National Counter Terrorism Centre

Countering the National Counter Terrorism Centre

The National Counter Terrorism Centre (NCTC) was countered before it could even come into existence. This UPA government has shown remarkable ability to kill its own ideas, even the good ones, through sheer brashness and lack of political management skill.

The outcry against the establishment of NCTC has been prompted as much by the way the notification was issued as by what it contained.  The state governments felt hurt because they were not consulted on such an important proposal, which infringes on their powers. According to most chief ministers, the establishment of NCTC violates the principle of federalism enshrined in the Constitution.

The Police and Public Order are indeed State subjects under the Constitution of India.  But then this is not the first time the central government has established a federal police organisation.  The central government has taken active interest in policing in the country. From the very beginning, it has focused on raising and expanding its own para military set up. Till 1962, only two central para military forces existed- the Assam Rifles (AR) and the Crown Reserve Police (CRP), but now there are eight and their combined strength had reached a staggeringly large figure of 8,38,893 by the end of 2009.   They have all been heavily deployed on law and order duties in states.  The increasing deployment of central para military forces has come to be accepted by state governments.  They indeed demand this deployment when needed.

So why this chorus of disapproval of a central organisation that is needed to fight terrorism? Obviously, the state governments are not convinced about the intentions of the central government. They are looking at NCTC not as an agency that will merely coordinate the functioning of different organisations engaged in the fight against terror, but also as an outfit that will function as a part of IB to create and fish in troubled waters. Ms Jayalalita’s apprehension that these powers “can be misused to suit ends that are motivated by reasons other than fighting terror” cannot be dismissed outright.

There are two clear problems with the way the NCTC has been conceived.  One, it has been given wide ranging arrest and search powers under Section 2(e) of the Unlawful Activities Prevention Act of 1967.  Two, it will function under the IB, which is a clandestine intelligence organisation that specialises in collecting not only criminal and security related intelligence but also in gathering and feeding the government with political intelligence.  In fact, the I B does not have any statutory base.
It was established as the Central Special Branch by an order of the Secretary of State for India in London on December 23, 1887 and given its present nomenclature (IB) in 1920.  The Prime Minister, in his reply to the chief ministers, said that the “primary purpose of NCTC is to coordinate counter-terrorism efforts across the country as the IB has been doing so far. It is for this reason that the NCTC has been located within the IB and not as a separate organisation.” Location of NCTC in the IB may be all right, but in that case investing it with powers of arrest, search and seizure will always create the type of resistance that was recently seen.    Since the NCTC has been put under the IB, the legal powers that the new organisation has been given will devolve on the IB too.  In other words, an organisation that is not statutorily backed will come to enjoy legal powers.

The central government also forgot another important fact. A proposal may be legally viable, but along with that, its functional viability has also to be assured.  An organisation like the NCTC cannot function effectively without full support and cooperation of the state governments.  Turf wars also come on the way. When the Mumbai bomb blasts occurred in July 2011, there were reports that Mumbai Anti Terror Squad showed reluctance to associate National Investigating Agency with the investigation.  Though at that time, P.C. Chidambaram issued a statement dismissing such reports,   two months later the report was confirmed when the Union Home Minister sought transfer of the case to NIA, but the Maharastra Government prevailed on him not to shift the investigation from their team.

The Constitution establishes a federal system of policing, but there are clear indications of disturbance in the system.  Heavy expansion of para military forces and the power to deploy them in aid of civil power, use of  CBI to browbeat the ruling opposition in some states, establishment of a National Investigation Agency, setting up of four new NSG hubs in state capitals, amendment of All India Service Rules to dilute the disciplinary power of the state governments, the drafting of a piece of legislation on communal violence, the drafting of Lokayukta Bill, the amendment of Railway Protection Force Act and now the establishment of NCTC are some of the developments that indicate  a trend towards centralisation of policing. If extremist or terrorist violence increases further in the country, this trend is likely to be accentuated.

With the emergence of coalition government at the centre and dominance of regional opposition parties in states, the trend towards centralisation of policing will always be challenged and resisted by states.  Whichever party rules the centre, it will require a much more deft handling of such issues than has been shown by the present government at the centre.  “Cooperative federalism” will have to be the order of the day

Prsecution Sanction- Law Provides Protection

Sanction for Prosecution

Introduction

Human rights violations by security force personnel and corruption scams by public servants keep on occurring in this country with regular frequency. An important reason why this continues to happen is an environment of impunity that has been built up over a period of time through a combination of legal provisions and tardy functioning of the criminal justice system. There are three ways in which the culture of impunity prevents the perpetrators of violations and scams from being brought to justice.  One, every attempt is made to suppress the incidents from being brought to light.  Two, once the offences cannot be hidden, they are not investigated properly.  In fact, there are provisions in law that do not allow even inquiries to be done against public servants of certain ranks involved in corruption scams.   Three, even if investigations succeed in establishing criminal responsibility, the perpetrators are not allowed to be prosecuted, tried and duly punished.

