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Police and the Constitution
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The developed nations depend upon the large market in the developing nations to sustain their industry. Their object will be to make the developing nations develop just enough to be good buyers but not rich sellers. The race for leadership among the forward nations will motivate efforts to destabilise the developing nations by subversive forces activated within the nations.
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THE INDIAN police system, when it was first conceived by the British rulers, was meticulously designed, structured and honed to enforce law and public order primarily for sustaining the foreign rule. As part of the strait-jacket administration that was put in place soon after the patriotic uprising of 1857 by some sections of Indian soldiers against the British command, it had functioned as a loyal adjunct of the government for over 140 years.
The statutory basis for the Indian police is the Police Act of 1861 which put the police squarely under the control of the government. The position has remained the same after Independence. The old Police Act continues to be law without being replaced by any fresh legislation to fit our democracy after Independence.
Constitutional provisions
`Public Order' and `Police' figure as entries 1 and 2 respectively in the State List in the Seventh Schedule of the Constitution. Each State has, therefore, exclusive power to legislate in regard to its police system and also has full administrative control over the police in the State. The Central Government can exercise similar power in regard to `Public Order' and `Police' in the Union Territories only. Under entry 80 of the Union List, the Centre has powers to extend the jurisdiction of the members of the police force of one State to another State, but it can be done only with the consent of the latter State.
Under entry 2A of the Union List, the Central Government has power to deploy any armed force of the Union or any other force subject to the control of the Union or any unit thereof in any State in aid of civil power. Powers under this entry are invoked only in a serious emergency when the civil authorities in a State request the assistance of the armed forces of the Union for maintaining public order.
Officers of the Indian Police Service, which is an all India service constituted under Article 312 of the Constitution, provide the leadership for the police force in each State. Disciplinary control over IPS officers is shared by the State Government concerned and the Central Government. While minor punishments can be awarded to an IPS officer by the State Government, major punishments like dismissal or removal from service can be awarded only by the Central Government. However, in the day-to-day administration of a State, all matters of promotion, posting and transfer of IPS officers at all levels within the State are handled exclusively by the State Government concerned. The Centre exercises similar powers in regard to IPS officers working under the Central Government.
Entry 8 of the Union List mentions `Central Bureau of Intelligence and Investigation'. Acting under this entry, the Central Government runs the Intelligence Bureau and the Central Bureau of Investigation under its full administrative control and direction. While officers of the Intelligence Bureau have no police powers and are solely concerned with collection and analysis of intelligence relating to national security, officers of the Central Bureau of Investigation exercise police powers to make regular inquiries and open investigations into certain specified offences, notified by the Central Government. They get these powers under the provisions of the Delhi Special Police Establishment Act of 1946 which is the statutory base for the Central Bureau of Investigation. Since it acquires the character of a police agency under this Act, the jurisdiction of the Central Bureau of Investigation normally extends to the Union Territories only. It can exercise its powers in the States also, but that will require the concurrence of the State Government concerned, as stipulated in entry 80 of the Union List. At present, the Central Bureau of Investigation faces difficulties whenever some State Governments show reluctance to give concurrence for the CBI to function within the State in respect of some sensational cases which have political significance in the State.
Internal subversion
With the sprouting of democratic instincts and urges in mankind in modern times, conquests of nations by war and ruling them by force have become almost impossible. Hegemony is at present sought in trade and commerce. Threat to national security will now emanate from sources which seek commercial dominance over a nation. The threat will be not so much to overrun and rule the nation but to render it economically weak and make it a debtor nation in the world market. The developed nations depend upon the large market in the developing nations to sustain their industry. Their object will be to make the developing nations develop just enough to be good buyers but not rich sellers. A developing nation will become economically weak and financially anaemic if its society and its governance are not sufficiently stable to plan and work for sustained development. The race for leadership among the forward nations will therefore motivate efforts to destabilise the developing nations by subversive forces activated within the nations. This is most likely to be the underlying strategy in all international relations in future. National security will now be threatened more by internal subversion than by external aggression. It is important to note that while external aggression will involve overt militant activities, internal subversion will involve covert and subtle measures which may go unnoticed by the people at large. This is the real danger in present times.
Our defence forces cannot possibly operate inside the country to deal with internal subversive activities abetted by the enemy's intelligence agencies. This is essentially the job of the police. Volunteer groups of civilians should be specially constituted and briefed to remain vigilant with regard to such subversive activities in different areas of community life, and cooperate with the police to nip in the bud any act of internal subversion.
Disturbances to public peace and public order have acquired new and complex dimensions in the recent decades. All political parties have increasingly taken to agitationist politics and frequently organise aggressive demonstrations on various issues from time to time impinging on public life. Sometimes issues of all India significance are also taken up for such agitations. The resulting public order situation in the States concerned poses serious problems and requires to be handled under coordinated and controlled directions from a Central authority. The need for such coordinated control becomes greater when State Governments happen to be run by different political parties with differing ideologies which induce different approaches to the issues involved. The very integrity of the country may get threatened if the agitations in a State tend to have a secessionist dimension. Terrorist groups and militant extremists operating at present in some States pose a serious threat of this nature. In such situations it is very necessary for the Centre to have a statutory role and responsibility to give directions to the police in the State. At present, with `Police' remaining in the State List, the Centre has no powers at all to make such an intervention, except when the entire State administration is taken over by the Central Government and put under President's rule under Article 356. The Constitution does not provide for Central intervention in regard to the police in serious situations which may fall short of requiring a proclamation by the Centre but may pose a potential threat to the security and the very integrity of the nation.
Hindu-Muslim tension, which is endemic in certain areas, has been sharpened by the Pan-Islam movement which is emerging in some parts of the world. The Mandal Commission's report has aggravated inter-caste animosities in several areas. These developments have generally added to the problems of internal security on a nationwide basis. This situation also calls for a monitoring role for the Central Government in police matters.
Centre's role
The nexus between terrorists on the one hand and smugglers and drug traffickers on the other has added a new dimension to the internal security situation. Internal drug traffic involves big business and high stakes. While terrorists may have political objectives, smugglers and drug traffickers do not, and need not, have a political label. They are out and out unscrupulous groups with the sole aim of making money. Therefore, a smuggler's network, once established, will continue to flourish irrespective of political changes in the country. The administration gets systematically corrupted by them at various levels. It will require a specially trained and well-motivated task force with officers and men drawn from police, excise, customs and enforcement directorate to tackle this menace. Command, control and direction of this task force should be in the hands of a specially chosen officer who should have full access to all the intelligence that may become available to different enforcement agencies in the field. The officer should preferably work directly under the Prime Minister in the Cabinet Secretariat in Delhi. A legal framework for such a set-up will be possible only if there is a constitutional provision that recognises Central Government's role in this important and sensitive matter.
In view of the developments on the national scene as mentioned above, it is recommended that a new entry may be introduced as 3A in the Concurrent List in the Seventh Schedule with the following narration:
"3A. The internal security and integrity of the Union or a State, including control and direction of the police in matters connected therewith."
Consequent on the addition of the above entry in the Concurrent List, entry 2 of the State List may be amended in the following manner:
"2. Police (including Railway and Village Police) subject to the provisions of Entry 2A of List-I and Entry 3A of List-III".
The additional entry recommended above will also facilitate Central intervention in police matters to ensure effective enforcement of human rights or fundamental rights guaranteed in the Constitution whenever it is found that the matters have not been competently and effectively handled by the State police agencies owing to reasons traceable to the predilections of the State Government or other local pressures and prejudices.
C. V. NARASIMHAN
Former Director, CBI
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