WILL THE CENTRAL GOVERNMENT’S AFFIDAVIT ENSURE CBIs AUTONOMY?

 WILL THE CENTRAL GOVERNMENT’S AFFIDAVIT ENSURE CBIs AUTONOMY?
                      
The Government of India’s affidavit on CBI’s autonomy filed in the Supreme Court on July 3, 2013 has already come in for considerable criticism.  It has been called a “farce” a “camouflage” and a “remedy worse than the existing problem.”

 Even if some of this criticism is treated as part of the overblown rhetoric, the fact remains that the government is definitely unwilling to let its control over the CBI go or even be diluted.  The organisation is too important for the party in power to be allowed autonomy in its functioning.  In fact, what the affidavit conveniently neglects to say is much more important than what it says.

What it says can be briefly summed up under the following main heads:

Appointment and Removal of the Head of CBI

According to the affidavit, the CBI director will be appointed by a collegium comprising the Prime Minister, Leader of Opposition and the Chief Justice of the Supreme Court.     Even if this collegium succeeds in selecting the best from amongst the available lot, how this provision makes him autonomous in functioning is not clear. The affidavit does not say that the head of the organisation will not be entitled to any post retirement job under the central or state government.   The last few years’ experience shows that the prospect of a post retirement gubernatorial or other cushy assignment reduces the resistance, if any, of the head of the organisation to outside pressures.  This makes the clause relating to security of tenure almost redundant, though Director, CBI under the existing rules does enjoy a tenure of two years.

Setting up of an Accountability Commission.

It has been suggested that a panel of three retired judges of the Supreme Court or the high courts will be appointed by the government to entertain and inquire into "allegations of misbehaviour, incapacity, impropriety or irregularities" of CBI officials.      However, most allegations against CBI are not made against individual officers but against the organisation, particularly about its being misused to harass and intimidate political opponents or to favour those who are the ruling party members or supporters. The affidavit is silent on this point.   In any case, whatever its charter may be, how it will make the CBI autonomous in its functioning is not clear. This, in fact, is likely to saddle the bird with another master to sing to, instead of freeing it.

Exercising superintendence over the CBI

This is at the heart of the problem of making the CBI autonomous.  The CVC exercises superintendence over the CBI’s work relating to corruption cases and in respect of its other work, the central government does so.  The affidavit not only maintains this system of dual control, but makes no attempt to define what superintendence means and this gap in the existing law having bearing on the autonomy of CBI continues to exist   What the affidavit says is so inadequate and general that it really becomes farcical: "while exercising the power of superintendence the Central government shall not exercise powers in such a manner so as to require the Delhi Special Police Establishment(CBI) to investigate or dispose of any case in a particular manner."  It does not say that the government shall not interfere in any manner to influence CBI’s investigation work.  It does not even admit the government has no power under law to do so.  Even the havala case judgement was more direct and to the point in this regard.  It ruled that “…the  process of investigation, including its initiation, is to be governed by the statutory provisions…..  This is not an area which can be included within the meaning of “superintendence” in section 4(1)”

In addition, the administrative control over the CBI remains with the government and it is this which gives them an unwritten power to interfere and control.  Despite the fact that Director CBI will now be chosen by a high powered body, even then he is not considered good enough to select officers of his choice or remove the dead wood from the organsiation.  He has to go to the government for this purpose.  "Director CBI shall, recommend officers for appointment to the posts of the level of superintendent of police and above and also recommend extension or curtailment of the tenure of such officers," the affidavit says.  This is exactly what is done under the present arrangements.

Sanction to Investigate and Prosecute

Director CBI has no freedom either to investigate or to prosecute some cases without government’s sanction.  The Single Directive, which debars CBI from undertaking any inquiry or investigation against officers of the rank of Joint Secretary and above without government’s permission, still remains, even though the Supreme Court in its Havala case judgement had declared it null and void.

The affidavit poses to be generous by declaring that the CBI can go ahead with prosecution, if the sanction does not come within three months. This is not a new idea.  The Supreme Court in its various judgements, the latest being Subramanian Swami’s case decided in 2012, clearly maintained that sanction for prosecution should be deemed to be given, if it is not received within three months.    The Parliamentary Standing Committee of the Ministry in its 37th report in March 2010 had clearly recommended that sanction must come within a period of 15 days, if Director of Prosecution concurred with the view that prosecution was necessary

NEITHER A CAGED PARROT, NOR AN UNRULY HORSE

What Should the Functional Independence of CBI Mean?
(The new law must define CBI 'autonomy' and government 'superintendence')

Exasperated with the "sordid saga" of the handling of the CBI's coal scam status report by all concerned, the Supreme Court asked the Central government to frame a law that would ensure the CBI enjoyed functional independence. The government accepted the need and appointed a group of ministers to frame such a law.

