do so because, in violation of D. K. Basu’s judgement, he was handcuffed while being brought to the court?
Some of these questions will be answered during the trial of the case. For the time being, let us accept the story as it has been reported and analyse its implications.
The police are prosecuting five women, though 400 are reported to have come forward, openly confessing to the crime. Women have shown no remorse, but, in fact, issued a determined warning they will do it again if another Akku Yadav takes birth. Their argument is that they had suffered enough wrongs through the hands of one man and the entire state machinery had failed to provide security, protection and justice to them. They therefore decided to right all wrongs done to them by taking law in their own hands and in their opinion there was nothing wrong about what they did.
Very few voices of disapproval over what happened have been reported. While the residents of Kasturba Nagar are all united in backing the women, it appears that the public in other places too are sympathetic to what happened. On a TV programme the other day, someone said that the incident was waiting to happen
There are two important reasons for sympathetic public response. One is the fact that the act, as per the story, was done by women, who did not belong to any naxalite or war like group or who had no criminal record. They were simple ordinary women belonging to poor or lower middle class families and had been victims of all kinds of humiliations and atrocities for a long time. The other reason is the helplessness that most citizens experience when they find the system of justice failing them when it is needed most. The system is too slow and inefficient to provide them a feeling of security.
One of the important needs of citizens is to get protection from crime and criminals and they expect the state to provide that. When crime continues to rise menacingly and the state fails to deal promptly, justly and effectively with those who commit crime, it creates a feeling of insecurity. The rich are able to buy security, private as well as public; but most have no means to defend themselves. Their sense of insecurity resulting from fear of crime, combined with a sense of injustice caused by the repeated failure of the system to deal with criminals effectively, gives rise to vigilante incidents. It shows complete collapse of public faith and confidence in the capability of the formal system.
Delivering instant private justice to suspects of crime has very serious implications for the functioning of the criminal justice system and good governance in a democratic society.
Article 14 of the Constitution provides equal protection of laws to all citizens and Article 21 says that no person shall be deprived of his life or personal liberty except according to procedure established by law. Killing a person without legal or judicial sanction constitutes an offence of murder. However, this is not viewed accordingly by the public when they take law in their own hands and beat suspects of crime or known criminals to death. It is such public fear and perceptions, which sometimes provide a licence to the police to ignore the law and deal with crime and criminals by using rough and illegal methods. Blinding of criminals done by Bhagalpur Police way back in early eighties was one example of such licence. This has since been followed by many other incidents.
In fact, killing criminals in fake encounters is a manifestation of police vigilantism. The prominent danger in ignoring public vigilantism, like the Nagpur incident, is that it is likely to promote greater acceptance by the public of police vigilantism.
Fear of crime grows faster than crime and feeds on itself. The State knows this and uses the opportunity provided by the fear of crime to arm itself with repressive powers. It reacts by adopting short-cut methods. Black laws are introduced; powers of the police are enhanced; use of third degree methods by state agencies is overlooked and many rights are curtailed. Instead of the rule of law, rule of fear reigns supreme. In the final analysis, it is the democracy, which really gets “mugged”. This has been happening in many parts of the democratic world since 9/11.
The Government in this country has not devoted adequate attention to reforming the criminal justice system. Its time it did so, enhancing its capability to deal with crime and criminals swiftly and effectively and providing justice to all. The state cannot abdicate its responsibility in this regard. Letting people take law in their own hands and practise ‘lynch justice’ against suspects of crime is to allow the rule of jungle to prevail over the rule of law and is the surest way of sounding the death-knell of the democratic system of governance.
(Original version of the article published in the Indian Express dated September 4, 2004)
The incident that occurred in Nagpur city on August 13, involving the women of Kasturba Nagar in the murder of a notorious criminal of that colony inside the court premises, has been prominently in the news.
Details of what happened are not very clear. The police have kept a tight lip and in the absence of information, all types of rumours are flowing thick and fast. The initial reaction in some quarters was to see a police hand in the engineering of the incident, if not in its execution. The talk of this being the result of a gang rivalry, with women providing a cover up, was also heard. Some felt that caste played a role in the entire incident- a predominantly dalit community finally taking its revenge against a goon belonging to a backward caste. Different types of questions are being asked. How could this happen inside the court premises? Why couldn’t the police escort rescue him from the mob? If a similar attempt had been made earlier, why couldn’t the attack be foreseen and adequate arrangements made to safely escort him? Why couldn’t the man do anything to defend himself? Was he unable to do so because, in violation of D. K. Basu’s judgement, he was handcuffed while being brought to the court?
