The Politicisation of Criminal Justice

Dr M N Buch 

(Visiting Fellow, VIF)

Afzal Guru masterminded the attack on Parliament in 2001, which left nine security and parliament staff dead, with five attackers also being killed. He was arrested and tried for his crimes, sentenced to death by the Sessions Court and his conviction and sentence were upheld by the Delhi High Court and the Supreme Court. For several years after sentencing Afzal Guru’s fate hung in the balance because his mercy petition to the President remained pending. Government obviously hesitated to take a decision lest it trigger a violent reaction in the Kashmir Valley. All sorts of excuses were trotted out for the delay, including examination of the case by the NCT of Delhi Government, Home Ministry, Law Ministry, the President and so on. In 2009, the then Home Minister, P. Chidambaram, said publicly that there were a number of such petitions in the queue and Afzal Guru would have to await his turn. Even at a railway booking office a queue moves on as tickets are issued. In the MHA booking office obviously no tickets were being issued as the clerks either slept or dithered and the queue remained static.

In India all systems are selective in operation. At Tirumala-Tirupati there is a queue of devotees, but VIPs jump the queue. In crime, too, there seems to be a similar procedure, because suddenly Ajmal Kasab came on the scene and though he was at the bottom of the queue he was made to jump it and was hung before any one else. May be because he was a foreigner, a Pakistani, a different queue was formed for him as there is for foreigners at immigration counters. But surprise of surprises, the next was Afzal Guru, who happens to be Indian despite separatist efforts by the Hurriyat and its Indian quisling supporters to change the status of Kashmir. How has this happened and how does this reconcile with Chidambaram’s averment in 2009? The Congress spokesman, Abhishek Manu Singhvi, fields all questions on this by blaming BJP (NDA) for not hanging Afzal Guru when it was in power. Perhaps he has forgotten that by the time NDA demitted power in mid-2004 the entire legal process in the Afzal Guru case had not been exhausted. In any case BJP has been consistent in its demand that the sentence be carried out, not because Afzal Guru was Muslim but because the attack on Parliament was a vile crime. In Indian law, murder is the worst offence that can be committed because it deprives a person of his life and this is irreversible. Therefore, under section 302 IPC a person who commits a murder faces only one of two sentences, death or imprisonment for life. Under section 109 IPC if a person abets an offence he would be liable to the same penalty as is provided in the main office. If the offence is of murder then the abettor is liable to the same penalty of death or imprisonment for life as the person actually commits the offence. Under section 120B IPC if a person is part of a criminal conspiracy to commit an offence and that offence is punishable with death or imprisonment for life, then the conspirator is liable to the same penalty as the main offender. Under section 34 IPC if there is a common intention to commit an offence, then every person who does a criminal act in furtherance of the common intention is liable to the same penalty as if the act was done by him alone. Afzal Guru was part of a conspiracy to attack Parliament, which amounts to an offence under sections 121 and 121A IPC. Afzal Guru was part of a conspiracy, both to commit murder and to wage war against the Government of India and joined with others in the common intention of attacking parliamentarians and murdering them. Once the offence had been proved in a fair trial there is no sentence which could be awarded to him other than death because this case went beyond the rarest of rare cases and jeopardised the governance itself. Suppose the conspiracy had been successful and several hundreds of parliamentarians had been killed would the President have had any other option but to declare a state of Emergency under Article 352 of the Constitution, thus temporarily establishing authoritarian rule in the country in order to tide over the crisis?

The seriousness of the offence is such that for BJP to demand that the sentence of death be carried out without any delay is fully justified. If anything, it is the UPA government headed by the Congress Party, which could be accused of playing politics by delaying the decision on the mercy petition of Afzal Guru. Chapters XXVII and XXVIII, Cr.P.C. give trial courts the exclusive right to deliver judgment in a criminal trial and to the High Court to confirm a death sentence There is provision of appeal, remission and review, but that is all within the judicial system. Sections 432 and 435, Cr.P.C. give the State Governments and Central Government the power to suspend, remit or commute the sentence of a person convicted of an offence. In this, however, the opinion of the presiding judge of the court which convicted the offender should be sought, which means that the right of suspension, remission or commutation of sentence given to the appropriate government by Chapter. XXXII, Part E has to be exercised judiciously. Government cannot be capricious in this behalf. In addition to the provisions of the Code of Criminal Procedure we have Article 72 of the Constitution in which the President has the power to grant pardon and to suspend, remit or commute a sentence in certain cases. These relate to punishment awarded by a court martial, by a court in a case under a law relating to a matter to which the executive power of the Union extends and in all cases where the sentence is death. Under Article 161 the Governor of a State has similar powers in a matter to which the executive power of the State extends. Let it be clearly understood that this power, whether under the Code of Criminal Procedure or under the Constitution, would be in exercise of an executive function and not a judicial function, despite the fact that the power has to be exercised judiciously.

The scheme of the Indian Constitution clearly divides the State into three separate but equal constituents, the Executive, the Legislature and the Judiciary. Undoubtedly the Constitution also provides for the points of contact between the three organs of the State, but essentially the investigation of criminal offences is an executive function performed by the Police. The trial, conviction or acquittal which follows investigation are purely judicial functions. Chapter II, Cr.P.C. constitutes criminal courts in which under the High Court there are the courts of session and the courts of Judicial Magistrates. In addition there are the courts of Executive Magistrates. Under Chapter III, Cr. P.C. a court of session can try any class of cases and pass any sentence, including death, subject to confirmation of a death sentence by the High Court. A Judicial Magistrate, First Class can try a case and award a sentence of upto three years of imprisonment, with a Chief Judicial Magistrate or a Chief Metropolitan Magistrate having the power to pass a sentence upto seven years of imprisonment. No executive authority has the power to try cases which fall within the jurisdiction of the Judiciary. Functions exercisable by an Executive Magistrate are generally confined to administrative or executive matters, except in certain States and Union Territories in which the Act makes a special provision.

In the normal course of things it is for a judge or magistrate to decide whether the prosecution has succeeded in proving its case beyond any reasonable doubt that the accused has not been able to counter this and that on the basis of evidence the accused should be convicted and sentenced. In this the executive has no role to play and certainly the provisions of Cr.P.C. and the Constitution about remission, etc., of sentences have to be read in the context of the role of the judiciary in determining the guilt or otherwise of a person accused of a crime. I am prepared to concede, though reluctantly, that there may be some rare circumstances which could not be taken into consideration in a judicial trial but which may, at some later stage, merit an executive decision about holding a person prisoner or not, but that has to be truly rare, exceptional and based on arguments and evidence which both are irrefutable. A person convicted of a heinous offence and given the death penalty may have a commutation of sentence if, for example, government is contemplating legislation on the abolition of death penalty itself. Sometimes the relations between two sovereign States may call for reconsideration of a sentence awarded to a convicted person. Such instances, however, would be extraordinary and certainly the exercise of executive power in this behalf cannot be done in order to negate or reverse a judicial decision. Normally the decisions of the courts have to be considered as final and the executive should have nothing whatsoever to do with the quantum of punishment awarded by a court.

Neither the Code of Criminal Procedure nor the Constitution lay down any time limit for processing of a mercy petition. In fact under Chapter XXXII of Cr.P.C. the execution of a sentence is, in the case of sentence of death, the responsibility of the Court of Session which will issue a warrant of execution after all due process of law has been exhausted by the accused and the sentence is confirmed by the High Court and, if there is an appeal, by the Supreme Court. If there is levy of fine the court may issue a warrant to the Collector of the district, who will then be authorised to recover the fine as an arrear of land revenue. Under section 425 Cr.P.C. for every other sentence the warrant of execution will be issued by the judge or magistrate who passed the sentence. A convicted person may make an application under section 432 Cr.P.C. to the appropriate government for suspension or remission of sentence and the government will then by general rules or special orders deal with the matter. One presumes that a similar procedure would apply in the case of exercise the power by the President under Article 72 of the Constitution and by the Governor under Article 161.

