Yet Another Firm Step to De-criminalise Indian Politics

Dr. A Surya Prakash, 

Distinguished Fellow, VIF

The Supreme Court took yet another firm step recently to cleanse politics and to de-criminalise the country’s legislative bodies when it directed trial courts hearing cases concerning corruption and serious offences against MPs and legislators in the states to complete the trial within one year of framing of charges. In an interim order, the Bench of Justices R.M.Lodha and Kurian Joseph said where sitting legislators are facing corruption cases and other serious offences, “the trial will be completed expeditiously on a day-to-day basis and in no instance later than one year from the date of framing of charges”.

This is the second major directive from the apex court after its path-breaking verdict in July, 2013 ordering disqualification of all MPs and MLAs soon after their conviction in heinous cases. Through this judgement, the court stopped MPs and MLAs from merrily continuing in office after filing an appeal against the lower court’s order as provided for in Section 8 (4) of the Representation of the People Act. The court struck down this provision in the RP Act, which had been grossly misused by elected representatives with criminal backgrounds. Exploiting the justice system which is painfully slow, legislators convicted of crimes like murder, rape and dacoity were known to complete their terms in Parliament and state legislatures, return to these legislative bodies when fresh elections were held and even hold key portfolios in the government at the Centre and in the states. All they had to do was to file a criminal appeal in a High Court within the stipulated time and the cases would drag on for 10 or even 15 years.

The mischief lay in Section 8(4) and this remained on the statute book for decades despite strong and persistent recommendations from the Law Commission of India, The Election Commission and a host of other commissions and committees including the National Commission Commission to Review the Working of the Constitution (NCRWC), which was headed by the former Chief Justice of India Mr.M.N.Venkatachalaiah. But the political class failed to heed to the suggestions and proposals for scrapping Section 8(4) because almost all political parties had legislators with criminal backgrounds and they did not want them to be unseated. Secondly, since criminal cases dragged on endlessly and the rich and powerful found a dozen ways to stall the trial in such cases, criminals roamed around the corridors of power and Parliament with impunity.

The Supreme Court struck the first major blow against criminal-legislators when it declared that Section 8 (4) was illegal. It said henceforth, upon conviction legislators would lose their seats. Lalu Prasad Yadav became the first politician to be hit by this ruling. He lost his seat in Parliament after this judgement although the Manmohan Singh Government was all set to bring in an ordinance to nullify the court’s verdict.

The latest order of the court directing that the trial in cases involving MPs and MLAs be completed within one year will have an impact on many persons with such background who are likely to contest and succeed in the coming Lok Sabha election. Although the distribution of tickets is still on, one can already see that a large number of persons with criminal records have been given tickets by many political parties including the Congress, the BJP, the Samajwadi Party and the Bahujan Samaj Party. The trial courts are now mandated to complete the trials within one year. Therefore, all persons who stand accused of heinous crimes and who get elected to the new Lok Sabha will not have the luxury of seeing prolonged trials. Secondly, if they are pronounced guilty, they will immediately forfeit their seats in view of the Supreme Court’s Verdict last year.

One only needs to analyse the affidavits filed by candidates before the Election Commission at the time of filing nominations for elections to understand the extent to which our democratic bodies have become dens of criminals and the corrupt. Following the Supreme Court Judgement of July, 2013, the Association of Democratic Rights (ADR) and National Election Watch (NEW) conducted an analysis and came up with some shocking statistics. They said as per the affidavits filed by them, as many as 1460 of the 4807 sitting MPs and MLAs in the country (30 per cent) had declared that there were criminal cases against them. Of them, as many as 688 (14%) out of the total number of sitting MPs and MLAs had declared serious criminal cases against themselves. Further, ADR has found that 162 of the 543 MPs of the outgoing Lok Sabha (30 per cent ) had declared criminal cases against themselves of which 14 per cent of the MPs have declared serious criminal cases against themselves. Of the 4032 MLAs in the country, as many as 1258 (31%) from all state assemblies had declared criminal cases against themselves. Here too, 15 per cent of the MLAs from all state assemblies said that they faced serious criminal cases against themselves, according to this analysis by ADR.

Following the latest Supreme Court order directing speedy trial of such cases, ADR and NEW reported that the 162 MPs were involved in 306 criminal cases and that 76 of them stood charged with serious crimes like murder, attempt to murder and kidnapping. However, all these MPs were completing their Lok Sabha terms without hindrance because the cases were pending in court. These organisations said that some of these cases were pending for over 20 years. On an average, the pendency was for about seven years. They found a case of murder in which a member of the present Lok Sabha is an accused, dragging on for close to three decades while another murder case against an MP in Uttar Pradesh was in “progress” for 25 years. One case against an MP facing the charge of rioting and theft was on for 28 years. Providing a party-wise break up, the two organizations said that Jharkhand Mukti Morcha (JMM) MPs had 69 criminal cases against them followed by the BJP (55 cases), the Samajwadi Party (34 cases) and the Congress (30 cases). One MP belonging to JMM from Palamau, Jharkhand had declared 69 counts of serious cases against himself.

The court’s order last week came in the light of this frightening statistical analysis and the recent report of the Law Commission on Electoral Disqualifications. The Commission’s report on this issue was consequent to a direction by the Supreme Court last December. In this report, which was finalized last month, the Law Commission said that disqualification upon conviction had “proved to be incapable of curbing the growing criminalisation of politics, owing to long delays in trials and rare convictions. The law needs to evolve to pose an effective deterrence and to prevent subversion of the process of justice”. It therefore favoured disqualification of MPs and MLAs at the stage of framing of charges by the trial court. It said the stage of framing of charges “was based on adequate levels of judicial scrutiny, and disqualification at the stage of charging, if accompanied by substantial attendant legal safeguards to prevent misuse, has significant potential in curbing the spread of criminalisation of politics”.

Further, once the charges were framed and the legislators were disqualified, the Commission felt that the trial must be speeded up. It said for charges framed against sitting MPs and MLAs, the trials must be expedited so that they are conducted on a day-to-day basis and concluded within a one year period. It is of the view that if the trial is not completed within a year, the tainted legislator would stand automatically disqualified. Alternately, the rights, remuneration and perks of the MP or MLA could be suspended. The Commission also proposed some safeguards to prevent persons in power from filing false charges against political opponents in the run up to en election to the state assembly or parliament. It has also recommended enhanced punishment of two years in jail for persons who give false affidavits while filing nominations in an election.

This recommendation of the Law Commission must be seen in the light of the opinion of several other commissions and committees. For example, the Election Commission recommended 17 years ago that conviction by a trial court was sufficient to attract disqualification “and even those released on bail during the pendency of their appeals against their convictions are disqualified from contesting elections”. The NCRWC recommended that the election law be amended to bar any person charged with an offence punishable with imprisonment up to five years, from contesting elections to parliament and state assemblies. Further, it said any person convicted for heinous offences like murder, rape, dacoity and smuggling must be permanently barred from contesting elections. The Second Administrative Reforms Commission headed by Mr Veerappa Moily, a member of the Union Cabinet, recommended that Section 8 of the Representation of the People Act, 1951 be amended “to disqualify all persons facing charges related to grave and heinous offences and corruption”, with the modification suggested by the Election Commission.

However, none of this had any effect on the political executive and the UPA Government made a futile bid through Law Minister Kapil Sibal last year to up turn the Supreme Court judgement which said convicted MPs and MLAs would stand disqualified even if they appealed against their convictions. The Manmohan Singh Government assured all political parties that it would amend the RPA Act, 1951 to help criminal politicians, some of whom were keeping the government alive through their support in the Lok Sabha. Sibal, who piloted this obnoxious piece of legislation even felt emboldened to advice the judiciary that it should be “extremely careful” while giving rulings because there was a negative perception in the country that all politicians were criminals and that the courts were enthusiastic to prove this to be right. Sibal also made the laughable claim that the political class was the most accountable class in the country and that the politicians were accountable to parliament, to the Election Commission, to the country and to the people.

Fortunately, no one is listening to Sibal’s rant against judges and on behalf of criminal politicians, least of all the judiciary. The Supreme Court, in its interim order last week on the PIL filed by Public Interest Foundation has partly accepted the suggestion of the Law Commission and ordered expeditious trial of cases pending against MPs and MLAs. Last year the court declared that legislators would stand disqualified once they are convicted by a court in a serious criminal case. The Law Commission is now suggesting that the disqualification should kick in the moment the trial court frames charges. We must now await the court’s final judgement in this PIL and hope that it will finally purge our legislatures of criminals.

