A law that failed to keep pace with time

ANIL MALHOTRA

December 29, 2014

The Hindu“Leaving the current state of affairs to the outmoded colonial position of the CRPF Act makes it an unjust and arbitrary process subject to bias and misuse.” Picture shows members of the force in Jharkhand in 2013. File Photo: Manob Chowdhury

Even though the Code of Criminal Procedure 1973 repeals the CrPC of 1898, legislative changes have not followed in the Central Reserve Police Force Act, 1949

From fighting insurgents in Kashmir, the Maoists in Chhattisgarh, and terrorists in strife-stricken areas to acting as troubleshooters in sensitive areas, guarding the borders of Punjab and maintaining law and order during times of emergency, the 230 battalions of India’s largest Central Armed Police Force, the Central Reserve Police Force (CRPF), are staunch sentinels. But despite the valiant services that they perform for the nation, they get a raw deal. Gallant soldiers must get their due and the first step towards this is to examine their rights and the laws that govern them.

The Central Reserve Police Force Act, 1949 (CRPF Act), an Act that provides for the constitution and regulation of an armed CRPF, is a colonial inheritance of the Crown’s Representative Police Force Law, 1939. Despite 67 years of independence and the framing of our own Constitution, we have retained certain provisions in the CRPF Act which are violative of fundamental freedoms — the right to equality, equal protection in public employment, and the right to protection of life and personal liberty. These ought to be granted to members of the CRPF in course of their duties and service to the nation. Fundamental rights provided by the Constitution, which have evolved over a period of time, need to find recognition in the CRPF Act.

According to the Act, the extent of heinous offences are to be judged by the Commandant of a Battalion by exercising powers of a judicial magistrate conferred by the Central Government. All trials are to be held in accordance with the procedure laid down in the Code of Criminal Procedure, 1898 (CrPC). Even though CrPC 1973 repeals CrPc 1898, legislative changes have not followed in the CRPF Act. This leaves no option but to read down the CRPF Act by assuming applicability of CrPC 1973 to confer a presumption of constitutionality on the pre-constitutional CRPF Act. However, this does not make palatable the exercise of judicial powers by the Commandant of Battalion, as CrPC 1973 clearly separates the judiciary from the executive in line with Article 50 that mandates this separation.

However, the CRPF Act follows CrPC 1898. The provisions of this code invested executive officers with judicial powers to try as a magistrate all offences not punishable with death. The 41st Report of the Law Commission of India, which was submitted in September 1969, recommended the separation of the judiciary from the executive on an all-India basis to ensure improvements in the quality of justice by having judicial magistrates, who were appointed by the High Courts. Dispensing with the arbitrary exercise of discretionary powers and acting in a manner consistent with known principles of law was desired. After being discussed by a joint select committee and being approved by both Houses of Parliament and the President, CrPC 1973 came into force. Consequently, all functions relating to appreciation of evidence, imposition of punishment, detention in custody, inquiry or trial, came to be exercised by a judicial magistrate under the CrPC 1973, and all ministerial functions were left to the executive magistrates. Since then, all judicial magistrates are appointed by the High Courts and special judicial magistrates can be notified by the High Courts, if they possess such qualification or experience in relation to legal affairs as the High Courts’ rules may specify. However, executive magistrates can be appointed by the State governments to perform executive functions.Further authorisations

The dilemma in the CRPF Act is further compounded by the fact that the Commandant, after conducting a judicial trial for convicting and sentencing a member of the force, is also further authorised to punish the same member of the force departmentally dispensing with a formal inquiry on the ground of conviction on a criminal charge. To be given the opportunity of a hearing, a departmental inquiry, or the right of departmental defence, has been dispensed with, without giving any reasons as provided by the CRPF Rules, 1955. In a hypothetical situation, a Commandant may be framing the charge as a prosecutor, convicting and sentencing as a judicial magistrate and then punishing summarily as departmental head, without any separate inquiry to complete the process in closed quarters, in one or two weeks.

In the light of the 1973 code, providing for criminal trials by judicial magistrates or duly notified special judicial magistrates — besides constitutionally mandating a departmental inquiry except in certain situations — the CRPF Act is a pre-constitutional law caught in a time warp. Members of an emergency force may require a high degree of discipline, but they do not deserve such a straitjacket procedure which not only circumvents the law but also defies all canons of the process of natural justice. The government cannot remain oblivious to laws requiring equality in matters of public employment and at the same time ignore the mandate of basic criminal laws of the land. CRPF soldiers need to be treated fairly and with a spirit of natural justice.Revisiting the Act

The CRPF could consider revisiting the CRPF Act and CRPF Rules to amend them in line with the existing provisions of the CrPC 1973 and the Constitution. Changes can be made by creating a rank and file of judicially trained officers lettered in law. They could constitute a separate cadre in the force to exercise special functions. Alternatively, a special court, such as the Security Force Court of the Border Security Force (BSF), could be constituted. Amendments can be made in the CRPF Act in tandem with the provisions of CrPC 1973 for the exercise of judicial functions to suit the requirements of this special force. Legal practices adopted by the BSF, the Indian Army, the Navy and the Air Force, which all meet the test of time and are in consonance with the prevailing provisions of law, can be emulated without compromising on the need for an independent disciplinary procedure. A separate judicial forum can be legislatively made in the CRPF. Leaving the current state of affairs to the outmoded colonial position of the CRPF Act makes it an unjust, arbitrary, unfair and discretionary process subject to bias and misuse. Members of the force who sacrifice their lives for the nation deserve to be treated better. It would be unfair to leave them to their fate while they serve us well.

(Anil Malhotra is a Chandigarh-based lawyer.)