SEARCH

Opinion » Lead

Updated: August 21, 2013 00:12 IST

A charter for the CBI

A. G. Noorani
Comment (18)   ·   print   ·   T  T  

Immediately after Madanlal Pahwa exploded a bomb at Gandhi’s prayer meeting on January 20, 1948, Jamshid Nagarvalla of the Bombay CID asked Bombay’s Home Minister, Morarji Desai, for permission to arrest V.D. Savarkar on the basis of Madanlal’s visit to him the week before. Desai angrily refused. Had he agreed, Gandhi would not have been assassinated by that gang on January 30.

Legally, Nagarvala was not bound to seek, still less follow, the Minister’s order; and the Minister had no business to instruct or order a police official. Both received their just deserts in 1970 from Justice J.L. Kapur, a former Judge of the Supreme Court, in his Report as Commission of Inquiry into the conspiracy to murder Gandhi.

Desai boasted in his testimony that after the murder, the investigation was conducted “under my direction.” Justice Kapur remarked that “directing the police how to carry out its statutory duties or any interference with the statutory duties of the police… is foreign to the notions accepted in countries governed by the Common Law. It is for this reason that both the Government of India Act, 1935, in Section 49 and the Indian Constitution, in Article 154, have excluded statutory powers performable by other authorities under an existing statute from the purview of the Provincial and now the State Governments; and the Code of Criminal Procedure was an existing law.”

S.49, then in force, and Art.154 are identically worded. They exclude from the executive authority of a Province (or State) “any functions conferred by any existing law on any court, judge or officer or any local or other authority.”

Justice Kapur rejected Desai’s claim to direct the police and give it the benefit of “my experience as a Magistrate.” He discussed in detail, in Chapter 8 of Volume 1, the law on “powers of a Minister and Ministerial responsibility.” It is directly relevant in the debate on the CBI’s powers.

It is a police force that we are talking about — armed with powers of investigation, arrest and prosecution. Freedom is perfectly consistent with accountability. The Report said “In the opinion of the Commission, although a Home Minister is in charge of the police and police administration and answerable to Parliament about it, still he has no power to direct the police how they should exercise their statutory powers, duties or discretion. Both under the Criminal Procedure Code and under the Bombay Police Act, the statutory duty is of the police both to prevent crime and bring criminals to justice. Therefore, the minister can and could only pass on the information of the commission of an offence to the police to investigate, so also in regard to the threats of the commission of an offence. If the Minister were to give orders about arrests, to arrest or not to arrest, that would be an end of the rule of law, as was said by Mr. K.M. Munshi. This view of the law has received recognition by our Courts in cases where a distinction is drawn between administrative control of Government and its powers of interfering with statutory powers of various statutory authorities…

Issue of interference

“There is a distinction between the constitutional responsibility of the Minister for the exercise of executive power in respect of public order, police and enforcement of Criminal law on the one hand and statutory duties of the Police and Magistrate to exercise powers vested in them by the Police Acts and the Code of Criminal Procedure. It is the constitutional duty of the Minister, as head of the Department in charge of the police, who are instruments of maintenance of public order and enforcement of criminal law, to ensure that the Police discharge their functions and exercise their powers properly and diligently. But beyond that, the Minister cannot go and issue specific instructions as to the manner of exercise of their statutory powers. That would amount to interference.”

The Home Minister is responsible to the legislature if there is “gross negligence or general failure or neglect to perform its statutory functions by the police in preventing the commission of offences or of bringing offenders to justice or there is a general failure to maintain law and order.”

The very foundation of the rule of law, a part of the unamendable “basic structure” of the Constitution, is a police force which is free from political interference. British works on constitutional law discuss the constitutional status of the police; Indian works discuss the police only in the context of Centre-State relations.

Justice Kapur cited the Calcutta High Court’s judgment in the famous “gherao” case which held that no government can interfere in the enforcement of the law of the land by the police whose powers are defined by the Cr.P.C. In a classic ruling, Lord Denning said, “I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected, and the honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted and, if need be, bring the prosecution or see that it is brought, but in all these things he is not the servant of anyone, save of the law itself. No Minister of the crown can tell him that he must, or must not, keep observation on this place or that, or that he must, or must not, prosecute this man or that man. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.”