Restoring Rule of Law is the Need of the Hour

Dr M N Buch, 

Dean, Centre for Governance and Political Studies, VIF

In all the recent cases pertaining to high level corruption, whether be it the 2 G Spectrum allocation, the Commonwealth Games, the allocation of coal blocks, the appointment of a member of the Railway Board, etc., one common theme has been that decisions have been taken arbitrarily, contrary to rules and in violation of good administrative practices. In the case before the Supreme Court filed by Prakash Singh and others regarding police reforms, the allegation made is that government arbitrarily intervenes in the lawful working of the police and this is one of the main reasons why the police in India is ineffective, corrupt, politically biased and both people unfriendly and largely unaccountable. The prayer made before the Supreme Court is that the police should be insulated from unlawful pressures and influences and should be encouraged and in fact forced to function according to law. Thus, if corruption is to be stopped it becomes absolutely vital that arbitrariness in government must stop and instead we should return to reasoned rule of law.

In a society of laws, the first and foremost consideration is equality before law. This is enjoined by Article 14 of the Constitution. If there is equality before law then every citizen has equal rights and equal liabilities. A systematic violation of rights automatically proves that society no longer functions according to law. In a society of laws, no one, however powerful in politics, in government or in the economy, can deprive a person of his rights by misusing a government agency or by using the power of money to make officials act in favour of a person and with bias against some other person. In a society in which there is equality no one is the sovereign, suzerain or feudal lord of normal citizens, which means that whereas someone may enjoy authority and someone else may not, neither is the superior of the other and the person not having authority does not have to kowtow before a person having authority. The one in authority has still to function according to law and the rules, regulations, procedures and practices which emanate from it. Now it is a fact of which we can take notice that whereas equals do not pay tribute to each other, where there is a perception that someone is superior to others and can take decisions favouring someone and denying favours and rights to others, then an element of vassalage creeps in. When that happens, the one without authority becomes a vassal who tries to keep his overlord pleased, either by becoming his servant or paying him tribute which naturally would take the form of money or other valuables. A tribute is a token of submission and it is a well known fact that in India those who are in servitude do pay nazrana to those who are their superiors. Nazrana or tribute is the most humiliating form of a bribe because it recognises the superiority of someone else and the nazrana then becomes a means of ensuring that the superior is at least benign. It is only in a society of laws that everyone is equal and nazrana will not be necessary, nor will be paid.

India is not a society of equals and anyone who has even a little brief authority can become a target for payment of nazrana. If, however, the officer in question who is in a decision making position is unable because of the rules to do undue favours or to unduly deny justice to an applicant, then the nazrana become irrelevant and will not be paid. From this emerges the suggestion, which is that look at every point of contact between government and citizens, remove rough edges and simplify rules, procedures, etc., to such an extent that a person entitled to a decision gets the decision, there is no delay because the person delaying exposes himself and is liable to punishment and there is no relationship of superior –inferior in the whole transaction. If an official cannot harm through delay and cannot avoid decision making under fear of punishment, then there is no question of any nazrana being paid.

The absence of nazrana means that the applicant and the decision maker are both at the same level. Now it is no longer a superior talking down to serfs. If both are equal, how can the officials extort money, which can be called jabrana, from a person whose application relates to that to which he is genuinely entitled? Once again, it is rules, regulations and procedures which will determine whether there is an environment in which extortion is possible, or there is an environment in which one’s official position cannot be used to decide matters arbitrarily and through this extort money for giving a favourable decision.

To have a society of laws what we need first and foremost is the framing and formulation of laws in a manner which is compatible with the Constitution and with the general concept of parliamentary democracy. In India at the level of the Union it is Parliament which legislates and at the level of the States it is the State Legislature. The National Capital Territory of Delhi is not a State but as per the Government of the National Capital Territory of Delhi Act 1991, Delhi does have a Legislative Assembly. Mutatis mutandis this assembly has powers of legislation under the State List and the Concurrent List of the Seventh Schedule of the Constitution. The least we can expect from our legislators is that they will ensure that legislative business is conducted strictly according to the Constitution of India and the tried and tested practices and procedures of Parliament and the State Legislatures in India. As stated earlier, it is only in a society of laws that we can have equality and it is only from equality that good government can flow which checks corruption , therefore, it is all the more important that the Legislature itself should be patently and actually seen to be functioning according to law. Articles 110 and 199 of the Constitution define a Money Bill and both state categorically that any Bill which requires appropriation of money out of the Consolidated Fund of India is a Money Bill. Under Article 117 a Money Bill, also deemed to be a Financial Bill, may not be introduced in the House of the People without the recommendation of the President in the case of the Union, with Article 207 having similar provisions relating to a Financial Bill being introduced in the Legislative Assembly, in which case, of course, the recommendation of the Governor is required. Section 22 of the NCT of Delhi Act takes exactly the same position, which means that a Bill which contains provisions whereby there would be expenditure from the Consolidated Fund of India would require the recommendation of the Lieutenant Governor before it can be introduced in the Legislative Assembly. Under section 22 (3) of the Act, the Legislative Assembly has no authority to pass such a Bill if the Lieutenant Governor has not given his recommendation. The Jan Lokpal Bill, which was introduced in the Delhi Legislature by the then government of Arvind Kejriwal, was automatically hit by the infirmity of not having been recommended by the Lieutenant Governor, despite the fact that the Jan Lokpal and his establishment would have required expenditure from the Consolidated Fund of Delhi by way of salaries, capital expenditure on the office and the myriad other expenses associated with a government organisation. To obstinately demand that the Bill be introduced and then enacted, despite this being in violation of specific provisions of the Government of NCT of Delhi Act and the Constitution of India, means that here was a government, wedded to removal of corruption and causes of corruption, including arbitrariness in decision making, insisting that so far as its sponsoring of legislation is concerned, the law did not apply. If this is not the height of lawlessness, of utter contempt for law, of arbitrariness unbound, what is it? Can such an attitude actually give us a government which promotes the rule of law and thereby brings corruption under control? Therefore, far from being a party which wants to eliminate arbitrariness from decision making and thus ensuring that one of the root causes of corruption is removed, AAP is in fact the major promoter of eliminating the rule of law and opening the flood gate for arbitrariness. It is totally unacceptable that my arbitrariness is good but your arbitrariness is bad. All arbitrariness is bad and if there is insistence on pushing only one point of view, then it is also undemocratic. The whole Delhi drama is based on creating an environment in which every other point of view is suppressed and eliminated, leaving only the single point programme of the Jan Lokpal in the field.

Any government worth its salt should systematically set its nose to the following things: Create an environment in which the feudal culture which pervades our society is eliminated. This would include not making one’s obeisance to the politically powerful so that the need to pay tribute or nazrana is eliminated. Even a beginning cannot be made to the elimination of corruption till we completely remove the very relationship which leads to the payment of nazrana.

Proceeding from this, the government has to systematically review all areas of contact between the citizen and government and its agencies and officials. The first objective should be to reduce these points of contact to a minimum and for that purpose all rules, procedures and practices would have to be painstakingly reviewed with the objective of making them so simple and so open that a person going before a government official knows that his work can be done only if it falls within the four corners of what is permissible by law. A shortcut is not available, which means that bribing an official would be a futile exercise because even with malice aforethought that official cannot give a favourable decision contrary to rules. This exercise should be followed by a detailed study of how files move. If movement is smooth, time bound and follows a defined trajectory, then government’s work will proceed apace. People can then expect just and timely decisions. If an automobile factory’s assembly line can be programmed and then monitored, why is this not possible in the case of the manner in which government functions? A major cause of corruption would disappear if government work proceeded smoothly. Permit delay and we invite corruption.