Some of these questions will be answered during the trial of the case. For the time being, let us accept the story as it has been reported and analyse its implications.
The police are prosecuting five women, though 400 are reported to have come forward, openly confessing to the crime. Women have shown no remorse, but, in fact, issued a determined warning they will do it again if another Akku Yadav takes birth. Their argument is that they had suffered enough wrongs through the hands of one man and the entire state machinery had failed to provide security, protection and justice to them. They therefore decided to right all wrongs done to them by taking law in their own hands and in their opinion there was nothing wrong about what they did.
Very few voices of disapproval over what happened have been reported. While the residents of Kasturba Nagar are all united in backing the women, it appears that the public in other places too are sympathetic to what happened. On a TV programme the other day, someone said that the incident was waiting to happen
There are two important reasons for sympathetic public response. One is the fact that the act, as per the story, was done by women, who did not belong to any naxalite or war like group or who had no criminal record. They were simple ordinary women belonging to poor or lower middle class families and had been victims of all kinds of humiliations and atrocities for a long time. The other reason is the helplessness that most citizens experience when they find the system of justice failing them when it is needed most. The system is too slow and inefficient to provide them a feeling of security.
One of the important needs of citizens is to get protection from crime and criminals and they expect the state to provide that. When crime continues to rise menacingly and the state fails to deal promptly, justly and effectively with those who commit crime, it creates a feeling of insecurity. The rich are able to buy security, private as well as public; but most have no means to defend themselves. Their sense of insecurity resulting from fear of crime, combined with a sense of injustice caused by the repeated failure of the system to deal with criminals effectively, gives rise to vigilante incidents. It shows complete collapse of public faith and confidence in the capability of the formal system.
Delivering instant private justice to suspects of crime has very serious implications for the functioning of the criminal justice system and good governance in a democratic society.
Article 14 of the Constitution provides equal protection of laws to all citizens and Article 21 says that no person shall be deprived of his life or personal liberty except according to procedure established by law. Killing a person without legal or judicial sanction constitutes an offence of murder. However, this is not viewed accordingly by the public when they take law in their own hands and beat suspects of crime or known criminals to death. It is such public fear and perceptions, which sometimes provide a licence to the police to ignore the law and deal with crime and criminals by using rough and illegal methods. Blinding of criminals done by Bhagalpur Police way back in early eighties was one example of such licence. This has since been followed by many other incidents.
In fact, killing criminals in fake encounters is a manifestation of police vigilantism. The prominent danger in ignoring public vigilantism, like the Nagpur incident, is that it is likely to promote greater acceptance by the public of police vigilantism.
Fear of crime grows faster than crime and feeds on itself. The State knows this and uses the opportunity provided by the fear of crime to arm itself with repressive powers. It reacts by adopting short-cut methods. Black laws are introduced; powers of the police are enhanced; use of third degree methods by state agencies is overlooked and many rights are curtailed. Instead of the rule of law, rule of fear reigns supreme. In the final analysis, it is the democracy, which really gets “mugged”. This has been happening in many parts of the democratic world since 9/11.
The Government in this country has not devoted adequate attention to reforming the criminal justice system. Its time it did so, enhancing its capability to deal with crime and criminals swiftly and effectively and providing justice to all. The state cannot abdicate its responsibility in this regard. Letting people take law in their own hands and practise ‘lynch justice’ against suspects of crime is to allow the rule of jungle to prevail over the rule of law and is the surest way of sounding the death-knell of the democratic system of governance.
(Original version of the article published in the Indian Express dated September 4, 2004)
Sunday, August 15, 2004
REFORM INITIATIVES IN KERALA POLICE
THE KERALA POLICE- RECENT DEVELOPMENTS
The India Today’s '2004 State of the States’ report ranks Kerala No 2 amongst all states. The ranking is based mainly on assessment of economic and social growth parameters chosen for the study.
However, if the CHRI, which is an independent non government international NGO and has been advocating for police reforms all over the country, were to rank states on the basis of initiatives being taken to introduce reforms in one of the most important institutions of governance i.e. the Police, it would unwaveringly place the God’s Own Country at the top of the list. Kerala is the only state in the country where at least an attempt is being made, even though limited, to introduce some changes in the system that has remained unchanged since 1861.
It was 143 years ago that the British set up a police system in this country through the Police Act of 1861. The establishment of the system was governed more by considerations of defending the establishment rather than providing sensitive and friendly policing to the people. The police forces in all the states were structured, groomed and controlled to be loyal and subservient to the rulers and not to the people. The police thus were seen not as servants of law but of the regime in power and this perception has persisted into the 58th year of Independence because no state and no political regime has sought to encourage the transition from a colonial to a democratic system of policing. Major recommendations made by the National Police Commission two and a half decades ago to improve the policing across the country have remained unimplemented. But Kerala is at least trying.
