Professional Documents
Culture Documents
of the rule of law when it preconises in Article 20(1), “No person shall be convicted of
any offence except for violation of a law in force at the time of the commission of the act
charged as an offence, nor be subjected to a penalty greater than that which might have
been inflicted under the law in force at the time of the commission of the offence”. A
common place looking but potent instrument in theory that keeps out faith, public opinion
or even sittlichkeit beyond the purview of the nation’s Criminal Justice System and
proclaims the rule of law as its sole life and blood and making all equal before the law
irrespective of one’s status, standing and rank in the society. However, the realities in the
field as it developed today are entirely different from what was perceived then by the
fathers of the Indian Constitution at a milieu of different value system. The democratic
political dynamics of India since independence took a direction entirely different from the
Political Leadership
Amod Kanth, DGP, who was sacked by the Government from the post of the
Police Chief of Goa on 25 November on the ground that the DGP did not obey the
Government’s written orders reacted by stating that the police are the agents of law and
he did not believe in loyalty to anyone, but strongly believed in the performance of duties
in terms of constitutional, legal and people-oriented parameters. Kudos to his noble ideas
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and values. I too had championed that cause of the profession and perhaps the first to
bring out the ideal in concrete ideas in 1990s. However, the conundrum lies in the lengths
to which the Indian Constitution moves and prepares for those paradigmatic roles for its
Police and policing for the Indian Constitution are nothing more than the subject
matters of Legislative Powers as enshrined in the Lists of its Seventh Schedule under
Article 246, ipso facto rendering it within the constitutional limits subordinate to the
control and supervision of the political bosses in power and their policies and
programmes. Sadly, Indian Constitution does not recognise their professional ideals,
values and conscience, and their singular role as the custodians of the rule of law. They
are circumscribed by the political will to which they are subordinate. All the extant ills of
this maledict country emanate from this sole provenance. This is a serious matter as far as
Criminal Investigation
postliminary penal servitude forms the seed of the criminal justice system. Crime
investigation that constitutes the spine of the crime administration anywhere in the world.
Right investigation of crimes is the soul of fair societal living and the foundation of the
The Indian Constitution rests the control and supervision of the premiere
investigation agency of the country, the Central Bureau of Investigation, in the hands of
the political leadership of the Union Government and the police and the offences against
the State Laws in the hands of the political leadership of the State Government by
keeping the subject matters in respective Lists of the Seventh Schedule under Article246.
This sine dubio provides a key and decisive role to the political leadership in power in the
investigation of crimes and renders the police mere professional tools of the political
decision makers. Considering the growth of the political culture of the country in the last
six decades and the need of absolute fairness and objectivity in the process of the
criminal investigation, better deal for criminal investigation in the gestalt of the Indian
Constitution is certainly called for. This is sine qua non for the survival of the nation as
Political Compulsions
Shibu Soren, the Jharkhand Mukti Morcha chief, who was the Coal and Mines
minister in the UPA government quit the Cabinet on July 24 in face of vociferous demand
by the BJP and its NDA allies for his resignation after a Jharkhand court issued a non-
bailable warrant against him in a 20-year-old case relating to the 1975 Chirudih massacre
during the agitation for a separate Jharkhand state, only to be reinducted to the Union
Cabinet on November27 as the minister of Coal after the Opposition was cornered by its
own act of going all out in support of the Kanchi Shankaracharya, Shri Jayendra
Saraswati while the latter was arrested by the Tamilnad police on November 11 on the
charges of conspiracy for the murder of a whilom devotee of the Kanchi Mutt,
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Shankararaman. The episode makes it crystal clear how political parties treat
investigation of even serious cases of murder as their political pawns to checkmate the
accrescently proved to be the pillars of India’s democracy. They constitute the spine of
the Indian politics. No Government is possible and complete without their participation.
Criminal investigation becomes a farce if left to the mercy of these people, which it has
Politics is for power. Power in democracy does not come for free. Il faut de l’
argent in politics. No sensible person can squander his hard earned money in political
gambles. That is how corruption enters politics a la derobee. Peter Ustinov said,
radicated in the extant political system of India so much that politics sans corruption has
become unimaginable. As back as in 1971, when the then Union Finance Minister,
Y.B.Chavan approached the then Prime Minister Indira Gandhi with a proposal for
demonetisations to curb corruption, the only curt response from the Prime Minister was a
question, “Chavanji, are no more elections to be fought by the Congress Party?” That
The grab is more serious lower down the level. Every MLA or MP counts in the
survival game of the politics. The choice is between power interests and national
interests. Almost always it is the survival instinct and the lure of power that prevails true
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to the very definition of the politics. People’s representatives are allowed to auction
enable them to pool the fund to face the next election as a quid pro quo for their
continued support to the Chief Executive of the Government and his survival. This is a
vicious circle of political compulsions outgrown in the Indian variety of the democracy.
No investigation machinery can remain fair and objective in such an ambience. Political
system in India has just not matured for the enlightened leadership of the criminal justice
system.
Political Expediency
political leadership decides about the permission to the CBI to investigate a case
depending on its own vulnerability and interests in the case. Whether it is in states or in
the Centre, criminal cases are taken for investigation, the pace of the investigation is
decided, arrests are made, bails and post-arrest treatments are decided, and even the
quality of the investigation are regulated according to the needs of the politicians in
power. Important investigations continuing for decades and even dying in rerum natura
The way out to resile the criminal investigation machinery to its normal fairness,
objectivity and the framework of the rule of law is to institute a constitutional body for
criminal investigation called the Indian Investigation Authority in the Centre and
with autarchy to guide the process of the investigations from the scratch to the end sans
immunity to any except perhaps to the President of the country. Indeed the process
Authority with a senior Supreme Court judge as its constitutional head and senior police
and civil service officers of proven integrity selected by the Authority in consultation
with the Chief Justice of the Supreme Court as members in constitutional posts and
responsible only to the Chief Justice of the Supreme Court and the President of the
country. This may considerably relieve the investigation machinery of the country from
the epinosic political compulsions and bring fairness, objectivity and the framework of
the rule of law so essential for the rightful process of any investigation back to its frame.
Praveen Kumar
pryveen@yahoo.com
Bangalore