The Lesson from Muzaffarnagar – Establish the Rule of Law

Dr M N Buch, 

Dean, Centre for Governance and Political Studies, VIF

Muzaffarnagar is a district of Uttar Pradesh, the headquarters of which is about a hundred miles from Delhi on the main highway leading to Roorkee, Dehradun and beyond.

The district is very largely canal irrigated and is known as the sugarcane capital of India. It is, therefore, a prosperous district. Its population is divided between different castes and religions, but the Muslims form about 18.5 percent of the population and there is also a sizeable number of Jats. When Chaudhary Charan Singh was the dominant leader in U.P, he had an electoral alliance in western U.P. between Jats and Muslims and by and large these communities co-existed without much friction. Unfortunately, since then the politics of U.P. has become highly divisive.

Like Bihar, U.P. has also become an epicentre of caste and communal politics, in which no political party can claim the moral high ground. For example, during the last election to the State Assembly whenever Rahul Gandhi visited a district where there was a sizeable number of Muslims, he sported a fortnight old beard, thinking thereby that the Muslims would take him to be one of their own. The appeal to the Muslims was blatantly communal and, to add insult to injury, doubts about the veracity of the Batla House encounter in Delhi where a police inspector was shot dead by terrorists were raised and it was projected as a possible false encounter. The Muslims, not being terrorists at heart, firmly rejected this ploy, but in the minds of people at large an impression remained that Azamgarh District is the breeding ground for terrorists and that Muslims are sympathetic to communal terrorism. Unfortunately, the Congress has still not woken up to the fact that the Muslim of 2013 is not the Muslim of 1947. To him India is home and he wants to live here securely, confident that he will get a fair share of the development pie. To single him out as being different from others and then to seek his vote is an insult to the Muslims besides militating against the basic secular tenor of our Constitution and our society.

The Samajwadi Party, whose leaders such as Mulayam Singh Yadav and Akhilesh Yadav try and masquerade as Muslims by donning skull caps, has made a blatantly communal appeal to the Muslims, based on religion and on creating a sense of fear amongst the minorities about possible domination by the majority community. The Samajwadi Party has done this because it is confident that regardless of what concessions it makes to the Muslims, it has a secure Other Backward Classes (OBC) constituency and that Yadavs, Ahirs and Gujars in will any case vote for the Samajwadi Party. In this cauldron of caste politics, Mayawati’s appeal is to the scheduled castes, more specifically the Chamars, though she has made some inroads into the Muslim vote bank and also has some upper caste Hindus supporting her. The BJP, knowing that in U.P. it will not get Muslims votes, is dependent on its upper caste Hindu votes and has reached out to the Jats. Viewed in totality, politics in U.P. has nothing to do with ideology, programmes or a development agenda. In the caste and religious divide, where honest officers are shunted around very rapidly, the discretion of the District Magistrate and Superintendent of Police to act independently to maintain law and order is severely constrained by political interference and all this has wrecked the administration almost completely.

The Constitution vests the executive powers of the Union in the President who exercises them through officers subordinate to him. In the States, the executive power vests in the Governor who exercises such power through officers subordinate to him. The Seventh Schedule of the Constitution gives the legal competence of Parliament, the State Legislature and of both of them concurrently to enact laws as per Lists 1, 2 and 3 of the Seventh Schedule. List 1, the Union List, gives the authority to Parliament to legislate on the defence of India, the armed forces and deployment of such forces in aid of the civil power in a State. List 2, the State List, empowers the State Legislature to legislate on matters relating to public order and the creation and maintenance of the police. List 3, the Concurrent List, permits both Parliament and the State Legislatures to enact laws on criminal law, criminal procedure and preventive detention. Within the competence prescribed in the Seventh Schedule and the laws framed thereunder, it is for the executive government at the Centre and in the States to enforce the law and to implement the mandate of the Legislature as prescribed by law. Therefore, it is for the Executive to create an environment of law and order, public peace and security against external aggression which would permit the people of India to have justice, liberty, equality and fraternity. The maintenance of law and order and the promotion of public peace, therefore, become the fundamental duty of government. This duty is given in the Indian Police Act and the Police Acts which refer to specific areas such as the Delhi Police Act. The Code of Criminal Procedure, which provides for the creation of an Executive Magistracy, lays down the duty of the Magistrates and the police to maintain public order. The Code of Criminal Procedure vests both preventive and coercive powers in the Executive Magistracy and the police. Chapter XI of the Code directs the police to prevent the commission of cognizable offences and to make arrests to prevent such commission. Chapter VIII empowers the Executive Magistracy to bind over any person who is likely to indulge in acts which disturb public peace or lead to the commission of cognizable offences and in lieu of security for good behaviour commit the person to prison for the period of the bond. The Executive Magistracy and the police, therefore, have adequate legal powers to take preventive action and thus maintain order.