From procedures we have to come to people, that is, officials. If one is to provide good government, one has to ensure that government officials are properly trained and oriented both for the job they are required to do and the people whom they are required to serve. For government servants to be made to do their duty they have to be trained and continue to be trained, mentally attuned to being people friendly, professionally competent, assigned very specific duties, with their performance being quantified and systematically monitored. This would help in identifying those who are genuinely servants of the people, those who are slackers and those who deliberately use their office for personal gain. Therefore, accountability must also be fixed and, perhaps, it is at this stage that a Lokayukt, a Lokpal, or an Ombudsman would have a vital role. This is not to diminish the role of the person to whom one can go with a complaint or who has the authority to monitor and evaluate performance and thereafter take suitable remedial action. However, this would be the last link in the chain of government which ensures the smooth and efficient functioning of the Executive and the timely delivery of services of government to the people. If there is good government, there may not be any role for the external monitor, who seems to be the only panacea offered by Aam Aadmi Party. Had it been otherwise, the party would have gone about the business of restoring good government before launching into the next stage of legislation for an external monitor. Had the government functioned logically and step by step it would not have faced any difficulty in the matter of legislation introduced at the appropriate time. In a parliamentary democracy, there are no shortcuts and every shortcut drives one more nail into the coffin of democracy. I hope Kejriwal and those who surround him eventually wake up to the fact that it is decline of the rule of law which has brought us to such a sorry state and it is only by returning to the rule of law that India will get good government, a corruption free society and the promotion of the welfare of the people. Remember the story of the tortoise and the hare? There is a great deal to be said for hastening slowly.   

The Case Against The Ordinance to Protect Criminal Legislators

Dr. A Surya Prakash, 

Distinguished Fellow, VIF

The National Commission to Review the Working of the Constitution (NCRWC) which was headed by the eminent jurist and former Chief Justice of India Mr. M. N. Venkatachalaiah recommended that the election law be amended to bar any person charged with an offence punishable with imprisonment up to five years, from contesting elections to parliament and state assemblies. Further, it said any person convicted for heinous offences like murder, rape, dacoity and smuggling must be permanently barred from contesting elections.

The Second Administrative Reforms Commission headed by Mr.Veerappa Moily, a member of the Union Cabinet, recommended that Section 8 of the Representation of the People Act, 1951 be amended “to disqualify all persons facing charges related to grave and heinous offences and corruption”, with the modification suggested by the Election Commission. The Law Commission suggested 14 years ago that mere framing of charges by a court in regard to election-related offences should by itself be a ground for disqualifying a person from contesting an election. In other words, all the three august commissions named above held the view that mere framing of charges was enough to bar individuals from contesting elections to parliament and state assemblies.

The Election Commission decided 16 years ago that candidates in parliament and state assembly elections should file affidavits about their convictions in cases covered by Section 8 of the RP Act, 1951. The commission was of the view that conviction by a trial court was sufficient to attract disqualification “and even those released on bail during the pendency of their appeals against their convictions are disqualified from contesting elections”.

Thereafter, in September, 1997, the Chief Election Commissioner wrote to the Prime Minister in this regard and pressed for immediate amendment of the law to deal effectively with the malaise. He said there were “grave incongruities” in the existing provisions in Section 8 and wanted the same amended. The Commission said that under jurisprudence, a person is presumed to be innocent unless proved otherwise and convicted by a court of law. Thus, in strict legal parlance, a criminal is one who has been convicted of a crime by a court of law. “But the common man perceives otherwise. In his eyes, a person who has been charged with certain types of offences and is under trial is also a criminal. The common man considers it criminalization of politics if he sees a history-sheeter or a notorious bad character, involved in various crimes of a heinous nature like murder, dacoity or rape, contesting elections and getting elected”.

It held the view that “a person facing trial in a serious offence, if kept out of the electoral fray till he is exonerated of the charge, should not have a legitimate grievance, as such restriction on his right to contest elections would be a reasonable restriction in the greater public interest and for bringing sanctity to the august Houses which are the supreme law making bodies of the country”. The Election Commission’s efforts to keep criminals out of electoral politics were stonewalled by successive governments at the Centre for 16 years.

It is in this context that the Supreme Court decided last July to strike down Section 8 (4) of the RP Act, 1951 which enabled criminals to continue their tenures in Parliament and state assemblies if they filed appeals against their conviction in a higher court. Any judge in any democracy who sees steady deterioration in democratic values is bound to correct the aberration. And that is exactly what the Supreme Court did last July. Though the court did not bar politicians who are charge-sheeted from contesting polls, it declared that a person convicted and sentenced to two years’ imprisonment, should be kept out of the electoral fray, even if his appeal is pending in a higher court. The court also barred persons in jail from contesting elections because such persons lose the right to vote.

The Union Cabinet’s first response to the Supreme Court verdict was to amend the Representation of the People Act, 1951 in order to save the seats of criminal legislators. At its meeting on August 22, it approved two amending bills to negate the recent Supreme Court verdict on disqualification of convicted legislators. The first amendment sought to add a proviso to sub-section (4) of section 8 of the Representation of the People Act, 1951 stating that the convicted member shall continue to take part in proceedings of Parliament or Legislature of a state but he or she shall neither be entitled to vote nor draw salary and allowances till the appeal or revision is finally decided by the court. The other amendment said an MP or MLA would not lose his right to vote if under arrest even for a short duration and thereby would retain his right to contest a poll. However, despite the government’s desperate efforts during the Monsoon Session of parliament, it could not effect these changes because a key amending bill was referred to a parliamentary standing committee.

The latest decision of the Union Cabinet to bring an ordinance to undo the Supreme Court’s historic verdict in this case betrays its utter contempt for the opinions of some of the best legal minds in the country. Rejecting the sage counsel of eminent jurists, the political class has almost unanimously decided to challenge the Supreme Court’s verdict and to take legislative measures to undo parts of the apex court’s order. Sailing along with this view, which was expressed forcefully by politicians from across the political spectrum at an all-party meeting convened prior to the Monsoon Session of Parliament, the government announced its resolve to seek a review of the apex court’s judgement and simultaneously introduced a Bill to amend the Representation of the People Act, 1951. The purpose of this amendment is to protect the so-called rights of criminal-politicians rather than that of the people. They are also meant to overturn the verdict of the Supreme Court relating to the prohibition on persons in jail losing their right to file nominations in elections. The Rajya Sabha cleared this amendment first. The Law Minister Mr.Kapil Sibal, who piloted this Bill decided to utilize the opportunity to lecture the judiciary and all and sundry. He advised the judiciary to be “extremely careful” in giving rulings which have an impact on the polity. He claimed that there was a negative perception in the country that all politicians were criminals and that the courts were enthusiastic to prove this to be right.

Only a few political parties have had the gumption to oppose this atrocious move to protect criminal-politicians. Among them are the two main communist parties. The Communist Party of India opposed the ordinance which enables convicted MPs and MLAs to continue in their posts if they have filed appeals against their conviction. It said the government had introduced a Bill to this effect in Parliament during the Monsoon Session and the same had been referred to a parliamentary standing committee. Under these circumstances, the CPI said the government should not be in a hurry to insulate convicted MPs and MLAs from disqualification as per the Supreme Court’s judgement. Opposing the ordinance, it said this matter needed to be discussed in parliament after the standing committee presented its report. The Communist Party of India (Marxist) also opposed the ordinance. It declared that the ordinance route was “undemocratic”. The Bharatiya Janata Party sent a delegation to the President urging him not to sign the ordinance.

Thanks to the Supreme Court’s directive many years ago, we have enough information on the criminal background of our legislators. So, let us test the actions of the union government and the Law Minister’s defence of the politician on the basis of available facts and the analysis of the background of our representatives done by the Association of Democratic Rights (ADR). This organization has found that 1460 of the 4807 sitting MPs and MLAs in the country (constituting 30 per cent) have declared criminal cases against themselves in their self- sworn affidavits submitted to the Election Commission of India prior to contesting elections. 688 (14%) out of the total number of sitting MPs and MLAs have declared serious criminal cases against themselves. Further, ADR has found that 162 of the 543 Lok Sabha MPs (30 per cent) have declared criminal cases against themselves. 14 per cent of the current Lok Sabha MPs have declared serious criminal cases against themselves. Of the 4032 MLAs in the country, as many as 1258 (31%) from all state assemblies have declared criminal cases against themselves. 15 per cent of the current MLAs from all state assemblies have declared serious criminal cases against themselves, according to this analysis by ADR.

Mr.Sibal also made the extraordinary claim that the political class was the most accountable class in the country and that the politicians were accountable to parliament, to the election commission, to the country and to the people, to whom they go every five years. It was strange to hear this from the Law Minister of a government that wants the Supreme Court to review its decision to bar convicted persons from continuing in parliament and state assemblies and which has decided desperately to take the ordinance route to overturn the Supreme Court verdict. It is equally strange to hear this from a Law Minister whose actions betray utter contempt for the opinions of the Law Commission, the Justice Venkatachalaiah Commission, the Second Administrative Reforms Commission, the Election Commission and the Supreme Court.