Unfortunately at present there is no legal provision about the time limit within which any application made in this behalf may be disposed of, which is why government takes its own sweet time in deciding such matters. In the absence of general or special orders, or rules framed in this behalf, government can and does act arbitrarily in deciding such matters. This has been evidenced in the case of all those persons who face the death penalty, which has not been executed as yet. The entire process of trial is judicial and is prescribed by law. Should not a post trial power also be governed by law? Can a judicial process be reversed or adversely affected by executive action or lack thereof? These are very important questions of law and must be answered, perhaps by the Supreme Court.

The Eight Amendment of the Constitution of the United States reads as follows:- “ Excessive bail shall not be required, nor excessive fine imposed, nor cruel and unusual punishment inflicted”. This means that the medieval punishments of being sawn in half, impalement, being hung, drawn and quartered or being crushed beneath the foot of an elephant cannot be given in the United States. In India Article 21 of the Constitution which guarantees life and liberty except through due process of law can also be read as the equivalent of the Eighth Amendment of the American Constitution. The Preamble of the Constitution which calls upon our republic to secure for all citizen fraternity assuring the dignity of the individual also rules out all cruel or unusual punishment. But cruelty need not be only physical, because mental cruelty can sometimes be more harsh than the purely physical. Imagine how a person sentenced to death must feel when he is awaiting execution of sentence. Every day when he wakes up he must wonder whether he will see another day and in such conditions he must die a little every day. It is unfair to keep a person hanging under the sword of execution. Let the judicial process be totally fair, as it is in India, let the courts be extremely conservative in awarding the death penalty, but once it is awarded let the process of appeal be fast and if an executive decision is for commutation or pardon, let that come within the shortest time possible after the judicial process if completed. There is no reason why it should take more than three months for the President or Governor to receive the advice of the Council of Ministers and to take a decision in the matter. If a man is to die let him die quickly, if he is to live let this be communicated quickly. It is my submission that any delay in this matter is tantamount to cruelty. If a convicted criminal has the right to dignity as an individual he should not be mentally tortured when awaiting execution.

It is alleged and widely believed that Afzal Guru’s execution was delayed partly because there was fear of reaction in the Kashmir Valley, but partly because the ruling party was playing politics on whether Afzal Guru should live or die and what should be the appropriate time for taking a decision in this behalf. There is a school of thought that till the Congress Party saw the emerging and looming shadow of a revitalised BJP, which was demanding swift justice, it did not act. Perhaps the unfortunate remarks of the Home Minister about saffron terror caused some tremors in the Congress because it feared that this could have an electoral backlash because Hindus would be annoyed at such a tactless remark. Perhaps the ruling party thought that its anti terrorism credentials were under threat and that it should show itself as a strong party by executing Ajmal Kasab and Afzal Guru. This has only raised further questions about why the assassins of Rajiv Gandhi and of Beant Singh have not been executed. My unhappiness abut this whole episode is that Afzal Guru was a living human being and entitled to the dignity which the Preamble predicates. He did a criminal act of which he was found guilty and for which he has paid the ultimate price. The tragedy is that people feel that he was made a pawn on the chess board of politics as played by the Congress Party. No one, not even the worst of convicted criminals, can have his life depending upon what suits a party in power at a particular time. His conviction was justified, as was his death. What is not justified was the manner in which the execution was decided on, not because of his guilt but because it suited government to take action. This has left a dirty taste in one’s mouth.

Systemic Failure or Organ Failure?

Dr M N Buch 

(Visiting Fellow, VIF)

The Chambers Twenty-first Dictionary, which is quite an authoritative lexicon, describes ‘system’ in the following words, “A set of inter-connected or inter-related parts forming a complex whole”. The word ‘systemic’ is defined as “referring or relating to a whole organism. ‘Organ’ is defined as, “A part of a body or plant which has a special function, e.g. a kidney, a leaf”. Therefore, when an organ fails it is an individual part which becomes inoperative and, perhaps, with proper treatment the organ, or part, can either be repaired or made functional, or it can be replaced. A systemic failure, however, would be much more serious because in such a situation the entire system, or the complex whole consisting of individual organs, begins to give way and this can lead to what can only be called termination which is irreversible. Here all the organs either seriatim or collectively fail. The situation can still be retrieved by repair or replacement. The question which faces India today is whether our body politic is facing organ failures or is it that we are a looking at a system failure?

The total system under which India operates is what is provided in the Constitution. The body politic consists of three major subsystems, the Executive, the Legislature and the Judiciary which together constitute the whole system called the Indian State. Within the overall system and the sub-systems there are a number of organs which are required to perform specific functions. Schools and colleges are required to impart education, medical institutions are meant to look after the health of citizens the Income Tax Department is supposed to collect taxes levied by the Legislature, the Agriculture Department is meant to promote agriculture and the Police are required to create an overall environment of security and for that purpose to maintain law and order, prevent, detect and prosecute crime, guard the country against externally sponsored acts of terrorism and generally reassure people that they can go about their normal vocations in peace. This functional distribution or responsibility applies to all the organs of the State and to all levels of public servants, elected or appointed. Sometimes a particular organisation or department fails to live up to our expectations. Some civil servants do not carry out their duties faithfully. Quite often even at subsystem level there is failure, such as the virtual lock out of Parliament that we have witnessed for the last few months. Sometimes the citizens themselves are so annoyed with a particular organ of the State that they react strongly and, therefore, there is a hiatus between public servants and people at large. These are aberrations which will crop up from time to time in any system, but the system itself has to be resilient enough to apply self-correcting measures so that the organ which is faltering is brought back on track. Organ failure is correctable but when the self correcting mechanism fails it can have a cascading effect on the functioning of organs and an unchecked failure of one organ can cause other organs to come under stress and fall. This can lead to systemic failure, which has to be avoided at any cost.

How sound are our systems? Because the republic is founded on democracy and the fact that every five years people do exercise their franchise in an environment which is basically free of fear means that democracy has taken very deep roots in India. Democracy, therefore, becomes the very base, the very foundation on which is the system rests and this foundation cannot be destroyed. This does not mean that the superstructure, which corresponds with organs of a system, cannot be damaged, but systemic failure cannot take place unless the foundations themselves crack. The foundations of Indian democracy are stable and safe and this can be categorically proved by the failure of the State of Emergency which Indira Gandhi declared in 1975 and had to hastily withdraw in 1977. This is one side of the story, but the other side is that if organs fail and corrective measures are not taken in time, cumulatively this can lead to a system failure. There are many critics, many pessimists, who say that this is beginning to take place increasingly and that we are in danger of systemic failure. People with extremist views go to the extent of saying that the systems themselves are rotten and we should scrap them and create new systems. In Russia, the Tsarist Government and the Tsarist system had become rotten and, therefore, the Russian Revolution took place and Imperial Russia became the Communist ruled Soviet Union. Every organ of the old regime was destroyed.

The problem with revolutions is that they quite often go against the established nature of things and, in turn, they themselves fail. Two glaring examples of this are Russia today and the modern Peoples Republic of China. Within seventy years of establishment the Soviet Union broke up and disappeared, to be replaced by the Federated Russian Republic which has moved away from one party rule of the Communist Party of the Soviet Union to something which is attempting to resemble western multi party democracy. The Eastern Republics have broken away from the Soviet Union and its successor State, Russia, as have Ukraine, Belarus, Latvia, Estonia, the Caucasian Republics of Georgia and Armenia. The system failed and the country split. The second example is of China, where Mao’s revolution transformed a rotten Kuo Min Tang governed China to a Peoples Republic, which consolidated the country but also brought it under harsh one party rule. Today, however, the picture has changed and is continuing to change. Under Deng Tsiao Ping and his successors China has moved away from an extreme Left Wing form of communism and instead wholeheartedly embraced the capitalist economic system. Politically China has remained under one party rule and the tension is apparent between an economic system which is liberal and a political system which is still rooted in the shibboleths of Marx, Lenin and Mao. Yet, this country has accepted Hong Kong and Macau, former British and Portuguese colonies, as part of China but following their old political systems. Here revolution has turned to evolution, which has kept the country intact and will probably drive it closer to liberal ideas of political organisation, though not necessarily the Westminster or the American model of democracy. This country is to be watched very carefully, not so much because it is now an economic powerhouse but because political changes are taking place which may have very far reaching effects globally.

