आधे अधूरे (नाटक) मोहन राकेश

 किताब - आधे अधूरे 

लेखक- मोहन राकेश

मूल्य - 160 रूपये

प्रकाशक - राधाकृष्ण पेपरबैक्स 

पृष्ठ -120

अक्सर हम सुनते हैं “जहां न पहुंचे रवि, वहां पहुंचे कवि”, राकेश मोहन जी ने इस नाटक के जरिये इस उक्ति को चरितार्थ किया है। मोहन  राकेश जी का ये नाटक जनवरी-फरवरी 1969 में उस समय की अग्रणी पत्रिका ‘धर्मयुग’ में छपा था। 

इस नाटक पर कथानक की घटनाहीनता, प्रस्तावना की निर्रथकता, अनुभव क्षेत्र की संकीर्णता, एक ही अभिनेता द्वारा पॉंच भूमिकाएँ निभाने की फिजूल रंग युक्ति आदि न जाने कितने आरोप लगाकर इसे साधारण और महत्तवहीन सिद्ध करने के प्रयास किए गये। 

पर समय से अधिक ईमानदार और निर्मम मूल्यांकन कोई नहीं होता। किसी भी रचना की एक अनुपम कसौटी पाठकों का स्नेह होता है। 52 वर्षों बाद भी ये नाटक आधुनिक हिन्दी के एक महत्वपूर्ण,लोकप्रिय और समयसिद्ध नाटकों की श्रेणी में है। 

कुल 120 पेज में सिमटे इस नाटक में पांच पुरूषों की भूमिका एक ही व्यक्ति द्वारा किये जाने की प्रतिबद्धता इस नाटक का दर्शन है। 

एक कमरे पर ही पूरे नाटक का दृश्यांकन है। नाटक के मुख्य पात्र हैं:- 

स्त्री- उम्र चालीस,चेहरे पर यौवन की चमक और चाह फिर भी शेष।

बड़ी लड़की- उम्र बीस से उपर नहीं।भाव में परिस्थितियों से संघर्ष का अवसाद और उतावलापन।

छोटी लड़की - उम्र बारह और तेरह के बीच। भाव,स्वर,चाल-हर चीज में विद्रोह।

लड़का - उम्र इक्कीस के आसपास।चेहरे से यहां तक की हंसी से भी,झलकती खास तरह की कड़वाहट। 

का.सू.वा.(काले सूटवाला आदमी) जो इसके अलावा पुरूष-एक,

पुरूष-दो,पुरूष-तीन तथा पुरूष-चार की भूमिकाओं मे है। उम्र लगभग उनचास-पचास।

पुरूष एक का वेशान्तर-पतलून कमीज।जिंदगी से अपनी लड़ाई हार चुकने की छटपटाहट लिए।

पुरूष दो के रूप में - पतलून और बन्द गले का कट।अपने आप से संतुष्ट फिर भी आशंकित।

पुरूष तीन- हाथ में सिगरेट का डब्बा।लगातार सिगरेट पीता। अपनी सुविधा के अनुसार जीने का दर्शन।

पुरूष चार-पतलून के साथ पुरानी काट का लम्बा कोट।चेहरे पर बुजुर्ग होने का खासा एहसास।

इसकी कहानी के जरिये मोहन राकेश जी ने ये बताया है कि समय विराट घटनाओं और महान नायकों का नहीं है।यह आम आदमी की लघुता और तुच्छता का युग है। इस नाटक मे पात्रों की मन:स्थितियों और संवेदना की टकराहट को आन्तरिक विद्रोह के रूप में सघनता से प्रस्तुत किया गया है। 

यह नाटक स्त्री-पुरूष के बीच लगाव और तनाव का दस्तावेज है। महेन्द्रनाथ सावित्री से बहुत प्रेम करता है।सावित्री भी उसे बहुत चाहती रही होगी,लेकिन शादी के बाद उसकी अपेक्षाएँ बहुमुखी और अन्नत हैं।महेन्द्रनाथ की बेकारी की हालत मे सावित्री पर घर चलाने का दबाव है और जिंदगी मे कुछ ज्यादा हासिल न कर पाने का मलाल। बच्चों के बर्ताव से व्यथित सावित्री बची जिंदगी को एक पूरे,सम्पूर्ण पुरूष के साथ बिताने की इच्छा रखती है।

