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GS Paper: GS2-16.Role of Civil Services in a democracy.

  • What is ‘general consent’ for CBI?

    The Maharashtra CM has restored general consent to the Central Bureau of Investigation (CBI) to investigate cases in Maharashtra.

    General Consent to CBI

    • The CBI is governed by the Delhi Special Police Establishment Act.
    • This makes consent of a state government mandatory for conducting an investigation in that state.
    • Generally, the CBI has jurisdiction only over central government departments and employees.
    • However, it can investigate a case involving state government employees or a violent crime in a given state only after that state government gives its consent.

    When is Consent needed?

    • There are two kinds of consent: case-specific and general.
    • General consent is normally given to help the CBI seamlessly conduct its investigation into cases of corruption against central government employees in the concerned state.
    • Almost all states have given such consent.
    • Otherwise, the CBI would require consent in every case.
    • For example, if it wanted to investigate a bribery charge against a Western Railway clerk in Mumbai, it would have to apply for consent with the Maharashtra government before registering a case against him.

    Withdrawing General Consent  

    • It means the CBI will not be able to register any fresh case involving a central government official or a private person stationed in these two states without getting case-specific consent.
    • Withdrawal of consent simply means that CBI officers will lose all powers of a police officer as soon as they enter the state unless the state government has allowed them.

    Under what provisions general consent can be withdrawn?

    • Section 6 of the Act says nothing contained in Section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union Territory or Railway, area, without the consent of the Government of that State.
    • In exercise of the power conferred by Section 6 of the Delhi Special Police Establishment Act, 1946, the government can withdraw the general consent to exercise the powers and jurisdiction.

    Back2Basics: Central Bureau of Investigation (CBI)

    • Origins of CBI can be traced back to the Special Police Establishment (SPE) set up in 1941 in order to cases of bribery and corruption in War & Supply Department of India during World War II.
    • The need of a Central Government agency to investigate cases of bribery and corruption was felt even after the end of World War II.
    • So, DSPE (Delhi Special Police Establishment) Act, 1946 was brought that gave legal power of investigating cases to CBI.
    • CBI is not a statutory body as it is not established by an Act of the Parliament.
    • CBI investigates cases related to economic crimes, special crimes, cases of corruption and other high-profile cases.
    • CBI comes under the jurisdiction of the Ministry of Personnel, Public Grievances and Pensions.
    • CBI is exempted from Right to Information (RTI) Act similar to the National Investigating Agency (NIA), National Intelligence Grid (NATGRID), etc.

     

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  • Issues related to CBI

    CBIContext  

    • Despite several observations made by the Supreme Court of India (SC) against the inefficient functioning of the CBI nothing has happened to improve the situation.
    • The Enforcement Directorate (ED) is in the news now and often.

    Central Bureau of Investigation (CBI)

    • The Bureau of Investigation traces its origins to the Delhi Special Police Establishment, a Central Government Police force, which was set up in 1941 by the Government of India.
    • It then aimed to investigate bribery and corruption in transactions with the War and Supply Department of India.
    • It then had its headquarters in Lahore.
    • After the end of the war, there was a continued need for a central governmental agency to investigate bribery and corruption by central-government employees.
    • The DSPE acquired its popular current name, Central Bureau of Investigation (CBI), through a Home Ministry resolution dated in 1963.

    Mandate of the CBI

    • The CBI is the main investigating agency of the GoI.
    • It is not a statutory body; it derives its powers from the Delhi Special Police Establishment Act, 1946.
    • Its important role is to prevent corruption and maintain integrity in administration.
    • It works under the supervision of the CVC (Central Vigilance Commission) in matters pertaining to the Prevention of Corruption Act, 1988.
    • The CBI is also India’s official representative with the INTERPOL.

    CBICases to investigate

    • Cases connected to infringement of economic and fiscal laws
    • Crimes of a serious nature that have national and international ramifications
    • Coordination with the activities of the various state police forces and anti-corruption agencies.
    • It can also take up any case of public importance and investigate it
    • Maintaining crime statistics and disseminating criminal information.

    Notable cases cracked by CBI

    • Bhanwri Devi missing case: Jat leader and former Rajasthan minister Mahipal Maderna, Congress MLA Malkhan Singh and Bhanwari’s husband Amarchand were all part of the conspiracy to abduct and eliminate Bhanwari. Bhanwari had threatened to expose Malkhan’s relationship with her at the Bishnoi mahapanchayat.  Maderna, Malkhan, the three kidnappers and Sahiram along with Amarchand were arrested by the CBI.
    • Noida double murder case: In May 2008, the nation was shocked with the sensational double murders in Noida. The victims were Arushi Talwar and Hemraj Banjade. Initially, there was no clarity about the motive or the perpetrator of this ghastly crime. After a lengthy investigation which spanned close to 6 years, the CBI based on circumstantial evidence established that the parents of Aarushi Talwar, Rajesh Talwar and Nupur Talwar were the perpetrators of this crime.
    • The Satyam Case:  B Ramalinga Raju, the disgraced chairman of Satyam Computers Services Ltd, along with 13 individuals and entities including Chintalapati Srinivasa Raju of iLabs, made Rs 2,000 crore in illegal wealth in the Satyam scam. The CBI constituted a Multi-Disciplinary Investigation Team (MDIT) to investigate the case. The team worked hard, burnt midnight oil and achieved success in a record time of 45 days when it filed its first chargesheet against the accused for offences of criminal conspiracy, cheating, forgery and falsification of accounts.