It is in the context of what the holders of extreme views on how the Indian State functions have to say about scrapping the system that I have brought up the position prevailing in Russia and China. The Indian system of change is evolutionary rather than revolutionary and, therefore, the change tends to be seamless, painless and very long lasting. For those with short memories I would like to draw their attention to what Jawaharlal Nehru and S.K.Dey achieved through the Community Development Programme. Colonial India with its highly regulatory administration was launched on the path of development, especially rural development, by co-opting the people of our villages into an effort to galvanise rural society and unleash people oriented, people driven rural development. Without anyone realizing it, India evolved the system of development blocks, each headed by an officer specifically dedicated to the development agenda. The regulatory mechanism of the tehsil and district remained, but a new unit of administration, the block which was coterminous with tehsils in States which had small tehsils and with more than one block per tehsil where the tehsil was large and could be segmented into more than one block. Extension officers in various disciplines were posted in each block. The BDO was equivalent in rank to the Tehsildar, but because the development administration structure was separated from revenue administration, which could be called coercive to an extent, we had a new cadre of officials who were accountable to the people at block level and whose only agenda was improvement of the rural economy. Setting up a parallel development administration without reducing the importance of the regulatory administration was a remarkable achievement and India can take great pride in this. It is on this foundation that the subsequent panchayat Raj system has been created. This evolutionary form of passing real power to the people through the Panchayats is the an achievement of which India can be justifiably proud. Had we abolished the tehsil and had created only a development administration we would probably have had the chaos that now prevails in Pakistan where half baked reforms which virtually destroyed the district administration without a parallel Panchayat system to take over. This step disconnected the police from accountability to the Magistracy and converted the Deputy Commissioner of a district to a District Coordinating Officer with virtually no coordinating powers, has led to administrative chaos. Our method is better.

The recent debate has originated from the unfortunate rape of a young woman in a moving bus in Delhi and her subsequent death, which has led to an outburst of horror and rage against the manner in which the Indian State is functioning. People are absolutely fed up with crime, especially against women and the rape of the young lady has led to widespread public revulsion and demand for action. People want modified lynch law to apply, they are attacking the police, the judiciary and the legislature for failure to enact tough laws and to enforce them and they want sweeping changes in the organs of the State which would amount to systemic changes. Any attempt to tell people that whereas the anger is justified it is the law which must take its own course, not only because people demand it but because the law is on the statute book and it is the duty of the Executive to enforce the law. The anger of the people is understandable, but what is not understandable is the manner in which government has handled the whole matter. What the people needed was reassurance from the highest officials of the State, including the President and Prime Minister, that in the instant case there would be swift justice, in general there would be a tightening of security and law enforcement in such a way that law breakers begin to have fear of the law and that the general security environment would be improved so that everyone in India, especially women, has the right to protection of laws. This demand is absolutely justified and had government taken steps immediately which could convince the people that government is serious, the things which happened in Delhi when the protests started would not have taken place. If the President, the Prime Minister or the Home Minister, as also the Lieutenant Governor of Delhi had not sheltered behind police barricades and had come to Vijay Chowk to talk to the protesters, not only the would the people be reassured but the agitation itself would have ended. None of these functionaries thought it fit to meet the people, not within the four walls of their own office but in the open where people could congregate around them. A little courage shown by the leaders would have defused the situation immediately, but then we are ruled by insensitive people who are also cowards. This is a prime example of the executive organ of the State not performing its duty and to some extent this amounts to an organ failure. However, it is remediable if for the future the lesson is learnt and the administration goes out of its way to meet people, hear them and then provides suitable remedy and takes suitable corrective steps.

There are a few signals about organ failure or at least organ stress on which I would like to comment. The first goes beyond an organ and forms a sub-system which is a vital constituent of the Indian State. I refer here to the Legislature. Whether it be Parliament or a State Legislature, the legislative organ of the State is really the most important constituent of the democratic system because the House is elected by all the people and, collectively and individually, it and its members represent the people of India. The representatives of the people have at all time to be accountable to the people and, therefore, behave in a responsible manner. The people’s mandate to the Legislature is to deliberate and legislate, that is, give us a system of laws which makes India a society based on law rather than arbitrariness or whimsicality of the ruler. It is the custodian of the public exchequer in that it votes grants and the budget in its totality, which authorises the Executive to draw funds from the Consolidated Fund of India and make accruals to it through revenue and capital receipts. The Executive can neither impose a tax nor an impost, nor can it spend even a single paisa without the approval of the Legislature. In turn, the Legislature can call the Executive to account on how the money has been spent and in this it is assisted by the Comptroller and Auditor General of India. The Executive has to account for every expenditure and, therefore, the parliamentary convention is that if government if defeated on a Money Bill and, in particular the Appropriation Bill, it must resign.

The Legislature also calls the Executive to account in its executive functioning through questions, call attention motions, adjournment motions, motions of no confidence, debate, discussions and resolutions. This can only be done if the Legislature meets for extended periods of time, each day’s session lasts the whole day and discussions and debate take place in an environment of peace and normal give and take. If the Legislature meets for just 50 to 60 working days in an year, as is the case with most State Legislatures, or proceedings are held up for days and months because the opposition and the ruling party do not see eye to eye on issues and nonissues, then the legislative subsystem comes under more stress. This can affect the working of the Executive and then there is a real danger of a systemic failure.

There are remedial measures which can be adopted. India does need more than one party and, as I have written in the past in extenso, ideally we should have a centrist party, a left of centre party and a right of centre party in which the centrist party becomes a pivot, but also a role model which prevents an excessive swing either to the Left or to the Right. Splinter groups and purely regional outfits should either have no presence in Parliament or a very subdued presence. If we adopt one single political reform, that is, no independent can stand for Parliamentary election unless he has won at least one local government election and one assembly election, with a condition applying to regional parties or splinter groups that unless they, as a party, hold at least five seats each in the Legislature of three States, they cannot contest an election to Parliament. The smaller parties would then either have to merge into larger parties, or they would have to expand beyond the narrow confines of their State boundaries, or they would have to confine themselves to State Legislatures only. They would then not be able to exert pressure in Parliament which would be far more in proportion to their numerical strength. If the larger parties are no longer at the mercy of these small groups one can definitely expect more responsible behaviour by them, both in government and in opposition.

Moving from a whole subsystem to organs of government within subsystems, I would like to comment on three of them. The first is government. As a part of the Executive organ of the State the government is required to function within the mandate given to it by the people, that is, the approval given by the people during elections and the agenda and programmes of the party which is voted to power. The party manifesto, the party ideology and the party agenda cannot and must not be altered case by case and government must adhere to the policy guidelines provided to them by the manifesto and agenda of the ruling party. This will guide future legislation and it will certainly guide policy formulation on specific issues. Within these parameters, however, those instrumentalities of the State which are responsible for implementation of policy will take the orders from the law, the people’s mandate and the decisions of the Council of Ministers. The problem in India is that government itself vacillates and dithers, with the result that its officers do not have clear-cut orders or a clear-cut policy which they are supposed to implement. This is an organ failure, but if it enlarges itself to encompass the whole range of executive action, then organ failure here can lead to failure of the subsystem and this must be guarded against. The Constitution in Part XIV already gives the Civil Services protection against arbitrary action, the Preamble, Articles 14, 19, 21 and 38 of the Constitution lay down the fundamental duty of government to promote a welfare state and the Rules of Business framed under the Constitution categorically provided for the manner in which public servants will function, impartially and without fear or favour. If we can go back to a system in which every functionary is not only allowed but actively encouraged to do his duty according to the mandate given to him, we would be able to stop the downward slide of the efficiency and efficacy of our public servants. This is well within our means and if there is to be public protest, it should not be confined to an individual case of rape but must take the form of insisting that government functions effectively.