पत्नी की कमाई पर पलते महेन्द्रनाथ की हालत दयनीय है। वो कभी मालिक हुआ करता था पर आज महज ‘एक ठप्पा,एक रबर का टुकड़ा’ है। उसे पत्नी के पुरूष मित्रों के बारे में पता है। उनके बारे में बोलकर अपनी भड़ास निकालता है और अक्सर घर से बाहर चला जाता है।

बड़ी लड़की मनोज रूपी साथी पाकर घर से भाग जाती है परन्तु अतीत पीछा नहीं छोड़ता। पारिवारिक पृष्ठभूमि के तानों ने उसके अन्दर भी एक रिक्तता भर दी है।

लड़का निठल्ला है,पत्रिकाओं में अभिनेत्रीयों की रंगीन फोटो काटता है। उसे माँ से आक्रोश है और घर से चिढ़।

छोटी बेटी को माता-पिता,भाई-बहन किसी से अनुराग नहीं है। कैंची की तरह जुबान चलाती वो समय से पहले बड़ी हो गयी है। 

महेन्द्रनाथ,सिघानिया,जहमोहन और जुनेजा-ये अलग-अलग गुणों के चार पुरूष हैं। सावित्री ने महेन्द्रनाथ से शादी की पर आगे चलकर अधूरेपन और परिस्थितियों के जाल में उसने खुद का भरा-पूरा महसूस नहीं किया। नाटककार ने ये दर्शाया है कि अगर वो महेन्द्रनाथ की बजाय जगमोहन से रिश्ता जोड़ती तब भी वही स्थिती रहती क्योंकि जगमोहन में जुनेजा के गुण नहीं मिलते और ये दुश्चक्र चलता रहता।

ये रचना उस अधुरेपन का क्रूर उदबोधन है जो समाज में आम तो है पर सहज स्वीकार्य नहीं है।आज के 52 वर्ष पूर्व लिखा ये नाटक वाकई उस काल-खंड के हिसाब से एक साहसिक अभिव्यक्ति है।

RIGHT TO INFORMATION :AN OVERVIEW

RIGHT TO INFORMATION :AN OVERVIEW
Mayank Pandey*
Introduction

A new era of government transparency has arrived. It is now widely recognized that the culture of secrecy that has been the modus operandi of governments for centuries is no longer feasible in a global age of information. Governments in the information age must provide information to succeed.

Laws opening government records and processes are now commonplace among democratic countries.1 Over fifty countries have adopted comprehensive laws to facilitate access and over thirty more are in the process. The laws are broadly similar, allowing for a general right by citizens, residents and often anyone else to demand information from government bodies. There are exemptions for withholding critical information and appeals processes and oversight.

However, there is much work to be done to reach truly transparent government. Many of the laws are not adequate and promote access in name only. In some countries, the laws lie dormant due to a failure to implement them properly or a lack of demand. In others, the exemptions are abused by governments. Older laws need updating to reflect developments in society and technology2. New laws promoting secrecy in the global war on terror have undercut access. International organizations have taken over the activities of national government but have not subjected themselves to the same rules3. Access to information ebbs and flows in any country but the transformation has begun and it is no longer possible to tell citizens that they have no right to know.

The context and rationale for the right to information India

Access to government records and information is an essential requirement for modern government. Access facilitates public knowledge and discussion. It provides an important guard against abuses, mismanagement and corruption. It can also be beneficial to governments themselves – openness and transparency in the decision making process can assist in developing citizen trust in government actions and maintaining a civil and democratic society. Governments around the world are increasingly making more information about their activities available. 4

In India today, the state has spread its tentacles to virtually every aspect of public life.The person on the street is condemned to grapple hopelessly with corruption in almost every aspect of daily work and living. Most government offices typically present a picture of a client public bewildered and harassed by opaque rules and procedures and inordinate delays, constantly vulnerable to exploitation by employees and touts.