Chapter X enjoins upon the Executive Magistracy and the police to maintain public order, disperse an unlawful assembly, use necessary force to enforce an order of dispersal and if civil force proves inadequate to the task, then the senior most Executive Magistrate may requisition the service of the armed forces and direct the commanding officer to take necessary steps to disperse the assembly and restore order. Under section 144 and 144-A, Cr.P.C, an Executive Magistrate may issue a prohibitory order directing a particular person or people at large to desist from doing an act or acts which can lead to a disturbance of public peace or create a nuisance. To this can be added Chapter IV, Cr.P.C. which in section 37 makes it compulsory for every person to assist the Magistrate or a police officer demanding his aid and under section 39 to give information to the police about the commission or intention to commit the offences given in section 39. The scheme of the law is that not only must the Magistracy and the police prevent the commission of offences, but they must also take effective action to maintain public order and for this purpose members of the public at large are required by law to assist the police and the Executive Magistracy.

It might be noted that nowhere does any law state that an Executive Magistrate or a police officer is required to seek the orders of either a superior officer or of a politician in order to perform the duty of maintaining public order. In fact, no minister, no government officer, no political functionary has any role to play in the matter of preventing a breach of peace and only a superior Executive Magistrate or police officer under whom the area Magistrate or police officer functions may give any directions in this behalf. In the matter of maintenance of public order, the District Magistrate is King and the Superintendent of Police is both Prime Minister and Commander-in-Chief. That is how our system functioned when I was a District Magistrate. Neither my S.P. nor I sought orders from government, nor did government give us any directions in matters which related to the maintenance of public order. We took our duty seriously, the police took preventive action whenever trouble was brewing, we issued prohibitory orders where necessary, we intervened at the earliest juncture when we sensed that the situation merited it and we had no hesitation in using necessary effective force to ensure that no rioting or public disturbance took place. As a result of this, whenever an ugly situation developed the local authorities took immediate action and by and large public order was maintained.

Let me give one example. From early 1965 to the third quarter of 1967, I was District Magistrate of Ujjain and the finest police officer I have had the honour to serve with, Ramrao Dube, was the Superintendent of Police. In 1966, student trouble took place all over India, the United States and much of Western Europe. We had some problems in Ujjain also, but the S.P. and I decided that university students would not be allowed to take to the streets. We liaised with the university authorities, but unfortunately one of the very respected and senior teachers, who went on to be a very distinguished Vice Chancellor of the university, decided not to use his moral authority to keep students under control. The students tried to defy the prohibitory order, the police did not permit the students to advance into the streets, there was considerable stone pelting which injured a number of policemen, including the S.P, who had five broken ribs and we had to resort to the use of force. The S.P. was determined not to use lethal force and kept the armed party under his direct control. We were able to clear the educational premises, the injured on both sides were admitted to hospital and I decided to keep the city under curfew till tempers cooled. When some ministers decided to play politics, I requested the Chief Minister to stop them from coming to Ujjain and a couple of political luminaries who did come were reminded that the city was under curfew and they would not be allowed to move around the town. Peace was restored in quick order, I took the students for a picnic where their hockey team beat the district team and we soon became fast friends. Nevertheless, neither the S.P. nor I had any doubt as to how we would deal with the situation and Ujjain has never had any real trouble since then. We were given a very free hand because that is what the law states.

I contrast this with what happened in Meerut in the early eighties of the last century, including the infamous Maliana massacre. Meerut witnessed a number of communal clashes and the army had to be summoned repeatedly. I asked the D.M. and S.P. of Meerut why they could not control communal violence. The D.M’s answer was classic. He said, “For 364 days in the year, we are summoned to the Circuit House by some visiting minister or the other and lolling on the sofas by the side of the visiting minister are the local political goondas. The S.P. and I are lucky if we are offered a chair, but we have to swallow the insults of the political goondas and the orders of the minister to do what these people demand of us. On the 365th day when the same political goondas foment trouble, we are asked to deal with them harshly. Neither I nor the police force are schizophrenic so that one persona of ours cringes before trouble makers for much of the year and then another persona is required to take over in order to deal severely with these very people. Give us a free hand and I guarantee there will be no riots”.

Another example is of West Bengal where in the seventies of the last century the Left Front ordered that the police would not intervene in industrial disputes, despite the fact that 00workers physically restrained, through gherao, the management’s freedom of movement. This amounted to an offence of illegal restraint and intimidation, but the West Bengal Police was not permitted to act. Soon the police realised that in every matter, including crucial law and order issues, it was necessary to obtain political clearance before action could be taken. This was the end of effective policing in the State and ushered in an era of lawlessness which was exploited first by Left Front workers and now by the Trinamool Congress workers. Once the police stops functioning independently, the virus of lawlessness is bound to assume a dirty and virulent communal form and this is precisely what we have witnessed in Muzaffarnagar and other districts of western U.P.