This paper does not discuss  the culture of impunity in all its aspects.  It focuses only on the third aspect- the one that does not allow prosecutions against public servants without sanction from the government.  This subject received prominence in a  judgement delivered by the Supreme Court in Dr. Subramanian Swamy’s case (To be referred as Subramanian Swamy’s case here-in-after) on January 31, 2012.  The main points of this judgement will be analysed while discussing  important issues relating to the subject.

Legal Position

Sanction to prosecute a public official is required under certain provisions of law, two of which are significant- Section 197 of the Criminal Procedure Code (Cr P C), 1973 and Section 19 of the Prevention of Corruption Act( P C A), 1988.

Section 197 Cr P C says that whenever a judge or magistrate or a public servant is accused of any offence alleged to have been committed by him “while acting or purporting to act in the discharge of his official duty”, no court shall take cognizance of that offence without sanction from the concerned government.  Sanction would be needed from the central or state government, depending on whether he was employed in connection with the affairs of the Union or a State at the time of the alleged commission of the offence.  The Section further debars the court from taking cognizance of any offence alleged to have been committed by a member of the armed forces of the Union while acting or purporting to act in the discharge of his official duty without sanction of the central government.  If the Armed Forces Special Powers Act, 1958 is applicable to any disturbed area, it provides further protection by mandating that “no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.” 

Section 19 of the Prevention of Corruption Act (PCA), 1988, on the other hand, is different.  It says that no court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 of the PCA Act alleged to have been committed by a public servant, except with the previous sanction of the concerned government.  It would be central or state government depending on whether the public servant is employed in connection with the affairs of the Union or a State and is not removable from his office “save by or with the sanction” of the central or state government.  This Section is not applicable once the public servant has ceased to be employed in the post which the public servant is alleged to have abused or misused for corrupt motives and is no longer serving in connection with the affairs of the Union or a State.  In 2008, the central government tried to extend impunity even to retired public servants by bringing them within the scope of Section 19 of the Prevention of Corruption Act, 1988 through an amendment.  This attempt was made mainly to undo a judgement  of the Supreme Court , where it held that section 19 of the PCA did not protect former public servants. Luckily, the amendment to the Act was not ratified by the Rajya Sabha even though it had been cleared hurriedly by the Lok Sabha.

The difference between Section 197 of the Code and Section 19 of the PCA is clear.  Sanction contemplated in Section 197 Cr. P C is in respect of offences which the public servant is accused of having committed while he was acting or purporting to act in discharge of his duties.  On the other hand, offences specified in Section 19 of the PCA, like giving or taking bribe, can by no stretch of imagination be linked to “acting or purporting to act in discharge of his official duty.”  This is why the Supreme Court has maintained that “Section 197 of the Code and Section 19 of the Act operate in conceptually different fields.”

Meaning of Cognizance

Law mandates that no court shall take cognizance of the offence without sanction from the government, but nowhere does it state what the word “cognizance” means. One of the objections of the government to the petition filed by Mr. Subramanian Swamy was that his private complaint seeking sanction for prosecution was premature as the question of sanction should arise only when the court decided to take cognizance. The Supreme Court did not accept this argument as taking cognizance, according to them, meant taking judicial notice of an offence. The Court clarified that it was different from initiation of proceedings.  Cognizance is taken at the initial stage when the magistrate applies mind to the facts mentioned in the complaint.  At that stage, the court has to refer only to averments made in the complaint and is not required to analyse evidence. The court endorsed the guidelines that the CVC had issued in 2005.

As per these guidelines, the grant of sanction is an administrative and not a quasi judicial function.  It is therefore not necessary in such cases for the competent authority to hear the version of the accused to decide whether prosecution sanction should be given or denied.  The authority should not undertake an inquiry to judge the veracity of allegations made against the public servant nor should it ask the investigating agency to further investigate the matter. All that is required is to assess whether the facts placed before the competent authority disclose prima facie commission of an offence by the public servant. If it finds enough evidence then it has to accord sanction; otherwise it can refuse.  But in both cases, according to the Court, the decision taken on the complaint of a citizen must be intimated to him.

Who can seek sanction for prosecution?

There has always been a presumption that only an investigating or a prosecuting agency can seek sanction to prosecute a public servant.  The significance of Supreme Court’s judgement in Subramanian Swamy’s case lies in the clear enunciation of a private citizen’s right to seek sanction to prosecute a public servant who is accused of having committed an offence under the Prevention of Corruption Act, 1988.  One of the main objections raised by the government in this case was that Subramanian Swamy had no locus standi to file his complaint as the CBI was already investigating the allegations.  The Court rejected this argument on two grounds.  One, there is no provision in law that debars a citizen from filing a complaint.  Two, an offence harms not only an individual but the whole society.  Every citizen, therefore, has a right to take an offender to court.  The Court has linked the right of a citizen to file a complaint with his right to access the court to set criminal law into motion.  This, according to the judgement, is a constitutional right, which cannot be “whittled down, circumscribed or fettered by putting it into a straitjacket formula of locus standi unknown to criminal jurisprudence…” 

Rationale for Sanction

The idea that public servants should be provided protection from being prosecuted in courts of law is a part of the concept of sovereign immunity that we have adopted.  The way the concept has developed, it has meant two things.  One, the sovereign can do no wrong; and two, no suit can be instituted against it without its consent. While the first idea has more or less been discarded by us in law, the second has been persevered with, mainly because this provided the post independence rulers of this country a shield to protect themselves from being held accountable.