Kerala is the only state in the country, which is showing the political will to change the system. Over the last couple of years, some significant developments have occurred in policing in Kerala. For the first time, the Police are being allowed the autonomy to function without any interference from outside. The police are not brooking any interference from politicians in their day-to-day work and this has been due to the support extended to them by the present Chief Minister. Decisions regarding appointments, transfers, postings, promotions, rewards and punishments in respect of officers up to the rank of Deputy Superintendent of Police are being taken by the Police Headquarters. Consequently, the police leadership is exercising greater, forceful and uninterrupted authority over its men and this has helped in improving the discipline in the force. There is also some evidence of reduction in crime during the last year. According to figures, the total IPC crime in the state came down from 104200 in 2002 to 99790 in 2003. Incidence of murder fell down from 451 in 2002 to 406 in 2003, attempt to murder from 562 to 449 and rape from 449 to 376 during the one-year period.
Politicians, of course, have not welcomed the development of freeing the police from their clutches. It has hit them where it hurts most and that is why there is a great orchestrated clamour for reversion to the earlier system. A loosening of hold over the local police means a tremendous loss of influence in their constituencies. While the grievance of some is that the Chief Minister wants to concentrate all power in his hands; the complaint of many is that the illegitimate influence peddling of the earlier era has not been reduced. “Faceless middlemen” have taken their place and are exercising illegitimate control over the police. Politicians were at least known faces and could be called to account for their misdeeds, but the new middlemen being faceless, private interests rather than public figures get away with influence peddling.
The Chief Minister has shown enormous courage to resist the demands for reversion to the earlier system. However, the new initiatives are under threat from many sides and for many reasons.
One, they are fairly tenuous because they have not been given any statutory backing. The Chief Minister thinks that once the police can show to the public that they can function professionally when they are given a free reign, no party or the government will have the courage to dismantle the initiatives.
Two, the reforms have not been introduced as a package of comprehensive measures supporting each other. Any move to give functional autonomy to the police should have been accompanied with the establishment of institutional arrangements that would lead to speedy inquiry into citizens’ complaints against police personnel and provide redress. The Government of Kerala did set up a Police Performance and Accountability Commission on November 18, 2003. , but its charter is too limited to enable it to function as an effective accountability mechanism. It has only two terms of reference. Besides evaluating the general performance of the police during the last two years and making periodic recommendations to improve the functioning of the police, the Commission is asked to “ examine the effectiveness of the autonomy given to the police in recent times, its merits and demerits and to suggest measures for further improving the functioning and accountability of the police.” The Commission does not supervise the investigation of individual cases or entertain individual complaints, though it can suggest measures for improving investigation in general.
Three, the biggest threat comes from the perennial scourge of the police- their corruption. According to some, freedom given to the police has resulted in increasing the incidence of corruption in the police. Reform requires not only that illegitimate political interference come to a stop but that the police take responsibility for providing honest, unbiased and efficient service to the public.
This puts a tremendous responsibility on the shoulders of police leadership at different levels in that state. The police have always blamed interference from their ‘political masters’ as a major justification for poor performance. With this curbed, it is for them to show that they will not ally with other influence peddlers and vested interests in the performance of their duty but stay steadfast to their mandated duty to protect the public interest and uphold the law. They cannot let this opportunity be wasted. On their performance depends not only their survival as an autonomous police force but also of the growth of accountable democratic policing in other states. If the transition from the regime police force to a democratic police service has to occur in other parts of the country, Kerala has the opportunity to take the lead, but the police there have to show that they are mature and competent enough to set an example for other states in the country to follow.
The Congress party at the center has to realise the enormous significance of developments in policing in Kerala and extend support to the present Kerala CM against his opponents within as well as outside the party. It will be a sad day if the chief minister is divested of Home portfolio and the new incumbent allows the recent reform initiatives to fall flat without support.
The India Today’s '2004 State of the States’ report ranks Kerala No 2 amongst all states. The ranking is based mainly on assessment of economic and social growth parameters chosen for the study.
However, if the CHRI, which is an independent non government international NGO and has been advocating for police reforms all over the country, were to rank states on the basis of initiatives being taken to introduce reforms in one of the most important institutions of governance i.e. the Police, it would unwaveringly place the God’s Own Country at the top of the list. Kerala is the only state in the country where at least an attempt is being made, even though limited, to introduce some changes in the system that has remained unchanged since 1861.