But the strangest development of all is the manner in which Mr.Rahul Gandhi, the Congress Vice-President who virtually slept through all the governmental moves since mid-July to bail out criminal-politicians, suddenly woke up last week and publicly rebuked his own government for bringing the ordinance. Realising belatedly that the government’s move had created much revulsion among the people and that even the President, Mr.Pranab Mukherjee was reluctant to sign on the dotted line, Mr.Gandhi has tried to salvage his own image at the cost of the Prime Minister and members of the Union Cabinet. But this will not wash. Intemperate conduct before cameras will not explain his deafening silence on this issue for 45 days. This is yet another example of what political power does to individuals. They think they have the power to fool all the people all the time.

How All India Are The All India Services?

Dr M N Buch, 

Dean, Centre for Governance and Political Studies, VIF

Article 1 of the Constitution makes India a Union of States and the Seventh Schedule framed under Article 246, by containing List 1, the Union List, List 2, the State List and List 3, the Concurrent List prescribes the legislative bounds of Parliament and the State Legislatures in what is basically a quasi federal structure. Part XI, which refers to the relations between the Union and the States, whether legislative or administrative, defines the extent to which the legislative and administrative jurisdictions of the Union and the States extend and to what extent the Union writ prevails over the States. The Union, while giving constitutional autonomy to the States within their respective executive and legislative competence, is centripetal in that under Article 248 residuary powers of legislation vest in Parliament.

The quasi federal structure of India is somewhat different from that of the constitutional structure of other Federations, for example, the United States of America. In the United States, separation of powers between the Federal Government and State Governments is complete in that in matters legislative, executive or judicial, the Federal Government functions through federal officers and federal judges, as also Congress in matters within the federal competence and the State Governments function through their own set up in matters within State competence. The Federal Government has its own civil servants who administer the areas which come within the legislative competence of Congress and the States have their Civil Services which operate in areas within the competence of the State Legislature. However, the Indian Constitution has a unique structure embodied in Article 312 which permits Parliament to make laws for the creation of what are known as All India Services. The same Article states that the Indian Administrative Service and the Indian Police Service which predate the Constitution would be deemed to be created under Article 312. The same Article also permits the creation of an All India Judicial Service, though none has been constituted so far. The All India Services are covered by the All India Services Act, 1951 and rules have been framed under the Act, including the Cadre Rules, the Conduct Rules and the Discipline and Appeal Rules. Under the Cadre Rules, posts in the Central Government and the State Governments in the two initially constituted All India Services, the Indian Administrative Service (IAS) and the Indian Police Service (IPS) and the subsequently created Indian Forest Service (IFS) are prescribed and against these posts only an IAS, IPS or IFS officer can be appointed. There is provision for lateral entry by promotion from State Services or by induction through limited special recruitment, but the fact remains that the senior posts in the General Administration, which include Revenue and Development Administration, the Police and the Forests, including wildlife, can only be held by an officer of the IAS, IPS or IFS respectively. The uniqueness of this constitutional provision is that whereas India is a Union of States, it is a union or federation in which the senior Civil Service posts, including the Police and the Forest Department, are held by officers who are under the direct rule making control of the Union Government. The officers are assigned to a State Cadre and normally serve under the State Government, but they are liable to transfer either for service under the Union Government or, under certain circumstances, on deputation to other State Governments, public sector undertakings and as the rules stand today, to international bodies or even to private undertakings.

An All India Service officer is appointed by the President and can be removed from Service or awarded a major penalty only by the President. An All India Service officer is recruited through the Union Public Service Commission, his promotion through a departmental promotion committee even within the State is done through such a committee, which has representatives of the Union Public Service Commission and of the Government of India. The State Government’s authority over the All India Service officers is limited by the provisions of the rules framed under the All India Services Act.

One need not discuss in detail why the All India Services were thought necessary and were created in a quasi federal structure, but some knowledge of the background does help. British India was governed as a unitary state in which for administrative purposes, the country was divided into Provinces, each headed by a Governor. Elements of federalism were there even under the 1919 Government of India Act and were strengthened under the 1935 Government of India Act and the Provinces did enjoy a fairly high degree of autonomy because a country as large as India cannot be administratively managed from one power centre alone. In fact, in those days of poor communication links, the districts were fairly autonomous and the D.C. and S.P. were required to take decisions on the spot, which government invariably supported. Therefore, the provincial governments had considerable freedom of action, including the setting up of provincial services, but the country was held together by what were known as the Imperial Services of which the Indian Civil Service, or ICS was at the apex. The other major Imperial Service was the Indian Police or IP, but there was an Indian Forest Service, Indian Service of Engineers and an Indian Medical Service of all India nature. The Imperial Services were appointed by the Crown and not by the Viceroy and Governor General. When India became independent and the provinces became States which had constitutional legitimacy, the Indian Civil Service was carried forward as the Indian Administrative Service. In some ways, the legal provisions of the Government of India Act 1935 were carried forwarded into the Constitution, with cast iron constitutional autonomy being enshrined in lieu of the surrogate autonomy of the provinces granted by the Government of India Act 1935.

The reason why we provide for an All India Service in a quasi federal constitution, apart from the need to have continuity in the administrative set up in India after we became independent, was Sardar Vallabhbhai Patel’s clear understanding that India had major fissiparous tendencies which needed to be controlled and countered by building into the Constitution centripetal features which would hold the country together. A unified judicial hierarchy, the All India Services, a single independent audit organisation under the Comptroller and Auditor General, with constitutional power of the Central Government to give directions to the States under certain circumstances and the power of the President to take over the administration of the States under Article 356, are all parts of the centripetal features of our Constitution. Sardar Patel was firmly of the opinion that if the executive government of the States and the Union was carried out through officers of All India Services, who were protected and immunised from arbitrary action by the political class, then not only would we have a nonpartisan administration where officers work without fear or favour but a united India would also be ensured through these Civil Services whose ultimate rule making control is vested in the Central Government. Hopefully this would eliminate political whimsicality from the administration.

Upto 1967, the system worked extremely well and this was possible because, by and large, the Governments, both at the Centre and in the States, were formed by the same party. In 1967, suddenly the politics of defection through purchase of power was introduced and now power was up for grabs. Thus began an era of political uncertainty in which the politicians, in order to remain in power, had to use bribery as a major weapon. Money for bribes can only be made by misusing the instrumentality of State power and obviously an impartial and fearless Civil Service would be an obstruction in obtaining such money. The Civil Service had to be tamed and the politicians proceeded to do this with vim and vigour, using the instrument of posting and transfer as a major weapon. In 1975, when Indira Gandhi declared a state of Emergency and concentrated all power in herself, a new slogan of a committed Civil Service was added to our administrative lexicon. A committed Civil Service meant that civil servants would no longer necessarily be servants of the law and would be prepared to carry out the will of the political masters, even if it meant that the administration became partisan. At this stage, intimidation of civil servants was added to the armoury of the politicians and not only were honest, impartial civil servants sidelined, many of them were subjected to humiliation through suspension and worse. So long as the Central Government continued to be under a single party, some element of protection was available to the civil servants, especially the All India Services.

However, when the Central Government became weaker and we entered into an era of unprincipled coalitions, narrow political interests very often overtook the legal provisions relating to the All India Services and in many States the local satraps arbitrarily decided the fate of civil servants because the ruling coalition in the centre needed their support in order to remain in power and hesitated to protect the civil servants. In some States, the politicians went berserk and Uttar Pradesh and Bihar are two glaring examples of how the All India Services were hounded, bullied and bludgeoned into virtual servility by totally arbitrary actions of Chief Ministers such as Mulayam Singh Yadav, Lalu Prasad Yadav and Mayawati. In West Bengal and in Kerala, the Left Front Governments did not act in a crude manner but they did take political decisions whereby in areas of interest to the party in power, the civil servants were rendered helpless. Industrial unrest is one area where the police and the magistracy were reduced to impotence where the interests of the Left Front were concerned. Here it is what the party dictated which mattered and not the law. In Tamil Nadu, whereas both the DMK and the AIADMK Governments left the cutting edge level of the district administration more or less alone because the Collector was used for efficient delivery of such services as were politically ordained, at senior levels the All India Services were made subservient.