The rationale often cited by the government to keep these provisions in law is, however, different. According to government explanation, the idea is to protect the public servants from the threat and ignominy of malicious and vexatious prosecutions, so that they can take their decisions without fear of being victimised.  There may be some truth in this contention, but   it raises more questions than it answers. One, the IPC has sufficient provisions to penalise people making frivolous and false complaints.  Two, section 170 Cr P C requires a case to be sent for judicial cognizance only when there is sufficient evidence.  Three, Section 190 of the Code gives discretion to the court to refuse to take cognizance of the case, which does not have merit. The court can dismiss the complaint at the initial stage itself if it is false or frivolous. Four, what is it that the competent authority has to assess before deciding whether sanction should be accorded or not?  According to the Vigilance Manual of the Central Vigilance Commission, the sanctioning authority must satisfy itself “whether the material placed before it discloses a prima facie case against the person sought to be prosecuted.”     Now, who is more competent to decide whether evidence is sufficient to make out a prima facie case against the accused public servant- the prosecuting agency like the CBI or the concerned government department? The C V C’s Vigilance Manual says: “There are adequate internal controls within the CBI to ensure that a recommendation to prosecute is taken only after a very useful examination of all the facts and circumstances of the case.”  In case this is so, why should it be necessary to seek sanction since the available evidence has already been weighed and assessed?

The Problem

There are two aspects of the problem.  One is the denial of sanction and the other is the delay in giving it.  Neither the website of CVC nor of the CBI gives information about the number of cases in which sanction was sought and the number in which it was denied.     The entire process of decision making in such cases is marred by an element of arbitrariness and untrustworthiness.  According to a report in the Hindu, the Union Ministry of Home Affairs has rejected in the past four years alone “at least 42 requests to sanction the prosecution of military personnel found by the police to have engaged in crimes such as murder, homicide and rape in Kashmir….. Thirty-one of the cases in which sanction was denied relate to rape, culpable homicide or murder. The others involve a wide variety of crimes, ranging from criminal trespass to illegal confinement. In not a single case, The Hindu found, had sanction been granted.”  Committing crimes like rape is not an act done in exercise of powers conferred by the Act.  Recently, the Supreme Court  questioned the extent to which the army could claim blanket immunity under the AFSPA Act.  “You go to a place in exercise of AFSPA, you commit rape, you commit murder, then where is the question of sanction? It is a normal crime which needs to be prosecuted, and that is our stand,” a bench of Justices B S Chauhan and Swatanter Kumar remarked to Additional Solicitor General P P Malhotra, representing the Army.  The Supreme Court’s observations raise a very pertinent question-  why should there be any need for prosecution sanction  in those offences which have no connection with the discharge of official duties? The need for prosecution sanction even in such cases and inordinate delay in obtaining sanction are considered by the CVC as specific bottlenecks in the effective functioning of the CBI.  This results not only in impeding CBI’s functioning but also in providing impunity to the accused and thus defeating justice. The Supreme court in an earlier five bench judgement had warned of the dangers resulting from refusal to sanction prosecution where there was clear prima facie evidence of an offence having been committed by public servants.  The case concerned  two Ministers of Madhya Pradesh Government who were found guilty of corruption offences by the Lokayukta of the state.  The Governor of the state accorded sanction for prosecution despite the state government’s refusal to do so.  The High Court upheld the state government’s contention that the governor could not act contrary to the “aid and advice” of the council of ministers.  In a judgement  delivered on April 6, 2004, the Supreme Court quashed the orders of the High Court and upheld the right of the governor to give sanction to prosecute a minister charged with an offence.  Writing for the Bench, Justice SN Variava had said “democracy itself will be at stake” if the government refused to accord sanction for prosecution against ministers in matters where prima facie a clear case for prosecution was made out.  “It would then lead to a situation where people in power may break law with impunity safe in knowledge that they will not be prosecuted as the requisite sanction will not be granted.”

Powers to grant or deny sanction are being used by the government arbitrarily in many cases, mainly because the law does not prescribe any guidelines binding the authorities to decide the cases transparently and to give justification for denial of sanctions.