It was 143 years ago that the British set up a police system in this country through the Police Act of 1861. The establishment of the system was governed more by considerations of defending the establishment rather than providing sensitive and friendly policing to the people. The police forces in all the states were structured, groomed and controlled to be loyal and subservient to the rulers and not to the people. The police thus were seen not as servants of law but of the regime in power and this perception has persisted into the 58th year of Independence because no state and no political regime has sought to encourage the transition from a colonial to a democratic system of policing. Major recommendations made by the National Police Commission two and a half decades ago to improve the policing across the country have remained unimplemented. But Kerala is at least trying.
Kerala is the only state in the country, which is showing the political will to change the system. Over the last couple of years, some significant developments have occurred in policing in Kerala. For the first time, the Police are being allowed the autonomy to function without any interference from outside. The police are not brooking any interference from politicians in their day-to-day work and this has been due to the support extended to them by the present Chief Minister. Decisions regarding appointments, transfers, postings, promotions, rewards and punishments in respect of officers up to the rank of Deputy Superintendent of Police are being taken by the Police Headquarters. Consequently, the police leadership is exercising greater, forceful and uninterrupted authority over its men and this has helped in improving the discipline in the force. There is also some evidence of reduction in crime during the last year. According to figures, the total IPC crime in the state came down from 104200 in 2002 to 99790 in 2003. Incidence of murder fell down from 451 in 2002 to 406 in 2003, attempt to murder from 562 to 449 and rape from 449 to 376 during the one-year period.
Politicians, of course, have not welcomed the development of freeing the police from their clutches. It has hit them where it hurts most and that is why there is a great orchestrated clamour for reversion to the earlier system. A loosening of hold over the local police means a tremendous loss of influence in their constituencies. While the grievance of some is that the Chief Minister wants to concentrate all power in his hands; the complaint of many is that the illegitimate influence peddling of the earlier era has not been reduced. “Faceless middlemen” have taken their place and are exercising illegitimate control over the police. Politicians were at least known faces and could be called to account for their misdeeds, but the new middlemen being faceless, private interests rather than public figures get away with influence peddling.
The Chief Minister has shown enormous courage to resist the demands for reversion to the earlier system. However, the new initiatives are under threat from many sides and for many reasons.
One, they are fairly tenuous because they have not been given any statutory backing. The Chief Minister thinks that once the police can show to the public that they can function professionally when they are given a free reign, no party or the government will have the courage to dismantle the initiatives.
Two, the reforms have not been introduced as a package of comprehensive measures supporting each other. Any move to give functional autonomy to the police should have been accompanied with the establishment of institutional arrangements that would lead to speedy inquiry into citizens’ complaints against police personnel and provide redress. The Government of Kerala did set up a Police Performance and Accountability Commission on November 18, 2003. , but its charter is too limited to enable it to function as an effective accountability mechanism. It has only two terms of reference. Besides evaluating the general performance of the police during the last two years and making periodic recommendations to improve the functioning of the police, the Commission is asked to “ examine the effectiveness of the autonomy given to the police in recent times, its merits and demerits and to suggest measures for further improving the functioning and accountability of the police.” The Commission does not supervise the investigation of individual cases or entertain individual complaints, though it can suggest measures for improving investigation in general.
Three, the biggest threat comes from the perennial scourge of the police- their corruption. According to some, freedom given to the police has resulted in increasing the incidence of corruption in the police. Reform requires not only that illegitimate political interference come to a stop but that the police take responsibility for providing honest, unbiased and efficient service to the public.
This puts a tremendous responsibility on the shoulders of police leadership at different levels in that state. The police have always blamed interference from their ‘political masters’ as a major justification for poor performance. With this curbed, it is for them to show that they will not ally with other influence peddlers and vested interests in the performance of their duty but stay steadfast to their mandated duty to protect the public interest and uphold the law. They cannot let this opportunity be wasted. On their performance depends not only their survival as an autonomous police force but also of the growth of accountable democratic policing in other states. If the transition from the regime police force to a democratic police service has to occur in other parts of the country, Kerala has the opportunity to take the lead, but the police there have to show that they are mature and competent enough to set an example for other states in the country to follow.
The Congress party at the center has to realise the enormous significance of developments in policing in Kerala and extend support to the present Kerala CM against his opponents within as well as outside the party. It will be a sad day if the chief minister is divested of Home portfolio and the new incumbent allows the recent reform initiatives to fall flat without support.
