National campaign for electoral reforms
THE Supreme Court’s verdict of March 13 on the constitutionality of Section 33 B of the RP Act inserted through Act 72 of 2002 is a milestone in the evolution of our republic. The Parliament’s ill-advised effort to curtail the fundamental right of citizens to know the criminal and financial antecedents of candidates has been held unconstitutional.
The issue has come to surface with the efforts of citizens’ groups to unearth criminal record of candidates. The pioneering efforts of Lok Satta in 1999 through its Election Watch movement and screening of candidates generated tremendous public response and pressurized major parties to desist from nominating candidates with criminal record. Thanks to this public pressure, in Andhra Pradesh, in subsequent elections, parties refrained from nominating new candidates with known criminal record. The process of criminalization of politics has been arrested through citizen initiatives, though established politicians with criminal antecedents continue to be nominated.
Based on this success of Lok Satta in AP, Association for Democratic Reforms (ADR) filed a writ petition in Delhi High Court, whose judgment in favour of disclosures was challenged by the Union government before the Supreme Court. PUCL later joined as a petitioner in this case. The Apex court in a reasoned judgment on 2 May 2002 held that the voters have a fundamental right to know the criminal and financial antecedents of candidates. On government’s refusal to incorporate such disclosures as a part of the nomination process, the Election Commission on June 28 issued a detailed notification in compliance with the court verdict. This notification covered the criminal record – including convictions, charges pending and cases taken cognizance, and financial record – including assets, liabilities and dues to public financial institutions – of the candidate, spouse and members of the family. The Union government then drafted an Ordinance and on 16 August recommended to the President its approval. On the same day, leading citizens and activists on behalf of National Campaign for Electoral Reforms urged the President to refer the Ordinance to the Supreme Court under Article 143 of the Constitution, as its provisions violated fundamental rights under Article 19(1) and were expressly violative of the Supreme Court verdict. The President returned the Ordinance to the government for reconsideration on 23 August, but the Cabinet reiterated its recommendation to the President without any changes on 24 August 2002. The President had no option but to promulgate the Ordinance on 24 August.
Lok Satta, PUCL and ADR challenged the constitutionality of the Ordinance, which later was enacted by Parliament as Act 77 of 2002. P.P. Rao and Prashant Bhushan appeared for Lok Satta before Supreme Court. Justice Rajinder Sachar, Sanjay Parikh and Kamini Jaiswal appeared on behalf of the other petitioners. The Supreme Court verdict on 13 March is a result of this petition.
The verdict has the following consequences:
1. Section 33 B of RP Act which militates against disclosures other than those specified in law is held unconstitutional and is void in law.
2. The Election Commission’s notification of June 28 stands valid and will have prospective application.
3. Candidates must now disclose the financial antecedents as specified by Supreme Court earlier.
4. Criminal disclosures covered by the law fall short of Supreme Court judgment and to that extent Election Commission’s notification stands.
This is an important milestone in our democratic evolution. Once again, the resilience of our democratic system, the inherent strength of institutions, and the constitutional checks and balances stand as testimony to the maturity and vibrancy of our governance system.
We congratulate the advocates who marshalled the arguments ably on behalf of citizens and helped the court form its conclusions. Millions of Indians, several organizations and media all have fought this battle for democracy and liberty in keeping with glorious traditions of citizen assertion and people’s sovereignty. We salute those sentinels of freedom.
Finally, this should not be seen as a struggle between the people and the political parties. The parties have a vital and often thankless task to perform in a democracy. Very often they are captive in the hands of political fiefdoms which dominate the electoral scene in a first-past-the-post system. Our parties are striving hard to sustain our democracy against great odds. They need our full support in this endeavour. Equally, the parties must take this as an opportunity, not a threat. This is a priceless opportunity for our political system to break itself loose from criminal elements, unaccounted and excessive money power, and increasing perception of illegitimacy of the power game.
We are confident that our parties and legislators will exhibit the requisite courage, wisdom and foresight to accept this verdict of the Supreme Court and use it as a launching pad for engineering far-reaching and vital electoral and governance reforms. The people of India look up to our political leadership for wise counsel and resolute action to strengthen democracy.