Most discussion on this issue has centered around the problem of delay in obtaining sanction from the government. The present website of the CBI does not indicate the number of cases pending sanction with government authorities. Sometime ago, this information was available and the data presented a somewhat dismal picture.  On 31 August 2010, as many as 342 requests for sanction under the Prevention of Corruption Act (PC Act) were pending with various authorities of the central and state governments. Of these, 182 requests had been pending for more than three months, out of which 30 cases had crossed the 12-month mark. One was awaiting clearance for 22 months, nine for 18 months, and 12 for over 15 months. Out of 32 cases that were pending sanction under the “non PC Act”, 5 had been pending for more than 24 months.   In the Subramanian Swamy case, the supplementary submissions made by the Attorney General of India before the Supreme Court contained a compilation of 126 cases pending for want of sanction for a period ranging from more than one year to a few months.   According to a recent newspaper report, the CBI has listed 80 cases involving 167 officers which have been pending with the central government for over a decade.  Of these, 71 are corruption cases in which sanction is required for prosecuting 147 senior officials.

The pendency continues unabated despite the judgements of the supreme Court and the guidelines framed by the CVC based on the judgements.  The most famous is the judgement in what is popularly known as the Havala case.  The judgement directed that sanctions for prosecution must be given within the maximum limit of three months. It was only in exceptional cases where consultation with the Attorney General became necessary that an additional one month might be allowed.   This direction was repeated recently by the apex court in the Subramanaian Swamy case.   The court has further mentioned that the prosecuting agency or the private complainant must be informed about the extension of the time limit if consultation with the Attorney or Solicitor General is being sought.  If the government does not give its decision within the time limit, the sanction will be deemed to have been given. The Department Related Parliamentary Standing Committee of the Ministry went one step further and recommended that once the investigating agency came to the conclusion that prosecution was necessary and Director of Prosecution concurred, the necessary sanction must be given within 15 days. In case it is not given within that period, it should be treated as “deemed sanction” and the CBI should file a charge sheet in court.

In its judgement in Subramanian Swamy case, the Supreme Court stressed the importance of taking decisions about granting prosecution sanction in time.  The Court observed that the delay in deciding sanctions “stultifies judicial scrutiny and determination of the allegations against corrupt official” and thus erodes “the legitimacy of the Judicial Institutions”  and “deprives a citizen of his legitimate and fundamental right to get justice”.  The court further said that  Section 19 of the PCA, by being silent on time limit to decide sanction cases, has “virtually armed the sanctioning authority with unbridled power which has often resulted in protecting the guilty and perpetuating criminality and injustice in society.”

Concluding Remarks

The recent judgement of the Supreme Court in Subramanian Swamy case evoked considerable interest. It received a welcome response on two counts.  One, the Court fixed a time limit within which sanctions for prosecution should be granted.  Two, It affirmed a citizen’s right to seek sanction to prosecute public servants involved in corruption cases.

So far as the first point is concerned, this is not the first time that the apex court has said so. The judgement in Vineet Narain’s case in 1998 had laid down the same time limit    The CVC as well as the Department of Personnel had issued guidelines reiterating the same.  The Parliamentary Standing Committee of the Ministry of Personnel had even recommended a smaller time limit within which sanctions must be given.  Thus there have been many judicial and other authoritative pronouncements directing the government to issue sanctions for prosecution in time, but they have not been complied with.  The government has treated such directives with indifference, if not contempt, and the Court has not been able to do anything about it. 

Regarding the second point, this judgement has affirmed a private citizen’s right to seek sanction to prosecute.  However, one cannot be very optimistic about the outcome of this pronouncement, for the simple reason that an ordinary citizen will find it very difficult to dig out enough material to prove that there is prima facie evidence of a public servant’s commission of an offence under the PCA.  The private complainant will have to go to the government to obtain sanction, which the government under existing law can always deny without assigning any reasons. 

This brings us to our third point.  The Supreme Court in its judgements has dealt with the problem of delay in according sanction  to prosecute public servants and issued directions to set it right.  However, it has never questioned the need to obtain sanctions and the government’s right to deny them. Virtually, the concept of sovereign immunity embedded in the legal provisions like Section 197 of the Cr P C or Section 19 of the PCA or in other provisions of the special security legislation has never been  challenged or disputed in any judgement of the Supreme Court. 

The impact of this culture of impunity has been twofold.  One, it has promoted a climate which is conducive to violations of human rights of citizens, because the security force personnel or public servants are not deterred from wrong doing, safe in knowledge that sanction to prosecute them will not ordinarily be given.   Two, it has undermined the rule of law and damaged the democratic fabric of society. The basis of this culture is the inequality in the application of laws.  Though the government cites very laudable objective behind Section 19 of the Prevention of Corruption Act, 1988, the fact remains that this provision of law has been used more to protect corrupt than to shield honest public servants.

There is a definite need to earnestly review the entire working of the law relating to grant of sanction to prosecute.  The review may include the possibility of discarding the provision altogether from the statute book, as the Lokpal and Lokayuktas Bill, 2011 attempted to do.