    Issues with CBI

    • Caged parrot: The Supreme Court has criticized the CBI by calling it a “caged parrot speaking in its master’s voice”.
    • Political interference: It has often been used by the government of the day to cover up wrongdoing, keep coalition allies in line and political opponents at bay.
    • Investigation delay: It has been accused of enormous delays in concluding investigations due to political inertia.
    • Loss of Credibility: CBI has been criticised for its mismanagement of several cases involving prominent politicians and mishandling of several sensitive cases like Bofors scandal, Bhopal gas tragedy.
    • Lack of Accountability: CBI is exempted from the provisions of the Right to Information Act, thus, lacking public accountability.
    • Acute shortage of personnel: A major cause of the shortfall is the government’s sheer mismanagement of CBI’s workforce.
    • Limited Powers: The powers and jurisdiction of members of the CBI for investigation are subject to the consent of the State Govt., thus limiting the extent of investigation by CBI.
    • Restricted Access: Prior approval of Central Government to conduct inquiry or investigation on the employees of the Central Government is a big obstacle in combating corruption at higher levels of bureaucracy.

    Why was it called caged carrot by the Supreme Court?

    • Politicisation of the Central Bureau of Investigation (CBI) has been a work in progress for years.
    • Corruption and Politically biased nature, This was highlighted in Supreme Court criticism for being a caged parrot speaking in its master’s voice.
    • CBI has been accused of becoming ‘handmaiden’ to the party in power; as a result high profile cases are not treated seriously.
    • Since CBI is run by central police officials on deputation hence chances of getting influenced by government was visible in the hope of better future postings.

    Suggestions for the improvement of the functioning of the CBI under the supervision of the CVC

    1. One, the CVC Act should be amended, providing for a five/seven member Central Vigilance Commission, which could broadly assume the role visualised for the Lokpal. The selection process of the CVC members should be more broad based to prevent favouritism or from controversial persons being appointed.
    2. Two, the CVC should constitute an advisory committee of at least 11 members drawn from criminologists and forensic science experts. This will augment the professional input in its functioning. Further, to reduce the burden on the CVC, it should be given the power to go to any expert or professional to assist it in screening complaints.
    3. Three, the jurisdiction of CVC, which presently covers all employees of the central government and the CPSUs, should remain unchanged. There is already an administrative arrangement to delegate the vigilance administration over class II and lower formations to the ministries/departments concerned. However, if the lower formations are involved with the class I officers in a composite case, the CVC exercises a natural jurisdiction over all of them. To make this arrangement more effective, it would be important that the CVC exercises complete control over the selection, appointment and functioning of the CVOs.
    4. Four, the CVC should have an adequately experienced team to technically examine and assess the gravity of a complaint, which can then be assigned to the CBI for investigation or can be investigated by this team. After assessing a complaint by this broad-based CVC, there should be no need to seek prior permission from the government.
    5. Five, in the cases assigned to it by the CVC, the CBI should be made functionally and financially independent of the controls of any government ministry/department. The professional supervision over the investigations of the CBI should rest only with the CVC.
    6. Six, the manner of the appointment of the CBI Director should be broad based as in the case of the CVC members, whereas the other inductions/appointments in the CBI should be brought under the overarching supervision of the CVC.
    7. Seven, to achieve better synergy between anti-corruption laws and grievance handling, the laws relating to the whistle blowers and grievance redressal should be placed within the jurisdiction of the CVC.
    8. Eight, effective administration of anti-corruption laws at the grass roots is the key to responsible governance. The state and their anti-corruption agencies would, therefore, need to be equally insulated from the state government’s interference on similar lines.

    Reforming CBI

    • Need for autonomy:   As long as the government of the day has the power to transfer and post officials of its choice in the CBI, the investigating agency will not enjoy autonomy and will be unable to investigate cases freely.
    • Selection of director/ Officers: To ensure that the CBI is a robust, independent and credible investigation agency, there is an urgent need to work out a much more transparent mechanism for selection and induction of officers on deputation.
    • Lokpal scrutiny: The Lokpal Act already calls for a three-member committee made up of the PM, the leader of the opposition and the CJI to select the director.
    • Bifurcation of Cadre: CBI should be bifurcated into an Anti-Corruption Body and a National Crime Bureau.
    • Develop own cadre: One of the demands that have been before Supreme Court, and in line with international best practices, is for the CBI to develop its own dedicated cadre of officers.
    • Annual social audit should be carried out by ten reputed, knowledgeable persons with background of law, justice, public affairs and administration and the audit report should be placed before the parliament.

    About Enforcement Directorate (ED)

    • It goes back to May 1, 1956, when an ‘Enforcement Unit’ was formed in the Department of Economic Affairs.
    • It then aimed for handling Exchange Control Laws violations under the Foreign Exchange Regulation Act (FERA).
    • The ED today is a multi-dimensional organisation investigating economic offences under the Prevention of Money Laundering Act (PMLA), Fugitive Economic Offenders Act, Foreign Exchange Management Act and FERA.

    CBIFrom where does the ED get its powers?

    • When proceeds of crime (property/money) are generated, the best way to save that money is by parking it somewhere, so one is not answerable to anyone in the country.
    • Therefore, there was a need to control and prevent the laundering of money.
    • The PMLA was brought in for this exact reason in 2002, but was enacted only in 2005.
    • The objective was to prevent parking of the money outside India and to trace out the layering and the trail of money.
    • So as per the Act, the ED got its power to investigate under Sections 48 (authorities under act) and 49 (appointment and powers of authorities and other officers).

    At what stage does the ED step in when a crime is committed?

