07-20-2005, 08:51 PM
Op-Ed in Telegraph, 20 July 2005
<!--QuoteBegin-->QUOTE<!--QuoteEBegin-->WITHOUT DOING FULL JUSTICEÂ
<b>The recent amendment to the Criminal Procedure Code can neither enforce the rule of law nor reform the criminal justice system, says Tarunabh Khaitan </b>
Misrule of lawÂ
Very recently, in Oxford, the prime minister extolled the benign consequences of the British rule over India â one of them being the ârule of lawâ. Like most political slogans, the content of the rule of law is rarely understood and frequently ignored. <b>The Code of Criminal Procedure (Amendment) Act, 2005, analysed on the basis of the rule of law, embodies a missed opportunity and a lack of vision.</b>
In legal and political theory, the rule of law is a political ideal that demands that the government and its officials shall be ruled by law and be subject to it. The ideal is often expressed in the phrase, âgovernment by law and not by menâ, and has its roots in Englandâs transition from absolute monarchy to parliamentary governance. <b>The actions of government officials, ministers, judges, bureaucrats and police officers must be governed by a duly enacted general law, and should not be guided by personal whims and fancies. The rule of law protects the citizen from arbitrary government.</b>
<b>The criminal justice system, comprising, chiefly, the police, the prosecution and the judiciary, is the arm of the state closest to the citizen. </b>This proximity empowers it to violate the rule of law, frequently and brutally. Every time a police officer wrongly arrests or tortures a citizen with impunity, every time a rich or powerful person escapes punishment for a crime by bribing the prosecution, and every time a minister interferes in the criminal justice machinery to secure partisan goals, the ideal is compromised.
An independent and easily accessible judiciary which fearlessly tries people, irrespective of power, wealth, status or political affiliation is a sine qua non for the rule of law. The rule of law also demands an independent police organization and an independent prosecution service, which are free from political interference in their day-to-day functioning while being accountable for their actions. In this respect, the design of public institutions should be informed by the rule of law.
<b>The current amendment draws partly on the report, especially those provisions that deal with the prosecution and police powers. One of the most significant reforms in this regard is the provision for a âdirectorate of prosecutionâ to oversee the prosecution services in a state.</b> As an attempt to organize the prosecutorial service more efficiently, this is a welcome step. <b>However, the amendment fails to grant effective autonomy and functional independence to the directorate, keeping it vulnerable to political interference.</b>
In requiring the concurrence of the chief justice of the high court in the appointment of the director of prosecution and the deputies, the amendment provides an important but inadequate check against partisan appointments. There is no security of tenure for the directors either.
<b>The amendment further provides that the directorate shall function under the administrative control of the home department of the state.</b> It is significant to note that the Malimath committee recommended that the directorate should function under the guidance of the advocate-general, an independent constitutional authority, rather than the home department. It is another matter that the constitutional offices of the advocate-general and the attorney-general have also allowed political dictation in practice. Surely, a democratically-elected government should have the power to set broad policy objectives for the prosecution machinery. But in the current system, which provides no functional and organizational independence to the prosecution, the government directly interferes in decisions regarding individual prosecutions as well. The decision not to prosecute an individual should be a technical judgment arrived at by considering the gravity of the offence, the availability of resources, prosecutorial goals and the soundness of evidence. With governments making such decisions, the criteria invariably becomes the political weight of the accused or the political cost of a trial.
The amendment leaves untouched the notorious Section 197 of the CrPC, which requires prior sanction of the government for the prosecution of public servants. This provision makes a mockery of the ideal of the rule of law. It should not surprise us that it takes forever to even file charges in cases involving anyone politically important.
The manner in which the powers of the police have been dealt with is even worse. Despite the crying need to reform the police machinery and ensure that it adheres to the rule of law â underscored by the role of the police in the Gujarat violence in 2002 â the amendment only tinkers with certain powers of the police. When a structural overhaul is needed, it has made half-hearted attempts at functional transparency.
The amendment proposes to impose a duty on the police to inform the arrestee of his right to nominate a relative or friend who shall be informed about the arrest. It also provides for mandatory judicial inquiry into custodial death and rape. The arrestee now has a right to receive a copy of the medical report regarding allegations of torture. Most of these changes are presentational. Unless structural reforms happen, the police will continue to brutalize, rape and kill. The Indian Police Act, which continues to govern the police organization, was enacted by a colonial regime in 1861 to maintain the repressive foreign authority. It is time the police-citizen relationship is redefined.
<b>The primary need is to ensure organizational insulation of the police force from the political machinery. </b>Again, the democratic government must control the broad policing policy, but should not meddle with the daily functioning of the police force. Successive governments have regularly used their power to transfer or deny promotion to police officers as a means of making the police serve partisan objective. The prime ministerâs recent suggestion of a secure tenure for senior police officers is therefore welcome.
Organizational independence must be coupled with stringent accountability measures. The main problem is that the police station is the most invisible of places, making it difficult to control behaviour. The English Police and Criminal Evidence Act, 1984 instituted the office of the custody officer within the police station, whose main function is to oversee police behaviour. The involvement of NGOs and the civil society through measures like visitation rights and access to detainees should be institutionalized. An independent police commission with administrative control over policing and doubling up as a complaint authority may be a step towards a solution.
The amendment does have some positive provisions, including special features for women arrestees and rape victims. However, it lacks a coherent organizational principle to reform two crucial criminal justice institutions. A vision to subject the police and the prosecution to the law of the land and not to arbitrary dictates of ministers is necessary.
tarunabh@gmail.com
<!--QuoteEnd--><!--QuoteEEnd-->
Will add my comments later.