Two Murder Cases Revisited

                         Two Murders- Comparisons and Contrasts

(One murder was committed in a distant land; the other one nearer home. The two cases differed in other ways too. This short article shows how.)
Two murders took place- one of a young man called Stephens Lawrence in the city of London, on April 22, 1993 and the other of a young woman named Priyadarshini Mattoo in the city of New Delhi, on January 23, 1996.  The London crime was a hate crime, born out of racist feelings; the one in New Delhi was a crime of passion.

In both cases, investigation done by the police was shoddy.  In London, the Metropolitan Police handled the investigation and did a bad job.  The police failed to unearth sufficient evidence to prosecute the five white young men involved in the case. The McPherson Commission of Inquiry that later inquired into the case found that “the investigation was marred by a combination of professional incompetence, institutional racism and a failure of leadership by senior officers.” 

In Delhi, lack of professional competence and failure of leadership was seen from the beginning when nobody paid any heed to various complaints made by the girl alleging frequent stalking, sexual harassment and criminal intimidation to which she was being subjected repeatedly by the accused Santosh Singh.  The Delhi High Court in one of the hearings slammed the Delhi Police, saying they were the root cause of all this.  Had they taken action in time, the girl’s life could have been saved. “The girl has died because of you and not the boy (accused),"  said the judges.  The accused was the son of a senior Delhi police officer, a reason enough for him to enjoy the impunity.  

The Lawrence case was investigated second time by the Kent Police. The standard of investigation, as per the McPherson Commission report, was better, but did not lead to prosecution of the accused.  The Mattoo case was transferred to the CBI, but the trial court did not agree with the findings of the investigation and acquitted the accused on December 3, 1999.

In the London case, the parents of the murdered man pursued the case with huge dignity, courage and determination.  Their efforts supported by civil society finally pressurised the government to set up a Commission of Inquiry under Sir William McPherson of Cluny, a former High Court judge.  In the Mattoo case too, the father of Priyadarshini refused to be cowed down by the initial failures and perused the case with dogged determination till the pressure generated by the media and civil society and the sense of public outrage at the acquittal in Jessica Lal case forced the Delhi High Court to decide the long pending appeal in quick time.  Finally on Oct 17, 2006, the High court convicted the accused Santosh Singh for raping and killing Priyadarshini Mattoo.

Stephen Lawrence’s murder case, which was supposed to be dead long ago, came to life again when two of the five accused, Gary Dobson and David Norris were arrested by the police on September 7, 2010, and charged with murder. They were found guilty by the jury and sentenced by the trial court on January 4, 2012 to different terms of imprisonment.

The Lawrence as well as Mattoo case clearly show what civil society can do in a democratic society to fight against the denial of justice. 

The similarities end here.  The response of the police forces and the governments in the two countries was totally different.  In the Lawrence case, the police admitted that their investigations were defective. Sir Paul Condon, the then Commissioner of the Metropolitan Police Service, made a public apology to the parents: “ I, we in the Met. feel a sense of shame for the incompetence of that first investigation and for how the family were let down.  We could and we should have done better.”  The then British Home Secretary, Sir Jack Straw announced in the House of Commons on February 24, 1999 that he felt ashamed “that the entire criminal justice system, and the Metropolitan Police Service in particular, failed the Lawrence family so badly.”   In this country, clear evidence of bad investigation done by the police both in Jessica Lal and Mattoo cases came out, but no apology or remorse was expressed either by the police or the government.

Following the McPherson Inquiry report, the government in that country formulated an action plan to implement the recommendations.  Besides improvements in the policies governing recruitment, training, internal inspection, disciplinary and accountability processes of the police, the Race Relations Act of 1976 was amended in 2000 to see that all public services followed policies, practices and procedures that promoted race equality.  Here, we have yet to learn our lessons from the way the police forces and other public services have handled the communal riots.

The most significant outcome of the McPherson Committee’s recommendations was the establishment of an independent civilian oversight mechanism to inquire into public complaints against police personnel.  The Independent Police Complaints Commission started functioning in the United Kingdom from 1.4.2004.  In this country, despite the Supreme Court’s directives issued to the centre and states in Prakash Singh’s case on September 22, 2006, independent effective police complaint authorities are yet to be set up in most states.  

There has been considerable criticism of the police for their poor investigation  in  Jessica Lal as well as Priyadarshini Mattoo cases.  This is as it should be, as the police have to be accountable for their lapses.  But what about the failures of the courts in such cases?  The Delhi High Court called the judgment of the lower court “perverse”, which has “shocked the conscience of the judiciary.”   The trial court judge was convinced that Santosh Singh had committed the crime, but he didn’t find evidence sufficient enough to convict the accused- the same evidence on which the higher court felt that the sentence had to be either death penalty or life imprisonment.

There was considerable euphoria over the judgment of the Delhi High Court. Public campaigns for justice launched in Jessica Lal and Priyadarshini Mattoo deserve to be lauded, but they should not remain merely an urban middle class phenomenon.  There are so many Jessica Lal and Priyadarshini Mattoo belonging to poor and downtrodden families in villages and small towns of the country, but the civil society has not shown similar concern for their cry for justice.  

