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Indian Constitution makes Criminal Justice System a Rhadamanthine steelframe

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

popular expectations and thus the need of corrections perforce.

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

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 in its body and gestalt.

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

investigation of crimes is concerned.

Criminal Investigation

Criminal investigation as the bedrock of the prosecution, judicial proceedings and

postliminary penal servitude forms the seed of the criminal justice system. Crime

prevention activities being pneumatic and nebulous as what it is, it is criminal

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

fair and secure living.


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

well as for the health of its political and public life.

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,

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

opponents. Criminality is a non-issue in Indian political parlance and criminals

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

already become in the last half century in India.

Politics is for Power

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,

“Corruption is nature’s way of restoring our faith in democracy”. It is dangerously

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

reveals the political compulsions within which a politician must operate.

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

to the very definition of the politics. People’s representatives are allowed to auction

postings within their constituencies to influence the administration in their favour or to

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


Political Expediency

Criminal investigation in India has become a matter of political expediency. State

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

following political needs are no more exceptions in India.

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

subordinate Authorities in the states by due constitutional amendments a la the judiciary


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

necessitates a specialised cadre of investigators responsible only to the Investigation

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