The National Police Commission pointed out in its second report that, apart from the “political sources,” industrialists, businessmen et al also try to influence the police. S.3 of the Police Act, 1861 confers on the States powers of “the superintendence of the police force.” The commission noted that “in the guise of executive instructions… attempts have been made to subordinate police personnel to executive requirements.” Article 227 confers powers of “superintendence” over all courts and tribunals. It does not imply power to interfere unless the law is violated.

Legal status

The CBI was set up by a Government Resolution on April 1, 1963. It acquired a legal cover under the Delhi Special Police Establishment Act, 1946 — “a special police force” to be called “the DSPE.” On May 20, 1988, the Union Minister of State for Home and Personnel, P. Chidambaram, told a CBI Officers’ conference that the Centre was examining conferment of a legal status on the CBI. “Should it not get legal status to investigate or should we beg State Governments to give us consent to investigate?”

Section 6 of the [DSPE] Act of 1946 bars the CBI from exercising any of its powers in a State “without the consent of the Government of the State.” The Constitution makes “police” a State subject exclusively while the CBI is a Union subject. Unlike in the United States, all offences, whether under a Central or State law, are enforced by the State police. The Estimates Committee 1991-92 recommended in its 13th Report to the Lok Sabha on April 6, 1992, the “enactment of a new law laying down the organizational structure of the CBI, functions to be discharged by it, types of offences which it can investigate and providing for conferment of powers of Police laid down in Criminal Procedure Code, 1973, on the members of the CBI.” Also recommended was a constitutional amendment to provide for extension of the CBI to any State without the consent of its government. A draft Constitution Amendment Bill and a draft Bill on the CBI were sent to the Home Ministry on June 12, 1990.

Need to respect autonomy

It is unlikely that the States or political parties would consent to a Constitutional amendment. That is no reason for not giving the CBI a charter, to replace the archaic Act of 1946, delete the curbs imposed since, codify its status as a police force and define precisely the powers of “superintendence” which properly belong to the Union. Section 6A was introduced in 2003 to override the Supreme Court’s ruling in the hawala case. The CBI cannot conduct even a preliminary inquiry into an offence committed by Joint Secretaries “and above.” It must be deleted.

The government’s affidavit of July 3, 2013 in the Supreme Court offers to bar directions “to investigate or dispose of any case in a particular way.” This should be amplified in the light of the past record. The affidavit does not propose deletion of Section 6A. It proposes an Accountability Commission to probe into allegations of misbehaviour against a CBI official. State Police Acts should emulate this and also draw on the model of the Police Complaints Authority set up by S.83 of the U.K’s Police and Criminal Evidence Act, 1984.

Amend the law we must. But unless the political elite respects autonomy, we shall have a spectacle which drew Roy Campbell’s withering lines: “They use the snaffle and the bit all right, But where’s the bloody horse?”

(A.G. Noorani is an advocate, Supreme Court of India, and leading constitutional expert.)

More In: Lead | Opinion

Democracy is a painful process. Communists discarded it as it would
hinder achieving their goal.Veer Savarkar too was focussed on HIS goal
of driving away the British and countering the communalism of Jinnah but
chose the violent path to achieve his goal. Maybe at some point he felt
Gandhiji was a hindrance to his goal, and decided to do away with
ethics. Democrats will condemn him but autocrats may agree with him.

from:  S. Rajagopalan
Posted on: Aug 23, 2013 at 15:19 IST

Democracy is a painful process which is why communist eschewed it as
it would hinder their goals. Veer Savarkar too was of the same mindset
in getting rid of the Britishers and countering the communal card of
Jinnah. Naturally he was not with Gandhi but perhaps at some point he
felt it will be futile to strictly follow ethics in achieving HIS
goal. And may have considered Gandhiji as a hindrance. Democrats will
condemn him but autocrats will appreciate him. Only time can tell
which is right.

from:  S.Rajagopalan
Posted on: Aug 23, 2013 at 15:08 IST

What surprises me the most is that some readers do not find any
difference in "arresting" someone and "killing" someone. For them
arresting Savarkar to avoid killing Gandhi is same as "killing Ishrat
Janan" to save Modi and "killing Gandhi" to avoid Pakistan. What a pity!

from:  Mohit
Posted on: Aug 22, 2013 at 14:37 IST

Mr, Noorani deserves a Big Thank You for frequently writing cogent and thoughtful pieces on important public issues. I admire his commitment and energy. I don't believe he expects people to agree with him entirely but debate them. The problem with the issue Mr. Noorani raises in this article is well captured in his last paragraph. Unless our politicians repects the start respecting laws and change their behaviour, changes to laws would do little. God knows we have all the laws that we need on our books. What we need is to start living by them, especially our political and economic elite.