    • Whenever any offence is registered by a local police station, which has generated proceeds of crime over and above ₹1 crore, the investigating police officer forwards the details to the ED.
    • Alternately, if the offence comes under the knowledge of the Central agency, they can then call for the First Information Report (FIR) or the chargesheet if it has been filed directly by police officials.
    • This will be done to find out if any laundering has taken place.

    CBIWhat differentiates the probe between the local police and officers of the ED?

    Case study:

    • If a theft has been committed in a nationalised bank, the local police station will first investigate the crime.
    • If it is learnt that the founder of the bank took all the money and kept it in his house, without being spent or used, then the crime is only theft and the ED won’t interfere because the amount has already been seized.
    • But if the amount which has been stolen is used after four years to purchase some properties, then the ill-gotten money is brought back in the market.
    • Or if the money is given to someone else to buy properties in different parts of the country, then there is ‘laundering’ of money.
    • Hence the ED will need to step in and look into the layering and attachment of properties to recover the money.
    • If jewellery costing ₹1 crore is stolen, police officers will investigate the theft. The ED, however, will attach assets of the accused to recover the amount of ₹1 crore.

    CBIWhat are the other roles and functions of the ED?

    • The ED carries out search (property) and seizure (money/documents) after it has decided that the money has been laundered, under Section 16 (power of survey) and Section 17 (search and seizure) of the PMLA.
    • On the basis of that, the authorities will decide if arrest is needed as per Section 19 (power of arrest).
    • Under Section 50, the ED can also directly carry out search and seizure without calling the person for questioning.
    • It is not necessary to summon the person first and then start with the search and seizure.
    • If the person is arrested, the ED gets 60 days to file the prosecution complaint (chargesheet) as the punishment under PMLA doesn’t go beyond seven years.
    • If no one is arrested and only the property is attached, then the prosecution complaint along with attachment order is to be submitted before the adjudicating authority within 60 days.

    Can the ED investigate cases of money laundering retrospectively?

    • If an ill-gotten property is acquired before the year 2005 (when the law was brought in) and disposed off, then there is no case under PMLA.
    • But if proceeds of the crime were possessed before 2005, kept in storage, and used after 2005 by buying properties, the colour of the money is still black and the person is liable to be prosecuted under PMLA.
    • Under Section 3 of PMLA, a person shall be guilty of money-laundering, if such person is found to have directly or indirectly attempted to indulge or knowingly assist a party involved in one or more of the following activities:
    • Concealment; possession; acquisition; use; or projecting as untainted property; or claiming as untainted property in any manner etc.

    Allegations against ED

    • Huge discretions: The ED is the only Central agency in the country that does not require permission from the government to summon or prosecute politicians or government functionaries for committing economic offences like money laundering.
    • Used for petty crimes: PMLA is pulled into the investigation of even “ordinary” crimes and assets of genuine victims have been attached.
    • Actual purpose denigrated: PMLA was a comprehensive penal statute to counter the threat of money laundering, specifically stemming from the trade in narcotics.
    • Violations of Rights: PMLA was enacted in response to India’s global commitment to combat the menace of money laundering. Instead, rights have been “cribbed, cabined and confined”.
    • Functional opacity: There is also a lack of clarity about ED’s selection of cases to investigate. We often see ED raiding houses of opposition parties suddenly.
    • Poor rate of conviction: We have hardly read the conclusion of cases by ED. Meantime media-trial tears off the accused person’s credibility which is the most desired intent.
    • Under-trials and slower prosecution: ED has been focusing on keeping the accused in custody rather than actually proving the charges against them.

    Challenges to ED

    • ED being dragged to court: The petitions against the ED had the effect of slowing down the investigations, as officers have to defend themselves in court.
    • Foul crying politicians: There are attempts to cover up unexplained, high-value transactions that fall within the PMLA’s ambit
    • Investigation of foreign transactions: Getting information on accounts and money stashed abroad to establish a trail is the biggest challenge they face.

    Way forward

    • The fight against corruption is intimately linked with the reform of the investigations.
    • Therefore the adjudicating authorities must work in cooperation and ensure the highest standards of transparency and fairness.
    • ED has been walking a tightrope to safeguard its integrity by speeding up investigations and court procedures.
    • The need of the hour could be systemic fixes—and not shrill calls to throw the baby out with the bathwater.
    • It is unlikely that corruption can be substantially reduced without modifying the way government agencies operate.

    Conclusion

    • It is for the nation to demand that the country’s premier investigating agencies like the CBI, income tax authorities and the ED are not used as instruments of blackmail and intimidation by the government of the day. Rather they should work with complete objectivity and in the interest of the nation.

    Mains question

    Q. CBI and ED was called caged carrot by the Supreme Court. Do you agree with this? What issues are being faced by these premier agencies? Suggest some dynamic solutions to overcome these issues.

    Do follow

    [Burning Issue] Enforcement Directorate (ED): Dreaded nightmare of Indian Politicians & Businessmen

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  • Civil service reforms in India

    Civil servantsContext

    • Can civil servants express their views on law, governance?

    Why in news?

    • A senior IAS officer, Smita Sabharwal from Telangana, tweeted from her personal account in support of Ms. Bilkis Bano and questioned the Gujarat government’s decision, sparking off a row over whether she was in breach of the Central Civil Services (Conduct) Rules of 1964 and reviving the debate on the freedom of civil servants to express their personal views on matters of law and governance.

    Who are civil servants?

    • In a modern democracy, a civil servant is an official in the service of the people and is recruited based on predetermined qualifications. Civil servants are bureaucrats who need to be familiar with the laws and regulations of the country and are expected to act in the best interests of the country and its citizens.