The second organ I would like to pick up is the judiciary, which is one of the constituent organs of the State and forms a complete subsystem. People talk of judicial reforms. Even the Supreme Court keeps emphasising this, but no one has really articulated what they mean by judicial reforms. Any reform which aims at reducing or in any way curbing the independence of the judiciary enshrined in Chapter 5, Part V and Chapter 5 and 6, Chapter VI of the Constitution has to be firmly rejected. If the judiciary, from the court of first instance upto the Supreme Court, becomes in any way amenable to pressure by the Executive or the Legislature, it can neither function independently nor can it be a guardian of the Constitution and the rights of the people against Executive or Legislative highhandedness. Having said this one has also to recognise that there is a great deal of inefficiency and even corruption in the judiciary today and that this has to be cleansed with a heavy hand. The cleansing process, however, must be a part of the judicial system, with no say of the Executive or the Legislature. The judicial reforms should take the following form.

1. An objective assessment of the strength of judges and magistrates from the court of first instance upto the Supreme Court which should be approved to deal with the huge number of cases now pending or likely to be instituted in future.
2. A process of selection of judges which safeguards the independence of the judiciary, but is transparent, open to examination and time bound in the matter of selection and appointment.
3. A clear-cut understanding by the judiciary at all levels that the provisions of section 309, Cr.P.C, which call for speedy disposal on a day-to-day basis will be applicable to every court in India and every judge and magistrate will be held accountable for delays. In this the High Courts and the Supreme Court must interact with the Bar Council of the State and Bar Council of India to ensure that these Councils lean hard on their members to help in speedy disposal of cases rather than act as obstructions which indefinitely delay trials.
4. The High Courts and Supreme Courts must exercise self-restraint in the admission of appeals and petitions so that trivia is thrown out at motion hearing. Today many petitions are entertained, especially Public Interest Litigation, where the issue is high profile that the judge can garner free publicity. This hits at the roots of the anonymity of judges. Today a normal petition or appeal before a High Court or the Supreme Court remains unheard for years at a time, but Public Interest Litigation gets priority. The Supreme Court must take a good hard look at what really constitutes public interest and must issue suitable directions to the High Courts so that normal cases received due attention. Of course, in order to achieve speedy trial there has to be the cooperation of the prosecuting agency and of the police in ensuring that process is served and presence of witnesses ensured.

The third instrumentality I would like to speak about is the police. At one level it is the coercive arm of the State because it is utilised for putting down public violence and maintenance of law and order. This is a legitimate role, provided that the police is not used selectively. We need to strengthen the Executive Magistracy and the Police in tandem so that, faced with a particular law and situation, the Police and the Executive Magistracy will react in an uniform and predictable manner. Minimum necessary force will be used at the first instance of a law and order situation developing, with the emphasis on preventive action, followed by physical force when that becomes necessary. Neither government nor any other functionary should be allowed to interfere in this part of the duty of the Police, that is, immediate intervention to prevent a law and order situation spiralling out of hand. If such a philosophy has been built into the Gujarat Police and Maharashtra Police the post Ayodhya riots in Maharashtra would have been brought under control very quickly, as would the post Godhra riots in Gujarat. The coercive arm of the State, in exercising force, must do so in the interest of the person at large, which means that necessary force will be used to curb lawlessness at the earliest juncture, with no one having the power to stop the police from doing its duty.

Another area in which the Police operates is in the prevention of crime, its detection, investigation and prosecution without delay and in maintaining surveillance over criminals, which would prevent them from indulging in criminal activities. Under Chapter XI of the Code of Criminal Procedure the Police is not only authorised but is required to take preventive action so that cognisable offences may be nipped in the bud. Under Chapter XII of Cr.P.C the Police is required to investigate every cognisable case and to carry the investigation forward upto the stage of filing a challan before a competent court. Under law the power of the investigating officer to investigate a cognisable offence is unlimited. His superior in the police hierarchy can guide him or even take over the investigation himself, but he can neither order him to drop an accused against whom a prima facie case is made out nor order him to falsely implicate someone against whom no case is made out. However, as we have seen in innumerable cases investigated by CBI, interference at political levels in the investigation of offences is quite frequent and this is one reason why CBI has such a dismal record of conviction If the Police is unable to investigate offences or is unwilling to do so, it is inevitable that lynch law will prevail, as happened at the time of the infamous Bhagalpur blinding case. If we are to be a society of laws then lynch law has no place in India. This means that for our own sake we have to make the Police an effective instrument of crime control and for this purpose we must give the police freedom of action. I do not agree with a great deal of what Prakash Singh says in the matter of details of police autonomy, but I am in total agreement with him that the operational freedom of the Police must be restored, strengthened and enhanced. Whatever legal changes are necessary in this behalf should be brought on the statute book with great speed.

There is no doubt that the superstructure of the State is under considerable stress. Different organs are distressed and weakened and there are signals about current or potential organ failures. As yet there is no danger of systemic failure, but it is about time that we took note of what is happening to the organs of the State and to apply remedial measures now.

Foreign Direct Investment and Economic Growth

Dr. M.N. Buch
Visiting Fellow, VIF

Paul Theroux in his book, ‘Riding The Iron Rooster’ has made some fascinating comments on China which can help us in trying to understand why China is today an economic power-house and India is still struggling. This book was written in 1988 and describes a series of train journeys that Theroux undertook across China in trains which were obviously not the new Bullet Trains that China has now introduced.

Starting from Victoria Station in London Theroux travels across Europe, Russia, and Mongolia and then enters China through Inner Mongolia, making landfall at Datong. After the emptiness of Mongolia Theroux finds Datong and the China it represents to be shabby, busy, disorderly, very crowded and thoroughly polluted by smog which was a combination of desert dust, fog and industrial smoke. The shops were full of goods; there was an air of prosperity, but coal as the source of energy and manufacture, especially of steam locomotives, created a lasting impression. The industrial process was not automated, but everyone was busy working. The guiding philosophy was the three great goals of the workers. To quote Theroux these goals were, “timing of production, so that no work was wasted; keeping the right mental attitude; and increasing productivity”.

I have begun this paper by referring at some length to the very first impression that Paul Theroux had when he entered China from Mongolia. It was one of a country which has industries, whose people had a mindset of production and whose government obviously had a commitment to manufacturing. After the revolution Mao Tse Tung deliberately fostered an economic policy which strove to build a huge manufacturing sector in the country so that China could become an industrialised nation. Remember the slogan that China would overtake America in steel production? The huge number of backyard furnaces that came up and produced very low quality pig iron was a part of this effort to industrialise. Not much pig iron was produced this way, but the people were weaned away from a rural psyche to one in which manufacturing became central to the economy. It must be remembered that in China only ten percent of the total land area is cultivable and more than sixty percent of the land consists of uncultivable wasteland. Geology, geography, topography, hydrology and soil morphology encouraged, in fact mandated, that China could not continue to prosper on the basis of agriculture alone. The industrial revolution in China was then an inevitable consequence of the land configuration, though to give Mao credit he hastened the transition from a basically subsistence rural economy to a very powerful industrial economy.

