FROM THE TRIBUNE, CHANDIGARH
The Supreme Court’s slew of directives notwithstanding, the implementation of police reforms has proved to be an uphill task. The Chief Ministers are reluctant to enforce them as they don’t want to lose their hold over the police. How can the police be insulated from political interference and improve governance? An in-depth study
The problem with policing is too well known to be rehashed. More important is the solution. In democracies, the relationship between the police and the political executive is always close. Both are bound in the common enterprise of preventing and investigating crime, maintaining law and order and ensuring that society has a well provisioned, well functioning essential service that protects life, liberty and property. The key to better policing lies in defining clearly the roles and responsibilities of the political executive (i.e. the bureaucracy and the people’s representatives) and the police and making them know their limits of power.
Those who fear losing their death grip over the police sometimes deliberately like to create the impression that any rein on the unfettered exercise of will over the police will create an entirely independent and out of control police force. Ironically though, today’s dysfunctional police-executive relationship has given us a force with very few limits on its power.
There is no question but that the political executive must always be paramount. But the relationship has to be symbiotic, not parasitic or dependent.
A suggested model for defining this relationship would read: “Responsibilities and independence of State Police Chief” The supervision, direction and control of the police throughout the state shall, be vested in an officer of the rank of Director General of Police (DGP) designated as the state police chief.
A. The DGP shall be responsible to the Minister for
i) carrying out the functions and duties of the police;
ii) the general conduct of the police;
iii) the effective, efficient and economical management of the police;
iv) tendering advice to the Minister;
v) giving effect to any lawful ministerial directions.
B. The DGP shall not be not responsible to, and must act independently of, the Minister regarding:
i) the maintenance of order in relation to any individual or group of individuals; and
ii) the enforcement of the law in relation to any individual or group of individuals; and
iii) the investigation and prosecution of offences; and
iv) decisions about individual police officers.
C. The Minister may give the DGP directions on matters of government policy that relate to
i) prevention of crime;
ii) maintenance of public safety and public order;
iii) delivery of police services; and
iv) general areas of law enforcement.
D. No direction from the Minister to the DGP may have the effect of requiring the non-enforcement of a particular area of law
E. The Minister must not give directions to the DGP in relation to the following:
i) enforcement of the criminal law in particular cases and classes of cases
ii) matters that relate to an individual or group of individuals
iii) decisions on individual members of the police
n If there is dispute between the Minister and the DGP in relation to any direction under this section, the Minister must, as soon as practicable after the dispute arises,
i) provide that direction to the DGP in writing; and
ii) publish a copy in the gazette; and
iii) present a copy to the legislature
True, present Acts are hazy about how the police is to be ‘supervised’ and seemingly do not explicitly condition the political executive’s powers. But underlying police manuals specify exactly how and by whom administrative powers will be exercised. Similarly, there is clear law that prohibits any interference in police investigations from any quarter. But all this is observed in the breach.
Judicious supervision has degenerated into bossism and the power to transfer, appoint, promote or suspend police officers is too often used as punishment and reward to bend the police until today ‘control and supervision’ has become something entirely different from what was originally intended.
Nevertheless, willy-nilly we are in the era of police reforms. After 30-odd years, the National Police Commission’s recommendations have been dusted off. Multiple committees have spent endless hours culling out priorities. Under the chairmanship of Soli Sorabjee, the Ministry of Home Affairs has drawn up a brand new Model Police Bill for the benefit of lawmakers across the country. Civil society has polished it and is begging policy makers to pay attention.
Union Law Minister Veerappa Moily’s Administrative Reforms Commission has added more suggestions to change the police force into a reliable and trusted police service. The ruling party’s manifesto has recognised “the imperative of police reforms” and said “a clear distinction between the political executive and police administration will be made.”
Even the Supreme Court has spoken and laid out a road map for reform. Its directions came nearly five years ago. Since then, every government has avoided compliance. Some have gone through the motions change while going about business as usual on the ground. Others have created stunted institutions designed to defeat intention. Yet others have legislated their way out from under the weight of obedience. And some have simply done nothing at all.
Meanwhile, everyday, in the absence of honest and law abiding policing, the security situation for country and individual is worsening. At the root of rotten policing lies the degree to which raw political power has been able to gain control over it. Weak leaderships have bowed low before illegitimate interference in the everyday running of the force and allowed informal but powerful influences to gain a large footprint in all police work. If policing is ever to improve this has to be rectified. The solutions are there. We need the political will.
The writer is Director, Commonwealth Human Rights Initiative, New Delhi
Cosmetic changes won’t do
By Shankar Sen IN THE TRIBUNE ,
THE demand for meaningful police reforms in India is an old one. Successive governments created many committees and commissions for nearly three decades. In 1979, the National Police Commission (better known as the Dharam Vira Commission) made a number of practical recommendations for police reforms which are relevant today.
In 1996, two former DGPs filed a PIL before the Supreme Court asking the court to direct the states to implement the Dharam Vira Report. But after a decade, the Supreme Court had given clear directives to the Centre and the states to implement the core reforms recommended by the NPC to insulate the police from extraneous pressures and influence. Despite these unambiguous orders, the state governments are dragging feet and betraying unwillingness to lose their stranglehold over the police.
The majority of the states have said that they support the spirit of reforms but objected to many of the directives of the court. Initially, the states, one after another, filed petitions in the Supreme Court asking for more time to implement the directives. On January 11, 2007, the Supreme Court considered the objections and concerns of the states, but said firmly that the process of police reforms must commence immediately. Unfortunately, the process of implementation of police reforms is still not visible in most states.
States like Gujarat, Nagaland, Uttar Pradesh, Karnataka and Andhra Pradesh have questioned the raison d’ etre of State Security Commissions. They have brazenly stated that no unwarranted influence is at all exercised over the state police. They have also expressed the view that setting up a State Security Commission with binding powers will lead to the creation of a parallel body which is not accountable to the people of the states.
Further, a fixed two-year tenure for DGP, irrespective of the superannuation date, will block opportunities for promotion of other senior eligible officers who will feel demoralised. Most states have not also complied with the directives of the Supreme Court regarding the establishment of independent Police Complaints Authority at the state and district levels to look into public complaints against police misconduct. The state governments’ stand is that the establishment of PCA will demoralise the police personnel and adversely affect their working.
The Soli Sorabjee Committee submitted its draft report to the government on October 31, 2006. But no meaningful steps have been taken so far by the Centre to enact a new law for the police in the Union Territories.
Many states have enacted new police Acts. A number of them have submitted in the Supreme Court that they are in the process of framing new police laws. On the surface, they appear encouraging. But a reality check on the ground will reveal that what is being attempted in many states is contrary to the spirit of instructions issued by the Supreme Court.
The new police Acts that have been passed and the Bills that have been readied have diluted the core systemic reforms stipulated by the Supreme Court. Some states have set up State Security Commissions and packed them with yes men and excluded the Leader of the Opposition. To retain political control over the police, they have made some cosmetic changes and not meaningful systemic reforms.
A three-member Monitoring Committee was set up by the Supreme Court with Justice K.T. Thomas, a former Supreme Court Judge, as its chairperson. It is mandated to examine the affidavits filed by the states. It will also examine the new police Acts passed by the states after the Supreme Court judgment of 2006 and find out if the Acts are in keeping with the letter and spirit of the apex court’s directives.
The committee has not yet submitted its final report. Thus, meaningful police reforms in the country are stalled. But the reforms brook no delay. The country needs an apolitical, efficient and revamped police force to take on the forces of disruption and destabilisation. Tomorrow will be too late.
The writer, a former Director-General, National Human Rights Commission, is Senior Fellow, Institute of Social Sciences, New Delhi
Status of Supreme Court’s directives on Police Reforms
FROM THE TRIBUNE
Not a single state has managed to fulfil all the criteria prescribed by the Supreme Court with regard to the State Security Commission (SSCs). Most states have set up SSCs that do not reflect the court’s criteria with regard to the composition, function and powers. States such as Tamil Nadu, Orissa, Madhya Pradesh, Jammu and Kashmir and Andhra Pradesh are in complete non-compliance with this directive.