    What is their expected role?

    • They are responsible for managing the resources given to them by the government and making use of them efficiently and effectively. A sound parliamentary system of government requires civil servants to maintain their integrity, fearlessness, and independence.

    Civil servantsWhat are Central Civil Services (Conduct) Rules of 1964?

    • Conduct Rules lay down clear principles as to what the Government expects from its employees.
    • Conduct rules apply to both official and personal life of the government servant.
    • If an official violates conduct rules, he may face warning/disciplinary action/departmental proceedings.

    What is rule 9?

    • Rule 9 of the Rules of the Central Civil Services (Conduct) Rules states, “No Government servant shall… make any statement of fact or opinion… which has the effect of an adverse criticism of any current or recent policy or action of the Central Government or a State Government.”

    Civil servantsWhat is freedom of expression?         

    • The citizens of country have the fundamental right of free speech guaranteed to them under the Constitution, which is subject to reasonable restrictions in the interest of securing the state’s sovereignty, international relations, health, morality, etc.

    What central conduct rules say?

    • When you undertake a government service, you subject yourself to certain disciplinary rules. That prevents a government servant from becoming a member of a political organisation, or any organisation of such a nature, or expressing herself freely with regard to anything that has to do with the governance of the country.

    How Indian rules are different than others?

    • One of the most important functions of the civil service, as stated by the head of the Canadian Public Service, is to “speak truth to power.”
    • Which is prohibited in Indian context because this rule is of the British era. There is no doubt that the British were very, very strict and didn’t want their officers to be talking about how bad the governance was. But in a democracy, the right to criticise the government is a fundamental right and nobody can muzzle that.

    What judiciary said in Lipika Paul vs The State Of Tripura case

    • As a Government servant the petitioner is not devoid of her right of free speech, a fundamental right which can be curtailed only by a valid law.

    Crux of this judgement in simple words

    • She (the petitioner) was entitled to hold her own beliefs and express them in the manner she desired, subject to not crossing the borders laid down in the Conduct Rules which were applicable in Tripura.
    • A fundamental right cannot be curtailed except by a valid law made by a legislature.

    Why this judgement is important?

    • It abrogated state from exploiting vague terms of the policy of government and government action to punish civil servants who criticize government of the day in any manner harsh or mild.

    What Kerala high court said in 2018?

    • One cannot be prevented from expressing his views merely because he/she is an government employee. In a democratic society, every institution is governed by democratic norms. Healthy criticism is a better way to govern a public institution.

    Why it is highly contextual here?

    • This judgement indirectly protected constructive and just criticism by protecting fundamental rights of the civil servants.

    Action of IAS officer can be justified?

    • Since she added the words ‘civil servant’ in her tweet is because the dharma of the civil servant is to uphold constitutional principles in letter and in spirit, and the rule of law.
    • In Bilkis Bano case, both the spirit of the Constitution and the rule of law were being subverted.
    • Hence her expression can be justified.

    Can we justify rule 9 here in this context?

    • The rules don’t violate Article 19. It is a rule, it’s not the law. It’s not in the Constitution. Freedom of speech is given in the Constitution, but these are Conduct Rules and they are imposed because there has to be some discipline in an organisation for that organisation to function.
    • There is a process of decision-making. Right from below, the matter is examined, the pros and cons are taken up, the bureaucracy is given an opportunity to examine all the aspects, write their notes of objection or support, and finally it reaches the political executive. When a policy is decided, it has to be obeyed and complied with by the bureaucracy.

    Conclusion

    • Anybody could challenge these rules as they are offending constitutional fundamental rights of civil servant; then the Supreme Court would be forced to come down and say either it is good, or it is bad, and give good reasons for that.

    Mains question

    Q. Right time has arrived to challenge conduct rules of civil servants as their freedom of expression is curtailed by these rules. Critically analyse.

     

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  • Delhi Police’s use of Facial Recognition Technology

    A Right to Information (RTI) response revealed that the Delhi Police treats matches of above 80% similarity generated by its facial recognition technology (FRT) system as positive results.

    Why in news?

    • India has seen the rapid deployment of facial recognition technology (FRT) in recent years, both by the Union and State governments, without putting in place any law to regulate their use.

    What is Facial Recognition Technology?

    • Facial recognition is an algorithm-based technology that creates a digital map of the face by identifying and mapping an individual’s facial features, which it then matches against the database to which it has access.
    • It can be used for two purposes:

    (A) 1:1 verification of identity

    • Here the facial map is obtained for the purpose of matching it against the person’s photograph on a database to authenticate their identity.
    • Increasingly it is being used to provide access to any benefits or government schemes.

    (B) One-to-many identification

    • There is the one-to-many identification of identity wherein the facial map is obtained from a photograph or video and then matched against the entire database to identify the person in the photograph or video.
    • Law enforcement agencies such as the Delhi Police usually procure FRT for 1:n identification.
    • It generates a probability or a match score between the suspect who is to be identified and the available database of identified criminals.
    • A list of possible matches are generated on the basis of their likelihood to be the correct match with corresponding match scores.
    • However, ultimately it is a human analyst who selects the final probable match from the list of matches generated by FRT.

    Why is the Delhi Police using facial recognition technology?

    • The Delhi Police first obtained FRT for the purpose of tracing and identifying missing children.
    • The procurement was authorised under the 2018 direction of the Delhi High Court in Sadhan Haldar vs. NCT of Delhi.