<!--QuoteBegin-->QUOTE<!--QuoteEBegin-->WITHOUT DOING FULL JUSTICEÂ
<b>The recent amendment to the Criminal Procedure Code can neither enforce the rule of law nor reform the criminal justice system, says Tarunabh Khaitan </b>
Misrule of lawÂ
Very recently, in Oxford, the prime minister extolled the benign consequences of the British rule over India â one of them being the ârule of lawâ. Like most political slogans, the content of the rule of law is rarely understood and frequently ignored. <b>The Code of Criminal Procedure (Amendment) Act, 2005, analysed on the basis of the rule of law, embodies a missed opportunity and a lack of vision.</b>
In legal and political theory, the rule of law is a political ideal that demands that the government and its officials shall be ruled by law and be subject to it. The ideal is often expressed in the phrase, âgovernment by law and not by menâ, and has its roots in Englandâs transition from absolute monarchy to parliamentary governance. <b>The actions of government officials, ministers, judges, bureaucrats and police officers must be governed by a duly enacted general law, and should not be guided by personal whims and fancies. The rule of law protects the citizen from arbitrary government.</b>
<b>The criminal justice system, comprising, chiefly, the police, the prosecution and the judiciary, is the arm of the state closest to the citizen. </b>This proximity empowers it to violate the rule of law, frequently and brutally. Every time a police officer wrongly arrests or tortures a citizen with impunity, every time a rich or powerful person escapes punishment for a crime by bribing the prosecution, and every time a minister interferes in the criminal justice machinery to secure partisan goals, the ideal is compromised.
An independent and easily accessible judiciary which fearlessly tries people, irrespective of power, wealth, status or political affiliation is a sine qua non for the rule of law. The rule of law also demands an independent police organization and an independent prosecution service, which are free from political interference in their day-to-day functioning while being accountable for their actions. In this respect, the design of public institutions should be informed by the rule of law.
<b>The current amendment draws partly on the report, especially those provisions that deal with the prosecution and police powers. One of the most significant reforms in this regard is the provision for a âdirectorate of prosecutionâ to oversee the prosecution services in a state.</b> As an attempt to organize the prosecutorial service more efficiently, this is a welcome step. <b>However, the amendment fails to grant effective autonomy and functional independence to the directorate, keeping it vulnerable to political interference.</b>
In requiring the concurrence of the chief justice of the high court in the appointment of the director of prosecution and the deputies, the amendment provides an important but inadequate check against partisan appointments. There is no security of tenure for the directors either.
<b>The amendment further provides that the directorate shall function under the administrative control of the home department of the state.</b> It is significant to note that the Malimath committee recommended that the directorate should function under the guidance of the advocate-general, an independent constitutional authority, rather than the home department. It is another matter that the constitutional offices of the advocate-general and the attorney-general have also allowed political dictation in practice. Surely, a democratically-elected government should have the power to set broad policy objectives for the prosecution machinery. But in the current system, which provides no functional and organizational independence to the prosecution, the government directly interferes in decisions regarding individual prosecutions as well. The decision not to prosecute an individual should be a technical judgment arrived at by considering the gravity of the offence, the availability of resources, prosecutorial goals and the soundness of evidence. With governments making such decisions, the criteria invariably becomes the political weight of the accused or the political cost of a trial.
The amendment leaves untouched the notorious Section 197 of the CrPC, which requires prior sanction of the government for the prosecution of public servants. This provision makes a mockery of the ideal of the rule of law. It should not surprise us that it takes forever to even file charges in cases involving anyone politically important.
The manner in which the powers of the police have been dealt with is even worse. Despite the crying need to reform the police machinery and ensure that it adheres to the rule of law â underscored by the role of the police in the Gujarat violence in 2002 â the amendment only tinkers with certain powers of the police. When a structural overhaul is needed, it has made half-hearted attempts at functional transparency.
The amendment proposes to impose a duty on the police to inform the arrestee of his right to nominate a relative or friend who shall be informed about the arrest. It also provides for mandatory judicial inquiry into custodial death and rape. The arrestee now has a right to receive a copy of the medical report regarding allegations of torture. Most of these changes are presentational. Unless structural reforms happen, the police will continue to brutalize, rape and kill. The Indian Police Act, which continues to govern the police organization, was enacted by a colonial regime in 1861 to maintain the repressive foreign authority. It is time the police-citizen relationship is redefined.
<b>The primary need is to ensure organizational insulation of the police force from the political machinery. </b>Again, the democratic government must control the broad policing policy, but should not meddle with the daily functioning of the police force. Successive governments have regularly used their power to transfer or deny promotion to police officers as a means of making the police serve partisan objective. The prime ministerâs recent suggestion of a secure tenure for senior police officers is therefore welcome.
Organizational independence must be coupled with stringent accountability measures. The main problem is that the police station is the most invisible of places, making it difficult to control behaviour. The English Police and Criminal Evidence Act, 1984 instituted the office of the custody officer within the police station, whose main function is to oversee police behaviour. The involvement of NGOs and the civil society through measures like visitation rights and access to detainees should be institutionalized. An independent police commission with administrative control over policing and doubling up as a complaint authority may be a step towards a solution.
The amendment does have some positive provisions, including special features for women arrestees and rape victims. However, it lacks a coherent organizational principle to reform two crucial criminal justice institutions. A vision to subject the police and the prosecution to the law of the land and not to arbitrary dictates of ministers is necessary.
tarunabh@gmail.com
<!--QuoteEnd--><!--QuoteEEnd-->
Will add my comments later.