It is increasingly clear that the district administration in Muzaffarnagar and surrounding districts of Meerut and Saharanpur Divisions stands emasculated. In Muzaffarnagar there was an altercation between a Muslim boy and two Jat boys. This escalated into a fight in which one Muslim boy and two Jat boys were killed. Had the administration intervened immediately and forcefully, then within the first hour of the incident the matter could have been contained. Instead, the district administration did nothing and the flames of communal passion engulfed large parts of Meerut and Saharanpur Divisions. The problem with the government in U.P. is that it is openly wooing the Muslims and did not want action against Muslim law breakers in Muzaffarnagar and elsewhere. At the same time, the Jats are a very substantial and aggressive community which has a high degree of social cohesion. This community would certainly not take any insult or injury lying down. Incidentally, the Jats contribute large numbers of soldiers to the Indian Army and they have fighting skills. The government does not want to antagonise the Jats and, therefore, fell between two stools in which keeping the Muslims happy on the one hand and Jats on the other became two such contradictory poles that whatever government did was bound to be wrong. The political interference of government, not only in this incident but over a long period of time has resulted in officers vested with the power and the duty to maintain public order not acting, large numbers of people being killed and houses being set on fire and about fifty thousand people becoming refugees. All this happened within a hundred miles of Delhi, the national capital. And they call this a government!

The Central Government, though not directly responsible for law and order, is nevertheless the guardian of the Constitution. Its responsibility, therefore, to maintain public order becomes all the more important because under our Constitution residuary powers vest in Parliament, under Article 256 the Union Government can give directives to States to ensure that a constitutional and legal structure is properly maintained and, if necessary, assume all or any of the functions of a State under Article 356. What is more, the D.M. is an IAS officer and the S.P. is an IPS office, both belonging to All India Services, whose ultimate rule making control vests in the Central Government. To remind them that they are servants of the law and not of the political executive of a State is well within competence of the Central Government. However, the response of the Central Government to the Muzaffarnagar situation is weak and indecisive and that is because the Centre does not want to annoy the Samajwadi Party and, therefore, it is prepared to tolerate the massacre in Muzaffarnagar but will not annoy Mulayam Singh Yadav. What should have happened is that within twenty-four hours of the start of the episode of rioting, the Union Home Minister should have visited Muzaffarnagar and, regardless of how the U.P. Government would react, he should have told the D.M. and the S.P. that if within the next twelve hours the situation was not controlled the Central Government would dismiss both of them without an enquiry under Article 311 (2) (b) and (c). The message being conveyed would be that even within the federal structure of India, All India Service officers charged by the law to exercise certain authority are expected to exercise such authority without looking for political directions and on their failure to do so, the Central Government would intervene and dismiss them from Service. If even two officers are dismissed in this manner, I will bet my last rupee that no D.M. or S.P. in India will be able to offer the excuse of being fettered by the State Government when dealing with a law and order situation. For them, the alternative to failure would be dismissal from Service. This should ginger them up in doing their duty. This would ensure peace and public order in India and that should be most welcome. This is vitally important because in the past whenever there have been communal riots it is because the district administration and the police have failed to function.

Therefore, the answer to all communal riots is independent action by the Executive Magistracy and the police and the formula I have suggested of immediate dismissal by the Centre of IAS and IPS officers who do not do their duty. This would certainly make the district administration function. Is the Prime Minister listening?  

An Object Lesson in Government Incompetence

Dr M N Buch 

(Visiting Fellow, VIF)

When salmon swim against all odds to reach their spawning grounds no obstruction can stop them. The huge number of rape cases now being reported in India reminds me of this annual migration of salmon. Was India free of rape till fairly recently and has the crime become suddenly endemic? Is it a question of rape victims now becoming more vocal about the crime against them and more ready to come forward and report it? Have social mores and behaviour changed so much that suddenly there is an upsurge of rape against woman and is there both a qualitative and quantitative difference between the past and the present? Are women suddenly more unsafe than before? As a young D.C. and several years later, both in a senior capacity and after retirement while working in the rural areas, I often asked villagers why they insisted on marrying off their daughters as soon as they attained puberty. The universal answer I was given to my question was that the parents of girls felt that as their daughters approach puberty they become vulnerable to sexual assault and rural society was not organised to control this phenomenon. Therefore, parents tried their best to have prepubescent girls engaged and to be immediately married at puberty. The argument that the law prohibited the marriage of girls below the age of eighteen was not accepted by the villagers who countered that because the law was unable to protect the girl child, therefore, family honour demanded that the girl be given into legal matrimony. The fact that this virtually amounted to legalised rape of a young child who had not achieved full majority left most people cold. Here I might point out that the region where most child marriages took place was and is northern and central India. Kerala does not have this phenomenon at all. Considering how the northern mindset works, the khap panchayats of Haryana and the generally subordinate position of women in society, one is inclined to believe that there is a kernel of truth in the argument that as a girl matures she should be handed over to a husband through marriage, even if the girl was below the legal age of marriage. I would take this as a clear indication that India is not a society in which gender equality is the rule and that in fact there is a great deal of gender discrimination practiced both overtly and covertly in this country.

