Police As The Final Arbiter

THE recent observations of the Supreme Court in the controversy involving two Union Ministers need to be debated extensively before a final view can be taken. Otherwise, there is every possibility that the system may be damaged irretrievably. Once the Pandora&’s Box is opened, there is no way anyone will be able to shut it.
The Court has desired the Government to bring forward a Bill to grant full autonomy to the CBI to make it independent of government control. A deadline has also been indicated, according to media reports. The CBI has been described as a “caged parrot”. The implication is obvious. Somehow, the agency is being inhibited in discharging its role in a free and fair manner. Further, that there is political pressure on the CBI to tailor its reports to cater to the ruling political executive.
At the outset, it must be iterated that the apex court is a hallowed institution and its views deserve the highest respect. Having said that, it needs deep reflection on the issue of making a police agency independent of government control ~ it is fraught with grave risk. It will impact the functioning of the executive and hobble the decision-making process, if not paralyse it. In the ultimate analysis, all economic growth and development is a function of a decisive executive. “To be decisive is to provoke controversy,” as a former British Prime Minister put it.
To appreciate the issue in perspective, the role and responsibility of the various agencies involved in executive governance need to be analysed first. The CBI is a police agency in mufti, manned exclusively by policemen. A policeman throughout his official career is a privileged person. He is not involved in any executive decision-making. Indeed, he is not a part of the civilian executive. All through his career, his primary role is to investigate crime post facto. At the end of his innings, he can comfortably hang up his boots, sometimes fitted with iron spikes and justifiably look back at a controversy-free career.
On the other hand, the civil servants who constitute the permanent executive are not so privileged. From day one, the first official assignment of an executive officer is as a sub-divisional magistrate who is expected to implement around forty odd laws. He is the chief representative of the government in the outlying districts. He is thrown into the very vortex of the complex affairs of the modern welfare state, with all the attendant responsibility and day-to-day accountability. Generally an outsider, he is a solitary reaper. ‘God save him’ – a handy prayer – is his best armour.
The forty odd laws range from land laws, environment protection, regulation and control of essential commodities, economic legislation like procurement and distribution of food grains, municipal bye laws, conduct of periodic elections to the legislature and Parliament, tax and revenue laws, public health and organization of public festivals and fairs and so on. Besides, he is a designated executive magistrate under the Criminal Code of the country who has to hold inquiries and inquests, intervene in land disputes, exercise powers in cases of public nuisance and is ultimately responsible for law and order.
Arguably, nowhere in any established democracy the world over is so much responsibility thrust on such young and inexperienced shoulders. Besides, as the chief representative of the government in the field, he has a constant interface with the local political executive. Management experts the world over have come to acknowledge that political input is an important part of executive decision-making in a representative democracy.    
In the states and at the Centre, the basic architecture of the government comprises specialized directorates which are supervised by ministries headed by elected ministers who are accountable to the Parliament. The CBI is just one such police directorate under the Union Home ministry which is supposed to be manned by civil servants ~ all trained and experienced magistrates. The civilians in the ministry ensure accountability of the directorates and assist the Home Minister in the discharge of his Parliamentary duties.
The bifurcation in a democratic government into departments and directorates ensures the in-built accountability of all executive authorities to Parliament, a first postulate of the ‘rule of law’.  Authority without accountability would be the very negation of the rule of law. According to the Supreme Court itself, in the celebrated case of Keshavananda Bharati, ‘rule of law’ is a part of the ‘basic structure’ of the Constitution. Hence, it is immutable.
Theoretically, all executive decisions can be challenged and investigated by the CBI. In other words, a police officer who is not required to take any decision all his working life can question any executive decision. There is another factor, largely overlooked during the public discourse where the cry for blood is increasingly strident. The police always have the advantage of hindsight, against which no weapon of defence has ever been invented. A civilian decision-maker is thus always vulnerable. To make CBI even more powerful would be the sure harbinger of a police state.
Some CBI officers are forever moaning that they are being hindered in their duties by political pressure from the ruling politicians. Exceptions apart, nothing could be farther from truth. All investigation is conducted by the CBI under the Criminal Procedure Code, the oldest law on the statute book. Once an FIR is lodged, the investigating officer derives full authority from law and not from any executive superior. He already enjoys full autonomy.
Complete autonomy to the police during investigation had been granted by the Supreme Court itself in a landmark judgement more than half a century ago. Under the Criminal Code of the country, the respective High Courts have the inherent power to pass any order on the police “to secure the ends of justice”. But the Supreme Court categorically restrained the High Courts from intervening during the investigation of criminal offences. It is the long-settled law of the land.
Thus, in the spirit of the said judgement, the apex court refused to intervene during investigation even where the police had no territorial jurisdiction. When it was alleged that the police were conducting investigation in a  mala fide manner, the apex court ruled that the High Court had no inherent jurisdiction in the case but Writ jurisdiction, i.e. only if any fundamental right of the accused were to be violated. “The functions of the judiciary and police are complementary, not overlapping”.
Assuming that an investigating officer was to be pressured to act other than in accordance with law, the Constitution fully protects him from any departmental or legal harassment in terms of Article 311. A police officer has nothing to fear unless, of course, he chooses to allow himself to be so manipulated, for rewards later. This appears to be the case more often than not, if recent developments are any indication. Two of the country&’s top investigators who had already retired, heads of NIA and CBI, have both been gifted recently with post-retirement plums. These have been gratefully accepted, thank you.
Evidently, in the bargain these top cops have set a very unedifying example before their juniors. The doublespeak is all too evident. Before the courts of law, some of these CBI officials plead helplessness. But when no one is watching, they quietly suck up to their political masters and willingly do their bidding. But when the balance sheet on corruption is drawn up, the executive, both political and permanent one is rendered a festival drum ~ beaten on either side by the judiciary and a sensation-mongering media.

(To be concluded)
The writer is a retired IAS officer