Freeing the CBI

Can the CBI be made independent?

The recent debate on the Lok Pal Bill has thrown up three propositions. One, retain the status quo; two, transfer the control to the Lok Pal; and three, make the CBI an independent organisation.

Presently, the CBI is governed by an outdated Act of Second World War vintage, called the Delhi Police Establishment Act, which was enacted in 1946 to regulate the functioning of the Special Police Establishment. Section 4(1) of this Act vests the superintendence of the CBI in the central government, just as Section 3 of the Police act of 1861 vests the control of the state police force in the state government.

Since the word ‘superintendence’ has not been defined in any law, both the central and the state governments have misused the police forces to serve their partisan interests. There is a general public perception that the CBI, like other police forces in the country, is influenced in its work by political considerations. The fact that every government at the centre has misused the CBI to serve its political interests can hardly be denied

Can any government ever think of making the CBI an independent organisation? If one plays the devil’s advocate, one can think of two arguments that the central government can cite in favour of retaining its control over the CBI. One, any police force, including the CBI, is a part of the executive and in the Westminster model of governance that we have adopted, the Minister concerned is responsible to the parliament for the efficient and honest functioning of his departments. Two, the police, including the CBI, enjoys tremendous powers and it is important for the government to ensure these powers are used judiciously.

While the first argument can be considered valid, the second can be contested. It is true that in a democratic system, the police powers need to be controlled to prevent their misuse, but then it has to be realised that controlling the police itself becomes a source of tremendous powers that can be misused to serve partisan interests, as has happened so frequently in this country. What is needed is to set up institutions and mechanisms to balance these two requirements.

In the Havala case judgement, the Supreme Court tried to make one such attempt. While the Court transferred the responsibility of exercising superintendence over the CBI’s functioning from the government to the Central Vigilance Commission (CVC), it simultaneously held that the concerned minister should be ultimately responsible for its efficient functioning to Parliament. The Court maintained that none of the minister’s powers could 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.

Unfortunately, the government did not implement the judgement of the Supreme Court either in letter or in spirit. The Central Vigilance Commission Act of 2003 derailed the judgement in three important ways. One, it resurrected the Single Directive despite the fact the Court had held it null and void, being bad in law. Two, It did not transfer superintendence to the CVC fully. The CVC Act, 2003 prescribed that the CVC shall exercise superintendence not over the CBI but over the Delhi Special Police Establishment (DSPE) only, regarding cases registered under the Prevention of Corruption Act, 1988. Three, in exercising superintendence over the organisation, the government did not keep itself within the boundaries as defined in the judgement. It continued to influence decisions regarding the initiation as well as the process of CBI’s investigations.


The manner in which the central government thwarted the implementation of the Supreme Court’s judgement in the Havala case is similar to the manner in which the state governments have continued till now to defy the apex court’s directives in the judgement delivered on September 22, 2006 in Prakash Singh’s case.

The possibility of misuse of police by the government of the day has caused concern in other countries too. They have found solutions by developing traditions of good governance and setting up new institutions. In the United Kingdom, they appear to have successfully implemented a very subtle distinction between the police as an organisation and policing as a set of activities. While the police as an organisation is the responsibility of the government, the policing as a set of functions is the responsibility of the head of the police force. Government’s role is to formulate policies, provide budget, set standards and monitor performance, but it cannot give any operational direction to the police chief. The Police Acts in some other countries have dealt with this problem by clearly defining the role and responsibilities of the government and the police department.

Keeping our system and environment in view, the team Anna should advocate for mechanisms and institutions that will ensure the CBI’s functional autonomy, as no government will ever agree to relinquish its control over an organisation like the CBI. It should of course insist on the Lokpal to have its own independent investigating agency, which need not necessarily be CBI.

--
This article was published in the Indian Express dated December 28, 2011



Some ideas that figured in the above article formed a part of the proceedings of the Rajya Sabha on Lokayukta Bill. Relevant extracts from the speech of Shri D Raja, CPI (M) member delivered in the Rajya Sabha on December 29, 2010 are given below;

"Finally, Sir, about CBI, I would like to say that CBI as an
investigative agency should have independence. It should be freed
from political interference. At the same time, we should be
cautious; we cannot give absolute autonomy to an organization like CBI and CBI must be made accountable and answerable to some
authority.

SHRI D. RAJA (CONTD.): Sir, I am finishing after one point. In an
Article "Freeing the CBI" by G.P. Joshi, former Director of Bureau of Police Research and Development, it is pointed out, Sir, "The United Kingdom has successfully implemented a very subtle distinction between the Police as an organization and policing as a set of activities. While the Police as an organization is the responsibility of the Government, policing as a set of functions is the responsibility of the police force. Government's role is to formulate policies, provide Budget, set standards and monitor performance, but it cannot give any operational direction to any Police Chief." (Time bell)

In Queensland, Australia, communication between the Minister and the Commissioner of Police is guided by clear provisions in the Police Act. Directions from the Minister have to be given in writing and the Commissioner of Police is bound to comply with directions but keep a record of all correspondence which is later placed on the floor of the Assembly.