from:  Virendra Gupta
Posted on: Aug 22, 2013 at 08:25 IST

The initial statement of causality may be stretched indicates that if Gandhi was murdered 10 years too soon, there would neither be a Pakistan today, nor the Nehru-"Gandhi" dynasty.

from:  Niraj
Posted on: Aug 21, 2013 at 20:14 IST

Mr Noorani's obsession with Mr Savarkar is well known.By stretching his logic Modi's Gujarat Police can be justified in eliminating Irshrat in a fake encounter paving way for saving Modi's life.Mr Savarkar never believed in Gandhi's ahimsa and he was convicted and jailed for masterminding criminal assault against the British including killings.He also did not believe in wasting his life in jail.That was why he pleaded with the British and got out of jail to continue with his efforts to achieve his mission.For him end justifies the means.How far he succeeded in his mission is another matter.

from:  Ramakrishnan.P
Posted on: Aug 21, 2013 at 19:32 IST

This reminds me a scene from Anil kapoor's Nayak movie(2001) in which a police officer seeks permission from Amrish Puri(Chief Minister of Maharashtra,in the movie) to control riots. Well, this was just a movie scene but In reality it could be dangerous for the law enforcement of the nation which is having largest democracy in the world. The fear of suspension and any official or unofficial harassment restrains the police officials or government bodies to take action of their own. In modern india where media daily exposes thousands of crore rupees scams by politicians and no proper scrutiny, CBI should have an autonomous designation, So that the organisation can work effectively and under the law only. This same was demanded by Anna Hazare and Mr. Arvind Kejriwal, but government is showing no bodes of this favour. Law amendments are the need of the day and i hope the day would be close when CBI would work independently and would be answerable to law only.

from:  Manpinder Singh Saini
Posted on: Aug 21, 2013 at 18:09 IST

The political elite in this country are afflicted with a feudal mindset. They assume that they are the masters of all the public servants, not just the police force. With this mindset deeply entrenched in our polity there is very little that we could expect in reforming administration of bureaucracy including our police force.

from:  Santosh Hatwar
Posted on: Aug 21, 2013 at 18:06 IST

Why isn't Mr. Noorani talking about the blatant misuse of the CBI in recent times, so much to the extent that the very institution that he served - the SC - was forced to term it a "caged parrot"? And as the CBI is a "central" undertaking, shouldn't some questions be directed to the party that was most in power all along?

from:  Luhar Sen
Posted on: Aug 21, 2013 at 17:43 IST

Neatly and elegantly written . Even a layman like me can understand the importance of law as well as the the way our politicians dabbled with our police force

from:  Sowmiyanarayanan
Posted on: Aug 21, 2013 at 17:23 IST

Your initial statement makes a point that Gandhi would not have been killed had Savarkar been arrested does not make sense. There is no proof to state that Savarkar was involved with Godse. Second, how will you justify such an arrest without any evidence? On the pretext that someone might be killed? Ridiculous.

from:  Srikanth
Posted on: Aug 21, 2013 at 14:20 IST

Mr Noorani views are dated. He is unaware of reforms which swept UK,
Australia in 1980s and even in Pakistan in 2006, weakening the hold of
the police and strengthening prosecution. He is still stuck in the
colonial, CrPC 1898 era of police prosecutors. Strong, independent,
experienced criminal lawyers should be recruited as prosecutors and
empowered to monitor investigation and conduct trials. Cases where
evidence is weak or inadmissible should be dropped by the Prosecutor
using defined prosecutorial discretion, based on set guidelines.
European (civil law) countries have strong prosecutors who fully
control investigations. It is a sorry sight to see cases 'monitored'
by SC. This procedure is unconstitutional. Only trial courts can
decide cases on the basis of the evidence presented by the prosecutor.
Appeal Courts monitoring cases cause prejudice. Law enforcement is the
job of prosecutors world wide. SC becoming the prosecutor is a
dangerous trend, leaving nothing to be tried.

from:  KSGarewal
Posted on: Aug 21, 2013 at 12:45 IST

After reading the eminent jurist Mr.A.G. Noorani article and comments
given by others,I have come in to the firm conclusion that all are
expressing their own biased views only.Nobdy is ready to write the
actual facts happened at that time.