    Issues with FRT use

    • The use of FRT presents two issues:
    1. Issues related to misidentification due to inaccuracy of the technology and
    2. Issues related to mass surveillance due to misuse of the technology
    • Extensive research into the technology has revealed that its accuracy rates fall starkly based on race and gender.
    • This can result in a false positive rate, where a person is misidentified as someone else, or a false negative where a person is not verified as themselves.
    • Cases of a false positive result can lead to bias against the individual who has been misidentified.
    • On the other hand, cases of false negative results can lead to exclusion of the individual from accessing essential schemes. Ex. Failure of biometric based authentication under Aadhaar for an 90 YO person.

    Authority to Delhi Police

    • The Delhi Police is matching the photographs/videos against photographs collected under Section three and four of the Identification of Prisoners Act, 1920.
    • This provision has now been replaced by the Criminal Procedure (Identification) Act, 2022.
    • This Act allows for wider categories of data to be collected from a wider section of people, i.e., “convicts and other persons for the purposes of identification and investigation of criminal matters”.

    Why discuss this?

    • At present, India does NOT have a data protection law or a FRT specific regulation to protect against misuse.
    • In such a legal vacuum, there are no safeguards to ensure that authorities use FRT only for the purposes that they have been authorised to, as is the case with the Delhi Police.
    • FRT can enable the constant surveillance of an individual resulting in the violation of their fundamental right to privacy.
    • Yet again the nation-security narrative comes into picture which cannot be ignored.
    • It is feared that the Act will lead to overbroad collection of personal data in violation of internationally recognised best practices for the collection and processing of data.
    • This revelation raises multiple concerns as the use of facial recognition can lead to wrongful arrests and mass surveillance resulting in privacy violations (if used for propaganda politics).

     

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  • Police reforms in India

    Context

    • There is a widely shared view that the All India Services, which provided the ‘steel frame’ of governance in a democratic India, particularly on the police front, are failing to deliver.
    • This is because of the declining decision-making ability of its officers, their smugness arising from notions of total employment security, and the inadequacy of parameters used for evaluating their performance.
    • Anti-corruption bureau Was Constituted To Shield Corrupt Politicians, Officers From Lokayukta: Karnataka High Court

    Role of Police

    • Law enforcement: The basic role of the police is to function as a law enforcement agency and render impartial service to law, without any heed to wishes, indications or desires expressed by the government which either come in conflict with or do not conform to the provisions contained in the constitution or laws.
    • Service delivery: The police should have duly recognised service-oriented role in providing relief to people in distress situations. They should be trained and equipped to perform the service oriented functions.

    Issues with police institution

    • Public relationship: The police-public relations relationship, which is crucial to effective policing, is troubled by a severe lack of confidence.
    • Public perception towards police: Most people believe police to be abusive and also believe that police personnel misuse their power in order to bring order to society.
    • Police Accountability: Police priorities are constantly changed at the request of political leaders. This obstructs police officers’ ability to make professional decisions
    • Overburdened force and vacancies: A high percentage of vacancies in police departments exacerbates an already-existing problem of overworked officers. Given India’s low police strength per lakh population in comparison to international standards, each police officer is also responsible for a huge group of people.
    • Infrastructure: The weapons used by lower police forces are obsolete and cannot match modern weaponry used by anti-social elements.
    • Custodial Death: There are many cases on custodial death means Death by torture/pressure in police/judicial custody.
    • The dilemmas and challenges:

    (1) The Ubiquitous infrastructure (2) Explosion of police tasks (3) Dis-functionalism of rural police (4) Anomalous personnel system (5) The colossal ignorance of either side (6) The fragility of the equipment (7) The paradox of para militarism (8) Non-development to policing

    Steps taken till now

    • Establishment of a Central Police Committee:

    A Central Police Committee to look after the functions of consultancy and monitoring be

    Created because an expert agency is required by the Central Government and the State

    Security Commissions to advise them on matters relating to:

    (i) Police Organisation and police reforms of a general nature;

    (ii) Central grants and loans to the State Police Forces for their modernisation and Development; and

    (iii) Budgetary allotments to State Police Forces.

    • Enactment of a Model Police Act:

    The Police Act of 1861 replaced by a new Police Act, which not only changes the

    System of superintendence and control over the police but also enlarges the role of the

    Police to make it function as an agency which promotes the rule of law in the country and

    Renders impartial service to the community.

    • The Prime Minister’s call for making the police a SMART force: standing for a force which is:
    1. Strict and Sensitive,
    2. Modern and Mobile,
    3. Alert and Accountable,
    4. Reliable and Responsive,
    5. Tech-savvy and trained.
    Malimath committee:

    • Government had set up (November, 2000) a Committee under the Chairmanship
    • of Justice V.S. Malimath , a former Chief Justice of the Karnataka and Kerala High
    • Courts to consider and recommend measures for revamping the Criminal Justice System.

    Key recommendations :

    • Strengthening of training infrastructure, forensic
    • Science laboratory and Finger Print Bureau,
    • Enactment of the new Police Act,
    • Setting up of Central Law Enforcement agency to take care of federal crimes
    • Separation of the investigation wing from the law and order wing in the police stations,
    • Improvement in the investigation by creating more posts.

