REVAMPING THE

INVESTIGATION MACHINERY

Indian Constitution makes Criminal Justice System a Rhadamanthine steel

frame 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

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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 subsequent 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,

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

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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.

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