In the quest for systemic answers to this chronic malaise, the sources of corruption inherent within the character of the state machine include a determined denial of transparency, accessibility and accountability, cumbersome and confusing procedures, proliferation of mindless controls, and poor commitment at all levels to real results of public welfare. Demystification of rules and procedures, complete transparency and pro-active dissemination of this relevant information amongst the public is potentially a very strong safeguard against corruption. Ultimately the most effective systemic check on corruption would be where thecitizen herself or himself has the right to take the initiative to seek information from the state,and thereby to enforce transparency and accountability.It is in this context that the movement for right to information is so important5.

A statutory right to information would be in many ways the most significant reform in public administration in India in the last 50 years. This is because it would secure for every citizen the enforceable right to question, examine, audit, review and assess government acts and decisions, to ensure that these are consistent with the principles of public interest, probity and justice6. It would promote openness, transparency and accountability in administration, by making government more open to continuing public scrutiny. Since governmental information is generated for purposes related to the legitimate discharge of their duties of office, and for the service of the public for whose benefit the institutions of government exist, and who ultimately (through one kind of import or another) fund the institutions of government and the salaries of officials it follows that government and officials are `trustees’ of this information for the people.

Constitutional development of the right to information

The movement in India has not been aimed at creating a right to information. Rather,it is aimed at generating conditions favourable to an effective exercise of the right. These conditions are sought to be detailed through a legislation. However, as we will see, the legislation in the states as well as the draft at the Central level, fail to meet the expectations of the people from such a law. While there is no specific right to information or even right to freedom of the press in the Constitution of India, the right to information has been read into the Constitutional guarantees which are a part of the Chapter on Fundamental Rights. The

Indian Constitution has an impressive array of basic and inalienable rights contained in Chapter Three of the Constitution. These include the Right to Equal Protection of the Laws and the Right to Equality Before the Law (Article 14), the Right to Freedom of Speech and Expression (Article 19(1)(a)) and the Right to Life and Personal Liberty(Article 21). These are backed by the Right to Constitutional Remedies in Article 32, that is, the Right to approach the Supreme Court, the highest court in the land, in case of infringement of any ofthese rights.

The legal position with regard to the right to information has developed through several Supreme Court decisions given in the context of all of the above rights, but more specifically in the context of the Right to Freedom of Speech and Expression, which has been said to be the obverse side of the Right to Know.

A landmark case both in freedom of expression as wella s the right to know, was Bennett Coleman & Co. vs. Union Of India 7 in which the court observe “It is indisputable that by freedom of the press meant the right of all citizens to speak, publish and express their views” and “ Freedom of speechand expression includes within its compass the right of all citizens to read and be informed.” The dissenting judgement of Justice K.K.Mathew also noted , “The freedom of speechprotects two kinds of interests. There is an individual interest, the need of men to express their opinion on matters vital to them and a social interest in the attainment of truth so that the country may not only accept the wisest course but carry it out in the wisest way. Now in the method of political government the point of ultimate interest is not in the words of the speakers but in the hearts of the hearers”

This principle was even more clearly enunciated in a later case Indian Express Newspapers(Bombay) Pvt. Ltd.vs India8 where the court remarked, “ The basic purpose of freedom of speech and expression is that all members should be able to form their beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the people’s right to know.” (emphasis added)

The courts have upheld the right to information in several cases related to environmental issues.20 In the area of civil liberties, the courts have built up the right to have a transparentcriminal justice system free from arbitrariness.

In Prabha Dutt Vs. Union of India AIR 1982 SC 69the Court held that there excepting clear evidence that the prisoners had refused to be interviewed, there could be no reason for refusing permission to the media to interview prisoners in death row. Repeated violations of civil rights by the police and other law enforcement agencies have compelled the courts to give, time and again, directions to the concerned agencies for ensuring transparency in their functioning in order to avoid violations like illegal arrests and detention, torture in custody and the like. In cases concerning the right to life and liberty under Article 21 of the Constitution the Courts have said that it is the legal obligation of the judge or the magistrate before whom the accused is produced to inform the accused that if he is unable to engage a lawyer on account of poverty or indigence, he is entitled to free legal aid.

A judgement enumerating in detail the procedural safeguards for arrest and custody translates into the right of the accused or his kin to have access to information regarding his arrest and detention such as preparation of a memo of arrest to be counter-signed by the arrestee and a relative or neighbor, preparation of a report of the physical condition of the arrestee, recording of the place of detention in appropriate registers at the police station, display of details of detained persons at a prominent place at the police station and at the district headquarters, etc.