    Some suggestions for better policing:

    • Screen for Implicit Bias and Aggression: State legislatures should pass legislation that requires current and prospective police officers to undergo mandatory implicit bias testing
    • Focus on Collaborative Approaches to Policing: Police departments should rely upon collaborative approaches that respect the dignity of individuals within the community; focus on problem-solving; and are generally more community centered and build community trust.
    • Encourage Consistent Monitoring and Screening: Police departments should create early warning systems for detecting patterns of behaviour, such as complaints filed against officers or personal hardships like divorce, which indicate potential vulnerabilities for the officer and the department.
    • Use Video Recording to Promote Accountability: Legislatures should require that police interrogations be electronically recorded “during the time in which a reasonable person in the subject’s position would consider themselves to be in custody and a law enforcement officer’s questioning is likely to elicit incriminating responses.
    • Increase the use of special prosecutors in police misconduct investigations
    • Enhancing the collection of data on fatalities involving police

    Conclusion

    • India is the target of an ever-growing list of terrorist groups, insurgent forces and criminal networks.
    • Even petty criminals are now in possession of hi-tech gadgets that allow them better access and reduce their chances of being caught.
    • In such an environment, the need for skill and competency up-gradation of the police force is a sine qua non.

    Q. What is smart policing? Considering the rise in custodial deaths give some suggestions to improve criminal justice delivery system in India.

     

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  • The problem with putting the civil services on a pedestal

    Context

    Recently, two IAS officers were the subject of widespread public derision for misuse of power. A week later, the media and the public feted those who had successfully cracked the UPSC examination in order to become bureaucrats of the future.

    About Indian Administrative Service

    • Civil Services refer to the career civil servants who are the permanent executive branch of the Republic of India.
    • The modern Indian Administrative Service was created under Article 312(2) in part XIV of the Constitution of India, and the All-India Services Act, 1951.
    • It is the backbone of the administrative machinery of the country.
    • As India is a parliamentary democracy, the ultimate responsibility for running the administration rests with the people’s elected representatives.
    • The elected executive decides the policy and it is civil servants, who serve at the pleasure of the President of India, implement it.
    • Article 311 of the Constitution protects Civil Servants from politically motivated vindictive action.

    What makes civil services favourable in India

    • Most countries in the world have a cadre of professional civil servants but nowhere are new entrants to the system of government celebrated like in India.
    • Colonial legacy: The fact is that, 75 years after independence and 30 years after liberalisation, there is still an overhang of the all-powerful, all-pervasive state.
    • There are good reasons for a favourable view of the civil services.
    • Merit based selection: For one, candidates are selected on merit based on an open examination and interview.
    • Job security: Then there is the job security that comes with gaining entry.
    • Unless a civil servant does an extraordinary wrong, she has a job for life, and steady, time-bound promotions which ensure that everyone retires at the top irrespective of performance.

    Issues with public perception

    • However, in the perceived strengths of the civil services lie its weaknesses.
    • Single exam: The single UPSC examination is treated as gospel. 
    • But merit and competence cannot be judged by a single exam.
    • Permanence is a problem: The permanence of the job is a problem too.
    • Punishment for over-reach or misuse of power is a transfer, either from a weightier ministry to a lighter one or from high-profile capitals to geographically remote ones.
    • A system of limited accountability: The result is that all civil servants, never mind their ability or competence, operate in a system of limited accountability with few incentives to perform and plenty of opportunities to use and abuse their powers.

    Way forward

    • Placing civil servant at par with other professions: The civil services system needs to be brought down from its pedestal and placed at par with every other profession like elsewhere in the world.
    • This will not happen via political diktat. It requires the weight of public opinion.
    • Broaden the selection criteria: The system must be manned by capable, competent individuals. This cannot be decided on the basis of one exam.
    • Remove the job permanency: The underperforming officers need to be separated which cannot happen when the job is for life.
    • It may sound radical for India’s civil services but that is the way the rest of India and the world function, including the UK from where we inherited the structure.

    Conclusion

    If we can make these changes in the civil services, India will get the government it needs for the 21st century.

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  • What are Look Out Circulars (LOCs)?

    The Punjab and Haryana High Court has held that a Look Out Circular (LOC), which prevents one from travelling abroad, must be supplied to the person at the time of being stopped at the airport and that the reasons should be communicated to the affected party.

    What is a Look Out Circular?

    • It is a notice to stop any individual wanted by the police, investigating agency or even a bank from leaving or entering the country through designated land, air and sea ports.
    • Immigration is tasked to stop any such individual against whom such a notice exists from leaving or entering the country.
    • There are 86 immigration check posts across the country.

    Who can issue LOCs?

    • A large number of agencies which includes the Central Bureau of Investigation (CBI), Enforcement Directorate, Directorate of Revenue Intelligence (DRI), Income Tax, State police and intelligence agencies are authorised to generate LOCs.
    • The officer should not be below the rank of a district magistrate or superintendent of police or a deputy secretary in the Union Government.

    What are the details required to generate an LOC and who issues it?

    • According to a 2010 official memorandum of the Ministry, details such as First Information Report (FIR) number, court case number are to be mandatorily provided with name, passport number and other details.
    • The BOI under the MHA is only the executing agency.
    • They generate LOCs based on requests by different agencies.
    • Since immigration posts are manned by the BOI officials they are the first responders to execute LOCs by stopping or detaining or informing about an individual to the issuing agency.
    • The LOCs can be modified; deleted or withdrawn only at the request of the originator.
    • Further, the legal liability of the action taken by immigration authorities in pursuance of LOC rests with the originating agency.

    How are banks authorized?

    • After several businessmen including liquor baron Vijay Mallya, businessmen Nirav Modi and Mehul Choksi fled the country after defaulting on loans, the MHA in 2018 brought changes to the 2010 guidelines.
    • It authorised the chairman, managing director and chief executives of all public sector banks to generate LOCs against persons who could be detrimental to economic interests of the country.

    Is there any other clause under which any individual can be stopped?