Arunachal Pradesh, Meghalaya, Mizoram and Nagaland are the only states that have adopted the court’s prescribed criteria with regard to the selection, tenure and removal of the Director-General of Police. A few states have only partially incorporated these criteria whilst several states such as Karnataka, Jharkhand, Haryana, Kerala and Andhra Pradesh are not compliant with this directive.
Andhra Pradesh, Madhya Pradesh and the north-eastern states of Arunachal Pradesh, Meghalaya, Manipur, Mizoram and Nagaland are in full compliance with this directive which provides for a fixed tenure for officers on operational duties. While a few states have partially satisfied the criteria set by the Supreme Court, it is notable that the majority are not in compliance with this directive.
Several states such as Assam, Arunachal Pradesh, Haryana, Himachal Pradesh, Karnataka and Sikkim have complied with the Supreme Court’s directive to separate the law and order police with the investigation police. However, a majority of states have not fully implemented this directive.
Most states have established a Police Establishment Board, but only Arunachal Pradesh and Goa are in full compliance with all the court’s stipulated criteria in this regard. In contrast, Bihar is the only state which has taken no steps towards complying with this directive.
No state government has established Police Complaints Authorities at both district and state level that fully comply with the Supreme Court’s orders. Many states have established Authorities which only partially comply with the court’s directive in terms of the composition, mandate and powers.
Many states — Uttar Pradesh, Tamil Nadu, Punjab, Mizoram, Madhya Pradesh, Karnataka, Jammu and Kashmir and Andhra Pradesh have completely ignored this directive.
Legislation to avoid Custodial deaths
|The number of custodial deaths reported to the National Human Rights Commission during the last three years are as follows:
Year Custodial deaths
The State-wise details are as under :-
A Bill titled “The Prevention of Torture Bill, 2010” has been introduced in Lok Sabha on 26/4/2010. The Bill, inter alia, provides for punishment to those involved in the incident of torture and specifies the time limit for taking cognizance of the offence of torture. The bill would act as a deterrent for Public Servants from indulging in custodial deaths and abuse of power by police authorities. This was stated by the Minister of State in the Ministry of Home Affairs, Shri Ajay Maken in written reply to a question in the Rajya Sabha today.
BY V VENKATESAN PUBLISHED IN THE FRONTLINE
“Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the courts should not adopt an approach, an interpretation which has the effect or tends to have the effect of whittling down the powers reserved to the States…. Let it be said that federalism in the Indian Constitution is not a matter of administrative convenience, but one of principle – the outcome of our historical process, and a recognition of the ground realities” (emphasis added).
THE above observations of Supreme Court judge Justice B.P. Jeevan Reddy in his leading majority opinion in the Bommai case (1994) failed to convince the five-judge Constitution Bench that ruled, on February 17, that the High Courts and the Supreme Court can direct, without the consent of the State government concerned, investigation by the Central Bureau of Investigation (CBI) into offences committed in a State.
The nine-judge Bench in the Bommai case, on the basis of the extraordinary facts pointing to the collusion of State governments in the demolition of the Babri Masjid in 1992, had held that State governments that pursued unsecular policies could be dismissed under Article 356 of the Constitution. However, the principle laid down by Justice Jeevan Reddy with regard to the courts’ responsibility to safeguard federalism should have bound the five-judge Bench. But it did not.
The five-judge Bench, headed by Chief Justice of India K.G. Balakrishnan and comprising Justices R.V. Raveendran, D.K. Jain, P. Sathasivam and J.M. Panchal, held that its decision would neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of powers. The Bench claimed that it had the power and obligation to protect the fundamental rights zealously and vigilantly.
The judgment was an outcome of a nine-year-old case involving the killing of 11 Trinamool Congress workers at Chhota Angaria village, Medinipur district, West Bengal, on January 4, 2001. It was alleged that Communist Party of India (Marxist) workers had committed the crime. The Calcutta High Court, acting on a petition filed by the Committee for Protection of Democratic Rights (CPDR), West Bengal, ordered a CBI probe into the case in 2001 without seeking the consent of the State government. The CPDR told the court that it had no faith in the impartiality of the Criminal Investigation Department (CID) of the State, which was then investigating the case.
The West Bengal government appealed against the High Court’s order as it felt that the State CID was an independent agency and the High Court was wrong in rejecting its plea to give more time to the CID to complete the probe. The case was a complicated one because even the bodies of the victims were not to be found, raising doubts about the veracity of the allegations. The appeal was referred to the Supreme Court’s Constitution Bench in view of the substantial question of law it raised.
The judgment, written by Justice D.K. Jain, sought to expand further Article 21 of the Constitution, which guarantees that no person can be deprived of his or her life or personal liberty except under the procedure established by law. The Bench held that the State had a duty to enforce the human rights that provide for fair and impartial investigation against any person accused of committing a cognisable offence. This aspect of the judgment strengthens human dignity inherent in the guarantee of right to life, in Article 21, which is a basic feature of the Constitution. However, while giving effect to this principle, the five-judge Bench went beyond the constitutional mandate.
The CBI is a special police force set up under the Delhi Special Police Establishment (DSPE) Act, 1946, for the investigation of offences in any Union Territory. The superintendence of the CBI vests in the Central government, which specifies, by notification, the offences or classes of offences to be investigated by the CBI.
Section 5 of the Act empowers the Central government to extend the powers and jurisdiction of the CBI to any area in a State, not being a Union Territory, for the investigation of specified offences. This power is restricted and qualified by Section 6, which reads: “Nothing contained in Section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union territory or Railway area, without the consent of the government of that State.”
Section 6 is a compulsion and a constitutional imperative arising from the federal nature of the country’s Constitution and the division of powers between the Union and the States. Without Section 6, Section 5 would be outside the legislative competence of Parliament and, as such, unconstitutional and void.
The basic principle of federalism is that the legislature and executive authority is partitioned between the Centre and the States not by any law to be made by the Centre, but by the Constitution itself. The Constitution incorporates the concept of federalism in various provisions. Lists II and III under the Seventh Schedule give plenary powers to State legislatures in specified subjects.
Police, including Railway Police, is a State subject (Entry 2 in List II). The Centre’s power to extend the CBI’s jurisdiction to the States can be traced to Entry 80 in List I. This entry rules out expressly such extension without the consent of the State concerned.
In the recent Prakash Singh case, the Supreme Court showed an extraordinary interest in reforming the police forces in the States and making them truly professional, insulating them from extraneous political pressures. There can be no dispute about the merits of this intervention by the judiciary. But, as experts have noted, that is no better an argument for acquisition by the Union of powers given to the States than it is for the declaration of President’s Rule in States. As B.R. Ambedkar stated in the Constituent Assembly, the Centre has no authority to intervene in provincial affairs for the sake of good governance in the provinces. Can the judiciary appropriate to itself an authority that is expressly denied to the Centre by our Constitution-makers? This is what the Supreme Court seems to have done while justifying its decision in this case. Section 6 of the DSPE Act, according to the five-judge Bench, cannot control the High Courts or the Supreme Court.
Article 142 of the Constitution mandates that the Supreme Court may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. However, as laid down by the Supreme Court’s five-judge Bench in an earlier case, this Article cannot be used to build a new edifice where none existed by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly. The Bench noted this concern expressed by counsel for the West Bengal government, K.K. Venugopal, but did not bother to answer it.
Attorney-General G.E.Vahanvati, who, as the Solicitor General at that time, appeared for the Centre during the arguments before the Bench, defended the courts’ power to direct CBI investigations without the consent of State governments. He argued that in a federal structure it was the duty of the courts to uphold constitutional values and enforce constitutional limitations, as the ultimate interpreter of the Constitution.