Industrialisation carries with it a number of prerequisites, sequential growth of support infrastructure, capital requirement and capital formation and research and development which would lead to invention, innovation and improvement. Industry cannot survive without power and the development of the power sector becomes a sine quo non for industrialisation. The development of communications so that goods, people and services can be transported over long distances is absolutely essential for industrial growth. Because a country starting from a low level of economic capability does need assistance for capital formation and for development of technology, China had to find partners. Therefore, despite the fact that China is a Communist country whose ideal is socialism and State ownership of the means of production, China opted for an open door policy in which foreign investment was welcomed and the off-shoring of foreign industry and its location in China was encouraged. China provided the land space and labour and many of the world industries established a base in China. A great deal of Chinese industrial grown has taken place because of this open door policy. The Chinese Government at no stage felt that it could not keep the multinational corporations under control and, therefore, the Chinese had no hesitation in letting in foreign capital. Despite the handicap of having a one-party rule and a judicial system which is certainly not Anglo Saxon, China has been able to reassure the foreign investor that his investment would be safe.

Let us contrast this with India. We have always been suspicious of foreigners coming and investing in India because after all the East India Company and its Dutch, French, Portuguese and Danish counterparts initially came to India for trade. Because of a succession of wars in Europe in which Britain emerged as the dominant naval power and also a great military power on land, the French, Portuguese and other European interventions in India were virtually liquidated and Britain emerged as the supreme European power. Starting from trading posts such as Bombay, Surat and Calcutta the British trader gradually grew into being an arbiter in matters of local, native administration and the East India Company expanded into an imperial power. These memories are fresh in the Indian mind and, therefore, the Indian people and the Indian politicians have always had a deep- rooted suspicion and antipathy towards the successors to the East India Company, the multinational corporations. That is why there is strong political opposition to allowing foreigners to come and take over our companies, our manufacturing units and our trade outlets. Surprisingly China, which calls itself a Peoples Republic and has the single party rule of the Communist Party of China, is today most openly capitalist and gives the warmest possible welcome to foreign investors. India, on the other hand, is a multi-party democracy in which the word “socialist” used in the Preamble to the Constitution is more a comforting slogan than a political commitment, but we are still hostile to the idea of foreigners participating in our economy because we still feel that Surat may become the base of a foreign empire. That does explain why there is such strong political revulsion whenever the question of opening up of our market to foreigners comes up for discussion.

Trade created an empire in India and, subsequently, this empire systematically destroyed such manufacturing capabilities that India had so that the factory-made goods of Britain may be sold in the Indian market and India may then be reduced to the position of a supplier of primary products to Britain. Despite this history the Government of India has decided to open up two sectors of the Indian economy to Foreign Direct Investment. These are retail trade and the civil aviation sector, the latter named being in absolute shambles because of mismanagement. Foreign Direct Investment in the retail sector is strongly opposed by the Left, BJP, Trinamool Congress and several such parties, some of which are a part of the present Congress led coalition. The argument advanced by government is that foreigners taking over the aviation industry will pump necessary working capital into the system and this part of the economy would revive. Similarly, Foreign Direct Investment in retail trade would cut out middlemen, create the infrastructure which would enable the supply chain to reach from the farmer right up to the customer in the retail store and would bring direct benefit to the cultivators while ensuing good quality of the produce and a reasonable price for the urban consumers. It is argued that the present system of agricultural production and marketing is such that there is considerable wastage of agricultural produce by inappropriate storage, spoilage and even destruction through putrefaction in the process of transporting the produce from field to market. The foreign investment retail chains would reach out directly to the producer, create adequate storage, including cold storage facilities and build an efficient transport system which would quickly bring goods to the retail stores. This would put more money in the hands of farmers, prevent wastage and enable the consumer to buy agricultural products at an affordable price. The fact that it would throw a very large number of small vendors, road side hawker and itinerant sellers who carry fruits and vegetables on hand carts right up to the doorstep out of a job does not seem to bother our American Business School, World Bank trained or oriented economists and policy makers.

We seem to be quite willing to allow foreign investors to invest capital, including working capital, in airline companies, most of which are utterly mismanaged. Why do we not encourage foreign investors like British Aerospace, Boeing, Dassault, etc., to invest in producing aircraft in India? Why do we not try and have foreign companies invest in building factories for producing the refrigeration equipment which keeps cold storage plants functional? In other words, why do we not encourage foreign companies to invest in the secondary sector in a big way in India? We have had a fair amount of success in the Build, Operate and Transfer model (BOT model) of road construction and certainly on highways such as that which connects Bhopal to Indore the BOT model has enabled a first rate road to be built. If a sufficiency of off-shoring of manufacturing facilities is done in India we would certainly be able to create more gainful employment, India would be able to evolve an industrial culture instead of the present satisfaction with trading and as our manufacturing capacity increases, we would become a major industrial power, economic power and military power. Obviously we need to take a fresh look at our policy relating to Foreign Direct Investment in India. Given the choice I would cut down all FDI in retail trade, the service sector such as running an airline and in real estate. I would have an open door policy towards investment in the secondary sector, including the setting up of hundred percent foreign owned manufacturing facilities in India. I would certainly give meaningful incentives for investment in physical infrastructure. My only restriction would be that employment generated by these activities would go to the citizens of this country so that their earning and welfare are enhanced.

The great advantage of having a powerful industrial economy is that it forces the manufacturing companies to invest in more research and development because if they do not improve, innovate and invent, their products will become unsaleable in the market. Therefore, industrial growth will bring about simultaneous growth in scientific research for the purpose of innovation and invention. This, in turn, will strengthen our institutions of technology and management because as industry grows, as the need for research grows, the market for these disciplines will expand, the research and development establishment will become stronger and the Institutes of Technology and Management will be forced to redesign teaching methodologies to keep up with the new demand.

My final words would be that government must realise that so far as the foreign direct investor is concerned, he would prefer an activity in which his own capital investment is miniscule, there is a quick turnover of commodities and, therefore, profits are earned almost simultaneously with trading. The gestation period in envisaging, constructing, commissioning of an industrial establishment and then going into commercial production is quite long and profit would have to be deferred to an appropriate date in the future. That is why in India trade is more attractive than manufacture. This would be true of the foreign direct investor also. We need to break this mindset, to make the industrialist realise that waiting for profit is not such a bad idea after all because the production capacity created will yield results year after year after year and that a well managed industrial enterprise will always be more profitable than just trade, whilst being less risky because it is unlikely to be affected by daily market fluctuations which retail trade has to face. Therefore, let economic reforms be targeted at opening up our economy to productive investment but not indiscriminately to trade. America and the developed world want exactly the opposite to happen and this we must resist.

Freedom of Speech and Archaic Law on Sedition

Dr. M.N. Buch
Visiting Fellow, VIF

The Chambers Twenty-first Century Dictionary defines sedition in the following words: “Public speech, writing or action encouraging public disorder, especially rebellion against the government “. The word itself comes from the Latin word seditio, or growing apart. In a way it is connected with the word seduce, one meaning of which is to lead astray or to tend into wrong doing. The Indian Penal Code has section 124-A which makes sedition a criminal offence with the full section reading as under:

Section 124-A IPC—Sedition:: “Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1. The expression “dissatisfaction” includes disloyalty and all feelings of enmity.

Explanation 2. Comments expressing disapprobation of the measure of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under the section.

Explanation 3. Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt, do not constitute an offence under the section ”.