This is the experience. Now, I am asking the Minister and the
Government. ...(Interruptions)... Are they going to treat CBI like this?

MR. CHAIRMAN: Your time is over. ...(Interruptions)... There is
no time left. ...(Interruptions)...

SHRI D. RAJA: The Government will have to consider these points
with all seriousness. Otherwise, this Bill will remain a weak Bill. We want a strong and effective Bill for which we have given
amendments. Our amendments need to be considered with all
seriousness by the Government, by the House."

The UK Riots

The UK Riots- Impact on Policing

This appears to be a season of protests in many countries. But what happened in some cities of the United Kingdom recently was a very ugly kind of protest, if at all it can be called that. It was rioting in its worst form, in which buildings and vehicles were burnt; shops were looted; property was vandalized; and people were killed and injured. What added to the ugliness of the disturbances was the ease with which people, including young children and women, joined in the looting and vandalising spree. It was “criminality, pure and simple,” as the British Prime Minister called it, whatever its root causes might have been.

The police came in for considerable criticism. This had to happen, as they were involved in the event that triggered the riots. Their initial response to the rioting that followed was weak and incompetent. They took considerably long to reclaim the control of the streets and to bring some semblance of order. In the beginning, the deployment of strength was inadequate and their tactics were softer than what the situation required. Though the Metropolitan Police deputy assistant commissioner, Steven Kavanagh denied the police were soft on rioters, the fact that their initial tactics left a lot to be desired was acknowledged by the government. The British Prime Minister, on returning from holidays, referred to the inadequacy of deployment and said “the tactics they were using weren’t working.” Michael Gove, the education secretary, told Channel 4 News “the police response had not been robust enough...” Even the Home Secretary Theresa May told the Parliament “…police only retain the confidence of the wider community if they are seen to take clear and robust action in the face of open criminality”, clearly implying action taken by police was not strong and forceful enough to deter the rioters.

This critical assessment about the initial handling of riots by the police created unnecessary tensions between the political executive and police officers. There was a sharp reaction from Sir Hugh Orde, president of the Association of Chief Police Officers who felt the attacks on policing were totally unjustified and negative. He also opposed the Prime Minister’s decision to invite former LAPD Chief Bill Bratton to advise the government on policing in the UK. Occasionally one got an impression as if these riots had created a wall of distrust between the political executive and the police.

Will the widespread mayhem that occurred in some cities of the United Kingdom (from August 6 to 10, 2011) and the criticism of the police that followed their initial handling of the riots change the face of public order policing in the UK? The British Police till now have enjoyed the reputation of policing by consensus as opposed to doing it by fear. They believe in the principle of using minimum force and always tried to implement it uniformly throughout the UK in the last few decades while dealing with public order disturbances. Is this likely to change now? The question becomes relevant as increasing violence in that country has produced responses, some of which are disturbing.

In the United Kingdom at present, there is an overwhelming public sentiment in favour of hard and tough public order policing. The government is definitely giving an impression that police can no longer afford to be soft in dealing with violent disturbances and want them to change their tactics as well as their response equipment. The Prime Minister gave his support to “whatever tactics” the police officers considered necessary to control riots. The police are authorised to use baton rounds and plastic pellets and contingency plans to use water cannon to break up disturbances are in place. The government is even considering the use of CS gas on such occasions, if necessary. In addition, they feel it is time to consider whether the police need powers "to impose a general curfew in a particular area" and also to impose curfews on individual teenagers under the age of 16.

The Prime Minister said they would not let “phony human rights” obstruct the criminal justice system to bring rioters to justice. The courts are swift and harsh in inflicting punishment on those who took part in rioting. Even Social networks were not spared, and two young men who instigated others through entries in Facebook and Twitter were sentenced to four years imprisonment.

The government is not content with subjecting the rioters merely to the rigours of the criminal justice system. They want to cut off government benefits to offenders and this includes evicting them and their family members from publicly subsidised housing. This form of punishment reminds one of Section 15 of our Police Act of 1861, which authorised the colonial government in India to impose collective fine on all the inhabitants of an area that suffered disturbances, requiring the deployment of additional police. The government’s action to evict the offenders and their family members who had nothing to do with the disturbances has been called draconian by many within as well as outside Britain. What is at stake is much more than just the image of the British government and of their police force. As the New York Times states in an editorial piece, "Fair play is one traditional British value we have always admired. And one we fear is increasingly at risk."

NATIONAL ADVISORY COUNCIL'S BILL ON COMMUNAL VIOLENCE- A FLAWED PIECE OF LEGISLATION

The National Advisory Council’s Communal Violence Bill - Odd and flawed

Going by the statement of Kapil Sibal, the UPA II appears intent on taking forward the Prevention of Communal and Targeted Violence (Access to Justice and reparations) Bill, 2011 drafted by Sonia Gandhi’s National Advisory Council. He says the central government is determined to make individuals and state governments accountable for “the kind of things that happened in the past.”