There is no dispute over the court’s claim – supported by the Centre – that judicial review acts as the final arbiter to give effect to the distribution of legislative powers between Parliament and State legislatures and to show any transgression by such entity. But there was no dispute between the Centre and the States over the distribution of legislative powers, nor was there any allegation that either of them transgressed those powers.
One would agree with the Bench that any direction by the Supreme Court or the High Court in the exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violation of the federal structure because courts act as guardians and interpreters of the Constitution whenever the federal structure is violated by legislative action. But the present case did not involve any violation of the federal structure by legislative action.
The judgment included bland assertions of courts’ powers, such as the following: “Restriction on the Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Article 32 and 226 of the Constitution.”
The Constitution prevents Parliament from encroaching upon States’ rights by distributing the legislative powers between them. How the courts could approve similar encroachment by themselves, even while restricting Parliament from doing so in the guise of protecting fundamental rights, is not clear.
Entry 2A of List I is about the deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State. The CBI is not an armed force, and, therefore, cannot be subject to the control of the Union. Overlooking this and Entry 80 of List I, the court justifies its exercise of the “same power” (which is non-existent!) that the Union could exercise in terms of Section 5 of the DSPE Act.
Paragraph 46 of the judgment classifies the victims, whose rights the court has sought to defend in this case, rather unreasonably. It is only those victims of incidents with national and international ramifications who deserve the courts’ intervention, in the absence of the State government’s consent, to direct a CBI investigation. That the courts may well ignore the plight of ordinary victims who fail to grab the attention of the national and international media is the inference one would draw from the judgment.
According to the Supreme Court, if the investigation by the State police lacks credibility or does not inspire confidence, then also the constitutional courts can direct a CBI investigation. The judgment may well open a Pandora’s box because it is common to find all manner of victims alleging bias when the State police investigate. If courts have the discretion to decide whether in a particular case the State police lack credibility or do not inspire confidence, then it will be difficult for courts to justify their discretion – in the absence of clear guidelines – and this can invite the charge of arbitrariness.
In a sense, the February 17 judgment has removed the bar on the CBI going ahead with its investigation into cases assigned to it earlier by courts without State government consent. The CBI’s probe into the March 14, 2007, police firing at Nandigram, West Bengal, in which 14 people were killed, is one of them. The Supreme Court may have to decide, in the light of this judgment, whether directions to the CBI to investigate cases such as the Chhota Angaria massacre and the Gujarat carnage satisfy the conditions laid down by it.
Constitutional courts such as the High Courts and the Supreme Court could have better defended the right to fair investigation into certain crimes by ensuring the effective monitoring of the State police than by directing the CBI to take up such cases, which is contrary to the letter and spirit of federalism, notwithstanding the CBI’s poor track record in freeing itself from political influences and its inadequate manpower to investigate all and sundry cases.
THE PUBLIC IN THE REPUBLIC SERIES / INDIAN EXPRESS
HABEAS CORPUS, 1976 SHANTI BHUSHAN lost the case, but his arguments endured
“NONE” was the one-word answer senior advocate Shanti Bhushan gave an Australian journalist who asked him if he was under any pressure while taking on the entire ruling establishment led by then Prime Minister Indira Gandhi against the declaration of Emergency. At the time of the interview, Bhushan had fought hard and just lost the ADM Jabalpur case, also known as the “Habeas Corpus case”, during the darkest hours of the Emergency in 1976. The Supreme Court of India had, as public opinion decided in retrospect, committed a “supreme mistake” by agreeing with the government’s self-declared right to detain citizens without reason or trial under the draconian Maintenance of Internal Security Act.
Hundreds of students, social workers, journalists, political workers, ordinary men and women were under detention. Nine high courts had refused to budge against the government decree. The country was tense, and all eyes were on the Supreme Court Bench led by then Chief Justice of India A.N. Ray to show the government its place, and Bhushan, they had hoped, was their man to do it.
“He (the Australian journalist) asked me if there was any attempt to put pressure on me to not conduct the case,” says Bhushan, relaxed at home on his weekend away from the Supreme Court, where he is till a force to reckon with. “The only pressure they (the government) could put on me was that of imprisonment. I was not afraid of that. My parents had spent their time in jail as freedom fighters. I had been to jail too for a week. I was not afraid of that pressure,” he said.
A moment later, looking towards the distance, he said: “But if they had threatened to kill my children unless I withdrew from the case… then I am not so sure whether I would have been able to resist the pressure.”
Bhushan says he was called from Allahabad to lead the arguments in the Habeas Corpus case. He was also the lawyer who represented Raj Narain and won a judgment from the Allahabad High Court on June 12, 1975 which declared the electoral victory of the Rae Bareilly seat by Indira Gandhi as void due to electoral malpractices. Ms Gandhi was cross examined by him. The case triggered the Emergency.
“The judgment in the Raj Narain case had won me international acclaim,” he said, adding that the Habeas Corpus case was only an extension of the Raj Narain matter. Bhushan describes the SC judgment delivered in 1976 as the “blackest day in the lives of the judges”. He says the judgment was “universally accepted as the darkest chapter in the life of the Supreme Court when majority of the judges on the Bench succumbed to burning ambition”.
Additional District Magistrate, Jabalpur v. Shiv Kant Shukla and Others, better known as the ‘Habeas Corpus case’, was delivered by a 5judge bench of the Supreme Court in 1976.
Four of the justices ruled that preventive detention was permissible since the protection of life and liberty (under Article 21) was suspended while the Emergency was in force.
This decision is described as the nadir in the 60 years of the Indian Supreme Court. It is often argued that the latent guilt arising out of this case drove an era of unprecedented judicial activism, especially in human rights.
KIRTI SINGH IN FRONTLINE , JANUARY , 16-29 2010
THE molestation case of a minor girl by the former Director General of Police of Haryana, S.P.S. Rathore, reflects in a microcosm many of the ills that plague the criminal justice system in our country. The case highlights the lacunae in both the procedural laws and the substantive laws relating to sexual assault, particularly of minors. It shows how an influential accused can manipulate the legal system. Rathore used his position as a police officer to subvert the law and file false cases against the girl’s brother and reportedly managed to delay the case for several years. Finally, even though he was convicted, Rathore managed to get away with a light sentence, not only because of a judicial mindset but also because the offence of molestation is punishable with only up to two years’ imprisonment.
In fact, amendments to laws relating to sexual offences have not been a priority for successive governments. In spite of repeated suggestions and demands by the All India Democratic Women’s Association (AIDWA) and other women’s groups, governments, including the previous United Progressive Alliance (UPA) government, have refused to amend the century-and-a-half old laws relating to sexual assaults in the Indian Penal Code (IPC).
Women’s organisations and groups have pointed out how the definitions relating to rape, molestation and ‘eve-teasing’ are flawed and not reflective of women’s experience of these crimes. They have also emphasised the urgent need to differentiate between sexual crimes committed against adult women and those committed against minors. The National Women’s Commission has reiterated these demands. The Law Commission has also, in its 172nd report, suggested an overhaul of the substantive and procedural laws dealing with rape, molestation and sexual harassment (popularly known as eve-teasing) against women and children.
The Rathore case highlights how sexual assault is viewed as a trivial crime not only by the law but by many others, including those in positions of authority. Rathore was given two promotions and made Inspector General of Police in 1990 and DGP of Haryana in 1999. The minor girl was molested about 19 years ago, on August 12, 1990, by Rathore, the then Deputy Inspector General (DIG) of Police, in the office of the Haryana Lawn Tennis Association, of which he was the president.
It has been reported that the initial trauma, accompanied by the persistent harassment, led to the girl’s suicide three years after the crime. It is an acknowledged fact that normally the trauma suffered by a minor victim of sexual assault is greater than that suffered by a major. Suggestions have been made in the past that police stations must be associated with doctors and psychologists, who should counsel these victims as soon as possible.