Luckily for the government, the apex court prescribed two basic principles that should govern the formulation of such a law. The CBI should become neither a "caged parrot", nor an "unruly horse".

The "caged parrot" part of the apex court's observations received much wider publicity than the "unruly horse" portion. This is unfortunate, as these ideas are closely linked. Indeed, they flow from each other. The CBI, like any other police agency, enjoys enormous power, which must be controlled to prevent misuse. But then, controlling the agency itself becomes a source of power that can be misused to serve partisan interests. The new law for the CBI must, therefore, respect and balance these two ideas.

The present law vests the superintendence of the CBI in the Central government, though a part of the control has also been transferred to the CVC. However, the word "superintendence" has not been defined in any law, making it easier for the government to misuse the organisation to serve partisan interests.

The court tried to interpret the word "superintendence" in the Hawala judgment. According to the judgment, superintendence over the functioning of the department "would not include within it the control of the initiation and actual process of investigation". The judgment did not succeed in insulating the CBI from the illegitimate control of the Central government. The statutory laws governing the CBI remained silent on what the term meant, and no mechanism was put in place to ensure there was a shield between the CBI's functioning and political expediency.

The new law must focus on defining the term and fine tune it by prescribing the areas that should strictly be the preserve of the CBI chief, and where the government should have the power to intervene. It should specify what the word "superintendence" will include and exclude.

Just as the idea of superintendence has remained undefined, so has the doctrine of operational independence of police. Even in a country like the UK, where operational independence is a fundamental principle of policing, it has no statutory basis. It was articulated in judicial pronouncements, the most famous being the judgment of Lord Denning in the Blackburn case in 1968. Even though the Royal Commission on Police had endorsed it in 1962, till date, it has no constitutional or statutory basis. It has evolved over a period of time as a convention, which is fully recognised and respected by the government, the community and the police.

Being independent in functioning, however, should not mean that the investigating agency becomes unaccountable for its performance and behaviour. To ensure that lack of control does not mean lack of accountability, the Patten Commission on Policing in Northern Ireland substituted the concept of operational independence with that of operational responsibility: "Operational responsibility means that it is the chief constable's right and duty to take operational decisions, and that neither the government nor the Policing Board should have the right to direct the chief constable as to how to conduct an operation. It does not mean, however, that the chief constable's conduct of an operational matter should be exempted from inquiry or review after the event by anyone. That should never be the case." The group of ministers must take cognisance of this principle of operational responsibility and give it a statutory wrap.

Selection for the post of director of the CBI is of great importance for the doctrine of operational independence to succeed. The present arrangements allow the government to select a person of their choice. Even if the selection is done by a collegium, it should not be done on the basis of majority opinion. Leaders of opposition must be included in the collegium to balance the weight of different views. While providing security of tenure, the new law must have a provision debarring the incumbent of the post from holding a government job after retirement.

Operational independence means that the CBI should have full authority to inquire or investigate an offence, irrespective of the status of the person accused of having committed that offence. The Single Directive, which requires the CBI to obtain permission from the government to make an inquiry if the alleged offender is of the rank of joint secretary and above, should be discarded by the new law.

The new law must also do away with provisions of existing law that require obtaining of sanction to prosecute, particularly if the CBI is equipped with a separate directorate of prosecution, as was suggested by the apex court in its Hawala judgment. The directorate of prosecution will decide if the case is fit for prosecution.

In short, the new law must guarantee that the Central government's control over the CBI is so exercised as to ensure that the agency's performance is in strict accordance with law. The government's role is to formulate policies, provide sufficient budget, set standards and monitor performance, but it cannot give any operational direction to the CBI chief. The new law must delineate the CBI's powers as well as functions, specify that investigation will be its exclusive preserve and not allow any provision that can provide impunity. It must prescribe mechanisms to ensure the CBI's accountability for its performance and conduct.


(This article was published in the Indian Express dated May 25, 2013)
 

LIBERATING THE CAGED BIRD

The ALLURE IS NOT FALSE
(A Rejoinder to Mr Harish Khare )                                                              
                                                                                               
I read Mr. Khare’s article “The false allure of liberating CBI” published in the Hindu of May 7, 2013 with great interest but with greater anguish.

