The power behind the throne in the republic is the appointed institutions and it must be exercised in “public interest”
A committee or a board of officials is envisaged in most of the laws. The decision of the Minister is guided by the recommendation of the committee. A building permission, a gun licence or a mining lease licence, etc, are given by the committee of officials.
Recent developments pursuant to Supreme Court decisions in the appointment and transfer of the Director General of CBI or the various State DGPs who enjoy a fixed tenure of two years (considered as encroachment in the Executive domain) have not proved productive. Improvement in peace and order, crime reduction, registration of unreported crimes, detection of crimes, honest investigations, court convictions and overall general honesty in the organisation has not happened a wee bit. On the other hand, several DGPs of the CBI left the organisation in poor light.
Let me dwell deeper into the legal scheme, which confers disproportionate power on the appointed institutions. The Criminal Procedure Code (CrPC), 1973, deals with powers of police, courts and high courts. It also deals with the power of Collector and other executive magistrates. The CrPC consists of 36 chapters. It deals with such subjects as to the power of registration of crime by police, etc, of investigations, arrest, search and seizure, power to release on bail, and of charge sheeting the accused in crimes. Police have the power of preventive arrests and maintenance of peace and public order along with the District Collector and Magistrate.
Police also have the power of preventive detention (without trial) as duly approved by a ‘Board’ and government. The courts have the power to enlarge accused on bail (in non-bailable offences). The courts also have the power to grant anticipatory bail to accused (pre-arrest bail). They can conduct trial of criminal cases, convict and sentence them to prison. High courts have the power to quash FIR as well as criminal investigations, both under Article 226 and under the provision of CrPC. The power of appeal, reference and revision lies with unelected institutions of police, prosecutor and courts.
Section 44 of the CrPC gives power to Executive or Judicial Magistrate to arrest a person for committing an offence in their presence. They have the power to conduct “inquiry” into the police brutality cases or encounters with unlawful elements. As per Sec 97, if any person is confined to any place amounting to an “offence”, the District Magistrate or the Sub-divisional Magistrate may issue a search warrant to restore such a confined person.
Courts have power for attachment or forfeiture of property obtained through commission of an offence (Sec 105c). Any Executive Magistrate or officer-in-charge of a police station can disperse an unlawful assembly by use of “force” (Sec 129 CrPC). According to Secs 130, 131 of the CrPC, powers of dispersal of unlawful assemblies are also conferred on Armed Forces. Sec 133 to 14 of the CrPC give wide discretionary powers to District Magistrate, Sub-divisional Magistrate in the removal of public nuisance and maintenance of tranquillity and public order. No minister has been empowered with such and similar powers.
The Maharashtra Land Revenue Code, 1966, provides that no land used for agriculture purpose shall be used for non-agriculture purpose except with the permission of the Collector. The Urban Land Ceiling and Regulation Act, 1976, gives the State government the power to grant exemptions, which are virtually carried out by civil servants. The Indian Arms Act, 1952, envisages Licensing Authorities, Appellate Authorities, which are all “appointed” institutions.
Fiscal laws such as Companies Act, 1956, Securities and Exchange Board of India Act, 1992, Depositors Act, 1996, Income Tax Act, 1961, provide for Commissioners and Chief Commissioners, Central Board of Direct Taxes (appellate authority) as well as various tribunals, which are all appointed authorities. The Special Economic Zones Act (SEZ), 2000, envisages several layers of appointed authorities. The decisions by a minister/Chief Minister are taken based on the recommendations of these authorities and not in differing with them.
Thus the myth about political interference in day to day administration by a minister/Chief Minister, MLA, MP, etc, needs to be accepted with a pinch of salt. We, therefore, need appointed institutions with backbone, with a spirit of public service to check injustices and for providing good governance.
The IAS, IPS, etc, which were touted as the steel frame of administration and as leaders of bureaucracy and police, need to share the blame. It needs to be noted that all government orders are issued in the name of the President or the Governor as the case may be and not on behalf of a minister or Prime Minister.
The phrase ‘Council of Ministers’ in Art 74 (1) is the cornerstone of parliamentary democracy. The advice of the Council of Ministers may not translate absolutely in actual governance. It has to be reconciled with the words “officers” in Art 53 (1) in the overall context of constitutional and legal scheme.
All these by no means are a certification that Indian politicians are an asset to the nation. But the political class is accountable: a) to the law of the land, b) political accountability in periodic election. A combination of factors such as media exposure of crime and wrongdoing, civil society activism and public movements, efforts of political opposition, genuine public interest litigation activists, etc, makes the political class accountable to the law.
A conference of Chief Ministers held in 1997 to weed out the deadwood amongst All India Service Officers drew a blank as each official was certified as good or outstanding year after year because annual assessment reports are written and reviewed by official hierarchy. Thus, the power behind the throne in the republic is the appointed institutions. If this power is exercised in “public interest”, there is a forward in the realisation of justice.
Concluded
(The author is a retired IGP)
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