This is not a battle field for legislative supremacy. Every right-thinking democrat supports the supremacy of the Parliament, comprising our own elected representatives, in making laws. The concerns about judicial usurpation of executive and legislative authority are clearly misplaced in this case involving fundamental rights and sanctity of democratic process.
Undoubtedly India is crying for reforms in our electoral system, process of power and judiciary. This verdict and people’s right to know must be the starting point of such a democratic reform.
We, on behalf of National Campaign for Electoral Reforms, appeal to the political parties, media, and enlightened citizens to fully respect this verdict of the Supreme Court, and work for genuine democratic reforms to help us fulfil our potential as a nation and minimise avoidable suffering. The people of India expect of us no less, and they ask of us no more.
The police menace in a ‘democracy’
IN mid-December 2002 retired Admiral Tahiliani released a shocking report in Delhi. Tahiliani chairs the Indian chapter of Transparency International, the international institution that has regularly over the last decade ranked about a hundred countries according to their reputation for corruption. India has always claimed a high place in those rankings. Last year TI-India commissioned a study of India’s administration. The report estimated that in 10 sectors of activity nearly Rs 27,000 crore changed hands in bribes to public servants during the preceding 12 months, a figure larger than the budgets of most of the states in India. And this covered only low level bribery, not the large packages that attract the prominent servants of the people, the likes of Sukh Ram.
The people who responded to the enquiry branded the police as the most corrupt part of the administration.
Are you surprised ? Have you ever had to complain of an offence – cheating, an assault, a robbery perhaps – at a police station? The law requires the Station Officer to record your complaint in one of two registers which it prescribes (separately for serious and minor cases). But you are lucky if after making you wait interminably the officer deigns to take it down on a scrap of paper which he may or may not, as fancy takes him, promote into a First Information Report. Only serious complaints (cognizable ones) lead to investigation; so our cops do all they can to turn those scraps of paper into non-cognizable cases. Unless, of course, you happen to be a VIP. On the other hand, if you are accusing a VIP – so many VIPs today are themselves criminals – then you have little chance of reaching the FIR stage, much less an investigation of your charge.
In addition to this reluctance to register, by resorting to another trick in the book – systematically downgrading the gravity of offences he does register – the Inspector in charge of a police station can claim that his efficiency has reduced the crime level in his beat. Just before he retired, Mumbai’s last Police Commissioner did just that. The crime rate, he said, had fallen – was it 13%? Should we expect that similar manipulation will let the new Commissioner better his predecessor’s figure and claim an even tighter grip on crime in the city?
This kind of device was most recently (if unsuccessfully) used in the Salman Khan case. According to press reports Salman had killed a person sleeping on the footpath of Hill Road, Bandra, Mumbai. He had severely injured two others, driving his car (without a licence) over the three of them after heavy drinking. He then drove off, not bothering to take his victims to a hospital. The Bandra police did their best to soften the consequences for him. They obligingly converted the case, clearly one of culpable homicide under Section 304 of the Penal Code, punishable with jail for 10 years, to one under Section 304A, to which only a two-year sentence can apply. They also took their time testing the accused for liquor consumption. It was only a public outcry that forced the police to reverse the chosen course. The delinquent policeman has not suffered for his illegal leniency. He may even have profited from it.
But even if an FIR is properly recorded it is very simple for the police to spoil the investigation by deliberately careless or perverse noting of witnesses’ evidence. This is one reason why so few – 6%, if I remember correctly cited in a recent report – of the charge sheets they send up to the courts end in conviction.
Another favourite tactic is unconscionable delay. That gives time for the witnesses to be bought out, so they ‘forget’ what happened when they appear in court. No wonder Sajjan Kumar, charged with guiding innumerable murders of Sikhs in Delhi after the Indira Gandhi assassination in 1984, got away after a trial 18 years later.
Nor are such delays peculiar to the nation’s capital. Late in January the Bombay High Court imprisoned and fined a senior Police Inspector for contempt of court in two cases of attempted murder filed in 1995. Investigation had been dragged on interminably until a magistrate directed the police to complete it by May 2000. Even that order was not complied with for 12 months.