In State of U.P Vs. Raj Narain10 Supreme Court, in examining a claim for privilege of certain documents summoned, kept to itself the power to decide whether disclosure of certain privileged documents was in the public interest or not. The Court said, “ While there are overwhelming arguments for giving to the executive the power to determine what matters may prejudice public security, those arguments give no sanction to giving the executive exclusive power to determine what matters may prejudice the public interest. Once considerations of national security are left out there are few matters of public interest which cannot be safely discussed in public”.(emphasis added) Justice K.K.Mathew went further to say,

“ In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil of secrecy, the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain or to justify their acts is the chief safeguard againstoppression and corruption”. (emphasis supplied)

There have been numerous cases favoring disclosure of governmental information and transparency, but this was easily one of the strongest formulations of the right in all its manifestations. However, legislative action was not quick or willing enough to give teeth to these important fundamental principles for governance. In Union of India v. Association for Democratic Reform11 the Supreme Court observe that

“………..one sided information, disinformation, misinformation and non-information will equally create an uninformed citizenary which makes democracy a faree……..Freedom of speech and expression includes right to impart which includes freedom to hold opinion. ”

The Court said that the Election Commission must make mandatory for the candidates to give details on the following counts :-

Whether the candidate is convicted or acquitted or discharged of any criminal offence in the past- whether he has been punished with imprisoned or fine?

Prior to six month of filling nomination whether the candidate has been accused in any pending case ,of any offence punishable with imprisonment for two years or more ?

The assests (immovable, movable bank balance etc )of candidate and of his/her spouse and that of dependants ;

Liability , if any , particularly whether there are any overdues of any public financial institution of or government dues;

The educational qualification of the candidate .

To undo the effect of the above milestone judgment Parliament amend Representation of People Act 1951 but the Supreme Court again act as a custodian of Fundamental Right and held in P.U.C.L. v Union of India that the above amendment is violative of People’s Right to know and unconstitutional

As a result of a lack of clear legislation on this, people continued to knock at the doors of the courts every time they want to enforce this right. While the courts have almost always responded positively, this is obviously not the ideal way for securing such a right to the common man.

Right to Information Act 2005

Right to Information Act 200512 is an act enacted by the Parliament of India, and the Act came into force on 15th June 2005. The Act was enacted with a view to enable the citizens of India to have access to the information under the control of authorities defined to be public authorities under the Act. The Act mandates that from 12th October 2005, the general public (of India) may approach the publicauthorities including the departments of the federal government, state governments, government bodies, public sector companies and public sector banks to make available the information as requested. The Act further mandates that all public authorities are expected to publish the information under Sec. 4 (1) (b) of the Act on various issues relating to the institution through its computerized network.

Coverage

In terms of section 1(2) of the Act, it extends to the whole of India except the state of Jammu and Kashmir.13

Information defined

In terms of the section 2(f) of the Act, information has been defined as any material in any form including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force14

Right to information

Under the Act (section 2 (j), right to information includes the right to -

inspect works, documents, records.

take notes, extracts or certified copies of documents or records.

take certified samples of material.

obtain information in form of printouts, diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts. 15

What is not open to disclosure?

The following is exempt from disclosure [S.8)]

information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, *strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence

information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;

information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;

information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public *interest warrants the disclosure of such information;

information available to a person in his fiduciary relationship, unless the competent authority is satisfied that *the larger public interest warrants the disclosure of such information;

information received in confidence from foreign Government;

information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;

information which would impede the process of investigation or apprehension or prosecution of offenders;

cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers;

information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual;

Notwithstanding any of the exemptions listed above, a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.16

Partial disclosure

In terms of the section 10 of the Act, only that part of the record which does not contain any information which is exempt from disclosure and which can reasonably be severed from any part that contains exempt information, may be provided.17