The case involving Rathore was registered 10 years after the incident, after a writ petition was filed in the High Court on the victim’s behalf by her friend’s mother and after an appeal in the Supreme Court. The AIDWA and other women’s organisations and groups have, time and again, complained about the difficulty in registering a first information report (FIR) owing to gender bias and corruption among large sections of the police force. They have demanded that non-registration of an FIR be made an offence.
The Law Commission, in its 83rd report on “Rape and Allied Offences”, suggested that a new section, 166 A, should be added to the IPC to make the police accountable for deliberate inaction and disobedience of law. Therefore, while the Union Home Minister’s reported suggestion to the police to register FIRs immediately is a welcome first step, the criminal law will also have to be amended to make the police culpable.
The case against Rathore was filed under Sections 354 (molestation) and 509 (harassment) of the IPC. No case was filed against him and the other police personnel and others for threatening the victim and her friend and their families. No action was taken against those who filed false cases against the victim’s brother at Rathore’s instance. These illegal acts were completely disregarded by the police machinery and the Haryana government, and no cases were filed against Rathore and those who acted on his behalf for criminal intimidation, conspiracy and filing of false charges under Section 211.
While some FIRs have now been filed against Rathore, and the Central government has made known its intention to fast-track these and other cases of molestation/sexual assault and amend certain other procedural sections, these measures by themselves are not enough to ensure justice to victims of sexual crimes.
It has been argued that for a case of abetment to suicide an intention to abet the suicide is necessary. The abetment should also be proximate in time to the suicide. In Gurbachan Singh vs Satpal Singh, in 1990, the Supreme Court held that persistent ill-treatment of a woman for dowry amounted to abetment to suicide.
In a case in 1989, the Andhra Pradesh High Court held that “the cumulative effect of the incidents of harassment spread over the period after the marriage had to be considered”. Section 107 of the IPC, Explanation 2, states: “[W]hoever… does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.”
Under Section 354 of the IPC, molestation is defined as “assault or criminal force” by a man with an intention to “outrage the modesty of a woman” or “knowing it to be likely that he will thereby outrage her modesty”. The crime is cognisable and bailable. The section is problematic not only because it is couched in archaic and meaningless language, but also because all forms of sexual assault other than rape have been included in it.
To ensure that the law relating to child sexual abuse is reflective of the exact nature and seriousness of the abuse, AIDWA and others have suggested a number of changes to it. They have suggested that the provision relating to molestation in Section 354 should be amended to redefine molestation as unlawful sexual contact and any man who touches/assaults a woman with a sexual purpose should be liable for imprisonment up to three years and with fine.
They have also suggested that if a child is molested or forced or incited to touch the body of any other person, the imprisonment should extend up to five years along with fine. If the molester is a person who is in a position of trust or authority towards the minor or is a person on whom the minor is dependent, the imprisonment should extend up to seven years. This suggestion should also apply to custodial molestation.
Definition of rape
It has further been recommended that the definition of rape should be enlarged to ensure that some of the forms of child sexual abuse are also considered rape. Such a definition would be in accordance with international legal standards, including the definition of rape by the International Criminal Tribunal for the former Yugoslavia (ICTY). The International Criminal Tribunal for Rwanda (ICTR) has defined rape in even broader terms, as being “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive”.
Apart from these changes, certain procedural amendments are necessary to ensure justice in cases of child abuse. In Sakshi vs Union of India, the Supreme Court held that a child’s statement should be recorded in court without the child having to face the abuser.
Thus, the court held that a videotaped interview of the child’s statement or the child’s testification behind a screen or via closed-circuit television should be permitted. It further held that the cross examination of a minor should only be carried out by a judge based on written questions from the defence, and that the minor should be given sufficient breaks as and when required.
The Code of Criminal Procedure (Amendment) Act, 2008, which has still not been notified, stipulates that a rape victim’s statement to the police should be recorded by a woman police officer at the victim’s residence or at a place chosen by her, in the presence of her parents or guardians or near-relatives or a social worker of the locality. It further states that the investigation of a child-rape shall be completed within three months and that the trial and inquiry should be completed within a period of two months from the date of commencement of the examination of witnesses. These provisions should extend to all cases of child sexual abuse. In most cases of child abuse, the child is not able to express the exact nature of abuse. It is, therefore, necessary to allow experts such as child psychologists and paediatricians to depose on behalf of the child.
It has been said that the seriousness with which a judge views a crime is reflected in the sentence he awards. Rathore was awarded only a six-month imprisonment, ostensibly because he was old and had been subjected to a prolonged trial. It is ironic that though the accused was reported to be mainly responsible for the delay, the court overlooked this and also the fact that he was not so old that sending him to prison would serve no purpose. In fact, several previous judgments show that rapists and those who have sexually abused children have often got away with fairly light sentences. Apart from a higher maximum, minimum sentences must be prescribed for these offences.
Finally, even though several laws now stipulate time limits within which a case should be tried and the judgment given, these laws are not followed by large sections of the judiciary. The High Courts and the Supreme Court will have to ensure that the time limits are adhered to by censuring errant judges.
Kirti Singh is Legal Convener, All India Democratic Women’s Association.
TOI Crest, 16 January 2010, 11:33am IST
Those who claim to see ghosts will always fear the dark. Babloo – not his real name – has seen the devil and will remain terrorised of it till his last day. A resident of Indira Nagar in Lucknow, the very sight of the colour khaki sends chills down his battered body. He has been seeing psychiatrists and undergoing therapy ever since he spent a harrowing seven days with the police some years ago. But things like a car battery, electricity cables, a cooking heater and pliers still scare the life out of him. When the police let him off – they wanted Babloo to confess to a murder he never committed – his ear lobes were charred, his palms were so swollen that they looked like pillows, and two of his toes had been sliced open after nails were hammered into them. But there are countless others who don’t have to be tortured to fear the police in India. It’s common for Indians to make way for cops when they are behind you, and walk at a safe distance when they are in front of you. Truant children are often threatened with a call to the policeman, as if they were some evil spirit. There is a dread, and it is all pervasive, all encompassing.
“This is because the police have no fear of punishment and there is total lack of accountability ,” says former IPS officer-turned lawyer Y P Singh. “And they are sure that the senior officers will always bail them out.”
Giving a more nuanced view, political scientist Imtiaz Ahmed says, “The explanation for the kind of police we have lies in the fact that we have a colonial police. Neither the structure nor the orientation of the police has changed. The colonial attitude – in which the only interest was to establish their rule at any cost – still persists. The police responds to the government, not to the people.”
He adds, “The police behaves the way it does partly because the recruitment of personnel comes mostly from the dominant castes in each area. For example, the Jats predominate in the Delhi and Haryana units, especially in the constabulary and above. The feudal attitude is there for all to see. They continue to be oppressive, carrying forward the characteristic in their interaction with the public. And the Indian state has become more khaki… The attitudes of dominance and coercion are reflected in various aspects of the state.”
Vikas Narayan Rai, DGP, Haryana Police Academy, feels the police can improve only if society is empowered. “By ’empowered’ I mean they should have the means to assert their legal right. In our country a person feels totally helpless whether he goes to a police station, a court, or a hospital. They should have rights that can be enforced. We have inherited our police from our colonial masters. The same system persists and now that I am associated with police training I realize what kind of training we are giving. They are being trained to deal with criminals and not with common people though 90 per cent of the time they are dealing with citizens . The mindset has to change and the police has to be sensitized, they have to be conditioned to the values of democracy, to the rights of the common citizen. That change of mindset is difficult to achieve after 200 years of colonial rule. But it is possible and it is being done.”
Former police and security supremo Julio Rebeiro has a solution. “It is very simple ,” he said. “The police force should be free from all political interference. Until this is done the force cannot be improved. The crux of the problem is the interference of the politician in the police department. Leave it to the commissioner of police to take all decisions , including transfers and postings from inspectors to deputy commissioners and above. The political godfathers decide the postings for better known reasons and the officers are not interested in serving society . It is time the government wakes up before the situation becomes worse.”