This was a total negation of Sardar Patel’s ideal of an impartial Civil Service, immunised from undue political influence and, therefore, in a position to give advice without fear and favour and to administer without bias. Over the years, the position has worsened. The standard joke in Uttar Pradesh is that the Annual Confidential Report of an IAS or IPS officer serving in the districts is seldom written because hardly any officer serves for even three months in a district before being transferred and the ACR must span at least a three months tenure. There is total whimsicality in such transfers. The Queen of Hearts in the book ‘Alice’s Adventures in Wonderland’ was in the habit of going around shouting, “Off with his head”. That is how Mayawati behaved, that is how Mulayam Singh Yadav operated. It is unfortunate that senior officers at the level of Chief Secretary and D.G. Police have been silent spectators to the virtual destruction of the Civil Service hierarchy and have not had the courage to open their mouths in protest.

I have a theory about this which is based on my own experience. After I was removed from the Delhi Development Authority towards the end of 1979, I spent a whole year without a posting in Delhi and somehow the impression was created that I was dissatisfied or disgruntled. The fact is that I was being paid my full salary without having to do a stroke of work and was personally very comfortable, but it is true that being on the shelf is never a good feeling. There were several of us who were similarly placed, including Hari Pillai and Ved Marwah of the IPS and JC Jaitley of the IAS. Krishnaswamy Rao Sahib, who was then Cabinet Secretary, sent for me and wanted to know why some IAS officers were disgruntled. I asked him whether he wanted an honest answer and when he said that that was what he wanted, I told him that the real reason why there was some dissatisfaction is because a whole succession of Cabinet Secretaries had not put their heads on the chopping block. He was a little taken aback and wanted to know why I said this. I told him that there were a number of us without a posting for no fault of our own except that some politicians were annoyed with us and that even for postings at junior level, officers were being informally advised to find a political godfather. I said that successive Cabinet Secretaries were probably looking for their governorship on retirement and, therefore, were hesitating to stand up for these Services. In my view, the Cabinet Secretary should have told the Prime Minister that personnel management was his job and not that of the politicians, whose job was to frame policy. Anyway, the meeting ended inconclusively, though to give the Cabinet Secretary his due, he did not hold my acerbic remarks against me.

Recently, a young IAS officer with two years service, Durga Shakti Nagpal, has been placed under suspension by the Uttar Pradesh Government because she took on the powerful political and commercial interests behind illegal sand mining. There are innumerable decisions of the Supreme Court and the High Courts calling upon government to control illegal mining and it is the duty of civil servants to implement these orders. If, however, the politicians are to harass civil servants doing their duty, how will the rule of law prevail? Javed Usmani, the Chief Secretary of Uttar Pradesh, should have stood up to the Chief Minister and opposed the suspension of this young officer. Instead, he has become a party to framing a false and frivolous charge-sheet against the officer to try and justify the suspension. Durga Nagpal’s case is one of many in which civil servants of the All India Services are being harassed. The IPS is a major target because politicians want to use the police for furthering their own ends. I remember a case in which Mayawati, because she was annoyed with the SSP of Lucknow, suspended him and transferred the DG Police, Zonal IG and the Range DIG and this happened in the presence of the Chief Secretary. Did that worthy protest at these totally irrational orders? He preferred to be a silent spectator. This weakened his own position also. What a contrast with RCVP Noronha, the then Chief Secretary of Madhya Pradesh, who not only resisted the wholly unjustified suspension of R.S. Khanna, the then Sales Tax Commissioner, by P.C. Sethi, Chief Minister, but refused to issue orders and when Sethi asked whether or not orders would be issued, replied, “They probably will be issued, but by my successor”. It is P.C. Sethi who stepped back.

How do we remedy the situation? The Supreme Court, in a writ petition filed by Prakash Singh, IPS (retired), has been pressing the Central Government and the State Governments to immunise the police from undue political influence. The Supreme Court wants the Police Act to be amended to give the police autonomy, to provide tenure for officers from the rank of Station Officer up to DG Police and to protect officers from arbitrary action by government. Why is the Supreme Court suo motu not extending this to all the Civil Services and in particular the two other All India Services? It is about time that we put in place a set of laws and rules which, whilst accepting that it is the elected representatives through the Council of Ministers which will have the final say in all matters relating to policy of governance, the Civil Services are also be given due protection against arbitrary action by the politicians so that they can perform their task of implementing lawful orders without fear or favour. One set of rules which need immediate amendment is the All India Services (Discipline and Appeal) Rules 1969. Rule 3 relates to suspension. Under this rule, a State Government may suspend an All India Service officer serving in that State Cadre. The opening words of Rule 3 are important and they read, “If, having regard to the circumstances in any case, and where Articles of Charges have been drawn up, the nature of the charges, the government of a State or the Central Government, as the case may be, is satisfied that it is necessary or desirable to place under suspension a member of the Service, against whom disciplinary proceedings are contemplated or are pending, that government may, if the member of the Service is serving under that government pass an order placing him under suspension…” The same rule, however, says that if there is a difference of opinion between the Central Government and the State Government about the suspension order, then the opinion of the Central Government shall prevail. In the Durga Nagpal case, the order of suspension and the grounds of suspension are so flimsy and so obviously contrived that the Central Government should have treated this as a case of disagreement with the State Government and should itself have quashed the suspension order. It is not necessary to wait for ninety days, within which period a charge sheet has to be served.

Considering the fact that there are many State Governments which are misusing the power of suspension, we need to amend the rules on the following lines:-

The State Government should have no power to suspend an All India Service officer except on the following grounds:-

(a) The officer’s conduct is under investigation in a criminal case, in connection with which the officer has been arrested and remanded to custody in excess of forty-eight hours.

(b) The officer’s actions are so prejudicial to public safety or national integrity that he must be neutralised without delay. However, in every such case, the State Government must submit a report within forty-eight hours of the order to the Central Government, which may then decide whether or not to continue the suspension of the officer.

(c) In every other case, if the government feels that the suspension of an officer is in the public interest it must make a report to the Central Government, which may decide whether or not the officer is to be placed under suspension.

Other than this, the State Government should have no power whatsoever to place an All India Service officer under suspension. This is all the more so because the power to impose a penalty on an All India Service officer vests in the Central Government and can be imposed only in consultation with the Union Public Service Commission. This would go a long way in ensuring that the All India Service officers function without fear and favour.

There is another set of reforms that we need if we have to make the All India Service truly national in character. At present there are many officers who, after allocation to a State Cadre, never serve outside that State. This must immediately end. In the approximately thirty-five years span of service, an All India Service officer should serve outside his cadre for at least ten years. Every All India Service officer should have one stint of five years of service in a cadre other than the one to which he is allotted, that is, he must serve under a State Government other than the one to which he is allotted. He must also put in an additional five years stint in any post under the Central Government. Thus, in his thirty-five years of service, at least ten years will be spent outside his parent cadre. The idea is that an All India Service officer must serve anywhere in India and not be confined to just one State. This would widen his horizon and give him an all India perspective, which is very necessary if our All India Services are to have a national character.

There is another suggestion I have to make, which is that the All India Services must be made to realise that they are servants of the law and not the personal servants of a politician. Therefore, if a civil servant has acted in a manner which promotes the interests of a politician or a political group and in doing so has been in violation of the law, then, if the State Government does not take action, the Central Government must charge-sheet the officer and take disciplinary action against him. Every All India Service officer must be made to realise that if in order to curry favour with State politicians, he acts in a manner prejudicial to law, he will have to face the consequences because the Central Government will intervene. This is the only way to curb the whimsicality of wayward Chief Ministers who are under the false notion that they are above the law and can, therefore, expect senior civil servants to even ignore the law to serve the interests of the Chief Minister. If condign punishment is awarded in a few such cases, it would have a salutary effect in reminding the All India Services where their duty lies.

Intelligence vs. Investigation, Or CBI vs. IB?

