The deployment of the Central Reserve Police Force (CRPF) – “in full operational attire with weapons” – during the recent raid by the Income Tax department in Karnataka on Mr DK Shivakumar, Congress Minister is worrisome. By using the armed forces of the Union for such a purpose, the ministry of home affairs (MHA) and the finance ministry have demonstrated a deplorable lack of regard for federalism and more importantly, for constitutional propriety.
The finance ministry overstretched a badly drafted provision under the Income Tax Act, 1961, which gives the officer authorised to carry out search and seizure the “…power to requisition service of a police officer or officer of the Central Government” under Section 132(2).
It may be recalled that the current search and seizure provisions of the Income Tax Act, 1961, were shaped in 1976 during the Emergency.
It is evident that the word “police” mentioned in the Act refer to a police officer of the state government. Policing and law and order are within the domain of states. Interpreting the words, “any …officer of the Central Government” to include the CRPF is absurd, and devious.
“Public order” and “police” are in the State List of the Seventh Schedule of the Constitution,which means state legislatures have the exclusive power to make laws on those subjects.The Centre does assist the states in situations of law and order, deriving its sanction to do so from constitutional provisions. The Constitution states that it is the duty of the Union to protect states from external aggression and internal disturbance. The Union therefore has legal sanction to deploy armed forces when required in the states to contain a situation.
The Union List further substantiates the claim to deploy armed forces by stating that the Parliament may make laws with regard to deploying any armed force or any other force subject to the control of the Union in any state in aid of the civil power.
The question is, does the power to deploy armed forces in states in aid of civil power include the power to grant general policing powers under the Code of Criminal Procedure to a Central Armed Police Force through a mere notification issued by the MHA? This was done in December 2013. Like Banquo’s ghost, the earlier Congress central government’s skullduggery is coming back to haunt itself. The MHA is a part of the executive branch of government and a notification issued by it does not come under the purview of entry 2A of the Constitution it is not a law passed by Parliament. The powers to arrest and seize are not granted as a general practice, nationally and internationally, to an armed force,such as the CRPF in this case.
The Code of Criminal Procedure (CrPC), 1973, does not give untrammelled power to arrest to a member of the armed forces.This power is reserved for the non-armed state police. Exceptions can be made only under certain circumstances, such as when an assembly cannot be dispersed by any other means and it is necessary for public security that it should be dispersed. Even then, the arrest is to be made under the supervision and in accordance with the instructions of the Executive Magistrate of the highest rank present at the scene.
The CrPC further states that it is only in cases where it is clear that public security is manifestly endangered by any assembly, and if no Executive Magistrate can be communicated with, can an officer of an armed force arrest or confine people in order to disperse the assembly. But this provision also comes with a rider which makes it mandatory for a member of the armed force to report the arrest or confinement to the Executive Magistrate as soon as it becomes practical to do so, and from then onwards to follow the Magistrate’s instructions.
The Guwahati High Court in a 1991 judgment referred to the Administrative Reforms Commission Report which stated that the Union Government cannot deploy armed forces except at the request of, or with the concurrence of, the State Government. The Commission observed that as ‘public order’ and ‘police’ fall within the State sphere, the responsibility of a state government in regard to these two subjects must be respected.
The armed forces of the Union, including the CRPF, can be deployed only to aid a state’s police force. During the Emergency, the Constitution was amended to permit the central government to dispatch and deploy its Central Armed Police forces without state government consent. But in December 1978 the Morarji Desai government again made the deployment of central police forces dependent on the agreement of the state government.
The definition of armed forces under the Constitution encompasses the paramilitary forces under the supervision of the MHA – these include the Border Security Force (BSF), Central Reserve Police Force (CRPF) and the Indo-Tibetan Border Police (ITBP). The Ministry of Defence controls the Rashtriya Rifles and the Assam Rifles,which are also considered armed forces of the Union.
Since Independence, the Central Government has gradually but surely encroached upon the powers of the states.In the past, all states were wary of the intrusion of central police forces and even central investigative agencies such as the Central Bureau of Investigation.Unfortunately, such encroachment has been legitimised by overly broad interpretations of the provisions of the Constitution that define the division of powers between the Centre and the states.
State governments have also contributed to the erosion of their powers by requesting contingents of central armed forces when faced with serious law and order problems. States have their own armed police contingents – the Bihar Military Police (BMP), the Provincial Armed Constabulary (PAC) in Uttar Pradesh, and the Tamil Nadu Special Police – but these forces are badly trained and ill equipped.
The Karnataka government’s ‘protest’ at the use of the CRPF is not enough. It should move the Supreme Court in the matter.