WITH INPUTS FROM REMA NAGARAJAN, S AHMED ALI, RAHUL TRIPATHI, PEVEZ IQBAL SIDDIQUI
Anand Soondas , TIMES OF INDIA Crest, 16 January 2010, 11:33am IST
The youngest of Meera Yadav’s three daughters , Parul, just 4, was still crying, unhappy with the frugal dinner of some rough rice and boiled potatoes, when she heard a soft knock on the rickety tin fence that served as a door for her shapeless little shack. A burly man stood outside, somewhat unsteady on his legs due to what smelled like freshly consumed alcohol. There were two others behind him, laughing at a crude joke one of them had just cracked. “Is that your husband,” asked the first policeman. Before she could answer, they had dragged him out in the open. By now, all the three kids were screaming with fear. The blows kept raining. It stopped long after the villagers in one of Chandigarh’s slums had collected in numbers and gathered enough courage to demand from the assaulters a reason for the battering. It was only the next day that Meera would know what their crime was – her husband had taken off the Shiromani Akali Dal flag someone had planted on the roof of their hut and replaced it with the one belonging to a party he would vote for in the Assembly elections. “But when I rushed to the cops to complain, they pushed me out of the thana. One of them threatened to file a case against me instead,” Meera would later say, shuddering more at the menace in the policemen’s voice than at the incident. “They said the next time I came with a complaint against the goons, they would beat me and the children.” Meera was lucky she didn’t go back to the cops – a mistake Sarita made. The desperate 22-year-old had gone to the Rohtak police station for the umpteenth time, pleading with the officers to let her husband, who was framed in a cooked-up motorcycle theft case, go. It was then that the constables on duty thought they had tolerated her enough. They gang-raped her. Sarita committed suicide at the Haryana police headquarters on June 9, 2008. When her distraught husband and small child sat on a dharna to ask for justice, the police promptly picked them up and had them locked up.
A 45-year-old mother and her 24-year-old son would kill themselves a year later in Jind, Haryana again, unable to take the harassment and torture of the police. “They were just petitioning for action on the murder of my elder son,” Ramdiya said, recounting the death of his wife Dayawanti and son Sandeep in October last year. “Both were forcibly thrown into Ambala jail on August 11, 2009, like hardened criminals. They couldn’t take it anymore. I had such a happy family. I have no one left now. Everybody’s dead.” In neighbouring Punjab, on a cold January day in 2001, Avtar Singh, the only son of his parents, asked three men blocking a narrow Ludhiana street with their car – they were drinking and eating to let him pass. That was an affront police inspector Gurmit Singh Pinky could not digest. He pumped a fistful of bullets into the young man’s chest. Equally heinous was the case of Swaran Singh Hundal, who killed promising folk singer Dilshad Akhtar with an AK-47 after the artist declined to sing a song the cop wanted him to. Hundal was dismissed from service and was jailed for a while, but the police top brass later reinstated him and the killer retired as DSP in 2002. It’s a different matter that Hundal, who was charged in other cases as well, committed suicide in 2008.
SWAGGER OF THE DEPRAVED
But if what Pinky and Hundal did was dastardly, Ajit Singh Bains, a retired judge of the Punjab and Haryana high court, recounts a horrifying incident which was depraved. “In October 1991, some policemen killed a one-and-a-half-year-old baby and seven other members of the family, including three women,” he said.”Their method of murder was atrocious and they actually peeled off the victims’ skin and poured hot tar and diesel on their wounds. No action was taken against these cops.”
There’s an unmistakable swagger in modern day cops as they increasingly turn into a brutal and brutalising force. Armed with the knowledge that a mostly corrupt lot of MPs, MLAs and ministers, with skeletons in their own cupboards, will not be able to wield the moral lathi to rein them in, the conduct of officers and even lower-ranked men in the police has only become more brazen, more bizarre. It is perhaps this that allows men like SPS Rathore to believe they can first molest a young girl and then browbeat her family into submission. And the way the former Haryana DGP turned the entire system into accomplices – ministers, local netas, school authorities, his minions in the department – as he hounded Ruchika Girhotra into committing suicide is a case study of how top cops have the power to do what they want with the lives of the truly disenfranchised, which in India is anyone who doesn’t have a real “connection” to make his voice heard.
The Rathore shame – his cronies during a torture session went to the extent of offering Ruchika’s brother urine when he asked for water – played out even as a Rajasthani tribal woman, who was allegedly raped by a police officer 13 years ago, cried again for justice. The case involved a former DIG of Rajasthan police, Madhukar Tandon, who took advantage of his influence and managed to evade the law for 13 years. After the ongoing hue and cry over the Ruchika case, and subsequent protests by the Alwar-based victim, the state government appointed teams to nab the culprit. Not surprisingly, Tandon has managed to evade arrest. It is also this cocky belligerence that allows a DGP like B B Mohanty to indefinitely shield his son, Bitti, accused of raping a German tourist in Rajasthan. And though the government of Naveen Patnaik suspended Mohanty, who was heading the home guards then, the punishment was revoked later. Bitti, granted a 14-day parole on November 20, 2006, jumped it and has been on the loose since.
Or take the case of the string of officers who played host to fake stamps kingpin Abdul Karim Telgi, even offering him chicken biryani once while he was in their custody. Something which was never reported, but widely heard by crime reporters doing the rounds of the Crawford Market police headquarters in Mumbai, was that the wife of a police commissioner in the ’90s would book a room in a city hotel once every month for officers under her husband to come with their “collections” of the last 30 days. So confident are cops that they can get away with anything, they don’t seem to care a whit about normal ethics or morality- like the Mumbai policemen who were caught having fun at a Christmas-eve party sponsored by the Chhota Rajan gang. An embarrassed Ashok Chavan government in Maharashtra quickly suspended five errant men, among them DCP V N Salve and ACP Prakash Wani.
In all this, what is most disconcerting is the parallel business policemen, across ranks and departments, run in the name of dispensing justice or tackling crime. A textile businessman’s vehicle was recently stopped in Mumbai by cops who wanted him to pay them hafta (protection money). The police had already gathered information on him from his rivals and demanded Rs 2.5 lakh every month. The deal did not work out and soon the businessman was booked for “carrying arms”.
“I know of several instances where our own personnel pursue business interests with people of questionable background,” a senior officer admitted wryly. IPS officerturned-lawyer Y P Singh said, “They do this because they have no fear of punishment and there is total lack of accountability. Plus, they are sure that seniors will support them.”
The arrest of encounter specialist Pradeep Sharma, with whom the law finally caught up for staging fake encounters, is a case in point. “He had a free run till some years ago,’’ a colleague said. “Senior police officers gave him the go-ahead for encounters without ascertaining the real reason. He was running a parallel force. Sharma, in return, helped his friends get plum postings through his political connections.”
Then there was a builder who got his rival booked through IPS officer Bipin Bihari for attempted murder. “We took action by suspending the team involved. But I agree that they believed they could manage the criminal justice system. It is alarming that officers are being used to settle scores,” a senior police officer said.
But it is the poor across India who are most at risk from a rampaging force. It is they who cower, almost at all times, from the unpredictable, brute violence the men in uniform are capable of unleashing. K Guruviah, a farmer, and his wife Angammal, of M Kallupatti near Usilampatti in Tamil Nadu, were picked up by the police in July 1998 on the suspicion that they had received some stolen goods from a gang of thieves. Both were tortured for seven days, and at Oomachikulam police station they were undressed and made to simulate sex in the presence of police officials. Some of them later physically abused Angammal. Guruviah died moments after he was admitted to hospital.