Don’t let that lull you into a belief that our police are always dilatory, habitually sluggish in their work. When it suits them – and this happens oftener than most of us realise – they spring into action and finish their enquiries with great speed. We have in India a large number of poor tribes which the British classed as habitually criminal. In those days, whenever the police were baffled in their investigations, it was easy to pounce on those tribals and, rightly or wrongly, fasten charges on them, so the police detection record could be recognized as efficient. After independence, our government dropped the criminal classification. But the police have continued to regard those tribes as criminal and to swoop down on any members of such tribes who happen to be nearby whenever their slipshod detection runs into difficulties. They are then ‘induced’ into confessions. The Pardhi tribe has been particularly susceptible to police attention of this kind.
Occasionally our cops can be quite candid about their methods of treatment of those on whom they want to fasten guilt. On 19 January four persons were murdered in Ghatkopar, Mumbai. Nine days later our efficient police arrested three Pardhis. The Indian Express quoted ‘veteran police officers who have dealt with Pardhis before [as saying] that most of them are physically and mentally strong enough to bear even the third degree.’ We so readily accept such branding of whole groups of people and the extraction of confessions from them by torture that this report evoked no expression of horror from most of those who read it. We delude ourselves into a belief that the police are protecting us from habitual criminals, and let this brutality in police practice continue. As the quotation above shows, torture is an accepted police procedure. In fact, you can get nearly anyone to confess to nearly any crime if your torture is cruel enough.
Meanwhile, for all that prejudice, for all that indefensible branding and brutality, serious crime in Mumbai persists day after day, because the true criminals manage by cunning or bribery to escape police attention. Our cops, then, can act with unholy speed when they want to, speed that sets aside all concern for truth or legality. The most blatant exhibition of this ruthlessness is the series of police encounters that our newspapers report every week.
I recall a public meeting in Mumbai some three years ago which discussed police performance. Lawyer-activist P.A. Sebastian attacked the force on its encounter record. In the preceding 12 months, he said, there had been 99 encounters, with 130 criminal lives lost. In all of them the police claimed to have killed in self-defence. Yet in none of these encounters had a single policeman been injured. The Police Commissioner was present on the dais with Sebastian, but I don’t know whether he was listening. His remarks a little later made no reference to Sebastian’s charge.
Here again, as we read of fake encounters, these repeated expressions of state terrorism, we comfort ourselves with a foolish belief that they keep the city safe for us. On the contrary, they encourage our law enforcers to regard themselves as above the law. The police force even boasts of its ‘encounter specialists’. And of course you have to honour the bravery of these super cops. Most of their victims are shot in the back, but police surgeons who conduct the post mortems are ready to doctor their findings to support encounter myths. Remember this: with police murder being so easily covered up as an encounter death, what is to stop any irascible policeman from resorting to it if he doesn’t like your looks, if he is challenged over something illegal he tries to do, or if his extortion of hafta is resisted?
Worse than all these police practices is the way they handle large scale disturbances, particularly communal riots, which evoke their meanest instincts. Time and again they fail to act to prevent persecution of the minorities, waiting for instructions from their political masters. And time and again they help the rioters to kill, rape and loot, often helping themselves too with a bit of plunder. This happened in 1984, when Sikhs were murdered in their thousands in Delhi. It happened in 1992-93 in Mumbai, when Muslims were similarly massacred and an inept Police Commissioner had to be ultimately removed. One of his immediate deputies now faces a murder charge for killing Muslims. Both officers were promoted. Police ineptitude and brutality occurred on a still larger scale a year ago in Gujarat, where the police even let bloodthirsty BJP ministers run their control room.
The Criminal Procedure Code, the law of the land, places responsibility for law and order squarely in the hands of the police and the magistracy. It gives the political rulers no role in the control of disturbances. There is only a provision in the Police Act that allows the state government superintendence of the police. That word superintendence cannot erode the direct onus on the police explicitly set out in the Criminal Procedure Code. Yet again and again senior policemen abdicate their responsibility and dance to ministers’ tune, with regard neither for their legal duty nor morality. The government taxes us so it can protect us. Instead, we are plundered and butchered with impunity.