Can a country survive and prosper if half its population is discriminated against? As it is, the desire for a male child has already skewed the sex ratio adversely to women. When we look at different forms of discrimination within this country, including on account of caste, a social activist could argue that India is a highly exploitative society in which the fortunate few are able to build their own areas of influence by using those against whom they discriminate as stepping stones on to which they climb for their self-aggrandisement. This, however, is not an essay on equality equity and discrimination per se and I shall leave the argument here, but with the remark that the sexual exploitation of women is only one of the results of having a society which is not based on equality. This is a matter which should cause great concern to our politicians, administrators, academicians and social activists.

Let us take the recent rape in a moving bus in Delhi, which has left the victim at death’s doorstep and has virtually acted as the last straw on the camel’s back in that it has breached the bounds of tolerance of our people and united them in revulsion against such crimes. The ongoing protests in Delhi are evidence of the people at large being fed up with the deteriorating law and order situation and the sheer ineptitude of government in dealing with it. The fact that crime against women is on the increase and government has been unable to contain it is a major factor behind public anger. It expressed itself at a spontaneous gathering of the young at Vijay Chowk at India Gate and through virtual blockade of Raisina Hill, the seat of government. What the demonstrators were demanding is the quick arrest of the accused, swift trial and condign punishment. There was an element of lynch law in the demand of the demonstrators, but that is only to be expected when tempers are running high. That does not mean that government should succumb to pressure exerted in the streets, but certainly the government is expected to listen to what people are saying. Unfortunately that is not what is happening.

The sequence of events is that perhaps twenty-five thousand people gathered at Vijay Chowk and along Rajpath. This gathering was spontaneous and certainly it did not have a political organisation behind it. The police barricaded the streets and deployed a large number of policemen equipped with anti-riot gear. This included a number of Vajra Vans which are equipped with water cannon and tear gas launchers. This is the stage at which the President should have walked out of Rashtrapati Bhawan and down to Vijay Chowk. He should have invited the demonstrators to gather around him, he should have heard them and then assured them that he would persuade government to take swift action to apprehend the accused, bring them to trial and vigorously prosecute them so that they could be convicted and sentenced in the shortest possible time. The Prime Minister, the Home Minister and the Lieutenant Governor of Delhi should have assisted the President in this behalf. It should not have been left to Mrs, Sheila Dixit, Chief Minister of Delhi, to be virtually the only person to plead the case for quick justice. The young demonstrators would have been reassured if this had happened and I am absolutely confident that the agitation could have been contained there.

There is another area in which swift action was called for. I spoke to the Cabinet Secretary and the impression I gathered was that the movement of the bus in question had not gone altogether unnoticed. Apparently a police patrol vehicle had sighted the bus, but despite its erratic movements it had not been thought fit to stop and inspect the vehicle. The dark film on the windows of the bus and the drawn curtains both violated the rules in this behalf framed under the Motor Vehicles Act and that was sufficient ground to stop the bus and board it. Obviously there was gross dereliction of duty by Delhi Police personnel on the ground and this is inexcusable. An alert government should have called the District DCP, Sub-Divisional ACP and the Station Officers of the police stations through whose jurisdiction the bus passed to account and taken drastic action against them. Obviously the DCP had not instructed his officers properly on how to deal with violations of rules by bus owners, nor were members of the patrolling staff properly directed in the performance of duty. Unfortunately in India we only act against minions and not against the superiors under whom they function. Action against errant officers does not demoralise the police force if there is evenhanded justice. Inaction which leads to deterioration in police performance certainly demoralises people at large and in the ultimate analysis government is there for the people and not for some officials. The excuse that action against police officers demoralizes the Force is neither justified nor acceptable.