Exclusions

Central Intelligence and Security agencies specified in the Second Schedule like IB, R&AW, Directorate of Revenue Intelligence, Central Economic Intelligence Bureau, Directorate of Enforcement, Narcotics Control Bureau, Aviation Research Centre, Special Frontier Force, BSF, CRPF, ITBP, CISF, NSG, Assam Rifles, Special Service Bureau, Special Branch (CID), Andaman and Nicobar, The Crime Branch-CID-CB, Dadra and Nagar Haveli and Special Branch, Lakshadweep Police. Agencies specified by the State Governments through a Notification will also be excluded. The exclusion, however, is not absolute and these organizations have an obligation to provide information pertaining to allegations of corruption and human rights violations. Further, information relating to allegations of human rights valuations could be given but only with the approval of the Central or State Information Commission18

Role of the government

As stated in the section 26 of the Act, the Act enjoins upon the federal government, as also the state governments of the Republic of India to initiate necessary steps to:

Develop educational programmes for the public especially disadvantaged communities on RTI.

Encourage Public Authorities to participate in the development and organization of such programmes.

Promote timely dissemination of accurate information to the public.

Train officers and develop training materials.

Compile and disseminate a User Guide for the public in the respective official language.

Publish names, designation postal addresses and contact details of PIOs and other information such as notices regarding fees to be paid, remedies available in law if request is rejected etc.19

Power to make rules

Central Government, State Governments and the Competent Authority as defined in S.2(e) are vested with powers to make rules to carry out the provisions of the Right to Information Act, 2005. (S.27 & S.28) 20

Success Stories Of RTI

Now we wil examine the effect of RTI at grass root level . How does it serve the people in protecting their interested ?

It can be analysed by looking the effect of Act on thr people in following way.

ANSHU GOT ADDMISSION 21

Three-and-a-half-year-old Anshu will be going to a public school from tomorrow. The passage has not been easy and doors were slammed on her but her father, social worker Rajiv Kumar Sharma, did something that shows the way to other parents. With Delhi government dragging its feet on implementing the quota for the poor, Sharma used the RTI A resident of East Delhi, Sharma had read about the high court order (regarding schools on DDA land) and the Education Department directive of 25 pc and 20 pc reservation, respectively, for students from lower-income households in public schools. He prepared all his documents and went to the school authorities .But they refused to hear him and told that they had never heard about said order After a week he went to the education department to register his complaint. He waited for a month and filled an application under RTI on June 12 ,2006 . However in mid July he was asked by the authorities to come and get his child be admitted in the school .

Construction of a road in Harijan Basti, Mandawali

By: Suchi Pande 22

Harijan Basti is a small jhuggi jhompri cluster in East district of Delhi. For the last four years a few volunteers and the residents were trying to get a road that runs parallel to the cluster repaired. The local municipal councilor and the MCD officials continuously gave false reassurances that the repair work will begin soon. In November 2004 half the road was repaired and the other half was scheduled to begin in April 2005. However, the work did not begin. Only after a Right to Information application was filed in July 2005 that the work actually began. The MCD engineers kept the applicant informed of the progress made on the road and after the work was completed, an inspection was carried out and sample of material was also taken.

Latest Controversy Regarding File Noting

Recently a controversy has been aroused that whether ‘FILE NOTING’ is included in the definition of information under Section [2(f)] of RTI or not . The Commission first allowed access to file notings on January 31, 2006, in the Satyapal case. Its reasoning was impeccable. Firstly, that file notings were essential to understand why the Government came to a particular decision: "...[Governmental] decisions are mostly based on the recording in notesheets and even decisions are recorded on the notesheets. No file would be complete without notesheets having `file notings'..." And secondly, that the Act as it stood permitted access to file notings: "... a combined reading of Sections 2(f), (i) and (j) would indicate that a citizen has the right of access to a file of which file notings are an integral part..."

In the seven months since the Satyapal case, the CIC has ruled in favour of file notings in more than 40 cases. The appellants knocked on the Commission's doors because one or another Ministry or Department had refused to part with file notings. This raises the obvious question. Why was the Commission enjoined to decide again and again on file notings when it had already settled the issue in January 2006?