Mr Khare thinks that the clamour for making the CBI functionally independent is nothing but a “misconceived hypocrisy.”  He cites the example of politicians decrying the misuse of CBI by the party in power but doing exactly the same when they return to rule. “No Prime Minister in his or her right political senses would let rivals control an asset like the Central Bureau of Investigation,” he says. Mr Khare is correct in his assessment, but is wrong in drawing conclusions that are clearly invalid.

Being the premier investigating agency of the country, the CBI should be treated as an asset of the country and not of the PM or the ruling party. Why do they treat the CBI as an asset? The answer is simple- so that they can misuse it for political gains.  They  use it to support some and threaten others.

What is the conclusion that Mr Khare draws from the great reluctance on the part of the PM to relinquish control over the organisation?  He feels that it would be a “great misinterpretation of the constitutional scheme of things (sic) of powers if a section of the judiciary were to …. prise the CBI from the political executive.” Nobody is trying to do that- neither the judiciary nor the “noisemakers.”  Both recognise the CBI to be a part of the executive, and in our system of governance, the minister concerned is responsible to Parliament for its efficient and honest functioning.  The Supreme Court had clearly recognised in its havala case judgement and reiterated it in its recent hearing in the coal scam that the government was within its right to exercise general oversight and  provide broad guidance and  policy directions to the organisation.  However, the apex court on both occasions clearly maintained that any interference by the executive in CBI’s investigations was contrary to provisions of law and this would be treated as illegitimate interference.  It is this basic distinction between the legitimate and illegitimate interference in the CBI’s work that Mr Khare conveniently overlooks.

Why is it important to recognise and decry government’s  interference in investigation work?  Mr Khare’s article frames the terms of debate wrongly and avoids discussing this important concern.

Illegitimate interference in the investigation work of CBI is harmful for three reasons.  One, it obstructs the rule of law, which requires that laws are enforced in a fair and impartial manner. This cannot be ensured if interference in CBI’s investigation work subjects the investigating  team to wrong types of pulls and pressures and undercuts their will to act courageously in conformity with law.  We saw it happening recently when the Director CBI had no compunction in showing the agency’s status report to the government. 

Two,it hampers the professional growth of the organisation.  The government to ensure that its directions to investigating officers are implemented in letter and spirit sometimes adopts unfair personnel policies.  Appointments, postings, promotions, transfers, rewards and punishments are decided not always on merit but on extraneous considerations.  This shatters the morale of honest officers and encourages the wrong ones to curry favour of those in power.  An officer of the team investigating coal scam was transferred and had to be recalled at the behest of the apex court. It is the part of the same story when CBI officers are accommodated by the government in gubernatorial or other important assignments after retirement.

Three, it damages the image of the organisation.  As the citizens have lost confidence in their local police forces, it is important that they have their faith in a central agency to seek  justice.  Unfortunately, over a period of time, the CBI’s image has been badly dented.  Calling it the Central Burial of Investigation or the Congress Bureau of Investigation may sound funny, but the harm it does to the image and professional esteem of the organisation is immense.  Some crooked politicians take advantage of this public perception.  Even where action taken against them is perfectly legitimate and is as per law, they invariably pose as victims of political vendetta and witch-hunting.

According to Mr. Khare, “in normal circumstances, the Prime Minister would have perhaps sought the Law Minister’s resignation for having committed a grave impropriety, but these are not normal times.”  One is tempted to ask: why are these not “normal times” or circumstances?  There is no emergency in the country. To consider these times abnormal simply because the “BJP has bayed for the Law Minister’s blood a bit too loudly” is abnormal reasoning.

According to Mr Khare, moderation should be the recipe not only for the opposition but also for the judiciary.  “If there was a time for moderation in judicial pronouncements and comments, it is now,” Mr. Khare cautions.  He feels that excessive “judicial meddlesomeness” has driven the “political supervision of the CBI” underground. The “communication and command rites are performed away from the public gaze.”  Mr Khare is blissfully wrong.   The citizens in this country have never been aware of any time in history when the central government’s supervision of the agency has been over ground.  Political supervision of the agency has always been a closed door affair.  It has been so not because of judicial activism, but because of attempts on the part of every government to misuse the agency for political gains.

The conclusion that a ”legitimate relationship of consultative advice — between the political executive and an investigating agency — has been rendered somewhat suspect” is not correct.  Legitimate use of the agency by the central government is recognised in law and by the High Courts and the Supreme Court.  What has been questioned is the illegitimate interference in the work of the agency.