Far from Chennai, Rajendra Yadav, a resident of Telari in Jharkhand, was taken into custody by the Chhatarpur police on December 30 last year. There was no arrest warrant. Barely 24 hours after he was taken to IPS officer Jatin Narwal’s residence in Palamau — where he complained of severe stomach pain — he was dead. A postmortem revealed severe assault had led to his death.
In the infamous and widely-publicised Rizwanur Rahman case, Justice Dipankar Dutta of Calcutta high court said, “It is an inescapable conclusion that there are two police stations. Lalbazar (police headquarters) is for the influential ones. And local police stations are for the aam aadmi. It is disgraceful that people have to knock on the high court’s door to lodge an FIR.”
Rahman, who was in love with Priyanka, the daughter of industrialist Ashok Todi, was found dead on the railway tracks on the outskirts of Kolkata on September 21, 2007. The CBI named seven accused in its chargesheet — Ashok Todi, his brothers Pradip and Anil Saraogi, IPS officer Ajoy Kumar, police officers Sukanti Chakraborti and Krishnendu Das, and S K Moinuddin alias Pappu, a social worker. In an equally shocking incident, Kaimur district police, in Bihar, procured arrest warrants against six-year-old Chaniya Khatun and her five-year-old sister Soni after they found them “guilty of killing” their 18-year-old sister-in-law for dowry last July.
It’s probably worse in the northeast, where the mainstream media doesn’t really reach, and people remain cut off from “mainland India” due to culture, infrastructure and distance. A startling 150 people were allegedly killed in fake encounters by Manipur Police Commandos last year alone. Police excesses in the state known for its rampant extra-judicial killings grabbed national attention when Chungkham Sanjit Singh, a reformed militant, was shot dead in Imphal on July 23, 2009 in broad daylight. A photographer captured the murder on camera and the photos found their way to magazines and newspapers across the country. Though the police claimed Sanjit had a gun, the images clearly showed an unarmed Sanjit talking politely to police commandos minutes before he was dragged inside a pharmacy. Besides Singh, a pregnant Rabina Devi was also killed.
The national capital Delhi is no better. Recently, a head constable beat up a 17-yearold boy, accused of stealing a mobile phone, so badly that he succumbed to his injuries. American journalist Jose Elliott had a taste of the Indian police’s barbarity when he was allegedly beaten up by men at the Hazrat Nizamuddin police station on October 8 last year. Elliott claimed cops thrashed him for “intervening” when someone was being kicked around.
Amazingly, Delhi Police officers told TOICrest there is “minimum cruelty and highhandedness” that can actually be attributed to their personnel. “We keep sanitizing our force. They are always being trained in manners and courtesy,’’ a senior officer said. “There is hardly any case in which a wrong person has been framed or jailed.” Tell that to Meera Yadav, Chungkham Sanjit’s bereaved family, Ruchika’s distraught brother, Sarita’s orphaned child and the countless others who are kicked and shoved around.
WITH INPUTS FROM RAHUL TRIPATHI, S AHMED ALI, K PRAVEEN KUMAR, RAJ KUMAR, SANJAY SHARMA, OINAM SUNIL, IP SINGH, JAIDEEP DEOGHARIA, ARNAB GANGULY, AKHILESH SINGH, SOUMITTRA S BOSE
The Union Home Minister, Shri P.Chidambaram has proposed radical restructuring of the security architecture at the national level. He unveiled the proposal while delivering the 22nd Intelligence Bureau Centenary Endowment Lecture here today. The topic of the lecture was “A New Architecture of India’s Security”. As part of the plan, the Home Minister said that India must be able to set up the National Counter Terrorism Centre(NCTC) by the end of 2010 and once set up, NCTC must have the broad mandate to deal with all kinds of terrorist violence, directed against the country and its people. The Home Minister also suggested restructuring of the Ministry of Home Affairs and said that the Home Minister should devote the whole of his time and energy to matters relating to security. Following is the text of his lecture:
“The Intelligence Bureau is 122 years old. It celebrated its centenary in the year 1987. Since 1988, a number of distinguished persons – political leaders, scientists, jurists, police officers and administrators – have delivered the Centenary Endowment Lecture. I find that the subjects chosen by the speakers covered a wide range. I confess that I toyed with the idea of speaking on something totally unrelated to the security establishment. However, I thought that discretion was the better part of valour and settled on a subject that is, I hope, both contemporary and futuristic. I thank Shri Rajiv Mathur, Director, Intelligence Bureau for inviting me to deliver this prestigious lecture.
Violence is Omnipresent
2. Humankind has, through the millennia, co-existed with violence. Hunting and gathering were marked by violence. Tribal groups employed violence to assert their authority over land to the exclusion of other tribal groups. Kingdoms were established by violence; kings were overthrown by violence. War was invariably an instrument of policy: to be a warrior was an honour and great kings were also great warriors. In the twentieth century alone, humankind witnessed two world wars and many smaller wars. About 15 million people were killed in the first World War. Nearly 60 million died in the second World War. In all the conflicts since 1945, it is estimated that nearly 30 million persons may have been killed.
3. It is only in the latter half of the twentieth century that the seeds were sown for a movement against war. The famous words of Pope John XXIII come to mind: “No more war, never again war.” Nevertheless, little wars were fought over territories or boundaries. Fierce civil wars were fought, and are being fought, within countries. Nations joined together to fight a despot or eject an invader or quell a rebellion. As I speak to you, there is an “official” war in Afghanistan and many more unofficial battles. A world free from war appears to be a distant dream. While accepting the Nobel Peace Prize, the President of the United States and the Commander-in-Chief of the world’s mightiest armed forces said: “We must begin by acknowledging the hard truth that we will not eradicate violent conflict in our lifetimes. There will be times when nations – acting individually or in concert – will find the use of force not only necessary but morally justified.”
4. Can war be justified? It is a debatable point. Those who justify war point to the larger objectives of a war. That was the case in the Balkans, that was the case in Iraq, and that is the case in Afghanistan. The jury is still out.
5. Through the twentieth century, many small wars were waged within countries. In Russia and in China, war took the name of “armed liberation struggle” in order to liberate the country from the yoke of capitalism and usher in the so-called rule of the proletariat. The main driver was ideology. Stripped of the rhetoric, it is plain that such conflicts were also driven by the desire to establish the supremacy of a leader or a party. Such ideology-driven internal wars led to the establishment of one-party States such as in China, Vietnam and Cuba.
6. After the second World War, there was another kind of war. It was called the Cold War. It was fought not with armies or aircraft or ships. It was fought in the shadowy world of espionage and intrigue. Its soldiers were agents and double agents. Its objectives were not very different from the objectives of a regular war. The ultimate goal was military supremacy over other countries of the world. It is said that the Cold War came to an end with the fall of the Berlin wall on November 9, 1989, but that was not the end of all wars. Just as the Cold War came to an end, we witnessed the emergence of another kind of war, namely, jihad. Jihad is a war or struggle against unbelievers and, currently, it is waged by a number of groups owing allegiance to Islam. Unlike the original Crusades, jihad is not fought like a conventional war. Jihad employs terror as an instrument to achieve its objectives. Such terror is directed against all and sundry, its victims are usually innocent people, and its goal is to overawe and overthrow the established authority. The tactics of the jihadis have been copied by militants belonging to other groups too, not excluding militants professing the Hindu faith.
7. By a quirk of fate, India in the twenty-first century has turned out to be the confluence of every kind of violence: insurrection or insurgency in order to carve out sovereign States; armed liberation struggle motivated by a rejected ideology; and terrorism driven by religious fanaticism. Never before has the Indian State faced such a formidable challenge. Never before have the Indian people been asked to prepare themselves for such fundamental changes in the manner in which the country will be secured and protected.
