Given our experience with democracy so far, it is proven beyond doubt that democracy is best suited for a pluralistic society like ours. Our rich diversity cannot be sustained through dictatorial governance. It is only through democracy that our rich culture, heritage, diversity, and pluralism can be sustained and strengthened.
We Indians love our freedom. When any attempt has been made to snatch our freedom, our alert citizenry did not hesitate to seize the power back from autocrats. So, it is essential that all the institutions including the police and the investigative bodies uphold and strengthen democratic values. They should not allow authoritarian tendencies to creep in.
The police and investigative agencies may have de-facto legitimacy, but as institutions, they are yet to gain social legitimacy. Police should work impartially and focus on crime prevention. They should also work in cooperation with the public to ensure law and order. The CBI possessed immense trust of the public in its initial phase. But with the passage of time, like every other institution of repute, the CBI has also come under deep public scrutiny. Its actions and inactions have raised questions regarding its credibility, in some cases. People hesitate to approach the police in times of despair. The image of the institution of police is regrettably tarnished by allegations of corruption, police excesses, lack of impartiality and close nexus with the political class.
Often, police officers approach us with the complaint that they are being harassed after the change in the regime. The need of the hour is to reclaim social legitimacy and public trust. The first step to gain the same is to break the nexus with the political executive. The best of talents enter this system in expectation of recognition and accolades. But upright officers find it difficult to stand by their oath. The truth is, that no matter how deficient and non-cooperative the other institutions may be, if you all stand by your ethics and stand united with integrity, nothing can come in the way of your duty. This stands true for all institutions. This is where the role of leadership comes into play. The institution is as good, or as bad, as its leadership. A few upright officers can bring a revolution in the system.
Then there are certain issues that lead to delays in trials. They are: Lack of public prosecutors and standing counsels, seeking adjournments, arraying hundreds of witnesses and filing voluminous documents in pending trials, undue imprisonment of undertrials, change in priorities with the change in the political executive, cherry-picking of the evidence, and repeated transfers of officers leading to a change in the direction of the investigation. These issues often lead to the acquittal of the guilty and incarceration of the innocent. This severely affects the public trust in the system. The courts cannot simply monitor every step.
Reform of the police system is long overdue in our country. The Ministry of Home Affairs has itself recognised the glaring need for the same in the “Status Note on Police Reforms in India”. Unfortunately, our investigative agencies still do not have the benefit of being guided by a comprehensive law. The need of the hour is the creation of an independent and autonomous investigative agency. For instance, in spite of the various issues affecting the Indian judiciary, the public still reposes its faith in the institution. This faith is largely due to the inherent autonomy and commitment to the Constitution and laws by the judiciary.
There is an immediate requirement for the creation of an independent umbrella institution, so as to bring various agencies like the CBI, SFIO, and ED under one roof. This body is required to be created under a statute, clearly defining its powers, functions and jurisdictions. Such a law will also lead to much-needed legislative oversight.
It is imperative for the organisation to be headed by an independent and impartial authority to be appointed by a committee akin to the one which appoints the Director of the CBI. The head of the organisation can be assisted by deputies who are specialists in different domains. This umbrella organisation will end the multiplicity of proceedings. A single incident these days gets investigated by multiple agencies, often leading to dilution of evidence, contradiction in depositions, prolonged incarceration of innocents. It will also save the institution from being blamed as a tool of harassment. Once an incident is reported, the organisation should decide as to which specialised wing should take up investigation.
One additional safeguard that needs to be built into the scheme, is to have separate and autonomous wings for prosecution and investigation, in order to ensure total independence.
A provision in the proposed law for an annual audit of the performance of the institution by the appointing committee will be a reasonable check and balance.
There is a need for regular upgradation of knowledge, deployment of state-of-the-art technology, and international exchange programmes to learn the best practices.
With the police and public order under the State List, and rightly so, the burden of investigation is primarily on the state police. There is no reason why state investigative agencies, which handle most of the investigations, cannot enjoy the same level of credibility as that of the national agency. The proposed Central law for the umbrella investigative body can be suitably replicated by the states.
An issue that needs addressing at this stage is the representation of women in the criminal justice system. Often, women feel deterred in reporting certain offences due to a lack of representation. Their presence in the policing system will further encourage hesitant victims to approach the criminal justice system and report crimes.
Relations between the community and police also need to be fixed. This is only possible if police training includes sensitisation workshops and interactions to inspire public confidence. It is imperative for the police and the public to work together to create a safe society. Ultimately you must remember that your allegiance must be to the Constitution and the rule of law and not to any person. When you stand upright, you shall be remembered for your courage, principles and valour. The political executive will change with time, you as an institution will be permanent. Be independent, pledge solidarity to your service. Your fraternity is your strength.
This column first appeared in the print edition on April 2, 2022 under the title ‘Break nexus with executive’.
Edited excerpts of the 19th D P Kohli Memorial Lecture delivered by Chief Justice N V Ramana on April 1 at Vigyan Bhawan, New Delhi