Tuesday, May 11, 2004
TORTURE
TORTURE OF IRAQI PRISONERS
From the very beginning, the US intervention in Iraq has been based on falsehood and arrogance. The Americans thought they would find weapons; they didn’t. They assumed that they would be hailed as liberators by Iraqis; they weren’t. They felt that they would succeed in establishing a local democratic regime in the country; they failed. And to top it all, Americans said they were there because Saddam Hussein was the worst despot, practicing torture on innocent Iraqis; they have shown themselves to be equally bad, if not worse. As a professor in the Middle East Institute in the Columbia University said: “ The United States looks increasingly foolish.” Yes sir, it does. In fact, it looks more than foolish; it looks increasingly ugly and hideous.
Its no use saying, as President Bush did, that these were the actions of a few and did not reflect the conduct of the US army. The report of Major General Taguba brought out that Iraqi prisoners at Abu Ghraib were subjected to “sadistic, blatant and wanton criminal abuses” and also that the abuse was common and routine- “a fact of Army life that the soldiers felt no need to hide.” The gravity of violations and the fact that they were being practiced for long make it a case of “collective wrongdoing” and the “failure of Army leadership at highest levels.”
If one goes by the ‘Geneva Convention relative to the Treatment of Prisoners of War’, the responsibility for misconduct cannot be put at the doors of a few delinquent army officers. It has to be owned by the US Government. Article 12 of this Convention clearly says: “Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them. Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given them.”
In fact, the victims of torture at Abu Ghraib were not even enemy soldiers captured as prisoners during war; they were mostly civilians. General Taguba’s inquiry report divided them into three categories- common criminals, security detainees and a few insurgent leaders. Civilians in the hands of the occupying power, who do not indulge in activities hostile to such power, are to be treated as “protected persons” within the meaning of the ‘Geneva Convention relative to the Protection of Civilian Persons in Time of War’. Article 43 of this Convention entitles a protected person to have his internment reconsidered by an appropriate court or administrative board designated by the detaining power for that purpose. Obviously, such mechanisms either do not exist or cases of detainees have not been reconsidered in Iraq. General Taguba’s inquiry found that more than 60% of the inmates at Abu Ghraib were not regarded even by the US Army authorities as a threat and deserved to be released.
What happened at Abu Ghraib reflects adversely not only on the discipline but also on the training of the US army,. The 372nd Military Police Company doing the guard duty at the prison were not trained for the job assigned to them. Brigadier General Janis Karpinski, who was in charge of Abu Ghraib when the incidents occurred, is actually a business consultant in civilian life. She was drawn out of the reserve list, sent to Iraq and put in charge of the military prisons in that country. It was admitted by many witnesses during inquiry that they were not given any “training guidelines.” It appears that the US authorities were not unduly perturbed by the requirements of international humanitarian laws like Geneva Conventions, which insist on provisions of laws regarding humane treatment of the prisoners to be known to those who are deployed on guarding prisons. Contents of these provisions have to be made known to the prisoners too. For this purpose, the contents must be posted in the prisoners’ own language at places where all may read them. None of this was done at Abu Ghraib. Some of the accused army personnel during investigations admitted their complete ignorance of the international humanitarian and human rights instruments.
Article 39 of the ‘Geneva Convention relative to the Treatment of Prisoners of War’ says that every prison shall be put under the immediate authority of a responsible officer belonging to the regular armed forces of the detaining power. The idea is that it shall be the responsibility of such an officer and through him of his government to ensure that prisoners are not only not subjected to torture or other humiliating or degrading treatment, but are looked after according to the prescribed norms. The other idea in prescribing this provision is that an officer of the regular army can be held accountable if the standards are violated. The inquiry into abuse of prisoners at Abu Ghraib revealed that in addition to the regular military personnel, private civilian contractors employed by the US army had free and unrestricted access to all places inside the prison. In fact, they were also involved in interrogating prisoners. These people asked the military policemen on guard duty to facilitate interrogations by “setting conditions” that clearly violated all rules and norms. One civilian contractor was even accused of raping a young male prisoner, but it has not been possible to proceed against him because the military law has no jurisdiction over him.
It is doubtful if the appeal made by President Bush to the Arab world on May 5, asking them to understand that what happened in that prison does not represent the “America that I know” and assuring them that justice will be done will plug the outrage. The problem is that the America that they know is much different from the America that Mr. Bush knows. The appeal is not likely to close this gap in perceptions. The hope, if there was any, that Iraq will return to normalcy in the near future, may receive a big set back as a result of what happened at Abu Ghraib.