    • The 2010 Ministry guidelines give sweeping powers to police and intelligence agencies to generate LOCs in “exceptional cases” without keying in complete parameters or case details.
    • This was against suspects, terrorists, anti-national elements, etc. in larger national interest.
    • After the special status of J&K under Article 370 was abrogated in 2019, LOCs were opened against several politicians, human rights activists, journalists and social activists to bar them from flying out of the country.
    • The number of persons and the crime for which they have been placed under the list is unknown.

    Are individuals entitled to any remedial measures?

    • Many citizens have moved courts to get the LOC quashed.
    • As per norms, an LOC will stay valid for a maximum period of 12 months and if there is no fresh request from the agency then it will not be automatically revived.
    • The MHA has asserted that LOCs cannot be shown to the subject at the time of detention nor can any prior intimation be provided.
    • The Ministry recently informed the Punjab and Haryana HC that the LOC guidelines are a secret document and the same cannot be shared with the ‘accused’ or any unauthorised stakeholder.
    • It cannot be provided or shown to the subject at the time of detention by the BOI since it defeats the purpose of LOC and no accused or subject of LOC can be provided any opportunity of hearing before the issuance of the LOC.

    Precedence set by the Judiciary

    • In January this year, Delhi HC quashed an LOC against a Delhi businessman generated at the instance of the Income Tax department.
    • The court said no proceedings under any penal law had been initiated against the petitioner” and the LOC was “wholly unsustainable.”
    • It said that there cannot be any unfettered control or restriction on the right to travel and that it was part of the fundamental rights.
    • Delhi HC has also asked the Director of the CBI to tender a written apology.

     

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  • Actions that corrode the steel frame of India

    Context

    A letter war between two sets of retired public officials (civil servants, judges and army officers), concerning the prevailing political and social situation in the country, has been widely reported in the media.

    Role of civil service

    • It is the police and magistracy, judicial courts and other regulatory agencies — not politicians — which have been authorised and empowered by law to take preventive action against potential troublemakers, enforce the laws relating to criminal, economic and other offences, and maintain public order.
    • In mature democracies, self-respecting public officials normally discharge their constitutional and legal responsibilities with honesty, integrity and their own conscience, firmly resisting the dictates of the vested interests.

    Deterioration in the standard of civil service

    • The deterioration in standards was very visible during the National Emergency declared in 1975.
    • The civil services, like other institutions including the judiciary, just caved in; the trend might have accelerated over the years.
    • Now, no one even talks of civil service neutrality.
    • Earlier, during communal or caste riots, the Administration focused on quelling the disturbances and restoring peace in the affected locality, without ever favouring one group over the other.
    • Now, there are allegations of local officers taking sides in a conflict.
    • A civil servant’s pliant and submissive behaviour means an end to civil service neutrality and the norms and values that this trait demands, does not seem to bother either the political or bureaucratic leadership.
    • Despite the protection and safeguards in Article 311 of the Constitution, politicians could have a civil servant placed in an inconvenient position or even punish him.

    Norms and values associated with a civil servant

    • Norms: The norms that define neutrality are: independence of thought and action; honest and objective advice; candour and ,‘speaking truth to power’.
    • Values: Associated with these norms are the personal values that a civil servant cherishes or ought to cherish, namely, self-respect, integrity, professional pride and dignity.
    • All these together contribute to the enhancement of the quality of administration that benefits society and the people.

    Conclusion

    Constitutional morality is not a natural sentiment,” wrote B.R. Ambedkar, the architect of the Constitution and added, “It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic.”

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  • What are the rules for resignation and reinstatement of an IAS officer?

    A decorated Indian Administrative Service (IAS) officer and UPSC CSE topper from 2010, who resigned from the service in protest against the “unabated” killings in Kashmir in 2019, has been reinstated.

    What rules apply when an IAS officer chooses to resign?

    • A resignation is a formal intimation in writing by an officer of his/her intention or a proposal to leave the IAS, either immediately or at a specified date in the future.
    • Guidelines of the Department of Personnel, the cadre controlling department for the IAS, say that a resignation has to be clear and unconditional.
    • The resignation of an officer of any of the three All-India Services — IAS, the IPS and IFoS — is governed by Rules 5(1) and 5(1)(A) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958.
    • There are similar rules for resignation of officers belonging to the other central services as well.
    • Resignation from service is entirely different from accepting the government’s Voluntary Retirement Scheme (VRS).

    To whom must the resignation of an IAS officer be submitted?

    • An officer serving in a cadre (state) must submit his/her resignation to the chief secretary of the state.
    • An officer who is on central deputation is required to submit his/her resignation to the secretary of the concerned Ministry or Department.
    • The Ministry/Department then forwards the officer’s resignation to the concerned state cadre, along with its comments or recommendations.

    What happens after the resignation is submitted?

    • The state checks to see if any dues are outstanding against the officer, as well as the vigilance status of the officer or whether any cases of corruption etc. are pending against him/her.
    • In case there is such a case, the resignation is normally rejected.
    • Before forwarding the resignation to the central government, the concerned state is supposed to send information on the issues of dues and vigilance status, along with its recommendation.
    • The resignation of the officer is considered by the competent authority, i.e., the central government, only after the recommendation of the concerned cadre has been received.
    • The competent authorities are: Minister of State at the DoPT in respect of the IAS, the MHA in respect of the IPS, and the MoEFCC in respect of the Forest Service.
    • Being the minister in charge of the DoPT, the Prime Minister himself takes decisions currently in respect of the IAS.

    Under what circumstances is a resignation accepted or rejected?