The Agony of 26/11
8. Let me summarize the situation as I found it on December 1, 2008. Two days after the terrorist attack in Mumbai was repulsed – after paying a heavy price of 164 lives – the nation was in shock and anger. A billion plus people felt they had been humiliated and the country had been brought to its knees by a small band of terrorists. The security establishment was in disarray and numerous questions were being asked. Had the intelligence agencies failed? Did the first responder, the Mumbai police, prove to be totally inadequate? Was the famed National Security Guard too slow to get off the block? Did the leadership of the police let down its men? Did the security forces take too long to neutralise ten terrorists? Did the Central and the State Governments fail to provide strong leadership? Did the crisis management system collapse? Did the country pay too heavy a price before it repulsed the terrorist attack? Did the Government fail the people in not mounting a swift counter-attack on the perpetrators of terror?
9. These questions continue to haunt me and many others even today. I think I have found the answers to some of these questions, but I do not intend to fill this lecture with those answers. My purpose is to outline the broad architecture of a new security system that will serve the country today and in the foreseeable future.
The State of our Police
10. Let me begin with the foot soldiers. All the States and Union Territories put together had a sanctioned strength of 1,746,215 policemen as on January 1, 2008. Against that number, only 1,478,888 policemen were in place. There are 13,057 police stations and 7,535 police posts in the country. The ratio of available police to per 100,000 people for the whole country is about 130. The international average is about 270. There is no substitute for the policeman who walks the streets. He is the gatherer of intelligence, the enforcer of the law, the preventer of the offence, the investigator of the crime and the standard-bearer of the authority of the State, all rolled into one. If he is not there, it means that all these functions are not performed. That – the failure to perform essential police functions – is where the rot began and that is where the rot lies even today. The first step, therefore, in devising a new security system in the country is to recruit more policemen and policewomen. In my estimate, States would have to recruit over 400,000 constables this year and in the next two years in order to fill the vacancies and in order to provide for expansion of the police forces. A bad police constable is worse than no police constable. Recruitment must therefore be transparent, objective and corruption-free. The Central Government has devised and commended to the States a transparent recruitment procedure that will be totally technology-based and free of any human interference. On its part, the Central Government has implemented the new procedure in the recruitment to the Central Para Military Forces.
11. The police stations in the country are, today, virtually unconnected islands. Thanks to telephones and wireless, and especially thanks to mobile telephones, there is voice connectivity between the police station and senior police officers, but that is about all. There is no system of data storage, data sharing and accessing data. There is no system under which one police station can talk to another directly. There is no record of crimes or criminals that can be accessed by a Station House Officer, except the manual records relating to that police station. Realising the gross deficiency in connectivity, the Central Government is implementing an ambitious scheme called “Crime and Criminal Tracking Network System (CCTNS).” The goals of the system are to facilitate collection, storage, retrieval, analysis, transfer and sharing of data and information at the police station and between the police station and the State Headquarters and the Central Police Organisations.
12. If intelligence-gathering is the corner stone of fighting insurgency or insurrection or terror, the foot solider cannot work in isolation. He must be enabled to gather intelligence from the people as well as the representatives and quasi-representatives of the State such as the Sarpanch, the Lambardar, the village accountant etc. More often than not, intelligence is provided by the citizen who would wish to remain faceless and nameless. It is therefore important that State Governments adopt “Community Policing” and establish a toll-free service under which a citizen can provide information or lodge a complaint. It is the myriad bits of information flowing from different sources that, when sifted, analysed, matched, correlated and pieced together, become actionable intelligence. That function must be performed, first and foremost, at the police station.
13. To sum up, we must have more police stations and, at the police station level, we must have more constables, some of whom are exclusively for gathering intelligence. We must also have a system of community policing, a toll-free service, and a network to store, retrieve and access data relating to crimes and criminals.
14. Moving up the ladder, at the District and State levels, the Special Branch is the key to better intelligence and more intelligence-based operations. There should be at least one police officer in each police station exclusively for intelligence gathering. As the intelligence gathered flows up to the District Special Branch and State Special Branch, there should be an adequate number of well-trained analysts to analyse the intelligence and to draw the correct conclusions. Intelligence is a specialised function. Not every police officer is qualified to be an intelligence officer. It is therefore imperative that the State Special Branch should be restructured as a specialised and self-sufficient cadre of the State police in terms of personnel, funds and equipment. On January 7, 2009, the Central Government had circulated a proposal to restructure the Special Branch in the State police forces. The implementation of the proposal will mark the beginning of a long-haul effort to restructure the intelligence-gathering machinery at the District and State levels.
15. At the District and State levels, the police must also be the first responder in case of a militant or terrorist attack. 24 x 7 control rooms must be set up at the District and State levels. Quick Response Teams must be positioned in every district capital and in important towns. Commando units must be raised and placed at different locations. The Central Government is supporting and funding the conversion of two companies of selected IR Battalions into commando units. QRT and commando units should have modern weapons and equipment. The age profile of these units must be young and older men must, periodically, make way for younger men. A special Anti-Terrorist Unit should be created at the State level to pre-empt terrorist activities and investigate terrorist crimes. While States have begun to take steps on these matters, the pace is still slow. States must give a full and true picture of the tasks completed by them and their state of readiness to face any threat or attack.
The Difficult Tasks Ahead
16. From what I have said so far, the changes that are required to be made in the architecture are quite basic and simple. They can be done by providing more funds, tightening the administration and working to a time-bound plan. Of course, it will also require sound leadership at the political and police levels. However, when we move upwards, serious questions concerning constitutional responsibilities and division of powers will arise. Also, difficult questions would have to be posed and answered regarding the current responsibilities of different organisations. Questions concerning jurisdiction and turf would also arise. If our goal is just extracting a little more from the ‘business as usual’ model, then these questions can be brushed aside or provided ‘don’t-rock-the-boat’ answers. I am afraid that would be self-defeating. Sooner than you think, there may be another crisis like the hijack of IC-814 or another catastrophe like the Mumbai terror attacks. Hence, the time to act is now and I would spell the last word with capitals: N-O-W.
17. I therefore propose a bold, thorough and radical restructuring of the security architecture at the national level.
18. The present architecture consists of political, administrative, intelligence and enforcement elements. At the political level, there is the Cabinet Committee on Security. The administrative element is the Ministry of Home Affairs, the Prime Minister’s office and the Cabinet Secretariat. The intelligence elements are spread over different ministries: there is the Intelligence Bureau which reports to the Home Minister; there is the Research and Analysis Wing which falls under the Cabinet Secretariat and, hence, reports to the Prime Minister; there are organisations such as Joint Intelligence Committee (JIC), National Technical Research Organisation (NTRO) and Aviation Research Centre (ARC) which report to the National Security Adviser; and there is the National Security Council Secretariat under the NSA which serves the National Security Council. The armed forces have their own intelligence agencies, one each under the Army, Navy and Air Force and an umbrella body called the Defence Intelligence Agency. There are other agencies which specialise in financial intelligence. These are the Directorates in the Income Tax, Customs and Central Excise departments, the Financial Intelligence Unit, and the Enforcement Directorate. The enforcement element of this architecture consists of the central para-military forces such as CRPF, BSF, CISF, ITBP, Assam Rifles, SSB and the NSG. What will strike any observer is that there is no single authority to which these organisations report and there is no single or unified command which can issue directions to these agencies and bodies.
19. Some changes have indeed been brought about after December 1, 2008. The most beneficial change has been the operationalisation of the Multi-Agency Centre. By an Executive Order issued on December 31, 2008, the MAC was energised with a broader and compulsory membership and a new mandate. Every piece of relevant information or intelligence gathered by one of the participating agencies is brought to the table. It is analysed and the analysis is shared with the participating agencies. The key benefit is that no one can say that his/her organisation was kept in the dark. Another beneficial change has been the extension of the reach of MAC to the State capitals and the setting up of the Subsidiary-MAC in each State capital in which all agencies operating at the State level, especially the Special Branch of the State police, are represented. Through the MAC-SMAC-State Special Branch network, the Intelligence Bureau has been able to pull more information and intelligence from the State capitals. It has also been able to push more information and intelligence into the State security system.