Consider the big guns that turned away applicants seeking file notings under the RTI Act: Ministry of Railways, Ministry of Urban Development, Ministry of Health and Family Welfare, Ministry of Company Affairs, Department of Consumer Affairs, Central Board of Excise and Customs, not to mention the Department of Personnel and Training — on paper the nodal agency for facilitating information under the RTI Act but in practice the most reluctant to parcel out information. The DoPT's response to the CIC's Satyapal ruling was to put up a website posting unilaterally declaring file notings out of bounds for RTI applicants, refusing to take it off to this day. It is this posting that the Ministries and Departments cited when they refused disclosure of file notings to RTI applicants23.

The Commission's word on file notings ought to have been treated as final by the Government and its Departments. After all, the Commission's status as the final appellate body under the RTI Act would be sustainable only if it had the freedom to enforce the Act as it understood it. It can hardly have been the Act's intention that its provisions must be interpreted by the government of the day. If that were the case, then it could be left to the government to decide when, how much and to whom information could be given without the need for an appellate body — indeed without the need for a Right to Information Act.

It is obvious that the civil service is uncomfortable with the public disclosure of notings. A very large number of political activists, including myself, have at one point of time seen some merit in the argument of the civil service. There may be some rationale in the argument that the civil service as trained presently will resist offering candid advice if such advice is exposed to the public gaze. This could be an administrative argument against openness. At the same time, one cannot ignore the problem that governmental decisions lack the appearance of fairness. At times, they are actuated by collateral and even corrupt considerations. Just as judicial review has been a deterrent against arbitrary decision-making, the prospects of transparency and public gaze will necessarily compel decision-making authorities to record relevant reasons and to ensure that decisions are fair and appear to be fair.

Curiously, it is this situation that prevails today. On paper, the Government has withdrawn the proposed amendments to the RTI Act, including the amendment to disallow file notings. That it was considering an amendment to prohibit file notings is in itself admission that the Act permits them. It also means that the CIC's interpretation of the Act on file notings was correct. Yet the DoPT, whose Minister paradoxically announced that the amendments had been shelved, remains unyielding on the issue. Thus, the CIC might cry itself hoarse on the validity of file notings, the Government might say it has backed off on the amendment on file notings, but the Government's Ministries and Departments will behave as if the amendment was in place.

On 20th July 2006, the Cabinet approved the proposal of an amendment in the Right to Information Act, 2005 to exclude the ‘File Notings’ from the ambit of the Act, without considering that amendment may not stand the test of the judicial scrutiny in the light of the fundamental right to know, which is well settled fact that it flows from Article 19(1)(a) of the Constitution of India24. Even before the enactment of the Right to Information Act, 2005, Supreme Court in its various Judgments had held that Right to Know is a fundamental right of the Citizen of Indian democracy, about the process and path taken in arriving at a certain decision, which cannot be possible without access to the ‘file notings’25

Agitation & Protest From Public

With Supreme Court jurists, Members of Parliament (MPs), students and journalists joining social activists, the nationwide movement to oppose the government’s move to amend the pioneering Right to Information Act 2005 is rapidly gathering steam. In the seconf wek of August leading RTI activists like Magsaysay awardee Sandeep Pandey and Padma Bhushan Anna Hazare began indefinite hunger strikes to protest changes in the Act that the government intends to introduce in the current monsoon session of Parliament.26

Protests and signature campaigns against the move to amend the 10-month-old Act, that has proved an effective tool in tackling bribery and corruption, began across the country from August 8, when Pandey went on a hunger strike in the capital, New Delhi.

On August 9, noted anti-corruption campaigner Anna Hazare began a fast unto death in Alandi, near the city of Pune in Maharashtra. Hazare was earlier refused permission to stage his fast near the historic August Kranti Maidan, the site of the Quit India Movement initiated by Mahatma Gandhi against British rule on August 9. Speaking to the media in Alandi, Hazare said: “This (the proposed amendment) is an injustice to the 110 crore people of this country.”27

The National Campaign for the People’s Right to Information, a voluntary organisation, did however manage to hold a silent protest at the Maidan on the morning of August 9. “Since it is also the anniversary of the Quit India Movement, we feel that the freedom of the common man has been curbed again by the establishment,” said RTI activist Shailesh Gandhi.

The same day, across Maharashtra, demonstrations against proposed changes to the RTI Act were held in 27 districts.

