Investigators' plight

SHAHID BALWA (RIGHT), Managing Director of DB Realty, being produced at Patiala House Court in New Delhi in connection with the 2G spectrum allocation scam on February 14. - SUSHIL KUMAR VERMA

Crime investigation can become fair only when the investigator becomes accountable to the law and not merely to the executive.

THESE are exciting times for the Indian media. Apart from the Cricket World Cup I am writing this on the morning of the titanic clash at Mohali there is so much to report on what is happening around us that could titillate an average citizen looking for a break from the stresses of everyday life. The 2G spectrum and Commonwealth Games (CWG) scams were heaven-sent opportunities for newspapers and television channels because they were never short of juicy material relating to the two investigations on which they could speculate at will and without transgressing the law of the land. My only lament is that media reports have seldom devoted a thought to the plight of the investigators of these two and several other scams that have shown the whole country in very poor light.

The Central Bureau of Investigation (CBI) and allied agencies do not necessarily need praise. They could, however, do with some charity from news reporters and commentators. Given a measure of media consideration and objectivity, the agencies will do much better and quicker job than now in bringing lawbreakers to book. It is not as if the Indian media alone are carping and harsh. Their counterparts elsewhere in the world are equally hard on the average crime investigator and do not conceal their relish of sensationalism. In India, the investigator is pitted against many more odds that come in the shape of unabashed political interference and an ignorant public who are made to believe that everything that the CBI or a similar agency at the State-level does is spurious and, therefore, suspect. It is this miasmic atmosphere that makes the agencies' work complex and controversial.

The public need to know that the criminal law of the land does not trust the police and other outfits responsible for cracking crime. This is a legacy of the British past, and unfortunately, the Indian police establishment and a host of other organisations, which are charged with tackling economic crime, have only aided to buttress the suspicion that they are either the handmaiden of the ruling party or are themselves dishonest.

For instance, the outburst recently of the Supreme Court that the Enforcement Directorate, while probing the Hasan Ali case, had still not brought to surface the source of funds allegedly stashed away by the Pune horse owner. ( It has been more than three years. You have been investigating it since 2008. The fundamental question is about the sources of money, and that is not forthcoming.) There is a hint here of either incompetence or suspicion that some extraneous force is dictating the course of investigation. Both are an equally poor advertisement for the agency that is performing a vital task that impinges on the health of the country's economy.

The CBI investigated the Satyam scam with great finesse. One will have to wait for the court verdict to offer any view on the thoroughness of that investigation. The same holds good for the 2G spectrum investigation in which a charge sheet will be laid in the next few days. The CBI has only modest expertise to handle economic crime. It has, however, made good any lack of internal skills by drawing on external resources. This is the greatest challenge to the investigator in India. He has to sound knowledgeable in areas that are alien to him by way of education or training.

RESTRICTIONS ON POWER

There are several restrictions on the power to arrest a suspect. Both the Supreme Court and the High Courts have laid down guidelines to ensure that there is no abuse of authority out of pique or under political pressure. These guidelines are salutary because a lot of subjectivity can otherwise enter into the process. On the flip side is the question whether interrogation of a suspect can be really effective without resorting to an arrest and obtaining his custody on the orders of a magistrate.

Again, many magistrates are averse to remanding persons in police custody for sufficiently long periods because of the fear that this could lead to torture of suspects at the hands of the police. The Supreme Court recently came down heavily on a magistrate for being parsimonious in the matter and granting only unrealistically short spells of custody during the investigation of a sensitive case. The difficulties experienced by the agencies in the matter, especially the statutory requirement to produce an arrested person before a magistrate within 24 hours of the arrest, lead to the wholly dishonest practice of off-the-record custody and fudging of documents relating to the time of arrest.

Whether police investigators in India have given enough evidence to inspire confidence among lawmakers that they will not abuse powers of arrest and custody is a moot question. Until this is resolved, even honest and law-abiding policemen there are a substantial number of them in the country will have to work under enormous legal constraints.

Perhaps the greatest handicap of investigations done under the Criminal Procedure Code (CrPC) is Section 25 of the Indian Evidence Act (IEA), which totally negatives the validity of a confession made to a police officer. This is a major grievance of police officers all over the country who feel that the distrust that forms the basis for this section of law is totally unwarranted. This is a matter of debate. Some trenchant critics say that unless the human rights record of the Indian police improves, there is no case for revisiting the IEA.

Special laws such as the Prevention of Terrorism Act, POTA, (now defunct) did, however, provide for the admissibility of confessions made to supervisory levels such as Superintendent of Police. This did not, however, satisfy investigating officers who were lower in rank. Ironically, statements made to non-police officers, such as those in the Income Tax Investigation Department's cells and customs, are, however, not hit by the IEA because they are not police officers in the eye of the law. This is why a school of thought is for converting enforcement agencies such as the CBI into non-police organisations by giving them investigative powers under a special legislation outside the CrPC. This point of view is, however, yet to gain legislative acceptance.

Given the current situation where the executive is highly sceptical of the CBI especially when the latter enjoys relative independence under court-monitored investigation I do not foresee any additional power being given to the CBI in the near future. The latter will, therefore, continue to trudge its way through complicated investigations.

What frustrates investigators is the propensity of the executive to give downright illegal instructions to the investigator to shape cases along the lines desired by the former. These instructions are invariably oral and through channels in the police who are dishonest and are sold out to the executive. It is not that this happens every other day. In cases of great political sensitivity, especially where there is likely embarrassment to the political party in power, unethical directives do go to the investigating officer from above. The latter is invariably a junior officer who can seldom stand up to pressure emanating from the higher echelons. The executive's authority flows from its power of superintendence over the police that is enshrined in the Police Act, 1861.

There was for a moment some hope that the new Police Act, promulgated by some States following the Supreme Court directive (2006) in the Prakash Singh case, would improve on the limited autonomy enjoyed by the police. This has been totally belied.

In fact, States such as Bihar (under the enlightened leadership of Chief Minister Nitish Kumar) have brought in an Act that makes the police more subservient to the executive. This suffocates the police so much that they can hardly take a step forward in major cases without consulting the government (read Chief Minister). This is the greatest stumbling block to professional crime investigation. One can keep adding to the list.

The point, however, is that crime investigation in India can become fair only when the investigator becomes accountable to the law and not merely to the executive. Court-monitored investigations are, therefore, welcome. One must, however, realise that only a few cases can be overseen by the judiciary. The bulk will continue to suffer from the unethical intervention of a spectrum of extraneous forces, chief of which is the party in power. Public opinion needs to assert itself. Or else, we will continue to be serviced by a demoralised police that will not hesitate to indulge in dishonesty and gross violations of human rights.