The need to make the CBI an effective and an impartial organisation  is urgent .  It deserves to be discussed dispassionately, unaffected by personal prejudices.  Mr. Harish Khare’s analysis is found wanting in this respect.  “How much easier it is to be critical than to be correct!”

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The above was written in response to Mr. Harish Khare's article published in the Hindu dated May 07, 2013.  The article is reproduced below:

The false allure of liberating CBI

Harish Khare

A law minister’s mistakes cannot be used to introduce an institutional imbalance by creating an autonomous policeman through judicial intervention 

As a nation we remain self-absorbed in our own hypocrisies. And perhaps there is no greater misconceived a hypocrisy than the notion that the Central Bureau of Investigation (CBI) should be — and, can be — functionally independent of the political executive of the Union. But our politically correct commentators and other noisemakers are obsessed with an “autonomous” CBI as a panacea for misgovernance; and, the politicians, when in opposition, decry the “political misuse” of the agency but once in office cheerfully lord over the CBI. Let us only recall how after L.K. Advani had manoeuvred to become the deputy prime minister during the National Democratic Alliance (NDA) regime, he strenuously tried to grab the CBI and bring it under his control, but that old fox, Atal Behari Vajpayee, was shrewd enough not to let go of this investigative instrument. Indeed, no Prime Minister in his or her right political senses would let rivals control an asset like the Central Bureau of Investigation. 

Time for moderation

 

Therefore, it would be a great misinterpretation of the constitutional scheme of things of powers if a section of the judiciary were to seize upon the Union Law Minister’s supercilious stupidities to prise the CBI from the political executive. Admittedly, the incumbent Law Minister is punching way above his weight and has over the last few months demonstrated himself to be lacking that fine balance of temperament and competence that is so essential in a sensitive ministerial assignment. In normal circumstances, the Prime Minister would have perhaps sought the Law Minister’s resignation for having committed a grave impropriety, but these are not normal times. The Bharatiya Janata Party (BJP), in its present, destructively self-righteous mood, has bayed for the Law Minister’s blood a bit too loudly. An Opposition that does not believe in moderation cannot hope to shame the ruling party into doing the right thing. 

Neither the BJP’s practised cussedness nor the United Progressive Alliance’s habitual obduracy should weigh heavily with the judiciary; there is certainly no reason for the judiciary to get too distracted by the political noise in the matter of the so-called coal allocation scam to try and manufacture an artificial and unsustainable “autonomy” for the CBI. If there was a time for moderation in judicial pronouncements and comments, it is now. 

It was P.V. Narasimha Rao who cynically used the CBI to embroil his rivals within the Congress Party in the Hawala case. So blatant was this misuse of prime ministerial authority that the late Justice J.S. Verma seized a PIL case to pronounce a new doctrine of maximalist distrust. The court, quoting from its earlier verdict (in the case of Union of India and others versus Sushil Kumar Modi and others, 1997), insisted on ensuring “performance of the statutory duty by the CBI and the other government agencies in accordance with the law for the proper implementation of the rule of law. To achieve this object, a fair, honest and expeditious investigation into every reasonable accusation against each and every person reasonably suspected of involvement in the alleged offence has to be made strictly in accordance with the law.” 

Since the Hawala case, an entire generation of higher judges has been in thrall of the idea of laying down what the CBI can and cannot do. The Hawala ruling prompted a new Central Vigilance Commission regime and for a while we applauded ourselves for having struck a blow against corruption among public servants. But given our addiction to this or that hypocrisy, we pretend that such judicial interventions have had a long-term salutary effect on matters that are essentially political in nature. 

It is also an unfortunate fact that since the mid-1990s, there has been no Central government strong enough nor a Prime Minister so assured of the support of his own party and coalition partners that he would protest encroachment of the executive’s prerogatives. Judicial interventions have only encouraged the PIL-industry to make a nuisance of itself at the behest of corporate rivals. 

Lok Pal debate

 

In the recent Lok Pal debate, the government and the Opposition were silently united in rejecting the demand that the CBI be brought under the proposed ombudsman. It was a rare display of political common sense so essential to sustained statecraft. 

Undoubtedly, the political class is a rather unattractive lot and the middle classes are always willing to set policemen “free” from the presumed clutches of the elected politician. It is an attractive proposition that the “professional” police officer would an honest, scrupulous, law-abiding and justice-dispensing public servant, and would hold his own against the errant politician. Hence, periodic judicial efforts to intervene or “oversee” investigations. 