There was total political mishandling of the situation because no senior minister cared to communicate with people in the streets of Delhi. Its officials did not do so either. In 1966 I was District Magistrate of Ujjain when a serious bout of students’ unrest arose, which culminated in violence in which stern action was taken, resulting in twenty-three students and twenty-one policemen being admitted to hospital with fractures, etc. The Superintendent of Police had five fractured ribs and I had a dislocated knee and a head injury from stone throwing. There was great anger in the student community and amongst the police, but I walked into Madhav College, the epicenter of rioting, the very next day and in the canteen I asked the gathered students to get me a cup of tea. When the students reacted angrily I asked them how many more of them would like to join their colleagues in hospital and on this a sullen student brought me a cup of tea. I then gathered the students around me and allowed them to vent their anger. After they ran out of steam I told them that a week from that day I would take them on a picnic to an irrigation tank near Ujjain and would also have a hockey match with them. I said that whilst enjoying my hospitality they were free to heap abuse on the Superintendent of Police and on me. In due course the picnic took place, the students beat my hockey team by four goals, went through all the food that we had prepared and ultimately we all parted as very good friends. The moral of the story is not that I am a great guy but rather that if people who wield power interact with and listen to citizens almost every problem can be solved. Had our leaders and officers been more sensitive the Delhi situation could have been defused within one day. It is the sheer ineptitude and inability to govern of our present government that is responsible for its own woes.

The matter is now mired in filthy controversy. The angry Chief Minister of Delhi has openly criticised the police, especially because she has no control over it. The Police Commissioner, an IPS officer who should have kept his mouth shut, has chosen to go public. If a subordinate officer had done so, he would have been charged with violation of the Conduct Rules. Neeraj Kumar should know that the rules apply to him also and for any civil servant anonymity is of prime importance. There are charges and counter-charges, with a controversial statement by Neeraj Kumar that if sacking the Police Commissioner improves the situation he should be sacked every day. Does it mean that stringing him up by his thumbs would be an even better solution? The fact is that Delhi is perhaps the only city which has a police force adequate in number as a proportion of the total population. Obviously the police is not as sensitive to its duties as it should be, with the result that crime against women is not taken as seriously as it should. The police has to be very proactive in ensuring that the dignity of women is protected and proactive policing demands intervention by the police in every case in which there is any element of sexual harassment. The malady is an old one. I remember that in 1978 the daughter of Dr. Sneh Bhargava, who went on to become Director, AIIMS told me that when she went to college using a public bus she wore extra thick jeans or trousers, despite which her bottom was often black and blue because would be Romeos never hesitated to pinch it. I was head of the Delhi Development Authority and Delhi was a smaller city and we were still a conservative society. Today things are worse, which is all the more reason why the police must be proactive and society must insist on this.

On the one hand is the victim of this particular rape who may or may not survive, which means the offence would be of murder if she dies. If this happens and the court convicts and sentences the accused to death, I suppose the blood thirst of the people would be assuaged, though it would not bring the victim back to life. On the other hand we have a government which even today is handling things in a highly ham-handed manner. The lathi charges, tear gassing, use of water cannon perhaps became inevitable once the crowd had become restive and, subsequently, violent and uncontrolled. However, what led up to the situation was the fact that no responsible person spoke to the crowd and this led to lumpen elements entering the fray. Now there is an unseemly fight between the Chief Minister of Delhi and the Police Commissioner and the allegations have rendered the air thick with an impure fog. What is going on? Do we have no government worth the name today? We need to take the following steps immediately.

1. The Delhi Police should be transferred lock, stock and barrel to the National Capital Territory Government and the Chief Minister should be made directly responsible for law and order.
2. Because Delhi is an Union Territory some powers may be reserved for the Lieutenant Governor in the matter of law and order just as it is in Nagaland and Arunachal Pradesh.
3. The Delhi Police Commissioner should be told that he is supposed to silently do his duty of administering the police force, maintaining law and order and controlling and prosecuting crime. He is not allowed to open his mouth in public.
4. The Ministry of Home Affairs should restrict itself to general policy guidelines, but leave superintendence over the police to the Lieutenant Governor and the Chief Minister of Delhi.
5. The entire police force should be sensitised to protecting the dignity of women and any officer of any rank who fails in his duty should be immediately subjected to severe disciplinary proceedings.
6. Government must even now engage the people in dialogue, take strict action to ensure that the present case ends in successful prosecution and the situation is defused and normalcy restored.

Grandma’s Remedies for Governance Issues

Dr M N Buch 
(Visiting Fellow, VIF)

I was a stripling short of twenty-three years when I joined as Assistant Collector at Morena after completing my training at the IAS Training School at Metcalfe House. Morena can be frightfully hot in the summer and my training required almost constant exposure to the sun. I developed a bad attack of prickly heat, which turned into an infection which spread through the hair roots and caused me to burst out in painful rashes. I was referred to the Medical College, Gwalior, where I was diagnosed as having a fungal infection for which the doctors prescribed medicines and subjected me to a course of superficial X-ray therapy. This only aggravated my problem, caused my hair to drop out and my skin to become brittle. So much for modern medicine.