The offence of sedition carries imprisonment for life as a sentence in its extreme form and rigorous imprisonment for up to three years if the court determines that the seriousness of the offence is mitigated by circumstances. This gives an enormous leeway to a court in the matter of sentencing and this in itself can be called into question for permitting excessive judicial discretion to a court. For example, under section 302 IPC the offence of murder carries a liability of either a death sentence or imprisonment for life and a trial court has to give one or the other sentence. The Supreme Court has laid down guidelines in the matter of sentence by directing that it is only in the rarest of rare cases that the death penalty should be imposed. Under section 304 IPC in a case of culpable homicide not amounting to murder the court may impose a penalty of imprisonment for life where the act which caused death in the ordinary course could be fatal, or imprisonment of up to ten years if such act was committed without any intention to cause death. In the case of section 124-A IPC no such guidelines are provided by the law and, therefore, a judge would be able to pass a sentence which could be quite inappropriate. The Indian Penal Code is one of the laws which govern this country within the framework of the Constitution. Under Article 13 a law which is inconsistent with or in derogation of the fundamental rights would be void. The Preamble to the Constitution mandates liberty of thought, expression, belief, faith and worship and Article 19 (1) (a) gives citizens the right to freedom of speech and expression. No doubt Article 19 (2) and (3) permit the Legislature to make laws to impose reasonable restrictions on the rights given in Article 19, but the operative word here is “reasonable”. In other words, the freedom of speech and expression is almost absolute and a restriction thereon is an exception which has to be imposed after very great thought and only in the interest of public peace and tranquility.

Chapter VIII of the Code of Criminal Procedure relates to security for keeping the peace and for good behaviour and in case the said person cannot provide adequate security, then under sections 107, 108 and 109 Cr.P.C. the person may be kept in jail for up to one year and under section 110 for up to three years. Section 108 applies to persons disseminating seditious matters. In other words, the Police and the Executive Magistracy can prevent a person from disseminating information which is seditious. Then we have Chapter X Cr.P.C. which relates to maintenance of public order and tranquility and permits the Police, the Magistracy, and on requisition the armed forces may cause an unlawful public assembly to disperse, if necessary, by use of force and to restore public order. In other words, acts which could be deemed to be seditious can in fact be prevented by pre-emptive action.

Section 124-A speaks of bringing into hatred or contempt the lawfully constituted government. The word “contempt” is defined by the Chambers Twenty-first Century Dictionary as either disregarding or disobeying the orders of a court of law or despising a court or a lawfully constituted authority. The Contempt of Court Act is sufficient to uphold the dignity of the courts and, therefore, the law relating to sedition would not be applied so far as courts are concerned, despite the fact that the Judiciary is one of the three pillars of the State. Hatred is defined as intense dislike, enmity or ill-will. There is a whole chapter in the Indian Penal Code, Chapter X, which deals with matters relating to contempt of the lawful authority of public servants. Under section 186 IPC if a public servant is obstructed in the discharge of his public functions the offender can be punished. Under section 188 IPC if there is an order duly promulgated by a public servant, then disobedience of such an order is liable both to imprisonment and a fine. Chapter XI of IPC relates to offences against public justice. An insurrection against government amounts to waging war against government under section 121 IPC can be punished with death. In other words, jeopardizing the security of the State to an extent where it is tantamount to armed rebellion is also subject to the most stringent penalty permissible by law. Section 124-A relating to sedition aims at preventing and punishing the exciting of disaffection towards government; the purpose of which obviously would be to bring about a downfall of government. Now it so happens that we are living in a democracy whose Constitution, in its Preamble, constitutes India to be a sovereign, socialist, secular, democratic republic. So long as the Preamble exists, the said Preamble being immutable, democracy cannot be denied to the people. What is more, the opening words of the Preamble are “We, the People of India …” In India sovereignty vests in the people and not in a monarch or in Parliament. Parliament is only the instrumentality through which in a representative democracy people exercise their rights. In this republic the citizen is supreme and the government is an organisation through which citizens exercise their supremacy through the executive powers which vest in the President and the Governors. Therefore, the right to criticise government and to call government to account is far superior to the right of government to protect itself against sedition. The words ‘treason’ and ‘sedition’ have to be used with great care and caution in a democracy.

Article 14 of the Constitution guarantees for every citizen equality before law and equal protection of laws. This makes India a society of laws and every action of government has to be within the framework of law. This includes depriving a citizen of his liberty through the operation of law because that is exactly what Article 21 says. Article 21 reads,” No person shall be deprived of his life or personal liberty except according to a procedure established by law”. The chapter on Fundamental Rights apart, Part IV of the Constitution lays down the Directive Principles of State Policy. Article 38 directs the State to secure a social order for the promotion of the welfare of the people. Supposing the State is in neglect of this principle? Do the citizens not have the right to be critical of the government, even stridently critical, even critical to the point of calling the government useless and worthless, if it does not strive to establish such a social order? Would critcism by people who accuse it of not doing its duty amount to sedition? After all, if a government is proved to be corrupt, unwilling to look after the welfare of the people, incompetent and negligent of its duties, the people have every right to call for the overthrow of such a government but through due process.

Under Part V, Chapter 2 of the Constitution and in particular Article 79 it is constitutionally mandated that there will be a Parliament for the Union. The House of the People is directly elected from territorial constituencies by the electorate consisting of every citizen of India not less than eighteen years of age on the date prescribed by law in this behalf. As per Article 326 of the Constitution the basis of election is universal adult suffrage. Every single Indian above the age of eighteen is, therefore, an integral part of the process of constituting the Parliament of India. Under Article 83 the normal duration of the House of the People is five years from the date of its first meeting after an election. Every five years the citizens of India, therefore, constitute the House of the People through a process of elections in which there is adult franchise. The executive government is conducted by the President on the aid and advice of the Council of Ministers which, under Article 75(3), is collectively responsible to the House of the People. Therefore, every citizen is a part of the process of the constitution of the Council of Ministers on whose advice the President of India conducts the executive government of the Union. Through adult franchise, through participation every five years in the process of constituting Parliament, through the constitutional requirement of collective responsibility of the Council of Ministers to the House of the People, every citizen of India has a say in how the duly constituted Government of India will conduct itself. The government cannot try and silence a citizen and accuse him of sedition if he criticizes the government.

When an election takes place contending parties do not fight it on the basis of praise of the party in power. It is the job of the opposition to criticise government, point out its shortcomings and ask the people to defeat the ruling party at the polls and place before the people its own agenda of how it will govern. The objective of such a campaign is to convince the people that the government in power is so worthless as not to merit its return to power. The objective is to create in the public mind such a feeling of disappointment about how they have been governed and in fact to arouse dissatisfaction with the ruling party that it is defeated at the polls. Because the ruling party and government are virtually one, till the ruling party is defeated, will such criticism amount to sedition? Incidentally, propaganda against the ruling party and government does not begin only after the election is announced. It is a continuous process in which government would be liable to criticism in the Legislature, by the press and electronic media, through public meetings, agitations and movements and through the expression of the right to free speech by individual citizens. Does all this amount to sedition?

Let us try another tack. Parliament frames laws, almost all of which are drafted by the Executive and, because the ruling party has a majority, they reflect the will of the Executive. High Courts and the Supreme Court quite often strike down such laws as being inconsistent with the Constitution. Sometimes strictures are passed. In cases involving government very often the courts are stridently critical of executive action. Can this be construed to be sedition? What about the Comptroller and Auditor General of India appointed under Article 148? Under Article 151 the audit reports prepared by the CAG are placed before Parliament by order of the President after CAG submits them to him. Generally audit reports are critical of government, up to and including CAG’s comments on transactions which virtually accuse the government of wrongdoing which may be tantamount to corruption. Is this sedition? Is criticism of government based on an audit report an act of sedition? Is a movement which says that corruption be rooted out an act of sedition because it does, in the eyes of the public, paint the government to be worthy of contempt because of its own actions?