Dr M N Buch, 

Dean, Centre for Governance and Political Studies, VIF 

The controversy surrounding a major confrontation between India’s premier investigating agency, the Central Bureau of Investigations (CBI), and the nation’s internal intelligence agency, the Intelligence Bureau (IB), which has been aired in the media emerges out of the Ishrat Jehan case of Gujarat in which the woman and her companions were shot dead by the Gujarat Police in what is claimed to be an encounter between a terrorist group of which Ishrat Jehan was a member, whose objective was to target the Chief Minister of Gujarat personally and the police which took counter measures. The source of information on the basis of which action was taken is said to be an intelligence report prepared by an IB officer in which the connection between Ishrat Jehan and her companions with a Pakistan based L-e-T terrorist group was mentioned. 

CBI is investigating the case on the direction of the Supreme Court. One of the suspects, whom CBI wants to interrogate, is the Special Director, Intelligence Bureau. The subject of investigation apart, let it be understood that CBI is exercising police powers in this case, whereas IB is governed by its own mandate which is to do counter espionage work within India, neutralise espionage by hostile powers within the country, obtain information about likely threats to law and order, internal security and the integrity of the country and to keep a watch on all anti national activity which can result in harm to India. In performing police functions, the CBI has to follow in substance and in practice the provisions of chapter XII, Criminal Procedure Code (Cr.P.C.) and for the purpose of proving a case, it has to function according to the provisions of the Indian Evidence Act. Anything that CBI does in this behalf has to follow the rules of evidence, including relevance and admissibility of evidence and its credibility. Chapter XII, Cr.P.C. is very well drafted and any investigation carried out under its provisions is bound to be just and credible. If evidence is planted or falsely generated, the rules of evidence would expose this and a trial court would reject the evidence. Therefore, CBI is a police force exercising the powers of investigation of the police when dealing with a criminal case. This governs the Ishrat Jehan case also. The only duty of the CBI is to arrive at the truth, not to try and mould evidence to fulfil a predetermined theory of who is guilty, in this case the Gujarat Police.

The Intelligence Bureau does not have a mandate to investigate offences. It is not governed by the rules of evidence as prescribed by the Indian Evidence Act, it does not have police powers and, therefore, does not have to follow the procedure laid down in chapter XII, Cr.P.C. It has no power to prosecute and, therefore, it has no interaction with courts. At the same time, it has at its disposal agents who can obtain human intelligence, it has electronic devices for intelligence collection, it has friends and well wishers and, perhaps, double agents to obtain information and it has other sources, primary and secondary, through which information is collected which might be of interest to India. It is the job of IB to sift through all this matter and then identify that which is of relevance for maintaining the security of India. There are many ways through which intelligence is collected. For example, in Britain, SIS had a whole psychiatric and psychological division during Second World War, whose main objective was to study the psychology of enemy leaders, including Hitler and thereon build a portrait which would enable the Allies to predict how Hitler and other leaders would react to a given situation. The psychological warfare division was then required to suggest counter measures which could psychologically neutralise the enemy. The work of an intelligence organisation, therefore, is to develop sources of information, quite often totally informal sources, collate and analyse the information and then suggest alternative methods of neutralising any adverse action against India which the information indicates.

The world of intelligence and espionage is grey, hazy and all outlines are blurred. The world of investigation is aimed at bringing into sharp focus facts which can be proved in a court of law, to create a realistic image of a criminal, bring the criminal to justice and by presenting proof of guilt, obtain a conviction. We now, therefore, have one world which is spooky and with blurred outlines, with a combination of fact, fiction and imagination and, through analysis, a course of action which can neutralise all adverse influences and factors. This is so vastly different from the world of investigation that the two must be kept resolutely and definitively apart. Investigation has to live in a glare of public scrutiny in order to prove its credibility, but intelligence must at all times be anonymous and secretive.

Intelligence is a matter of probabilities based on such information inputs as are available. An intelligence agency has to sift the probable options, but cannot ignore them, however outlandish. Every time a terrorist strike takes place, whether in Bombay on 8th November 2010, or in Chhattisgarh on 25th May 2013, whether a bomb blast takes place or Pakistani intrusions are there in border areas, the first cry is that there is an intelligence failure. Should intelligence agencies, therefore, pass on every bit of unverified information and constantly cry wolf? Or does the agency restrict itself to passing on only that which is possible and most likely probable, inviting the criticism that for the time when verification was being done the intelligence agency held back information which, if it had been passed on in time, could have prevented an incident?

Because intelligence officers work in a grey area, because their identity and outline must be hazy so that individuals are not compromised, all intelligence agencies work in the background and try and merge into it. The police and CBI seem to delight in discussing in public every stage of investigation. An intelligence agency by definition must remain in the dark, must not discuss its operations and must pass on information which can be acted upon. An intelligence agency works on the twin premise of “need to know” and “deniability”. This means that only those who need to know should be privy to information and at all times intelligence operatives and agencies should be in a position to credibly deny any statement attributed to them. Under no circumstance should an intelligence agency or an individual officer reveal sources because a compromised source in the world of intelligence is as good as a dead source. That is why no intelligence agency ever acknowledges as its own any of its agents who have been caught and charged with espionage. This is a part of the doctrine of deniability and it must be respected. 

In the Ishrat Jehan case, the CBI is attempting to question the Special Director of IB, with a view to making him an accused, on account of some intelligence report he is stated to have given. By its very nature an intelligence report has to be confidential and it is the job of IB and CBI to respect this confidentiality. Nor can such a report be used to incriminate an IB officer. This would be contrary to the provisions of Article 20 of the Constitution which prohibits an accused person to be compelled to be a witness against himself, which is what revelation of the contents of an intelligence report would amount to. Such a document is not a confessional statement. It is not a document in the public domain and it is not a confession and in fact it is not a document which can be admitted as evidence at all under the Indian Evidence Act. If there is a case against the IB officer concerned it would have to be proved by evidence other than the intelligence report which has allegedly been made by the officer concerned. It is certainly not a public document as defined by section 74, Indian Evidence Act. 

There are certain fundamental questions which are a cause of concern. The Intelligence Bureau is charged with ensuring that the security of the State and the integrity of India is not jeoparadised on account of the actions of anti national and anti social elements. This can only be done by penetrating anti national bodies and collecting intelligence on the basis of which they can be neutralised. It is acknowledged that because this intelligence does not meet the test of proof as laid down in the Indian Evidence Act, a great deal of it may be misinformation deliberately planted by the enemy, information which has an element of gossip and information which may be dated and, therefore, no longer relevant. The Intelligence Bureau of course has to sieve out all questionable information, but at no stage can it afford to ignore a source which may not prima facie appear to be credible. Information which can be acted upon must be passed on to operational agencies such as the police and these agencies are required to act, albeit with caution. Even over reaction is better than no reaction or no information. To let the blame be on an IB officer because on verification the information turned out to be not very credible is ridiculous because any operational agency would be foolish if it paid no heed to intelligence reports. The report and the officer both must enjoy anonymity.

In the Ishrat Jehan case, the CBI is obviously under the twin pressure of a government hostile to Narendra Modi and the Supreme Court which pictures itself as St. George on a white charger out to slay the dragon of communalism in Gujarat. Therefore, CBI seems to have been swayed from the path of honest investigation as it is required to do under chapter XII, Cr.P.C. and has preferred to follow the trail of red herrings drawn across its path. This has led to direct confrontation between CBI and IB, which does not bode well for the future of India’s security. 

How can the situation be remedied? The Supreme Court insists that government should have nothing to do with CBI. The logic of this completely defeats me because whether the Supreme Court and the so-called activists like it or not, the CBI is a police force and is neither above nor below any police force. In fact, in view of the Seventh Schedule of the Constitution, List 2 which makes police a State subject, even the existence of CBI as a legal entity is very much in doubt. Because the CBI is a police force, superintendence over it must vest in government and whereas it has to enjoy complete legal autonomy in investigation of offences, its accountability has to be to the government, which must have the power to take action if such accountability is not properly discharged. Superintendence can never be passed on to anyone other than to an executive authority. Under Article 227 of the Constitution, superintendence over all courts vests in the High Court and this superintendence cannot be diluted. Under the Indian Police Act and even the Model Police Act drafted by the Soli Sorabjee Committee, superintendence vests in government. CBI cannot have a separate provision because it is, when all is said and done, a police force. The parameters of superintendence can be laid down and in fact that is exactly what the Soli Sorabjee Committee has suggested. The exercise of superior powers by government has to be as per prescribed laws, rules and regulations and cannot be arbitrary, but the ultimate accountability has to be to government and government must be armed with powers to ensure that not only is there accountability but there is action for failure to discharge it. It is because by various pronouncements, the Supreme Court has made the concept of CBI’s accountability somewhat hazy that CBI is running riot by acting on the one hand as the hand maiden of the party in power and on the other hand by misusing its police powers to harass rather than investigate. We must let the Intelligence Bureau perform its function without fear or favour and under no circumstances should we either jeopardise the source of information nor use this information to incriminate IB officers. This has to be made very clear to CBI because if it continues in its present attitude, the country’s intelligence set up will be damaged. Let government step in immediately to protect IB and to remind CBI of how it must function as a police force. This intervention must be effective and any officer who defies government must be immediately sacked, even if it be the Director, CBI himself. 