    • A circular issued by the DoPT on February 15, 1988 regarding resignation says that it is not in the interest of the government to retain an officer who is unwilling to serve.
    • The general rule, therefore, is that the resignation of an officer should be accepted — except in certain circumstances.
    • The references are made regarding the merit of the disciplinary case pending against the Government servant and whether it would be in the public interest to accept the resignation.
    • In some cases, resignations have been rejected because disciplinary cases were pending against officers.
    • In such cases, concurrence of the Central Vigilance Commission (CVC) is obtained.
    • The government also checks whether the concerned officer had executed any time-bond to serve the government.

    Is an officer allowed to withdraw a resignation that has already been submitted?

    • Rule 5(1A)(i) of the amended DCRB Rules says the central government may permit an officer to withdraw his/her resignation “in the public interest”.
    • An amendment in the Rules in 2011 states the member is allowed to resume duty as a result of permission to withdraw the resignation is not more than 90 days”.
    • The request for withdrawal of resignation shall NOT be accepted where a member of the Service resigns to be associated with any active politics/ political parties.

    And under what circumstances is the withdrawal of an officer’s resignation accepted?

    • The 2011 guidelines say that if a resigned officer resignation sends an intimation in writing withdrawing it before its acceptance by the competent authority, the resignation will be deemed to have been automatically withdrawn.
    • The officer under discussion had resigned on January 9, 2019, but his resignation was not processed.

     

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  • How does the CBI take up cases?

    The Calcutta High Court has ordered the Central Bureau of Investigation (CBI) to investigate the killings in West Bengal’s Birbhum district, where eight persons were burnt alive.

    About CBI

    • The Bureau of Investigation traces its origins to the Delhi Special Police Establishment, a Central Government Police force, which was set up in 1941 by the Government of India.
    • It then aimed to investigate bribery and corruption in transactions with the War and Supply Department of India.
    • It then had its headquarters in Lahore.
    • After the end of the war, there was a continued need for a central governmental agency to investigate bribery and corruption by central-government employees.
    • The DSPE acquired its popular current name, Central Bureau of Investigation (CBI), through a Home Ministry resolution dated in 1963.

    Mandate of the CBI

    • The CBI is the main investigating agency of the GoI.
    • It is not a statutory body; it derives its powers from the Delhi Special Police Establishment Act, 1946.
    • Its important role is to prevent corruption and maintain integrity in administration.
    • It works under the supervision of the CVC (Central Vigilance Commission) in matters pertaining to the Prevention of Corruption Act, 1988.
    • The CBI is also India’s official representative with the INTERPOL.

    Cases to investigate

    • Cases connected to infringement of economic and fiscal laws
    • Crimes of a serious nature that have national and international ramifications
    • Coordination with the activities of the various state police forces and anti-corruption agencies.
    • It can also take up any case of public importance and investigate it
    • Maintaining crime statistics and disseminating criminal information.

    How does the CBI take up cases?

    • Unlike the NIA, CBI cannot take suo motu cognizance of a case in a state — whether in a matter of corruption involving government officials of the Centre and PSU staff, or an incident of violent crime.
    • In order to take up corruption cases involving central government staff, it either needs general consent (see last question) of the state government, or specific consent on a case-to-case basis.
    • For all other cases, whether involving corruption in the state government or an incident of crime, the state has to request an investigation by the CBI, and the Centre has to agree to the same.
    • In case the state does not make such a request, the CBI can take over a case based on the orders of the High Court concerned or the Supreme Court.

    Can the CBI decline to take up a case for investigation?

    • After a state makes a request for an inquiry by the CBI, the Centre seeks the opinion of the agency.
    • If the CBI feels that it is not worthwhile for it to expend time and energy on the case, it may decline to take it up.
    • In the past, the CBI has refused to take over cases citing lack of enough personnel to investigate, and saying it is overburdened.

    What is the CBI’s workload currently?

    • According to the latest Annual Report of the Central Vigilance Commission, the CBI registered 608 FIRs in 2019 and 589 FIRs in 2020.
    • In 2020, a total 86 cases related to demands for bribes by public servants for showing favour, and 30 cases for possession of disproportionate assets were registered.
    • Out of 676 cases in the year (including FIRs and Preliminary Enquiries), 107 cases were taken up on the directions of constitutional courts and 39 on requests from state governments/ Union Territories.
    • Also, there are over 1,300 vacancies in the CBI.

    What is the CBI’s progress on cases?

    • At the end of 2020, the CBI had 1,117 cases (both FIRs and PEs) pending investigation. In 2019, this number stood at 1,239.
    • During 2020, investigation was finalised in 693 FIRs and 105 PEs.
    • The conviction rate during the year was 69.83% against 69.19% in 2019.
    • At the end of 2020, 9,757 cases were pending in various courts.
    • The conviction rate in corruption cases was slightly lower at 67% in 2020.
    • Almost 2,000 corruption cases are pending trial for more than 10 years.

    What is the role of state consent in an investigation by the CBI?

    • Since 2015, as many as nine states — Maharashtra, Punjab, Rajasthan, West Bengal, Jharkhand, Chhattisgarh, Kerala, Mizoram and Meghalaya — have withdrawn general consent to the CBI.
    • Opposition-ruled states have alleged the CBI has become its master’s voice, and has been unfairly targeting opposition politicians.
    • Withdrawal of general consent means that to probe any case in these states, CBI would have to take prior permission from the state government.
    • CBI has claimed that this has tied its hands.

    Also read

    [Burning Issue] Central Bureau of Investigation

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