(Original version of article published in the Indian Express dated 11.5.2004)
From the very beginning, the US intervention in Iraq has been based on falsehood and arrogance. The Americans thought they would find weapons; they didn’t. They assumed that they would be hailed as liberators by Iraqis; they weren’t. They felt that they would succeed in establishing a local democratic regime in the country; they failed. And to top it all, Americans said they were there because Saddam Hussein was the worst despot, practicing torture on innocent Iraqis; they have shown themselves to be equally bad, if not worse. As a professor in the Middle East Institute in the Columbia University said: “ The United States looks increasingly foolish.” Yes sir, it does. In fact, it looks more than foolish; it looks increasingly ugly and hideous.
Its no use saying, as President Bush did, that these were the actions of a few and did not reflect the conduct of the US army. The report of Major General Taguba brought out that Iraqi prisoners at Abu Ghraib were subjected to “sadistic, blatant and wanton criminal abuses” and also that the abuse was common and routine- “a fact of Army life that the soldiers felt no need to hide.” The gravity of violations and the fact that they were being practiced for long make it a case of “collective wrongdoing” and the “failure of Army leadership at highest levels.”
If one goes by the ‘Geneva Convention relative to the Treatment of Prisoners of War’, the responsibility for misconduct cannot be put at the doors of a few delinquent army officers. It has to be owned by the US Government. Article 12 of this Convention clearly says: “Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them. Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given them.”
In fact, the victims of torture at Abu Ghraib were not even enemy soldiers captured as prisoners during war; they were mostly civilians. General Taguba’s inquiry report divided them into three categories- common criminals, security detainees and a few insurgent leaders. Civilians in the hands of the occupying power, who do not indulge in activities hostile to such power, are to be treated as “protected persons” within the meaning of the ‘Geneva Convention relative to the Protection of Civilian Persons in Time of War’. Article 43 of this Convention entitles a protected person to have his internment reconsidered by an appropriate court or administrative board designated by the detaining power for that purpose. Obviously, such mechanisms either do not exist or cases of detainees have not been reconsidered in Iraq. General Taguba’s inquiry found that more than 60% of the inmates at Abu Ghraib were not regarded even by the US Army authorities as a threat and deserved to be released.
What happened at Abu Ghraib reflects adversely not only on the discipline but also on the training of the US army,. The 372nd Military Police Company doing the guard duty at the prison were not trained for the job assigned to them. Brigadier General Janis Karpinski, who was in charge of Abu Ghraib when the incidents occurred, is actually a business consultant in civilian life. She was drawn out of the reserve list, sent to Iraq and put in charge of the military prisons in that country. It was admitted by many witnesses during inquiry that they were not given any “training guidelines.” It appears that the US authorities were not unduly perturbed by the requirements of international humanitarian laws like Geneva Conventions, which insist on provisions of laws regarding humane treatment of the prisoners to be known to those who are deployed on guarding prisons. Contents of these provisions have to be made known to the prisoners too. For this purpose, the contents must be posted in the prisoners’ own language at places where all may read them. None of this was done at Abu Ghraib. Some of the accused army personnel during investigations admitted their complete ignorance of the international humanitarian and human rights instruments.
Article 39 of the ‘Geneva Convention relative to the Treatment of Prisoners of War’ says that every prison shall be put under the immediate authority of a responsible officer belonging to the regular armed forces of the detaining power. The idea is that it shall be the responsibility of such an officer and through him of his government to ensure that prisoners are not only not subjected to torture or other humiliating or degrading treatment, but are looked after according to the prescribed norms. The other idea in prescribing this provision is that an officer of the regular army can be held accountable if the standards are violated. The inquiry into abuse of prisoners at Abu Ghraib revealed that in addition to the regular military personnel, private civilian contractors employed by the US army had free and unrestricted access to all places inside the prison. In fact, they were also involved in interrogating prisoners. These people asked the military policemen on guard duty to facilitate interrogations by “setting conditions” that clearly violated all rules and norms. One civilian contractor was even accused of raping a young male prisoner, but it has not been possible to proceed against him because the military law has no jurisdiction over him.
It is doubtful if the appeal made by President Bush to the Arab world on May 5, asking them to understand that what happened in that prison does not represent the “America that I know” and assuring them that justice will be done will plug the outrage. The problem is that the America that they know is much different from the America that Mr. Bush knows. The appeal is not likely to close this gap in perceptions. The hope, if there was any, that Iraq will return to normalcy in the near future, may receive a big set back as a result of what happened at Abu Ghraib.
(Original version of article published in the Indian Express dated 11.5.2004)
Tuesday, March 16, 2004
APPOINTMENTS IN NHRC
POLITICS OF APPOINTMENTS IN THE NHRC
The appointment of P.C.Sharma, former Director CBI, as a member of the National Human Rights Commission (NHRC) has raised a hornet’s nest. As per a press report, a public interest petition, questioning the appointment, has already been filed in the Supreme Court.