One week end I came to Delhi to visit my mother, who saw my condition and advised me to meet an old family friend, a somewhat irascible colonel who had retired from the Indian Medical Service. Col. Kataria was an old fashioned doctor, a wonderful clinician who first diagnosed a disease and only then gave medicine. He had one look at me and wanted to know what I had done to myself. When I told him about the course of treatment I had undergone he shouted that the doctors who treated me were butchers, I did not have any fungal infection but had a relatively simple infection called seborrhoeic dermatitis, which is simply an aggravated form of prickly heat which affects the sebaceous glands. He gave me a cetrimide based shampoo, a lotion consisting of castor oil and lavender oil and an ointment which had both menthol and salicylic acid, which is the main ingredient of aspirin and told me to use these for one week. By the third day the infection began to recede and within one week I was fully cured. The sequence to this was in my next Sub division, Kannod. In the wild and woolly Bagli Tehsil of the Subdivision we had a doctor in charge of the primary health centre, called Dr. Joseph, who hailed from Kerala. When I told him my story he said that if I wanted to avoid any skin infection in the future I should prepare a decoction by boiling a handful of neem leaves, add a mug full to a bucket of water and bathe with it. I followed his advice and, touch wood, have never had a skin problem. I bless Dr. Kataria and Dr. Joseph for curing me with remedies which were virtually herbal. Unfortunately they could not restore the hair I had lost, thanks to the doctors at Gwalior.

One can wonder why I am telling stories about myself and referring to grandma’s recipes in an article aimed at addressing the extremely important issue of governance. Well, sometimes parables and fables convey a far more serious message than scholarly studies and long orations based on theories of politics and the philosophy of government. In other words, in the field of government there is room for grandma’s remedies, or tried and tested methods of administration. This paper attempts to explore these old, reliable systems to see whether we can find solutions for the myriad problems of governance we are facing.

It is the objective of every government to govern, that is, to control and direct the affairs of the country and for this purpose to deliver to the people that which would promote their welfare. Even the worst of dictators has not disagreed with this definition of government because I have yet to come across a dictator who states that he does not desire the welfare of the people. The difference between good government and bad government is a differential view of what constitutes welfare, but on paper at least the objective is to make the country strong, to give people pride, to make people prosperous. When Hitler destroyed the Weimar Republic this is precisely the agenda he placed before the German people and won their confidence adequately to win an election and come to power. What followed is perhaps the most unimaginable of horror stories in the history of the world, but the stated objective still remained the good of the people.

Let us return to India and see the situation here. I refer to the period from when the British took control of this country right up to the present day, when we became an independent, democratic republic. British rule (I refer here to the post 1857 direct rule of the British Government) was based on an understanding that India was a society of laws. British rule was designed to perpetuate, imperial power in India, but the manner of governance was law based and not arbitrary. Therefore, even during the independence movement the British were responsible for maintaining the empire, but always through laws, the enforcement of which also was according to law. Unlike the Gestapo and the Kampetai the police did not have the power of arbitrary arrest and arbitrary sentencing. The police could not hold anyone in custody for more than twenty-four hours without producing him before a Magistrate and the power for dispensing justice lay with Magistrates, Judges and the High Courts and Federal Court, which were not subordinate to the Executive from the sessions court level upwards. The Magistracy and the Police had the same powers then as they have today under the Police Act and the Code of Criminal Procedure in the maintenance of public order and the prevention of offences. The Thanedar and Tehsildar of British days virtually operated under the same laws as we do today, but they were much more effective in ensuring that society remained orderly and crime was controlled and prosecuted. In the matter of law and order every public servant knew where his duty lay and public disorder was dealt with sternly. No officer looked over his shoulder to find out what was expected of him by his official and political masters. If there was a situation to be dealt with the officer on the spot attended to this in the full confidence that he would be supported for his actions. This spilled over into the first twenty years of independence also.

Let me give a few examples. Ambah Tehsil of Morena District had a Tehsildar, P.N. Vats, an outstanding officer by any reckoning. Ambah was one of the worst dacoity affected Tehsils in the whole of India, with many of the gangs being created by issues relating to land disputes. Vats expedited hearing of revenue cases, he was a virtual scourge for his Patwaris if they failed their duty to maintain land records properly and he was extremely pro active in dealing with any case in which land was a bone of contention. He not only brought down pendency of litigation; his activist role actually brought peace to the Tehsil and drastically reduced the incidence of dacoity. He did not wait for orders from his Collector and he certainly did not heed or tolerate any undue political interference in his work. What he wanted was to be effective as an officer and provide good government to Ambah.