But what happened in the past is much more than what happened in Gujarat. The Bill has obviously been shaped by the experience of 2002 Gujarat riots.

The Bill is distinctive in many respects, but there are some areas where the Bill’s peculiarities stare you at your face.

The Bill presumes that the victims of communal violence in all cases and circumstances are people belonging to minority communities. This presumption results from three definitions given in Section 3 of the Bill. One, it defines “communal and targeted violence” as any act or series of acts which cause injury or harm to the person and or property and are knowingly directed against that person “by virtue of his or her membership of any group, which destroys the secular fabric of the nation.” Two, the “group” means a “religious or linguistic minority” or Scheduled Castes and Scheduled Tribes in any State. Three, “Victim” means “any person belonging to a group” who has suffered harm due to violence.

So if a victim of communal violence does not belong to a religious or linguistic minority, that person is not covered by the provisions of the Bill. It also means that no person belonging to the minority can be accused of committing an offence of communal and targeted violence unless the victim also belongs to that group, which is highly unlikely.

It is reasonable for the government in a democratic society to legislate to protect the interests of disadvantaged groups, but in that case the legislation should state the objective clearly, as was done when the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was passed. If that is not done, the intention behind the piece of legislation is always questionable.

Chapter II of the Bill catalogues a few offences, like sexual assault, hate propaganda, continuing unlawful activity, aiding the commission of an offence, torture etc, but lists many offences of the Indian Penal Code 1860 in Schedule III. Section 11 of the Bill says that all such IPC offences shall be deemed to be offences of communal and targeted violence and dealt with accordingly. Chapter VIII prescribes penalties for these offences, ranging from three years imprisonment with fine or both for indulging in hate propaganda to rigorous imprisonment for life and fine for committing an offence of organised and targeted violence. All offences under the Act are cognizable and non-bailable.


Section 13 lists various failures by a public servant in dealing with the communal situation which would be treated as dereliction of duty, an offence punishable with imprisonment for two years which may extend to five years and fine. In addition to dereliction of duty, the Bill describes an offence of “breach of command responsibility” applicable to officers of armed or security forces, who fail to exercise control over persons under their command resulting in commission of offences under the Act. Officers guilty of such offences are punishable with rigorous imprisonment for life when such failure relates to organized targeted violence and in any other case with imprisonment for a term of ten years and fine.

Section 75 of the Bill says that the defence of sovereign immunity will not be available for offences committed under this Act. Sanction to prosecute public servants, as required by Section 197 of the Cr P C, shall not apply to offences mentioned in Schedule III. There is nothing wrong in marking a complete departure from the legal position stated in the Cr P C where no prosecution can be launched against a public servant for dealing with unlawful assemblies without permission from the government. However, the breach of command responsibility is too difficult to be proved in riotous situations and the penalty prescribed is unreasonably harsh. It would also lead to demoralisation of on-the- spot officers in controlling communal riots.

The Bill sets up a multiplicity of agencies to deal with the problem of communal violence. The National Authority for Communal Harmony, Justice and Reparation shall be set up to prevent and control the spread of communal violence and to monitor investigation, prosecution and trial of offences and payment of due relief and reparation. It shall also “observe, monitor and review the performance of duties by public servants” and also “postings, transfer and replacement” of individual officers “that affect areas where outbreaks of communal and targeted violence’ are reported or anticipated. A very tall order indeed. The creation of National Authority shall be supplemented with establishment of State Authorities for functions, which are more or less similar

The State Authorities may appoint Human Rights Defender for Justice and Reparations in each district. In addition, the Bill sets up State Assessment Committee and also District Assessment Committee to assess the quantum of compensation to be given to victims of communal violence.

The establishment of this highly unwieldy institutional framework raises more questions than it answers. It shows lack of faith in the existing administrative machinery, but some provisions of the Bill show that the new architecture will obviously be superimposed on what exists and not supplant it? If one goes by the past experience, such high powered bodies fail to function viably for long periods and generally end up by becoming post retirement benefit-accruing sanctuaries for politicians and bureaucrats.

The state governments have not shown any keenness to set up institutions that impinge on their powers. The reluctance of states to set up state security commissions suggested in the Supreme Court’s judgment in Prakash Singh’s case as a part of police reform programme is a clear example.

The state governments will have a stronger reason to oppose this Bill. Police and Public Order are subjects in the State List in the Seventh Schedule of the Constitution. Section 20 of the Biil

attempts to encroach on this domain of the state governments by authorising the centre to treat the occurrence of organised communal and targeted violence in a state as “internal disturbance” within the meaning of Article 355 of the Constitution of India and take suitable steps to deal with the situation accordingly. This is very dangerous provision for it will fracture the scheme of federal polity enshrined in the Constitution. How can one be sure that every incident of communal violence will not be interpreted as internal disturbance? After all, the tribe of governors like Buta Singh and H.N Bhardwaj is not yet extinct.