The appointment raises important issues regarding the composition of the NHRC. According to Section 3 of the Protection of Human Rights Act, 1993, the NHRC consists of a chairperson and four members. Two of these members must be from the higher judiciary and two "from amongst persons having knowledge of, or practical experience in, matters relating to human rights." Sharma has obviously been considered by the government a person having knowledge or experience of dealing with human rights.
Selection of chairperson and members of the NHRC is made on the recommendations of a committee consisting of the Prime Minister, Home Minister, Speaker and leader of the opposition in the House of the People and Deputy Chairman and leader of opposition in the Council of States. It is presumed that the government fulfilled all the formalities required by law before appointing Sharma to the post
Does Sharma’s appointment violate any provision of the Protection of Human Rights Act? Probably, not. However, the important question is- do the public perceive this appointment as legitimate?
One perception is that Sharma has been rewarded for the way he handled certain cases, like the Babri Masjid demolition case, for instance. In September last year, the Rae Bareli special court absolved Advani from the Babri Masjid demolition case, while charges were framed against the HRD Minister Murli Manohar Joshi and others. Many at that time, particularly the opposition leaders, questioned CBI’s role in the case. Even if this is not true, the government should have avoided taking a step that would give rise to such misgivings. NHRC is too important an organisation to be fiddled with by the government.
A part of the problem is lack of transparency in making such appointments. These are generally decided through notings in secret files or during hush hush closed-door meetings between the politicians and their favourite bureaucrats. The public therefore look upon such appointments as the government’s way of distributing largesse to the selected few.
The status of national institutions for the protection and promotion of human rights is to be governed by internationally accepted principles, known as the Paris Principles. One of these principles says that the composition of the national institution must reflect the “pluralist representation of social forces” through the presence of representatives of (a) NGOs), (b) trends in political or religious thought, (c) universities and qualified experts, (d) Parliament, and (e) government departments (only in an advisory capacity).
Though the Government of India is a signatory to the United Nations General Assembly Resolution adopting the Paris Principles, unfortunately, it has never followed the principles in letter or in spirit. In fact, the government has never looked beyond its nose in selecting the two non-judicial members of the Commission. In the absence of any prescribed process of selection, the appointments provide a means of extending patronage. Sometimes, they are also the result of intense lobbying done by the services. For instance, one post in the NHRC has through out been occupied by an officer from the Indian Foreign Service. No human rights activist, academician or a representative of civil society has ever been considered for the two posts. The NHRC has always had very restricted composition, definitely lacking the plurality of perspectives envisaged in the Paris Principles.
A large number of civic oversight bodies have been established in foreign countries to deal with citizens’ complaints against police. One principle followed is that none of the members of the complaint bodies can be a police officer. For example, Section 9 of the Police Reforms Act 2002, that sets up an Independent Police Complaints Commission in the UK, clearly debars a person who “holds or has held office as a constable in any part of the United Kingdom” from becoming the chairperson or a member of the Commission. Similar provisions exist in the legislation of other countries. Not allowing a police officer to hold such an assignment is considered important for ensuring an independent and impartial functioning of such bodies. The NHRC is of course not a police complaint body, but the majority of complaints received by the NHRC every year are against police personnel.
Even if there is no bar against the employment of a police officer, does the Commission need police expertise? The Commission’s secretariat already has the services of a few police officers who are senior to Sharma. For instance, there are two IPS officers of 1964 batch who have been working in the Commission as Special Rapporteurs- Chaman Lal and P.G.J. Nampoothiri. Sharma belongs to the 1966 batch of the Indian Police Service. Santosh Kumar, Director General (Investigation) is only one year junior to him. In its zeal to appoint Sharma, the government has not bothered to consider how his induction as a member of the Commission will affect the existing secretarial set up of the Commission.
The Supreme Court in its havala case judgement issued three important directions to insulate the CBI from illegitimate control of the politicians. One, its superintendence should be transferred from the government to the CVC; two, the appointment of Director CBI should be made on the recommendation of a high-powered committee headed by the chairperson CVC; and three, Director CBI should have a fixed minimum secure tenure. There is enough evidence to prove that the judgement has failed to insulate the CBI from illegitimate pressures and influences exerted by those at the helm of affairs in the government.
The appointment of former Director CBI as a member of NHRC brings to the fore an important issue for debate. Should there be a provision in law debarring government servants occupying such important posts as Director CBI from holding any public office of profit after retirement?