The second case is of Inspector Bitta Singh, who was Circle Inspector at Sheopur, then a sub-division of Morena. An extremely ugly dispute broke out over a temple and a mosque and the Hindu Mahasabha was up in arms against the Muslims. The situation was extremely volatile and could have resulted in a major communal riot, which would have spread to the entire region. This outstanding police officer, without waiting for orders from anyone, immediately intervened, arrested those who were trying to foment trouble, launched aggressive patrolling by the police and created an environment in which wrongdoers trembled, peace was maintained and there was no communal riot. The District Magistrate and the Superintendent of Police also played their role by fully supporting the man on the spot, with the administration at sub-division level achieving something which today several battalions of armed police are unable to do.

The third case is of Sub Inspector Maluk Singh, who was the Station Officer of the police station at Nagda. Nagda has a large industrial establishment based on GRASIM. There was trade union militancy which, unfortunately, was fragmented. Suddenly trouble flared up and before the district administration could be fully aware of what was going on the situation became really incendiary in Nagda. Maluk Singh did not have a large force available to him but he suddenly grew ten feet tall and by legal action, threat, persuasion and every other means which lay within law he was able to bring warring factions together, put the fear of God into them, force the management and workers to sit together for a negotiated settlement and he achieved within two days what today massive government intervention cannot do. Peace was maintained at Nagda because of the initiative of this fine young police officer. I am mentioning these three cases because I am witness to what happened both in Morena and in Ujjain, in the former as Assistant Collector under training and in the latter as Collector and District Magistrate. If the man on the spot is trusted and is empowered to act there is no situation in India which cannot be tackled.

There being continuity between the Government of India Act 1935 and the Constitution of India, the only real change which has come about between how the British governed us and how we govern ourselves is that under Government of India Act we were a limited democracy whereas under the Indian Constitution we are a fully democratic republic. In a democracy it is not the bureaucracy which rules but rather the elected representatives of the people who, as members of the Council of Ministers, take the policy decisions relating to government. Nevertheless we continue the old system where the Head of State exercises executive power through officers subordinate to him, the said powers being exercised on the aid and advice of the Council of Ministers. This, however, does not in any way change the old position about India being a country of laws, in which the laws are framed by the legislators but are implemented, within the policy approved by the Council of Ministers, by officers appointed by the President or the Governor as the case may be. The law vests certain powers in officers and these officers are required to exercise their powers freely, fairly, without interference and in accordance with the law. For example, Chapter X of Cr.P.C authorises an Executive Magistrate or a police officer to command an unlawful assembly to disperse and on its failure to do so, to take such necessary action to disperse it as may be called for, including the use of force, even lethal force. The Code of Criminal Procedure does not say that in exercising this power the Executive Magistrate or the police officer will seek the permission of a politician, a superior officer, or any other authority. He has the power, he is required to maintain order; he must ensure that there is public peace and, therefore, he is both free and duty bound to take all necessary action to maintain order.

How does the system actually work? In Bombay the Shiv Sena decides what is lawful and what is unlawful and the police station stands by as a spectator. Every riot is an offence and every mob which indulges in rioting is an unlawful assembly. When communal violence occurs why do police officers not take action as they are authorised to do by the Code of Criminal Procedure? It is not for want of legal authority but rather because the exercise of legal authority is now almost out of fashion. Every police officer, every magistrate knows that if he does take action he will not necessarily be supported, the press will probably come out with a biased view and political pressure will result in action against the officer rather than support for him. Therefore, Magistrates and police officer just do not act because in India acts of omission are still not really punished. It is now very rare to find a Bitta Singh or a Maluk Singh. Instead one finds officers of the type who now man the Maharashtra Police and allow Shiv Sainiks to disrupt the peace, but will not do their duty to prevent this in the interest of the citizen at large.

