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.
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.)