All these essays in judicial meddlesomeness have produced only a massive hypocrisy: the political supervision of the CBI got driven underground, while everybody pretends that the agency has been set “free.” A legitimate relationship of consultative advice — between the political executive and an investigating agency — has been rendered somewhat suspect; therefore, the communication and command rites are performed away from the public gaze. Whatever the colour of the government in New Delhi, its political managers were always anxious — and, rightly so — to ensure that the agency was not manipulated by rivals. 

There is a history to this anxiety. Since the Allahabad High Court judgment against Indira Gandhi in 1975, sections of the judiciary have been happy to entertain political rivals from using courts to settle scores and contests which otherwise should be sorted out in the electoral arena or in Parliament. A judicial pronouncement — even an oral observation would do — is seized upon to demand this or that functionary’s ouster from office. Every judicial pronouncement is seized upon to unleash a furious debate, generate indignation and anger, feeding distrust and discontent among the citizens towards lawfully constituted constitutional authority. 

This over-reliance on finding a judicial solution to the abuse of power by ministers and bureaucrats has come at the expense of Parliament as the ultimate institution of accountability and democratic legitimacy. Rather than raise matters of ministerial transgressions in Parliament and make the Prime Minister explain his colleagues’ misdemeanours, the Opposition disrupts and stalls the functioning of the legislative institution. Political partisanship strangulates any debate over the merit or demerit in an alleged misdeed. Political leaders, from Prime Minister downward, are no longer willing to sit in moral judgment over this minister’s or that bureaucrat’s presumed guilt, because everyone assumes that sooner or later, the matter would end up in a court of law. The notions of democratic accountability and political responsibility stand considerably diluted. 

Accountability

 

Given the context of this political culture of suspicion and accusation, it would be tempting to judicially “liberate” the CBI. This can only produce an institutional inequilibrium of the most unhelpful kind. Any democratic society should be very suspicious of a policeman, however competent a professional he may be, with powers to determine political life and death. As it is, we have yet to evolve a code of conduct for an ever enlarging plethora of regulators and independent commissions. Everyone goes about hypocritically believing that we have found the magic formula to make honest appointments of honest individuals to such “institutions.” 

Once an appointment has been wangled, then it is entirely open to an incumbent to take a maximum or a minimal view of his or her brief. We are becoming wise to another aberration: the potential — and, in a few cases, the reality — of a corporate house suborning these so-called “independent” authorities. Before we succumb once again to the allurement of installing unelected gods as our saviours, let us just remember that it is easy to proclaim and grab “independence” but it is much more difficult a task to produce the requisite institutional culture, anchored in balance, fairness and rectitude. That balance can be produced and enforced only by democratic processes of accountability. This balance can neither be produced nor imposed by a court. 

(Harish Khare is a senior journalist, political analyst and former media adviser to Prime Minister Manmohan Singh. He is currently a Jawaharlal Nehru Fellow).

REVISITING THE HAVALA CASE JUDGEMENT

 FROM HAVALA SCAM to COAL GATE, FULL CIRCLE for SUPREME COURT

Non-implementation of the 1997 judgment in the money laundering case shows that freeing the CBI from political interference is a challenge even for the apex court

“Our first exercise will be to liberate CBI from political interference.” This is what the Supreme Court said while deliberating the coal scam status report. It is not the first time that the court will be embarking on such a project. A similar exercise was undertaken after the hawala case judgment on December 17, 1997. It is important to revisit that judgment in this context.

The gist of the allegations made in the hawala case petition was that financial support was given to terrorists by clandestine means using tainted funds from “hawala” transactions. The CBI had failed to investigate this properly and prosecute those involved. This was done to protect people who were influential and powerful.

The court adopted the procedure of “continuing mandamus” that allowed it to issue interim orders from time to time. One order was similar to what was done in the coal scam. It asked the CBI not to report the progress of investigations to the person occupying the highest office in the executive.

Four points

The final judgment of the court comprised various directions to establish institutional and other arrangements aimed at insulating the CBI from “extraneous influences.” Four of these were important. One, the judgment transferred the superintendence over the CBI from the government to the Central Vigilance Commission (CVC). Two, it said that selection for the post of CBI Director should be made by a committee headed by the CVC, with the Union Home Secretary and Secretary (Personnel) as members. Three, the CBI Director should have a minimum tenure of two years, regardless of the date of his superannuation. Four, the CBI would no longer be required to obtain permission from the government before investigating allegations against officers of the rank of joint secretary as the Single Directive was declared null and void.