The Constitution permits criticism of government to the point where the people are so fed up with it that they call for a change of government through the process of election. What the Constitution does not permit is the overthrow of government by violence or by means other than constitutional. The Constitution enjoins government to govern for the welfare of the people; it does not state anywhere that a government must govern wisely and well. What it says is that every five years the people of India will judge the performance of government and will decide whether there should be a change in those who govern us. To take care of a situation where people are trying to unlawfully overthrow the government, apart from section 121 IPC, we have Article 352 whereby if the security of India or any part thereof is threatened by war, external aggression or armed rebellion and this gives rise to a grave emergency, the President may issue a Proclamation of Emergency and assume extraordinary powers to deal with the Emergency. Similarly, if it is found by the President that there is failure of the constitutional machinery in a State he may issue a proclamation under Article 356 and pro tem take over the government of the State. During the Proclamation of Emergency operation of Article 19 can be suspended and enforcement of the Fundamental Rights may also be suspended. This, however, is possible only in a situation in which the very existence of India is jeopardised. Indira Gandhi misused the provisions of Article 352 and we went through a two-year period of virtual dictatorship. The Constitution and the people proved themselves to be stronger than arbitrary rule, Mrs. Gandhi was defeated in 1977 and the supremacy of the Constitution, constitutional government and the people of India were restored, hopefully never to be breached again. When we have all these provisions in the Constitution why do we need section 124-A IPC?

I am no great supporter of Binayak Sen. I am totally against violence against people and the State and I do feel that Naxalite terrorism must be suppressed with a heavy hand. If Binayak Sen supported the Naxalites and it can be proved that he and the Naxalites were part of a criminal conspiracy under section 120-A IPC or had a common intention under section 34 IPC to commit acts which led to culpable homicide amounting to murder I would be quite prepared to have Binayak Sen charged with these offences and suitably punished. But to accuse him of sedition under section 124-A is ridiculous, just as it is idiotic to charge Aseem Trivedi, a cartoonist, of sedition because he substituted three wolves for three lions and the legend ‘satyameva jayate’ for‘bhrashtameva jayate’ in a symbol which was an obvious caricature. For material which is libelous, or is otherwise defamatory we have Chapter XXI of IPC to provide legal remedies. Certainly a charge under section 124-A IPC is not justified. In fact I am now of the confirmed view that taking into account the constitutional right to criticise government, the duty of the citizens, the Legislature, the courts and the other constitutional authorities to call government to account and the freedom of speech that we all enjoy, there is no justification for the existence of section 124-A IPC which defines sedition and provides drastic penalty against it. The offence of sedition as defined by section 124-A IPC is similar to laws of blasphemy as operated in the medieval Europe and even today in some countries such as Pakistan which claims to be Islamic theocracies. Allah, Jehovah, God, Parmatma, call Him what you will, is too powerful to be threatened by a puny mortal who blasphemes. The Indian State is too powerful to be threatened by a seditious individual because normal law can effectively neutralise active sedition. Therefore, Section 124-A IPC needs to be immediately repealed.

Maintenance of Public Order

Dr. M.N. Buch
Visiting Fellow, VIF

It is the fundamental duty of the State to maintain public order. The definition of public order is given in section 31 of the Police Act of 1861 and requires that order will be maintained on public roads and in public places, obstruction will not be caused by assemblies and processions and, when this is read with section 34 which make it an offence for any person to cause obstruction, inconvenience, annoyance, risk, danger or damage and section 23, which makes it incumbent upon the police to maintain the public peace and prevent the commission of offence and of public nuisance, it is clear that public order really means that the actions of a group of individuals should not impinge on the rights and convenience of any other group. An assembly of persons who use criminal force in order to cause a public servant to desist from his duty, resist the execution of any law or legal process, commit mischief or criminal trespass, deprive any other person of his property, enjoyment of a right of way or peaceful enjoyment of rights by use of criminal force, or use criminal force to compel a person to do an illegal act automatically becomes an unlawful assembly under section 141 of the IPC if it consists of five or more persons. For the purpose of maintenance of public order and tranquility an Executive Magistrate or a police officer is empowered under Chapter X Cr,P.C. to cause the assembly to disperse, if need be by use of civil force or with the help of the armed forces. Every act of disturbance of public order is a cognisable offence, to prevent which a police officer may arrest the accused under section 151 Cr.P.C. Under Chapter VIII Cr.P.C. such persons can be bound over for keeping the peace, be of good behaviour and generally behave in a lawful and orderly manner. The duty of the Executive Magistracy and the Police to maintain public order is thus clearly laid down by law.

Apart from arrest, binding over a person for good behaviour or using force to disperse an unlawful assembly, the Executive Magistracy and the Police have the legal authority to regulate assemblies, public meetings and processions. Whereas under Article 19 of the Constitution the right to assemble peacefully is guaranteed, reasonable restrictions by law on such assembly is permissible under the same Article. After all, the enjoyment of one’s fundamental rights is limited by the requirement that this should not impinge on the fundamental rights of other citizens. If, therefore, there is an assembly of people or a procession which obstructs the public way, prevents citizens from going about their lawful work or endangers the public peace, the authorities are duty bound to step in and prevent any disruption of public order. The authorities are not only empowered in this behalf by law, they are duty bound by law to ensure that every assembly of persons works directly within the confines of what the law permits. If the Executive Magistracy or the Police lays down certain conditions or prescribes the minimum requirement of what an assembly of persons can or cannot do, then disobedience of such lawful order is an offence. Apart from the provisions of the Police Act disobedience of an order promulgated by a public servant lawfully empowered to promulgate such order is an offence under section 188 IPC. If the defiance of such order leads to serious offences such as rioting, then it can invite the provisions of sections 147 and 148 IPC. If public servants are assaulted in the process this will be a more serious offence under section 152 IPC, which would carry a penalty of up to three years rigorous imprisonment. If arson is caused, property is damaged, citizens are assaulted and grievous hurt and death is caused to any persons or persons then the provisions of sections 302, 304, 324, 325, 436,438, etc. would all be attracted. The scheme of the law is that citizens will maintain public order, will be liable to punishment if they cause disorder, damage, hurt or death that the authorities charged with the maintenance of public order will take necessary steps and issue necessary orders to maintain public peace and, where necessary, use force to bring offenders to book, disperse unlawful assemblies and restore public peace.

The British administration was quite clear about the duty of the authorities to maintain peace. The rebellion of 1857, during which atrocities were committed on both sides and after which terrible retribution was exacted by the victorious British, left an administrative legacy in which the obedience by Indians of every order of a government official was demanded and every act of disobedience was looked upon as mutinous behaviour. The Rowlatt Act and what happened in Amritsar in 1919, leading to the Jallianwala Bagh massacre were all part of the post mutiny syndrome from which the British suffered. Undoubtedly the Civil Disobedience Movement of Mahatma Gandhi, followed by the Quit India Movement, severely questioned this doctrine and created a situation where on the part of the British there was insistence on obedience and on the part of the Indians there was an equal determination not to obey the orders of the British rulers. The fact that ultimately the British had to moderate their response to the Civil Disobedience Movement is the ultimate tribute to the Mahatma‘s call for the movement to be totally nonviolent and based on the principle of ahimsa.

I joined the IAS in 1957, that is, just ten years after independence. The post 1947 doctrine of public order had undergone substantial change during the Independence Movement, but we were still told in the IAS Training School at Metcalfe House that whereas one should impose a prohibitory order under section 144 Cr.P.C. only in extreme circumstances, once such an order was promulgated it had to be obeyed and enforcement had to be rigidly done, if necessary by the use of lethal force. It was drilled into us that the State would collapse if we allowed prohibitory orders to be disobeyed because that would bring the entire administration into disrepute. Firing in the air was totally prohibited because stray bullets could hit innocents and partly because such firing is ineffective and could encourage the mob to indulge in greater violence. Now one finds that the Police is reluctant to fire at specified targets, firing in the air is resorted to frequently and this does cause unwanted casualties because some innocent is hit at a distance from the scene of the incident.