The appointment of P.C.Sharma, former Director CBI, as a member of the National Human Rights Commission (NHRC) has raised a hornet’s nest. As per a press report, a public interest petition, questioning the appointment, has already been filed in the Supreme Court.
The appointment raises important issues regarding the composition of the NHRC. According to Section 3 of the Protection of Human Rights Act, 1993, the NHRC consists of a chairperson and four members. Two of these members must be from the higher judiciary and two "from amongst persons having knowledge of, or practical experience in, matters relating to human rights." Sharma has obviously been considered by the government a person having knowledge or experience of dealing with human rights.
Selection of chairperson and members of the NHRC is made on the recommendations of a committee consisting of the Prime Minister, Home Minister, Speaker and leader of the opposition in the House of the People and Deputy Chairman and leader of opposition in the Council of States. It is presumed that the government fulfilled all the formalities required by law before appointing Sharma to the post
Does Sharma’s appointment violate any provision of the Protection of Human Rights Act? Probably, not. However, the important question is- do the public perceive this appointment as legitimate?
One perception is that Sharma has been rewarded for the way he handled certain cases, like the Babri Masjid demolition case, for instance. In September last year, the Rae Bareli special court absolved Advani from the Babri Masjid demolition case, while charges were framed against the HRD Minister Murli Manohar Joshi and others. Many at that time, particularly the opposition leaders, questioned CBI’s role in the case. Even if this is not true, the government should have avoided taking a step that would give rise to such misgivings. NHRC is too important an organisation to be fiddled with by the government.
A part of the problem is lack of transparency in making such appointments. These are generally decided through notings in secret files or during hush hush closed-door meetings between the politicians and their favourite bureaucrats. The public therefore look upon such appointments as the government’s way of distributing largesse to the selected few.
The status of national institutions for the protection and promotion of human rights is to be governed by internationally accepted principles, known as the Paris Principles. One of these principles says that the composition of the national institution must reflect the “pluralist representation of social forces” through the presence of representatives of (a) NGOs), (b) trends in political or religious thought, (c) universities and qualified experts, (d) Parliament, and (e) government departments (only in an advisory capacity).
Though the Government of India is a signatory to the United Nations General Assembly Resolution adopting the Paris Principles, unfortunately, it has never followed the principles in letter or in spirit. In fact, the government has never looked beyond its nose in selecting the two non-judicial members of the Commission. In the absence of any prescribed process of selection, the appointments provide a means of extending patronage. Sometimes, they are also the result of intense lobbying done by the services. For instance, one post in the NHRC has through out been occupied by an officer from the Indian Foreign Service. No human rights activist, academician or a representative of civil society has ever been considered for the two posts. The NHRC has always had very restricted composition, definitely lacking the plurality of perspectives envisaged in the Paris Principles.
A large number of civic oversight bodies have been established in foreign countries to deal with citizens’ complaints against police. One principle followed is that none of the members of the complaint bodies can be a police officer. For example, Section 9 of the Police Reforms Act 2002, that sets up an Independent Police Complaints Commission in the UK, clearly debars a person who “holds or has held office as a constable in any part of the United Kingdom” from becoming the chairperson or a member of the Commission. Similar provisions exist in the legislation of other countries. Not allowing a police officer to hold such an assignment is considered important for ensuring an independent and impartial functioning of such bodies. The NHRC is of course not a police complaint body, but the majority of complaints received by the NHRC every year are against police personnel.
Even if there is no bar against the employment of a police officer, does the Commission need police expertise? The Commission’s secretariat already has the services of a few police officers who are senior to Sharma. For instance, there are two IPS officers of 1964 batch who have been working in the Commission as Special Rapporteurs- Chaman Lal and P.G.J. Nampoothiri. Sharma belongs to the 1966 batch of the Indian Police Service. Santosh Kumar, Director General (Investigation) is only one year junior to him. In its zeal to appoint Sharma, the government has not bothered to consider how his induction as a member of the Commission will affect the existing secretarial set up of the Commission.
The Supreme Court in its havala case judgement issued three important directions to insulate the CBI from illegitimate control of the politicians. One, its superintendence should be transferred from the government to the CVC; two, the appointment of Director CBI should be made on the recommendation of a high-powered committee headed by the chairperson CVC; and three, Director CBI should have a fixed minimum secure tenure. There is enough evidence to prove that the judgement has failed to insulate the CBI from illegitimate pressures and influences exerted by those at the helm of affairs in the government.
The appointment of former Director CBI as a member of NHRC brings to the fore an important issue for debate. Should there be a provision in law debarring government servants occupying such important posts as Director CBI from holding any public office of profit after retirement?
Subscribe to:
Posts (Atom)