None of these directives was implemented honestly. Control over the CBI was not fully transferred. The CVC Act of 2003 allowed the CVC to exercise superintendence only over corruption cases registered by the Delhi Special Police Establishment (DSPE). The CVC Act resulted in introducing a system of dual control over the CBI — one exercised by the CVC in respect of corruption cases and the other by the Central government in respect of other cases. The court agreed that since the Minister concerned was answerable to Parliament for the efficient functioning of the premier investigation agency, he must have the power to (i) review the working of the agency (ii) give it broad policy directions regarding investigation and prosecution of cases (iii) appraise the quality of work of its officers, and (iv) call for information about the progress of cases. It is this part of the hawala case judgment which the present court may review. However, the hawala case judgment did mention that none of these powers “would extend to permit the Minster to interfere with the course of investigation and prosecution in any individual case.”

Single Directive

The government has always succeeded in selecting its own man to head the organisation because all the three officers who constitute the committee to select the CBI chief are bureaucrats who are generally willing to toe the government’s line. Besides constituting this committee, the CVC Act did not lay down the procedure for selection of the head of the organisation.
The security of tenure, which was guaranteed by the judgment, did not work because the government succeeded in dangling the carrot of post-retirement benefits before the CBI chief. The last person was recently made the Governor of Nagaland — bringing the number of IPS officers occupying gubernatorial posts to eight. The judgment did not say, as was done by the National Police Commission, that the head of a police organisation should not be eligible for any government post after retirement.

Lastly, the hawala case judgment declared the Single Directive null and void. The court found it bad in law. It required a police agency to seek permission from the executive to initiate investigation into a criminal offence, which is contrary to law. It also violated the canon of equality in the application of laws. The CVC Act of 2003 infracted these basic principles of legal jurisprudence by resurrecting the Single Directive.

That the judgment and the measures it prescribed failed to free the CBI from political interference is obvious from recent developments — the present CBI Director showing the coal scam investigation report to the Law Minister and other functionaries of the government. In fact, even before this case occurred, Justice J.S. Verma, the author of the hawala case judgment, had realised that the CBI continued to be influenced by political considerations in its work. This is what he wrote in an article titled “The Incredible CBI” published in a leading daily on April 11, 2009: “The blame cannot be laid elsewhere. It is too much of a coincidence that in sensitive matters, the outcome of the CBI’s investigation invariably depends on the political equation of the accused with the ruling power, and it changes without compunction with the change in that equation.”

The hawala case judgment is not the only one, which has not been implemented fully, either in letter and in spirit. The Supreme Court’s judgment in Prakash Singh delivered on September 22, 2006, also remains unimplemented in most States.

The Supreme Court has to think out of the box not merely to make recommendations to “liberate” the CBI but also to ensure their implementation.

(This article was published in the Hindu dated May 3, 2013)

POLICING IN INDIA- SOME UNPLEASANT ESSAYS

POLICING IN INDIA- SOME UNPLEASANT ESSAYS
(A Brief Introduction)
The essays in this book are on diverse topics, but the underlying theme is that even though we are living in a democratic society with a modern constitution and a very prominent Bill of Rights, the police organisation, in its structure and functioning, are still feudal and colonial in mould. We are still having what is called the regime system of policing in the country.  In such a system, the police function less to serve the rule of law and more to secure the interests of the dominant group or regime in power. 

We inherited this system of policing from the British at the time of Independence, but instead of changing it to suit the new environment we persisted with what we inherited and in fact made it worse.  The first essay talks about the type of police system inherited by us and what we have turned it into.  It was bad and we have made it worse.

Under the regime system of policing, the police remain subservient to the political executive in power and become vulnerable to their illegitimate control.  The second essay discusses the domestic initiatives as well as those taken in foreign jurisdictions to deal with the problem of insulating the police from illegitimate political control.

The most important initiative in post Independent India to reform the police came in the shape of the National Police Commission, which was set up in 1977 by the Janata Government that came to power after Emergency was revoked.   The Commission produced eight reports between February 1979 and May 1981.  Important major recommendations of the NPC have mostly remained unimplemented, despite Supreme Court’s directives. The third essay surveys all that happened since the Commission was appointed, including how its reports were treated and the final outcome of efforts made to get the Commission’s recommendations implemented.

