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A recent news-item referred to the submissions made by the Attorney General before the Supreme Court in the public interest litigation perta...

Written by Madhav Godbole |
December 31, 1997

A recent news-item referred to the submissions made by the Attorney General before the Supreme Court in the public interest litigation pertaining to the autonomy of investigating agencies such as the Central Bureau of Investigation (CBI) and the Enforcement Directorate. The submissions were based on the recommendations of an “independent review committee”. The amicus curiae described the report of the review committee as “a cosmetic exercise”, and submitted that the committee did not deal with the heart of the matter. While the Supreme Court has reserved its judgment in the matter it is worth looking at the questions it raises. The twin issues which need to be reconciled in this context relate to the independence of the police and its accountability. At the outset, it must be admitted that the impartiality of the police is one of the main components of the rule of law.

The main question for consideration is whether there is a master-servant relationship between the police and the political executive.

The discussion on the issue in The Changing Constitution, edited by Jeffrey Jowell and Dawn Oliver, is worth recalling. The legal origins of this independence doctrine, in so far as it has any, are to be found in rules about municipal liability for the acts of constables. These appeared in North America before being clearly set out in England. One of the earliest decisions in this regard was made in the Supreme Court of Massachusetts in 1861 in the Buttrick vs. The City of Lowell case. Here, it was said that police officers were not agents or officers of the city and their powers were derived from law. They were exercising a function of government delegated by the legislature. These conclusions were generally adopted in the public law of the Canadian provinces based on English common law, as well as in the civil law of Quebec. In Canada, there also emerged a notion that the police are in theory neither agents nor servants of the Crown, but persons owing duty to the public.

Similar was the case in Australia, where it was held that some police duties were statutory and some derived from the common law, but all were of a public character. Although a constable is bound to obey the lawful orders of his superiors, “neither they nor the crown itself can lawfully require him to abstain from performing the duties which the law imposes upon him with respect to the preservation of peace and the apprehension of offenders”.

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In England, it has been accepted that the limits of the independence of the constabulary have a direct relation to how far police duties are prescribed by statute, regulation and common law. In the case of R. vs. Metropolitan Police Commissioner ex parte Blackburn (1973), Lord Denning said, “I hold it to be the duty of the Commission of Police as it is of every Chief Constable to enforce the law of the land… he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must or must not keep observation on this place or that; or that he must or must not prosecute this man or that one. Nor can any public authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and the law alone”.

Even the Parliamentary committees in India seem to go further than the independent review committee. Thus the Parliamentary Standing Committee on Home Affairs in its Seventh Report on the Working of the CBI and Central Vigilance Commission (1994), had observed that “there are instances where the credibility and impartiality of this organisation have been questioned at different fora. The Committee is therefore constrained to observe that there is a need for serious thinking to maintain the independence, impartiality and the credibility of the CBI to allay any misapprehension in the minds of the general public in regard to the functioning of this organisation”. The Committee had also recommended that, “In view of the sea-change in the functioning of the CBI in the backdrop of the ever-changing crime scenario, the Committee strongly feels that there is an urgent need for enacting a fresh comprehensive legislation for the CBI”. A similar recommendation had been made earlier by the Estimates Committee of Parliament in 1992 or thereabouts.

But the independence or autonomy of any organisation depends on the person heading the organisation. And it is in this area that urgent reforms are called for. In the culture of secrecy which pervades the working of the government in this country, even the reports of the committees never get published, leave aside any action being initiated on their politically sensitive recommendations. It was therefore no surprise that the recommendations of the L.P. Singh Committee over 20 years ago on this aspect were brazenly shelved. In the recent past, the appointments of the Director, CBI, have been largely made on political considerations. The present incumbent was elevated to this post when he was on extension, in gross violation of the service rules. Unfortunately, no one in the bureaucracy had the courage to oppose this decision on paper. The public interest litigation on the subject is still pending although the incumbent is due to retire soon. The foremost requirement therefore is to select the persons for manning these posts in a non-partisan manner and to give them fixed tenures.

In a country where decisions are made on a case-by-case basis, or rather a suitcase-by-suitcase basis, the autonomy of the investigating agencies assumes special importance. Time and again it has been seen that politically sensitive cases and those pertaining to large industrial houses have been deliberately soft-pedalled. In the recent past, all cases involving prominent politicians have been thrown out by the courts for inadequate investigation, faulty appreciation of laws and tardy presentation. There is a popular perception that the cases were put in the courts only as a token gesture to diffuse increasing public criticism.

It is necessary that remedial steps are taken to prevent such gross violations. A constitutional authority should be created forthwith and all investigating agencies must be made answerable to it. Such an authority should also comprise prominent senior criminal and civil advocates who can pursue court cases vigorously. Such an authority should be answerable only to Parliament.

The more one looks into the unwritten rules of mature democracies in the West, the more one is struck by shallowness and immaturity of our own institutions. And for this one must blame not just the politicians in this country but equally its civil servants.The writer is a former Union Home Secretary

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