With independence the political process was strengthened and parties with different ideologies came to power in different States. For example, in West Bengal the Left Front came to power, whose specific aim was to establish the hegemony of peasants and workers. Thus, despite the fact that wrongful restraint and wrongful confinement are offences under the Indian Penal Code, gherao of business and industrial establishments by workers, prevention of free movement by the management and even intimidation of the management became quite normal, with the police being give orders not to intervene despite the fact that a crime being committed. This brought another dimension to the question of law and order. Public agitations against shortages of essential commodities, inadequacy of municipal services, in support of demands of students, etc., brought the people on the streets and such assemblies could not be treated in the same manner as unlawful assemblies of hooligans or agitators bent on mischief. Now a new dimension of public assembly and public order had to be faced by the Executive Magistracy and Police.

As the years passed religious processions and events have proliferated in India and whereas in the past religious processions were strictly regulated, as time passed and political support began to be given to such processions, the Magistracy and the Police also became inert in regulating such processions and events. Now any wretched marriage procession also results in obstruction of public streets and the Police stand by as helpless spectators. When political processions and agitations take place, as they frequently do in our cities, the Police seem to be almost totally helpless and have virtually given up any attempt to regulate such assemblies. At almost every political meeting, especially of radical groups, the scene degenerates into a near riot situation in which passers by are threatened and intimidated, shops are forced to close, public transport is attacked and quite often the Police and peaceful citizens are physically assaulted. Unregulated public meetings, therefore, are often an invitation to rioting.

Let us take the case of two cities, Delhi, the capital of India and Mumbai, the capital of Maharashtra. I have a quarrel with the name of Mumbai for a city whose authentic name really is Bombay. Where the present city is located there was no habitation, with such habitation as there was being located to the north at Vasai, which the Portuguese, who owned the territory, had named Bassein. The Bay around which the present city of Bombay is located was Bom Bahia, or Beautiful Bay. When the Portuguese Princess Catherine of Braganza married King Charles II of Britain she brought as part of her dowry Bom Bahia, which the British promptly renamed as Bombay. It is said by the Shiv Sena that the name Mumbai has come from the Goddess Mumba Devi. This temple itself was established long after the first British settlement of Bombay and, therefore, can hardly form the base of the name Mumbai for the city. My view is that either the city should continue to be called Bombay or it should be renamed as Vasai, the original settlement in the region. I have elaborated this issue because the Shiv Sena is prone to extreme violence on the question of this name. The name of the city is really a non-issue because in Gujarati and Marathi it is always called Mumbai and for the Hindi speaking people it has always been Bambai. The fact remains that if a name can arouse passions, including street violence, we should really be worried about the health of our polity.

To return to the main issue, because Delhi is the national capital and the police is not under the control of the elected government of the National Capital Territory, but is under the superintendence of the Lieutenant Governor, himself a central government appointee, it is less susceptible to pandering to local sentiments when dealing with a situation relating to public order. Therefore, processions to Parliament are stopped at least two kilometers from Parliament House. Whether it is Baba Ramdeo or Anna Hazare, a kisan agitation or labour strife, processions and assemblies are strictly regulated and the authorities do not hesitate to act firmly. Of course the same Delhi Police failed miserably in 1984 to check the anti Sikh riots, but that was an exceptional situation. Of course that is no excuse for what happened and it is unfortunate that even 28 years after the event no civil officer, no police officer, no instigator of the anti-Sikh pogrom has been punished. The Delhi Police has no special competence in crowd control, but its objectives are clearly defined and, therefore, it is an effective instrument for the maintenance of public order in Delhi.

In Bombay, by contrast, the Police are subject to the superintendence of the State Government of Maharasthra. By and large Maharashtra has been ruled by the Congress Party and even today there is a coalition between the Congress and its offshoot, N.C.P. Maharashtra has been subjected to some murky political manoeuvrings and just as Vasant Dada Patil was a creation of S.K. Patil, the Shiv Sena is also a creation of Vasant Rao Naik, who used it to counter the militant trade union leader, Datta Samant. All such noxious creations grow into monsters, as experienced by Indira Gandhi whose government built up Jarnail Singh Bhindrawale as a counter to the Akalis. The Shiv Sena has turned into such a monster because its avowed policy is that it will not hesitate in the use of violence to force its will upon the people of Maharashtra. This has taken the form of violence against restaurant owners from Udupi and Mangalore, harassment of Bihari migrants and exploitation of any communal situation in which Muslims are involved. The handling of Shiv Sena by the Maharashtra Police in Bombay has been so weak-kneed as to be an absolute disgrace and a blot on the face of a Force which once claimed to be the best in India. In the matter of communal riots, inaction by the Police at one end and uncontrolled action at the other have resulted in Bombay being a city which from time to time is torn apart by riots.

Let us take the recent case of August 11^th when the Azad Maidan became the venue of extremely ugly rioting by a group of Muslims who had gathered to protest against what was happening in four Bodo Districts of Assam. The gathering had the approval of the Police, but it soon degenerated into a situation in which two people were killed, several policemen injured, vehicles were burnt and weapons were snatched from the Police. This is unfortunate and demoralises the Police. The Police Commissioner of Bombay has been shifted, but only after a very aggressive meeting addressed by the MNS Chief, Raj Thackeray, which held out menace to the Muslims. The Police Commissioner defended himself, but there were certain basic flaws in the manner in which the situation was handled at Azad Maidan on 11th August. He said he desisted from firing because in 1992-93 it had resulted in 188 deaths and it was almost made out as if the deaths had occurred in police firing. In fact had the Police used adequate force at the earliest juncture in 1992-93 the total number of deaths would not have exceeded ten or twelve because the rioting would have been suppressed at an early stage. In the Azad Maidan case certain basic principles of crowd control were ignored by the Police. All Police Manuals prescribe that when faced with a mob armed parties must be organised in a minimum of section strength, to be commanded by a senior officer not below the rank of a Sub Inspector. Under no circumstance should the armed parties be brought into close proximity of the crowd and if the crowd becomes menacing enough to endanger the Force then the armed parties, on appropriate orders from their senior officers duly approved by a Magistrate, must use their fire arms in a controlled manner to disperse the unlawful assembly. In Bombay armed policemen mingled with the crowd and, therefore, could be overwhelmed by it. That is how their weapons were snatched. When an officer of the rank of Additional Director General of Police himself forgets what the Manual prescribes, how can he be forgiven? The senior officers at Azad Maidan, far from controlling the crowd, rendered the jawans vulnerable to mob action and this only proves how incompetent they are. My suggestion to the Maharashtra Government and DGP Maharashtra would be that they very quickly attend to the training and competence of their senior police officers when dealing with a mob. The police action or lack of it on 11th August at Azad Maidan is a prime example of how not to deal with a mob.

The first principle of dealing with a law and order situation is that the officers on the spot have as their first and only priority the very quick restoration of public order. It is possible that people are agitated about an issue with justification and that the issue should be addressed by the appropriate authorities to rectify the situation. That, however, cannot be the determining factor in preventing the officer in charge of a situation to act decisively. If a Muslim mob on an issue relating to injustice against Muslims turns violent, the issue of justice takes a back seat because the mob must be immediately controlled and without inhibition. If a mob dominated by extremist Hindu elements creates public disorder it must be dealt with firmly as a mob and not as a Hindu mob which might have some justification for its agitation. In other words, when the Executive Magistracy and the Police are dealing with a law and order situation they should leave aside moral questions relating to justification of the agitation and instead take all the necessary measures to restore order. It is only after order is restored that wider questions can be addressed. This applies to all situations, including hooliganism by Bajrang Dal on Saint Valentine’s Day.

We need to build in this county an environment in which laws and lawful orders are respected. Instead we are moving more and more towards a state of anarchy in which the strong dominate the weak, mobs rather than the Police rule the streets and the normal life of the people is disrupted from time to time because someone decides to organise a protest or an agitation. Such protests, such agitations, without necessarily promoting their own cause, result in disruption of normal life and must be put down with a heavy hand. People accuse the Police of being an instrument for terrorising of the citizens. My allegation, however, is that we have rendered the Police to a state of impotence, so that it now finds it difficult to maintain public order even under normal circumstances. This is a very dangerous portent.