If the quality of policing is bad it affects all in a community, but it definitely impacts the poor more severely than it does the rich.  The victims of what the police do and how they do it are mostly poor people.    A major problem is with the mentality of policemen.  It is a feudal mindset, which  oppresses the weak and the poor. The fourth essay discusses the police practices that obstruct poor people to access justice in the country

An important characteristic of the regime system of policing is that the gulf between the seniors and lower ranks in the organisation is very wide.  The entire managerial philosophy of the police is based on distrust of the lower ranks in the organisation.   The essay on the subject discusses all aspects of this managerial philosophy and shows how the problems of lower ranks in the police have never received the attention they deserve. The second part of this essay discusses the circumstances in which the statute called The Police Forces (Restriction of Rights) Act was legislated.

A problem that has dominated public debate in the country during the last couple of years is that of huge corruption that exists in almost all fields.   Two of the most important agencies of the central establishment are the Central Vigilance Commission and the Central Bureau of Investigation.  The next two essays in the book survey the developments underlying the government’s management of these two organisations and show why they failed to develop as professionally strong and effective anti- corruption agencies.

The Police, according to the Constitution of India, is a State subject, but the centre is increasingly playing a wider and a bigger role in policing. The eight essay discusses all these developments   that indicate  a trend towards militarisation and centralisation of policing. If extremist or terrorist violence increases further in the country, this trend is likely to be accentuated.

The police forces in the country employ a very large number of persons. Presently, they have a total sanctioned strength of about 2.95 million persons. Their success ultimately depends upon how well or how badly their employees perform on their jobs. The ninth essay discusses the existing system of performance appraisal of the individual policeman and also of the police organisation, identifies the weaknesses of both and suggests corrective action.

Probably no other factor has been responsible for tarnishing the image of the police in this country as much as their alleged involvement in several incidents of brutality.      The essay on police brutality discusses all relevant aspects of the problem and suggests the need to set up effective and independent police complaint bodies.

The next essay analyses how the increasing trend of crime and violence broadly impacts different institutions or sections of society, like the government, police and citizens and, more importantly, how they respond to the need to control it. Some responses are disturbing.  The government enacts tough laws; the police adopts short cuts and rich citizens hire private security while poor become vigilantes.

The number of occasions when the police use firearms to disperse crowds in this country is very high.    The essay on the subject discusses the rules and regulations on the subject and highlights the need to frame a comprehensive policy regarding the use of firearms by the police in dealing with the civilian population. 

An important characteristic of a regime system of policing is that it provides impunity to people in positions of power and allows them to get away with their misdeeds.     Sexual molestation of Ruchika Gehrotra is only one such case. The essay gives the details of the case and then shows how people in position of power can manipulate and subvert the entire system to delay and deny justice to victims of crime.
 
There are other ways in which impunity is granted.  One is to insist that public servants cannot be prosecuted in criminal cases without sanction of the government.  The essay discusses the law requiring sanction for prosecution in corruption cases and analyses the implications of the recent judgement of the Supreme Court in Subramanian Swamy’s case, asking for prosecution of Dr. A Raja, the then Minister for Communication and Information Technology  under the Prevention of Corruption Act for illegal allotment of new licenses in 2G mobile services.

In addition to the above fourteen research based essays, the book  includes fourteen short  pieces.  These are on different topics but again the basic theme running through them remains the same. Most were written by way of reacting to certain events or developments that happened at that time.  One of these was an open letter to the Prime Minister of the country on the need for police reforms, which was written on the eve of the conference of District Superintendents of Police that he was scheduled to address.  Some are of the view that structural reforms in the police are not the only ones that are needed.  The idea of police reform discusses the various other facets of the subject.  How the law is misused not only by the police but also by others is the theme of another component of this section.  Another piece suggests that it would be in the interest of politicians themselves to reform the police.  Two events that occurred abroad have been analysed to draw some lessons. One of these was the furore that followed President Obama’s remarks about the Cambridge Police when they arrested a black professor.  The other compares two incidents of murder.  One  was committed in a distant land; the other one nearer home.   The two cases had many similarities but differed in major ways. It is the difference that tells us what we can learn and how. A large number of police personnel are losing their  lives in line of duty every year. The article on police fatalities suggests that this should cause more concern than it does.

(The book was published in March 2013 by the Atlantic Publishers and Distributors, 7/22, Ansari Road, Darya Ganj, New Delhi-110002.  Telephone: +91-11-4077 5252, 4077 5214; 2327 3880, 2327 5880; Fax : +91-11-2328 5873.  E-mail: orders@atlanticbooks.com   Website: www.atlanticbooks.com.  The book has 374 pages and can be procured on line directly from the publisher or from the prominent book sites, like www.infibeam.com, flipcart.com etc)

GANG RAPE INCIDENT of DELHI- DISTURBING RESPONSES

When Aldous Huxley came to India in January 1926, he visited Taj Mahal in Agra.  He did not admire the monument and felt uncomfortable about the fact that he did not like a building, which was regarded as one of the seven wonders of the world. 