The present anarchy that prevails in CBI functioning is very disturbing, especially in the context of federalism. In British days, the Centre had very few policemen to call its own. It had the Agency Police in the Princely States to perform Railway Police functions and to enforce the writ of the Resident. It had a couple of battalions of the Crown Representative’s Police, the CRPF of today, to help the States to maintain order, but for the rest, the executive force was the Provincial Police. Because the objective of government, Central and Provincial, was the same, the maintenance of imperial rule, there was mutual trust. Today there is no trust between the Centre and the States and, therefore, we have huge numbers of Central Armed Police Forces over whom the States have no control, with the State Police Force being deliberately allowed to run down and become ineffective. If they are partisan, unfortunately, so are the Central Forces, with one ethos being applied to Gujarat and another to Assam. The answer to mutual distrust is not more centralisation. It is meaningful Federalism in which both the Centre and the States feel part of a larger whole. It is what Babulal Gaur, then BJP Chief Minister of Madhya Pradesh told a somewhat discomfited Mrs. Sonia Gandhi when Arjun Singh took him to meet her. Gaur said, “Rest easy, Madam. I have not come to in any way embarrass you, but to remind you that Madhya Pradesh is part of India”.

The tragedy is that gradually the Centre has taken over even forensic investigation and left the State Police high and dry. As the police’s impartiality becomes doubtful, so its capability declines, so the Centre inflates CBI and creates the National Investigation Agency (NIA). The CBI of today is not the Force of D.P. Kohli. The downfall of CBI was censured by D.Sen who, as Director during the Emergency, sank it to a depth which makes the Mindanao Deep look like a shallow trench. The same CBI, which became Indira Gandhi’s hatchet, then turned on the Congress when Janata Dal came to power. I am witness to this because in 1978-79, when I headed the Delhi Development Authority, my permission was sought to prosecute, amongst others, Jagmohan, my predecessor, along with Sanjay Gandhi, for demolitions at Kapashera and Andheria Mod. The supervision note written by the S.P. concerned read, “ The purpose of this investigation is to bring home offences under sections 427, 442, 448, 145, 147, 34 and 120B IPC against Sanjay Gandhi, Jagmohan, Ranbir Singh and others”. B.R. Tamta, the Municipal Commissioner of Delhi at whose behest and as whose agent DDA had carried out demolitions, was spared because he had agreed to turn approver. This is not permitted to the police under chapter XII, Cr.P.C. Pardon can only be granted by a Magistrate at the time of enquiry, investigation or trial, but only in a case triable by a court of session where the minimum sentence is seven years imprisonment. The maximum sentence under the sections with which the accused were charged in this case is three years and, therefore, Tamta could not have been pardoned. I, therefore, refused permission because the investigation was tainted and biased against Sanjay Gandhi and Jagmohan.

The CBI then, through its Special Director, R.D. Singh, tried to browbeat me, going to the extent of threatening me. The lasting impact on me was that the Force has degenerated to an extent where it needs to be disbanded and then reconstituted to become an impartial, professional instrument for investigating complex crimes, but always in partnership with the State Police. Today the CBI is targeting Narendra Modi. Will Sonia Gandhi be the victim tomorrow? The case against the Special Director, IB, is obviously only a means of reaching Modi. This is disgusting.

If IB starts hitting back, we may have a turf war in which both national security and control over heinous crime will suffer devastating body blows. Government can no longer remain a silent spectator. The time for action is now.

Use and Misuse of Public Funds: Some Questions Which Must be Asked

Dr M N Buch, 

Dean, Centre for Governance and Political Studies, VIF

Recently Rahul Gandhi visited Bhopal for a day on purely Congress Party work. He did not come by a normal commercial flight, the fare of which he could have reimbursed as a Member of Parliament. He came by a special aircraft and for his personal protection a bullet proof armoured vehicle had been sent in advance from Delhi by train. Naturally he was accompanied by his SPG escort and more than one thousand policemen were deployed for his protection and general bandobast. He travelled in a convoy of several cars, piloted and escorted by the police and barricades were erected for crowd control. I cannot think of the Chairman of the Labour Party in Britain travelling in that country in such style and at such a great expense. In Delhi the Sonia Gandhi family maintains a life style which undoubtedly must cost a great deal of money, certainly more than can be afforded by the emoluments earned by her and Rahul Gandhi as Members of Parliament. The question which the people of India must ask is, “Where is all this money coming from?”

I am not targeting Rahul Gandhi or the Congress Party because every party and every leader does exactly the same thing. The BJP President Rajnath Singh travels by special aircraft and helicopters as do Mulayam Singh Yadav, Lalu Prasad Yadav and leaders of the parties in the Southern States. The Congress Party is supposed to be the richest political party in India, followed by BJP and CPI (M). If we take the population of India as being 120 crores, including adults and minors, if a party were to collect five rupees per head that would still come to only Rs. 600 crores. Considering the life style of our leaders, the cost of their travel, the huge amounts spent during elections, it is obvious that parties and party leaders are accepting money from business houses, whereas their followers are extorting money from smaller businessmen. Why should a business house give any money to any politician unless he is convinced that this is a form of investment which can be encashed at huge profit, to the advantage of the politicians also for overlooking the malpractices of the business house? One is told that the House of Tata refuses to pay bribes and I am prepared to accept that the family of Jamnalal Bajaj, mainly Rahul Bajaj, would also be principled in this behalf. But that is not true of most of our business houses and, therefore, party funds are very largely dependent on contributions from black marketeers, people indulging in illegal business and business houses, some on the make but most who know that if they are to survive they have to please the politicians. This is the root cause of corruption and surely the question must be asked, “Why are parties and politicians sourcing funds from businessmen and why are businessmen doling out such huge amounts?’

In my family we three brothers were in the IAS (the middle one died when he was just 52 years) and my wife was also an IAS officer. She, my youngest brother and I are pensioners and no doubt after the Sixth Pay Commission the pension is enough for us to live reasonably comfortably. It is not enough to afford luxury, which is why my wife is unable to replace her eleven-year old car. In some ways we are fortunate because there is a huge escalation in land value and the house which I built in 1975-76 cost me just about rupees three lakhs, including the cost of land, which is now worth crores of rupees. However, I cannot think of acquiring more property at today’s prices. On the other hand most of our politicians have acquired assets for which there is no logical explanation in terms of what they earn. For example, a Chief Minister of Arunachal Pradesh once told me that his Industries and Excise Minister, who belonged to a particular tribe, came from a poverty stricken household but he now owns a hotel in Itanagar, properties in Guwahati, Delhi and Bombay and is an extremely wealthy man. I can give any number of examples from Madhya Pradesh of politicians who could not afford a bicycle now owning several cars, others who could not afford a one room tenement having luxurious bungalows and commercial properties, with their wives being loaded with jewels. Where does all this money come from? Elections cost huge sums of money and it is obvious that political parties cannot afford to give every candidate crores of rupees for an assembly or parliamentary election. A person who has spent rupees five to ten crores to win a parliamentary seat has obviously to collect money by illegal means in order to recoup what he has spent. He becomes corrupt, he corrupts the system by forcing his civil servants to assist in collecting money, the civil servants in turn find that it is lucrative to be corrupt on their own, unscrupulous contractors and businessmen take advantage of the corruption of the bureaucrats and the politicians and, therefore, spurious drugs and liquor are sold and kill innocent people, the roof of a hospital collapses with patients occupying the premises, a Dawood Ibrahim flourishes and scams occur on a national scale.