What then can raise the poor quality of our policing? What will convince our cops that they are not above the law, that they are paid to serve the people and enforce the law, not pervert it? First, better training, of course. Judging from the way they conduct themselves, one cannot escape concluding that they learn the law only superficially, and, more importantly, that their induction programmes have no ethical content whatsoever. Training, both initial and refresher, needs improvement at all police levels, but particularly for senior officers.
Unlike our governments in India, the authorities in Thailand are seriously concerned about the depraved condition of their police. They have ordered 20,000 of their senior police officers to live for certain periods as monks in Buddhist temples so that enlightenment might dilute their addiction to corruption. There they will have to rise early each morning for meditation and prayer, and lead a luxury-free life of celibacy. There is not the slightest chance of anything similar being adopted in our country. In any case, what good would it do ? Our policemen’s souls – if any – are insulated against enlightenment and morality.
Next, superintendence of the police, formally a responsibility of state governments, today appears limited to informal directions from ministers on which cases to pursue and which to shelve indefinitely. ‘Superintendence’ can stretch even further. There have been press reports of postings and transfers being ordered against payment into ministers’ offices. On 8 February, The Indian Express carried a front page story in its Mumbai Newsline on this practice at the highest levels of the state police. At a wet dinner party a year ago an Additional Commissioner in Mumbai admitted that a few weeks earlier he had paid Rs 2,00,000 to get that post. He may have been a bit high; he went on to boast that he had already killed a man in an encounter.
Without legislation there is little possibility of real change here, and legislation to reduce unholy control and misdirection by political rulers is hardly likely. A posible move toward better supervision and control would be the creation of a Civil Services Board consisting of the seniormost civil officials and a retired judge or two to regulate promotions and transfers of senior officials. The National Police Commission (NPC) proposed this many years back, and four years ago the Supreme Court thought that there was ‘urgent need for the state governments... to set up a credible mechanism for selection of police chiefs in the states. The Central government must pursue the matter with the state governments and ensure that a similar mechanism... is set up in each state for selection/appointment, tenure, transfer and posting of not merely the chief of the state police but also of all police officers of the rank of a Superintendent of Police and above.’ The court had in mind the directions it had given with respect to the CBI and the Central Vigilance Commission and the NPC’s recommendation. It is probable that, on a suitable approach in public interest litigation, the court could be persuaded to make its directions more explicit and peremptory.
Third, the police resort to torture as a regular tool of the detection process can be discouraged by requiring that interrogation of witnesses and accused should invariably be videotaped. Fake confessions will not then be an easily sought solution, and fewer innocent people will be wrongly convicted. Videotaping has become a regular practice prescribed by law in two of the US states – Minnesota and Alaska – and is being voluntarily adopted in police departments elsewhere because of the frequency of wrongful convictions based on forced confessions. It would also help confirm police versions in trials. In the recent Bharat Shah prosecution in Mumbai, 13 witnesses in a row denied what they had earlier told the police. Videotaping is a simple inexpensive device crying out for adoption after the spate of witness denials that have lost so many trials for the prosecution. And yet the chance of its adoption is very slender. Sloppy investigators will fiercely resist any curb on their freedom to torture.
If one could wish for the moon one would add to these prescriptions a hope that intake into the police at high level should be restricted to persons who are truly educated. Today it is generally those who fail to make it into the IAS or the IFS who enter the IPS. Entrants like Satish Sahney, a former Police Commissioner in Mumbai, and Vibhuti Rai, an Inspector General in UP are the very rare exceptions. One recalls what a distinguished Police Commissioner of New York and later of Philadelphia, Anthony V. Bouza, once wrote: ‘What police executive would believe that Ibsen, Shakespeare, Mozart, Wright, Goya and Melville hold the key to success in public office? Yet they provide the insights and understanding that lend wisdom to one’s inner view and grant the philosophical grasp to guide executives among the difficult public issues that dot their life. Dealing with myths, powerful groups, and mercurial constituencies requires a firm view of the objectives and of the means to achieve them.’
In India that kind of person is most unlikely to choose a service as discredited as the IPS to join, unless his motives are venal ab initio. So you get a police force that is widely despised, one that tops the list in corruption surveys like Transparency International’s.