20. Another innovation is the security meeting held every day, around noon, under the Chairmanship of the Home Minister. NSA, Home Secretary, Secretary (R&AW), DIB, Chairman, JIC, and Special Secretary (IS) attend the meeting. The broad directions issued at the end of the meeting have brought about better coordination in all aspects of intelligence including gathering, analysing and acting upon the intelligence.
21. We should resist the temptation to exaggerate the gains that have been made through these changes at the top. The Home Minister – and by extension the Government – is indeed better informed. The agencies involved are more alert. However, in my view, it does not mean that our capacity to pre-empt or prevent a terrorist threat or attack has been enhanced significantly. As far as responding to a terrorist attack is concerned, we may have enhanced the capacity to contain and repulse an attack, but I think that there is still some distance to go before we can claim to have acquired the capacity to respond swiftly and decisively to a terror attack. It is this assessment which leads me to argue that the security architecture at the top must be thoroughly and radically restructured.
The New Architecture
22. Some steps in this direction are self-evident. For example, there is a need to network all the databases that contain vital information and intelligence. Today, each database stands alone. It does not talk to another database. Nor can the ‘owner’ of one database access another database. As a result, crucial information that rests in one database is not available to another agency. In order to remedy the deficiency, the Central Government has decided to set up NATGRID. Under NATGRID, 21 sets of databases will be networked to achieve quick, seamless and secure access to desired information for intelligence/enforcement agencies. This project is likely to be completed in 18 – 24 months from now.
23. Two more projects will commence early next year. The first is the Business Process Re-engineering of the Foreigners Division at a cost of about Rs.20 crore. The second is the more ambitious Mission Mode Project on Immigration, Visa and Foreigners’ Registration and Tracking with the objective of creating a secure and integrated service delivery framework for facilitating legitimate travellers and strengthening security. The scheme will network 169 missions, 77 ICPs, 5 FRROs and over 600 FROs with the Central Foreigners’ Bureau. It is estimated to cost Rs.1011 crore, but the rub is it is slated to be implemented over a period of four and a half years. The gaps in the visa system have been exposed in a number of cases, the most notable among them being the case of David Coleman Headley. The compelling need to create a fool-proof system cannot be overstated. Hence, it is necessary to put the project on a fast track, engage a Mission Director, beg or borrow the money to implement the project, and complete the task within 24 months.
24 It is our experience that the networks of terror overlap with the networks of drug-peddling, arms-trading and human-trafficking. The agencies that deal with the latter category of crimes are scattered. For example, the Narcotics Control Bureau is under the Ministry of Home Affairs while the Central Bureau of Narcotics is under the Ministry of Finance. The Arms Act is administered by MHA. As far as human-trafficking is concerned, the primary responsibility lies with the State Governments, but anti-human trafficking cells have been set up only in 9 districts of the country. Regulation and enforcement in each of these areas require to be strengthened and brought under the overall management of internal security.
The Way Forward – NCTC
25. Another major idea is the proposal to set up the National Counter Terrorism Centre (NCTC). As the name suggests, the goal is to counter terrorism. Obviously, this will include preventing a terrorist attack, containing a terrorist attack should one take place, and responding to a terrorist attack by inflicting pain upon the perpetrators. Such an organisation does not exist today. It has to be created from scratch. I am told that the United States was able to do it within 36 months of September 11, 2001. India cannot afford to wait for 36 months. India must decide now to go forward and India must succeed in setting up the NCTC by the end of 2010.
26. Once NCTC is set up, it must have the broad mandate to deal with all kinds of terrorist violence directed against the country and the people. While the nature of the response to different kinds of terror would indeed be different and nuanced, NCTC’s mandate should be to respond to violence unleashed by any group – be it an insurgent group in the North East or the CPI (Maoist) in the heartland of India or any group of religious fanatics anywhere in India acting on their own or in concert with terrorists outside India. NCTC would therefore have to perform functions relating to intelligence, investigation and operations. All intelligence agencies would therefore have to be represented in the NCTC. Consequently, in my proposal, MAC would be subsumed in the NCTC. Actually, MAC with expanded authority will be at the core of the new organisation and will transform itself into NCTC. The functions that will be added to the current functions of MAC are investigation and operations. As far as investigation is concerned, Government has set up the National Investigation Agency, and that agency would have to be brought under the overall control of NCTC. The last function – operations – would of course be the most sensitive and difficult part to create and bring under the NCTC. But I am clear in my mind that, without ‘operations’, NCTC and the security architecture that is needed will be incomplete. It is the proposed ‘operations’ wing of the NCTC that will give an edge – now absent – to our plans to counter terrorism.
27. The establishment of the NCTC will indeed result in transferring some oversight responsibilities over existing agencies or bodies to the NCTC. It is my fervent plea that this should not result in turf wars. Some agencies would naturally have to be brought under NCTC and what come to my mind readily are NIA, NTRO, JIC, NCRB and the NSG. The positioning of R&AW, ARC and CBI would have to be re-examined and a way would have to be found to place them under the oversight of NCTC to the extent that they deal with terrorism. The intelligence agencies of the Ministry of Defence and the Ministry of Finance would, of course, continue to remain under the respective Ministry, but their representatives would have to be deputed mandatorily to the NCTC. NATGRID would obviously come under NCTC. So also, CCTNS would have to be supervised by the NCTC.
28. Given the overarching responsibility of NCTC and its mandate, it will be obvious that it must be headed by a highly qualified professional with vast experience in security related matters. Considering the structure of our services, it is natural to expect that the head of one of our organisations will be appointed to the post, by whatever name it may be called. He/she could be a police officer or a military officer. He/she must be one who has impeccable professional credentials and the capacity to oversee intelligence, investigation and operations. He/she will be the single person accountable to the country on all matters relating to internal security. At the Government level, and in order to be accountable to Parliament, it would be logical and natural to place the NCTC under the Ministry of Home Affairs.
29. That leaves the question of the structure of the Ministry of Home Affairs itself. MHA now handles a wide portfolio of subjects ranging from ‘freedom fighters’ to ‘forensic science’. Is this a functional arrangement to deal with the grave challenges to internal security that we face and that we will face from many more years? I am afraid not. It is true that the words ‘Ministry of Home Affairs’ have an authoritative ring, but the MHA now performs a number of functions that have no direct relation to internal security. For example, it has a division dealing with freedom fighters but it does not have even a desk for dealing exclusively with forensic science. There are other divisions or desks that deal with Centre-State Relations, State Legislation, Human Rights, Union Territories, Disaster Management, Census etc. These are undoubtedly important functions and deserve close attention. However, internal security is an equally, if not more, important function that deserves the highest attention. In my view, given the imperatives and the challenges of the times, a division of the current functions of the Ministry of Home Affairs is unavoidable. Subjects not directly related to internal security should be dealt with by a separate Ministry or should be brought under a separate Department in the MHA and dealt with by a Minister, more or less independently, without referring every issue to the Home Minister. The Home Minister should devote the whole of his/her time and energy to matters relating to security.
30. It is after one year in office that I have ventured to outline the new architecture for India’s security. There are two enemies of change. The first is ‘routine’. Routine is the enemy of innovation. Because we are immersed in routine tasks, we neglect the need for change and innovation. The second enemy is ‘complacency’. In a few days from today, 2009 will come to a close, and I sincerely hope that we may be able to claim that the year was free from terror attacks. However, there is the danger of a terror-free year inducing complacency, signs of which can be seen everywhere. A strange passivity seems to have descended upon the people: they are content to leave matters relating to security to a few people in the Government and not ask questions or make demands. I wish to raise my voice of caution and appeal to all of you assembled here, and to the people at large, that there is no time to be lost in making a thorough and radical departure from the present structure. If, as a nation, we must defend ourselves in the present day and prepare for the future, it is imperative that we put in place a new architecture for India’s security.
31. Thank you for your patience and courtesy.”