Let us carry the analysis further. There are two phenomena which one does not find in most developed economies which are also democracies. Newspapers such as Le Figaro, Washington Post, The Times do not carry several one-page advertisements celebrating the birthday of some leaders, highlighting by way of an advertisement the speeches of a Chief Minister or lauding appointment of some political leader to a post in government or in a government corporation. There are no hoardings and ceremonial gates put up all over the city because an office bearer of a political party is paying it a visit. There are no bill boards or hoardings at street corners and along public roads containing the portraits of politicians and celebrating something relating to them. That is the way of dictatorships. The Nazi Party rallies at Nueremburg, the portraits of the Great Leader adorning the streets of Pyongyang, the statues of Stalin and Lenin in the Soviet cities are all hallmarks of Fascist and authoritarian Communist societies. The situation in India far exceeds anything that was found in Nazi Berlin, Mussolini’s Rome, Franco’s Madrid or Kim Il Sung’s Pyongyang. It goes even further than Mao’s Beijing. The sycophancy and the prostration before the leaders is so sickening that one is sometimes ashamed to be an Indian. In a democracy the citizen is supreme, the system of politics is multi-party, the voter decides who governs us and the Constitution prescribes how we shall be governed. Party leaders individually count for nothing and even so powerful a person as Margaret Thatcher would have been laughed out of court if, for example, she were to visit Liverpool at the height of her power and her party tried to plaster the city with her portraits. Why, then, does India, which calls itself the world’s largest democracy, have a culture of what is nothing short of idolatry with regard to its political leaders? The media, the party workers, the bureaucrats, the political parties themselves and, sad to say, citizens at large are guilty of this miasma which has overtaken our society and our politics. We must ask the question why this has happened and we must root out this toadyism lock, stock and barrel.

Advertisements in the newspapers in favour of our politicians cost a great deal of money, may be about rupees two crores for a full page advertisement in a national newspaper. Where is the money coming from? Who pays for the banners, posters, ceremonial gates, the tonnes of flowers when a person like Advani, Rahul Gandhi, etc. visits a city? Quite apart from the waste there is also the case of the corruption which accompanies such expenditure, all of which is ultimately paid for by the common man. Why are we not asking for an immediate end to this practice? As a young District Magistrate I have had visits of Jawaharlal Nehru, Indira Gandhi, Morarji Desai, Jaiprakash Narain and others to my district headquarters. What we see today did not exist then and certainly politicians were much simpler in those days and more austere. We have to return to the days of sane politics and people must insist on this.

We can no longer hide behind the ‘purdah’ of democracy when dealing with corruption. I, as a citizen, would like know why the cases of disproportionate assets against Mulayam Singh Yadav and Mayawati, both in Uttar Pradesh, have been pending for so long. The allegations do not relate to some obscure tale of illegal funds passing through a confusing maze of transactions in Mauritius, a West Indian island, anonymous banks in Switzerland or Luxembourg. They relate to tangible immoveable assets in India, to cash payments, bank balances and jewelry. The allegations are false, in which the case should be closed, or they are correct, a prima facie case exists and the matter should be challaned before a court of competent jurisdiction. Instead the Delhi Police Special Establishment (popularly known as CBI) digs up or buries the cases from time to time according to the need for the support of the Samajwadi Party or Bahujana Samaj Party when things become dicey in Parliament. That CBI is professionally incompetent, its officers are not above corruption and its is extremely selective, depending on what government wants, in prosecuting offences, is well known. The Supreme Court bravely states that it will free CBI from political control. Why does the Supreme Court not ask the Inspector General of the Delhi Special Police Establishment, who is a legal entity, also known as the Director of the Central Bureau of Investigation, which is only a non statutory executive agency, to read Chapter XII of the Code of Criminal Procedure, 1973? In the matter of recording of FIR, investigating an offence, apprehending accused persons, collecting evidence, arriving at a conclusion whether a prima facie case does or does not exist against the accused person or persons and then deciding to either challan the accused in court or to submit a final report seeking permission to close the case, the police has complete and absolute legal autonomy. Only a superior police officer has the power to supervise a case under section 36 Cr.P.C. and section 158 Cr.P.C. However, even a superior police officer cannot direct that the investigating officer excludes from his investigation a person against whom there is a prima facie case, or include in the charge-sheet a person against whom there is no evidence of a prima facie case, challan a case in which there is no evidence that an offence is made out or submit a final report for closure in a case where there is enough evidence for a charge-sheet. No one, minister, civil servant or superior police officer can make an investigating officer delay an investigation or make a false investigation. That provision already exists under the present law. Even if the law does not specifically state that a Law Minister or an officer of government is debarred from interfering in an investigation, there are any number of decisions of the Privy Council, our High Courts and the Supreme Court which makes this amply clear. What other autonomy does the Supreme Court intend to confer on CBI? Will the greatest respect to our courts my submission to them is to use their judicial power to make officers, including police officers, function according to law instead of making statements about how they intend to liberate officers or organisations from the control of government.

I think a question must also be asked of the Executive as to why it has abandoned its executive functions. Despite what some police officers like to believe, the police is part of the executive arm of government, whose existence is determined by laws enacted by the Legislature, whose authority and functions are prescribed by such laws and whose accountability and subordination are both determined by law. Let me give one example. The Supreme Court is insisting that the police should not function under the control of government. Superintendence over the police vests in government and must continue to do so. The power of superintendence does not mean micro management of the police, but it does mean that the framework of policing, the objectives of policing and the broad policy relating to the methods of policing will be laid down and prescribed by government through rules, regulations, manuals and standing orders. In the ultimate analysis the Minister in charge of Home is accountable to the Legislature for the manner in which the police functions and neither the Supreme Court nor any other authority can dilute this accountability of the Ministers. Suppose the police exceeds its powers, misuse its authority, harasses citizens, indulges in excessive force in dealing with a law and order situation, fails to deal with crime because it is corrupt or incompetent and questions are raised about this in the Legislature. Can the Home Minister turn around and say, “I have no control over the police, I cannot shift an officer, I cannot punish him until some prescribed authority permits me to do so?” The legislators will then demand a change in the law and if this demand is supported by the majority, the law will be changed.

What we need is a balance between the authority of the Executive, the role of the Judiciary in ensuring that all executive arms, including the police, function according to law and for the police to be operationally autonomous so that it can fulfill its task of maintaining order, preventing crime and quickly detecting and prosecuting offenders. This calls for restraint, rational thinking, proper legislation, competent executive functioning and vigilance on the part of the Judiciary which, in the present surcharged environment, is no where visible. The question which people must ask is “Why is this so?”

Good government is a function of a proper balance between the Executive, Legislature and the Judiciary. It is equally a function of integrity, honesty in the matter of working and efficiency and competence on the part of the constituents of the State. I consider the role of the Legislature and the legislators pivotal because it is this body and these persons who, because they are constituted by the freely cast vote of the citizens, are the key components of a representative democracy. Legislators have a constitutionally defined role and that consists of enactment of laws which are in the public interests, approval of the annual budget and individual items of expenditure and grants to meet such expenditure and then maintaining a watch over government to ensure that it functions in a manner such that the funds allotted to it by popular will, expressed through the representatives of the people, are properly utilised. This is done through questions, resolutions, debates, call attention motions, adjournment motions and through functioning of the Public Accounts Committee, the Estimates Committee and the various standing committees for different departments, which all call government to account. At every step the Executive is accountable to the Legislature and if legislators were to do their duty the end result would be good government. But the fact is that the legislators do not do their duty, most sessions of parliament are heavily interrupted by agitations, there is very little meaningful debate in State Legislatures or in Parliament and most legislators are more interested in getting executive posts or in interfering in the day-to-day working of the Executive by demanding postings and transfers, insisting on work being done according to their whims and fancies and using the bureaucracy as a means of making money rather than in attending to legislative business. Should not a question be asked why the legislators do not perform their legitimate function and instead make it impossible for the bureaucracy to function? Should we also not ask why the bureaucracy has become so used to this situation that it has now become a willing partner in what ultimately leads to wholesale corruption?

We have been silent too long and an Anna Hazare fasting to end corruption, an Arvind Kejriwal jumping around and agitating, a Prashant Bhushan filing public interest writ petitions do not even scratch at the problem. We need a massive upsurge of public anger which would tear down the posters of our leaders, dog their footsteps when they talk nonsense in public and insist on an austere style of living and functioning of the politicians and the civil servants. That will bring us back to the early days of independence, when India looked to the future with hope, the politicians still imbued with a sense of Gandhian morality and the civil servants enthused by and proud of their role in building a new and prosperous nation.