The countrywide campaign to save the Act was kick-started with a high-profile rock concert by Euphoria in New Delhi on August 6. “Fight for RTI, save RTI, save India, and if they don’t give us the right to information, we will not give them our vote,” the band’s lead singer Palash Sen told the audience.

“This is just the start. We have fought for the law and we will fight to protect it. We will sit on dharna at the Jantar Mantar while Parliament is in session,” said Aruna Roy, one of India’s foremost RTI campaigners.28

Sustained pressure from RTI activists, civil society organisations, even members of Parliament -- all of whom mounted a determined campaign, including hunger strikes, petitions and demonstrations – has succeeded in preventing the government from robbing the highly successful Act of its essence. The campaign to retain the Act as it is began almost as soon as the government announced its intention to amend it. And on August 21, 2006 Government announced on August 21 that the Bill to make the amendments would not be introduced in Parliament for the moment.

Conclusion

In a society that suffers the curse of both arbitrariness and corruption, sunlight could be the best disinfectant. The advantages of transparency are far too many. Public interest in transparency will override the relative discomfort of the civil service against public disclosure. It is this overweighing public interest that has persuaded media opinion, public opinion, and even parliamentary opinion to scoring in favour of greater transparency. In any case, it may be difficult for the Government with the evolution of constitutional law to contend today that advices and opinions can still be kept as secret. There is another aspect of the Act that requires reconsideration. Even though the rules under the law require a person claiming the right to documents and opinion to pay for its cost, Section 7(9) exempts the government from providing information that will "divert the resources of public authority." This ground, among others, has been used to deny documents in a recent case relating to making public the documents and correspondence between the Central Bureau of Investigation and the Crown Prosecution Service in London in relation to Ottavio Quattrocchi's case. If the deployment of some manpower and the cost of xeroxing a few pages is going to be cited as a ground for the denial of information, it will render the provisions of Section 7(9) suspect.

The Government would do well to drop altogether its present proposal to amend the Act. Its exercise should be primarily confined to ensuring that the provisions of the existing Act conform entirely to constitutional guarantees.

end notings

1*LL.M IInd year Faculty of law, University of Delhi, Delhi-110007

compiled as ‘Jaanane Ka Haq’ by the Department Of General Administration, State Secretariat, Government of Madhya Pradesh, Bhopal, India.

2 By Prof. Manubhai Shah: Romance With Right To Information: Indian Scene

3 ibid

4 By Prof. Manubhai Shah: Romance With Right To Information: Indian Scene

5 For a detailed analysis, see “Submissions to Legislators on a Right to Information Law’ CHRI,2000.

6 www.humanrightsinitiative.org

7 AIR 1973 SC 783

8 (1985) 1 SCC 641)

9 AIR 1982 SC 6

10 AIR !975 SC 865

11 JT 2002 (4) SC 501

12 http://en.wikipedia.org/wiki/Right_to_Information_Act

13 Section 1(2)

14 Section 2 (f)

15 Section 2 (j),

16 Section 8

17 Section 2 (j)

18 The Second Schedule

19 Section 26

20 Section 27&28

21 Indian Express, Delhi in August 2004:

22 Times Of India ,Delhi in 21July2005

23 By Arun Jaitley Right to information: first principles & sound practice, The Hindu: August 24, 2006

24 By Harsh Mander and Abha Singhal Joshi paper published by the Commonwealth Human Rights Initiative in 1999.

25 Editorial The Poineer ,July 22

26 August 6The Hindu

27 August 10 The Times OF India

28 Road to Democracy by Subramaniam Swami in The Week, August 15

Non-Doctrinal Research On The Effect of Capital Punishment On Society

Non-Doctrinal Research On The Effect of Capital Punishment On Society

Prepared and Presented as a requirement for the Foundation Course on Legal and Social Science Research Method

Submitted by:- Mayank Pandey

Roll no:21 LL.M. IInd Year (2Yr Course)

IIIrd Semester University of Dellhi.

Download the original attachment

Introduction

The society presupposes existence of law i.e. ubi societus ibi jus. For the proper and effective regulation of society we have various kinds of laws. Generally speaking laws are divided into two categories: Civil Laws & Criminal Laws. Civil Laws deals with civil right while Criminal Laws deals with crimes and provide punishment for them.