from:  A.SESHAGIRI
Posted on: Aug 21, 2013 at 12:32 IST

I agreed with the definition of ministerial accountability and need of freedom to be given to CBI. But at age of 25 i could not connect to his conspiracy theory of Gandhi Ji, it seems as if he is still busy to implicate charges of murdering Gandhi ji on V.D.Savarkar rather than using Cogress misrule and misuse of CBI in recent times.
After reading the comments of intellects above,i am able to form a biased opinion. But as a responsible citizen Mr. Noorani should put forth present crisis situation and ways to handle it.

from:  Nitin Aggarwal
Posted on: Aug 21, 2013 at 12:09 IST

The article makes good reading, if we erase the first five paragraphs. AG Noorani, starts the article with a an attempt at sensationalism, perhaps, with a view that The Hindu would not accept publish the article otherwise. Till date, there has been no proof that VDS was guilty of abetment or conspiracy. If AGN wanted to give a good prelude to his well argued stance against political interference, he has hundreds of clear instances of political interference in police related issues by the Nehru Gandhi dynasty. Or the 20 glorious years of CPM rule in West Bengal !

from:  Nandakumar
Posted on: Aug 21, 2013 at 11:50 IST

To suit his pseudo-secular ideology, AG Noorani remembers and digs out
a case in 1950 and 1970 but conveniently forgets to mention the most
obvious misuse of CBI in recent times, cases which hurt our eyes when
we see them, like the bofors investigation where the CBI and Law
ministry give permissions to foreign courts for de-freezing of money,
the innumerable times CBI has been used by Congress for votes of BSP
and SP in Parliament, blatant cover up where the Law Ministry tries to
change status reports of CBI to the Honourable SC and the CBI too does
not disclose it unless it is asked specifically by the Honourable SC.
These incidents should be used as reasons to free CBI. AG Noorani,
conveniently forgets the communally surcharged atmosphere in 1950
where the arrest of Savarkar would have brought about violent riots in
Mumbai and Pune because of the atrocitites suffered by Hindus during
partition.

from:  KESRI
Posted on: Aug 21, 2013 at 09:56 IST

Mr. Noorani, as usual, is wrong. Please read Malagaonkar's book, 'The
Men Who Killed Gandhi', pages 208-210). Nagarwala had his pet theory
that the plot was for kidnapping Gandhiji and not for murdering him.
He, therefore, stopped Delhi Police team from going to Pune, although
report on interrogation of Madanlal Pahwa contained a lead that the
main conspirator was editor of Hindu Rashtra(i.e. Godse). Nagarwala
even convinced U.L. Rana, DIG of Mumbai CID, who in turn advised T.G.
Sanjevi I.G. of I.B.Delhi about Nagarwala's pet kidnapping theory.
According to Justice Kapur-'Sanjevi is not shown to have found fault
with the kidnapping theory, or rejected it, nor did he violently react
against it.' Further investigation based on Madanlal's interrogation
was not pursued. Thus an opportunity of nabbing Godse was lost because
of Nagarwala's fascination with his kidnapping theory. Till date, no
credible evidence has been found linking Savarkar with Gandhiji's assassination.

from:  Pramod Patil
Posted on: Aug 21, 2013 at 07:15 IST


I over estmated Mr Noorani's intelligence. Despite plenty of
differences, like me, he has lived through the times of those tragic
period, a period that also heralded India's freedom & partition.

What Mr. Noorani has failed to grasp, is that late Morarjibhai & co.,
had lived through the severe regimentation under the Brits, more
especially apprehending people, preventive arrests, externing, etc.
This is not a technicality aspect, and in no way Morarji could act
on the whims of a police official. Morarji himself was in the civil
service. Conceding Noorani's view point, with a preventive arrest of
V.D. Sawarkar, it would be apocryphal to suggest Gandhiji's martyrdom
would not have taken place.

One of Morarji's arguments in clamping down the powers of RAW, was
it's misuse for political purpose by Indira Gandhi

Noorani's own ilk, are now berating against violation of civil
liberties

from:  S. N. Swamy
Posted on: Aug 21, 2013 at 05:48 IST
Show all comments
This article is closed for comments.
Please Email the Editor


O
P
E
N

close

Recent Article in Lead

A return to social science

The social sciences have declined as part of the imagination of the university. The subject has been appropriated by security agencies, think tanks and marketing outfits which substitute their current interests for democracy »