The Hindu : Bureaucracy beware

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Tuesday, Sep 16, 2003

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Bureaucracy beware

By R.K. Raghavan

The Best Bakery case has renewed concerns about the relationship between the police and the prosecution... the two could conspire to sabotage justice in its widely perceived sense.

THE APEX court's stern observations — somewhat reminiscent of the Hawala case of six years ago — on the manner in which the Best Bakery riot (March 1, 2002) of Vadodara was investigated and prosecuted by Gujarat agencies, and the callousness shown in drafting the State appeal against the Sessions Court judgment that acquitted all the accused, leave no one in doubt of extreme judicial annoyance. The court appeared to be speaking also in sorrow that a matter of great public importance was being handled in such a cavalier fashion. This is probably the lowest point that criminal justice administration could ever reach.

You will appreciate it that we are here dealing with the death of 14 innocent persons for which not even a single person will be punished, as things stand now. Twenty-one, whom the State Police believed were guilty of the horrendous crime, have gone scot-free, thanks mainly to 37 of the 43 prosecution witnesses turning hostile. It is said that none of the witnesses was cross-examined by the prosecution as to why they were going back on their earlier statements. The Bench rightly reacted to the shocking conduct of prosecution thus: "There appears to be some collusion between the Government and prosecution in a case where 14 people were burnt alive." There cannot be a more damning indictment of the government and the prosecutor. If the lower court judgment does not get reversed, the mafia that operates in many parts of India will pick up further courage to perpetrate more violence on hapless citizens. Such an unedifying outcome will cut at the roots of constitutional government by which most of us swear. I am afraid we have a substantially large and awesome group in the country, both in the establishment and outside, that is working overtime to erase law and order and which scoffs at many of us, even as we pontificate on justice and punishment of the guilty.

Both the apex court and the NHRC, which incidentally brought the matter before the former, deserve the gratitude of the populace. By all accounts, Chief Justice V.N. Khare is one of the finest we have had for some time. He is known not only for his judicial prowess but for his marked sensitivity to human suffering as well. The NHRC Chairman, A.S. Anand, like his distinguished predecessor, J.S. Verma, has shown tremendous activism during the short period he has been in office. Law enforcement agencies and other public institutions that harbour dishonourable intentions may have cause for alarm at this formidable combination of forces. Those who carry a heavy baggage of misdeeds are undoubtedly going to have a torrid time at the hands of the apex court and the NHRC. The good among those entrusted with governance in the country, be they politicians or civil servants, will however have nothing to fear. They should welcome this convergence of forces, because this alliance of superior judiciary and human rights agencies will perforce keep them firmly on the rails of law and virtue, and distinctly away from the temptation to stray. As one who had been in government for nearly four decades and watched how some persons in high places conducted themselves, I can vouch for how alluring the temptations to indulge in an abuse of office are and how difficult it is to resist them.

The apex court has summoned the Gujarat Chief Secretary and the DGP to appear before it on September 19. This is mainly to fix accountability for what it considers to be a shoddy appeal petition. When they do appear before the Court there could be a lot of shifting of blames and attempts to pass the buck on to the Law Department. We are not concerned here with such bureaucratic wrangles. Much graver issues are at stake. It is my conjecture that the Court will avail itself of the occasion to try and mend the problem as much as it can. This is because the Best Bakery case has renewed our concerns about the relationship between the police and the prosecution, and how, instead of working for the common good, the two could conspire to sabotage justice in its widely perceived sense.

I am pained by this turn of events because I am one of a minority that is against the total separation of the prosecution from the police. Section 25 (3) of the Criminal Procedure Code, 1973, no doubt says that no police officer who had investigated an offence be appointed to prosecute the accused charged with the same offence. This has unfortunately been taken too literally to keep the two totally away from each other. The CBI experience of keeping the prosecutors in house has been very happy, and it was only recently that a minor compromise of converting the Legal Adviser of the CBI into a Director of Prosecutions with a measure of autonomy was effected. The Tamil Nadu arrangement wherein a Director of Prosecution, invariably a senior police officer of the rank of Inspector General, exercises administrative control over Assistant Public Prosecutors has generally worked well. The latter's court performance is kept in view and everything is done to ensure that investigating officers from the police give their best to APPs so that the prosecution case is presented coherently. I do not believe that the Director of Prosecution ever goes into the facts of each case, an action that could be unethical. He merely ensures that no case suffers from a lack of teamwork between the investigator and the prosecutor. My fear is that the Best Bakery episode could unwittingly lend strength to those trying to insulate prosecutors totally from the police. In my view this will only further dilute the already poor quality of police investigation, as it is well known that many police officers stand to benefit from guidance by prosecutors even during the course of investigation. Nothing should be done that will break the team.

The Best Bakery case once again illustrates the perils of executive overlordship of the police. The desire to keep the latter permanently a vassal of the executive is one that cuts across party lines, and in spite of the recommendations of several reform bodies — the most prominent of which is the National Police Commission (1977) — to get rid of this archaic administrative arrangement, light at the end of the tunnel is yet to be seen. We will have many more of the kind of the Best Bakery case till police accountability only to law and no one else is firmly established by statute. There is a malicious propaganda that conferring such operational autonomy on the police will impair accountability. Nothing can be farther from the truth.

The whole matter is hanging fire before the apex court for several years. In the context of the Best Bakery case, there is now a new urgency to resolve this contentious issue. The PIL filed by a former Director-General of the Border Security Force for directing the executive to implement the recommendations of the National Police Commission is pending before the Apex Court. Readers may recall that the NPC had recommended the setting up of a State Security Commission (headed by the Minister in charge of Police) that will monitor police performance and also look into complaints from senior police officers whenever they are subjected to illegal directions. It had suggested replacing of the Police Act 1861 with a new Act that will give the police greater freedom from executive control. The Commission had gone to the extent of drafting such a legislation and incorporating it into its report. Nothing has happened because of a lack of political will among States.

There is great expectation that the apex court ruling on the PIL, when it comes, will focus on enhancing police autonomy, and therefore its professionalism, within the contours of a democratic polity. I am not for a moment suggesting an autonomy that will scuttle democratic governance envisaged by the Constitution. What I have in mind is a framework in which police actions will be tested by processes prescribed by law and not by what the executive fancies. Here I reflect a consensus, which believes that in the present scheme of things there is no point in blaming the police for buckling under wrongful executive directions. If the apex court's decision on the PIL confers abundant freedom from executive threats, the police will no longer have any excuse for lapses and illegalities flowing directly from their commissions and omissions. Actually, in such an ambience, they may be expected to behave better, and also perform better than they do now.

(The writer is a former Director of the Central Bureau of Investigation, New Delhi.)

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