Law and order is only one aspect of government and at the top end of the administrative pyramid we have the Council of Ministers and the Secretaries to Government who are required to take decisions within the overall umbrella of the Rules of Business of the Executive Government. In Madhya Pradesh, for example, there are the Business Allocation Rules which allocate business between different departments and then there are the Rules of Business of the Executive Government whereby the Governor ordains how the business of government will be conducted. For example, in Madhya Pradesh, there are three categories of cases, those cases which are to be brought before the Council of Ministers, those cases in which before final orders are issued by a department the matter will be submitted in coordination to the Chief Minister and those cases which a department is competent to finally dispose of. Under Part V of the Rules of Business there is a procedure laid down whereby a Secretary or a Minister may dispose of a case. A Secretary is permitted to dispose of every case which is of a routine nature, or on which the question of policy has already been settled, as also of matters which the Chief Minister or the Minister in charge direct the Secretary to finally decide. In other words, in a matter in which there is no issue of policy of issue involved the Secretaries are fully empowered to dispose of the case. Unfortunately no Secretary now exercises this power and instead even minor, routine matters are put up before the Minister. Administratively, therefore, there is a form of paralysis in the higher echelons. As was amply proved in the 2G Spectrum allocation case and as is provided by Rule 48 of the Rules of Business of Madhya Pradesh, the Secretary of the Department is personally responsible for careful observance of the rules. This means that if there is a material departure from rules by anyone, including the Minister, the Secretary to Government is responsible to ensure that the matter is brought to the notice of the Minister concerned and, where necessary, to submit the case in coordination so that the Prime Minister or Chief Minister may be made aware of the deviation and give necessary instructions on the final disposal of the case. The question is, how many Secretaries do actually dispose of cases finally and how many Secretaries have the guts to put up a case in Coordination because the Minister and Secretary do not agree on how other matter should be decided.

There is corruption. Corruption is a criminal offence and under the Code of Criminal Procedure criminal offences shall be investigated by the police. Under section 154 the citizen is required to report the alleged commission of an offence to the police, which is required to treat this as the First Information about the crime and to record it in the specially prescribed FIR book. Once the FIR is recorded then under section 156 Cr.P.C. the officer in charge of a police station is bound to investigate the case and to do this he neither needs permission nor is authorised to abjure investigation. The wordings of section 154 and other provisions of Chapter XII are very clear. The police officer is bound to record a FIR , he is bound to investigate an offence, his investigation cannot be interfered by any authority, he must submit a challan to the court if there is a prima facie case and if no prima facie case is made out he is bound to report the matter to the court and obtain permission to close the case. For this he does not need anyone’s permission, nor can anyone either force him to investigate or refrain from investigating fully or in part. Here is the ultimate grandma’s remedy, contained in the Police Act which dates back to 1861 and the Code of Criminal Procedure which is only a modification of the Code of 1898. The power of the police to investigate is the same in 2012 as it was in 1898. Why, then, do we keep receiving complaints that the police does not act?

The most notorious police force in India is the CBI, which legally has no existence and whose legal avatar is the Delhi Special Police Establishment (DSPE). This force is notorious for acting with political bias, for holding preliminary enquiries prior to registration of the FIR and for acting in fits and starts in eminent cases according to what the political masters dictate. But this is not the scheme of policing in India and, therefore, what we need is not new Police Acts or new police arrangements but rather a reminder to the police that the existing law is complete in itself. It fully empowers the police and the police should not act as handmaidens of individual politicians but rather go back to the old practice of policing according to law.

In every aspect of governance the right way is already prescribed and we do not need new laws in this behalf. For example, tender procedures are fully prescribed in existing PWD manuals. Despite this officers quite often bypass tender procedures, either under pressure of money or the pressure of politics and this has always resulted in cost overruns, poor quality work, non adherence to schedule and generally unsatisfactory execution of the sanctioned work. Why do we need new laws here? What we need is a firm decision both by government and the officers concerned that they will not deviate from established norms, or established rules. For example, The Directorate of Town and Country Planning will not change land use except by due process, for good reason and within the overall scheme of the Development Plan of the city. This does not call for new rules, it calls for the personal integrity and morality of the officer concerned who deals with a situation according to rules and laws and does not succumb to any blandishment or threat or pressure from his superiors. Is that too much to expect?

I am not suggesting that radical surgery or fourth generation drugs should never be resorted to. But if an old fashioned carminative mixture relieves a stomach ache, why should there by resort to expensive antibiotics? Why go to anti allergens and cortico-steroids to deal with an insect bite when in the garden itself there are plants a poultice of which will be enough to deal with the toxic effect of that bite. If by educating officers on what their legal powers are and then encouraging them to take suitable action we can provide good government to this country, why do we need Kejriwal and Prashant Bhushan’s remedies? I would only end by saying that what we need in this country is that officials at every level begin to be aware of their legal powers, the mandate given to them by government and the expectations of the people regarding what government will deliver. We need to empower our officials by assuring them that if they operate within what they are authorised to do, they will be fully supported, if they do not do their duty they will be punished and if they take decisions at the behest of others they will be removed from service. Once this happens and the bureaucracy begins to function effectively all the old remedies of grandmother will flood back and the administration will return to a level of efficiency which it enjoyed in the past. It is then and then alone that we should assess what reforms are needed to carry government to the next level of administrative elevation and for this purpose reform the present structure of government and the network of laws.