Presently, one feels the “same sense of discomfort” on going against the general trend of opinion about how the Delhi gang rape incident and its aftermath should be viewed and dealt with.  In the knee jerk reactions that followed the incident, most bizarre and outlandish suggestions were made not only by general public but even by eminent people from different walks of life.  The electronic media went wild, with people demanding chemical castration, death penalty, hanging or burning the accused in public, denying them opportunities to appeal on conviction from the trial court etc. Even the government or the ruling party reacted in an emotional way and agreed with some of the suggestions to appease the public anger.  Sometimes one got an impression that we were living not in a democratic but in a Taliban ruled society.

Any policy that is framed in a climate of anger and revenge will be a wrong policy.  Luckily, the committee to suggest changes in rape laws is headed by a judge who has the reputation of being a very balanced person, who will weigh the pros and cons before deciding about changes in laws.  What is necessary is to think ahead to ensure that laws will not be misused to harass and blackmail.

In any case, the effectiveness of laws in dealing with crimes lies not in how harsh they are or how stringent is the punishment they prescribe, but in how successfully they are enforced.  Research done in the field of criminology has clearly established that it is the certainty of punishment and not its severity that deters people from committing crime.  Death penalty has not been able to reduce the incidence of murder in any country.

This element of certainty is missing from the scene not only because of the incompetence of the police but of the entire criminal justice system.  If there is one agency which received the maximum flak for not being able to control the incident of gang rape in the capital, it is the police.  The lapses of even the Transport Department were put at their doors. The agitators never stopped their chanting of “Delhi Police Hai Hai.”  To some extent, this is understandable.  Whenever, there is an upsurge in criminal activities or a particularly heinous crime is committed, the public tend to blame the police. The general tendency is to hold the police solely responsible for checking crime.   Nobody is willing to realise that the responsibility for controlling crime is   of the entire criminal justice system and not merely of the police.  If the police in this country have failed the public, the courts’ performance has been an equally dismal failure.  The courts are clogged with huge arrears of cases under trial.  According to data compiled by the Parliamentary Research Services (PRS), on 30th September, 2010, 2.8 crore cases were pending in subordinate courts, 42 lakhs in High Courts and 55 thousands in the Supreme Court. Approximately 9% of these cases had been pending for over 10 years and further 24% cases had been pending for more than 5 years. The pendency of cases across Indian courts, instead of declining, showed a high jump during the last decade.  It increased by 148% in the Supreme Court, 53% in High Courts and 36% in subordinate courts in the last 10 years.

Even if the police succeed in solving cases and arresting the criminals, the judicial system is so tardy, cumbersome and inefficient that it fails to bring them to book in time.  The public feel threatened and unsafe and the police feel beleaguered and harassed. This is when the fake encounter specialist takes charge and decides to do away with the trouble maker if trouble cannot be otherwise tackled.    The type of societal anger seen on streets following the gang rape incident is likely to give rise to public vigilantism.  We must remember and guard against such tendency as public vigilantism will always be followed by police vigilantism, as happened way back in Bhagalpur in Bihar.

Even the society must own up its responsibility to help in dealing with crime.  After all, some of those who came out on the streets chanting slogans could have been the same persons who witnessed the two victims on the road in the freezing cold and did not do anything to help them. This was not the only incident where public acted only as a mute spectator.  

Our expectations of the police in preventing crime are more than what is warranted by the experience and arrangements.  However unpalatable it may sound, it must be recognised  that the ability of the police to prevent crime, particularly in democratic countries, is inadequate and imperfect.  The police can prevent crime only to a limited extent.   In fact, crime is due to various factors over most of which the police have no control.   The public do not always realise this and it is their exaggerated demands and expectations that often create pressures, forcing the police to respond by being tough and aggressive, taking recourse to short cuts.

If crime has to be controlled, the whole criminal justice system must work so that crime does no longer remain a “low risk, high profit business.”   Some major problems confronting the criminal justice system are the absence of adequate number of well trained investigating and prosecuting officers, lack of adequate courts, cumbersome procedures, resulting in huge pendency of criminal cases, inordinate delay in deciding them and even when decided very low rate of conviction in  serious crimes.  Let the resources be devoted to improving the functioning of the entire criminal justice system.