It is the State which punish criminals. Punishment necessarily implies some kind of pain inflicted upon the offender or loss caused to him for his criminal act which may either be intended to deter him from repeating the offence or may be an expression of society’s disapprobation for his anti-social conduct or it may be directed to reform and regulate him and at the time protect the society from law breakers.

Kinds of Punishment

Punishment may be of various kinds depending on the nature of offence, effect on the society and status of the offender etc. Section 53 of The Indian Penal Code 1860 provides for the following kinds if punishments:-

(1)Death Sentence or Capital Punishment

(2)Imprisonment for Life

(3)Imprisonment which is of two descriptions namely:-

(a)Rigorous that is hard labor

(b)Simple

(4)Forfeiture of Property

(5)Fine

Capital Punishment

Capital Punishment or Death Sentence simply means putting end the life of offender by hanging him. The Indian Penal Code 1860 (I.P.C.) provides death sentence for following offences:-

(1)Waging war against Government (Sec.121)

(2)Abetment of Mutiny (Sec.132)

(3)Fabricating false evidence leading to one’s conviction for the capital punishment (Sec.194)

(4)Murder (Sec.302)

(5)Abetment of suicide of child or insane person (Sec.305)

(6)Abetment of murder by a life convicts (Sec.307)

(7)Dacoity with murder (Sec.396)

Besides this there are various laws which provides for Capital Punishment. Though I.P.C. or other laws provides about punishment but they are silent as to when it should be given. It depends upon the discretion of court while convicting the offenders.

In Rajendra Prasad vs. State of U.P.1 the Supreme Court has observed that capital sentence may be awarded where the survival of the society is in danger. The court laid down various guidelines while awarding capital punishment. It should be awarded in cases of crimes committed in cool blood, planned motivation, to white collar criminals, persons guilty of adulteration etc.

In Bachan Singh vs. State of Punjab2 the Supreme Court while upholding the validity of death penalty expressed the opinion that a real abiding concern for dignity of human life postulate resistance to taking a life through laws instrumentality. They ought not to be done save in the rarest of the rare cases, when the alternative option is unquestionably foreclosed. The aggravating circumstance which justifies the award death penalty must be summed up as:-

* If the murder has been committed after previous planning and involve extreme brutality

* If the murder involves exceptional depravity

The question as to what are “Rarest Of The Rare Cases” justifying death penalty lies in the discretion of judges, which should be exercised after taking in to consideration all facts and circumstances of the case including the condition of victim.

Theories of Punishment

Various theories have been propounded to justify the ends of criminal justice and punishment. They can be broadly discussed under the following heads:-

Deterrent Theory

According to this theory the main object of punishment is to make commission of an offence an ill-bargain for the offender and deter other from committing crimes. As Salmond rightly puts it “punishment is before all thing deterrent and chief aim of law of crime is to make the evil-door an example and a warning to all that are minded with him’.

The deterrent theory justifies exemplary punishment because it not only dissuades the offender from repeating crime but also deter other from indulging into such criminal activities. It emphasizes the necessity of protecting the society in a manner so that others are deterred from law breaking.

Retributive Theory

According to this theory evil should be returned for evil without any regard to the consequences. It is based on rule of natural justice which is based on maxim ‘an eye for an eye and a tooth for a tooth’. The theory therefore emphasize that pain is to be inflicted on offender by way of punishment must outweigh the pleasure derived by him from his criminal act. It suggests that punishment is an expression of society’s disappropriation for offender’s criminal act.

Preventive Theory

The preventive theory is founded on the idea of preventing repetition of crime by disabling the offender through measure such as imprisonment, forfeiture, death sentence etc. this theory does not lay much emphasis on the motive of wrongdoer but seeks to take away his physical power to commit offence. In punishing criminals, the community protects itself against anti-social acts which endanger social order in general.

Reformative Theory

The Reformative Theory of punishment emphasis on reformation of offenders through the method of individualization. It is based on the humanistic principle that even if an offender commits a crime, he does not cease to be human being. Therefore an effort should be made to reform him during the period of his incarceration. Thus as opposed to deterrent theory, the reformative theory aims at socialization of the offender so that the factors which motivated him to commit the crime are eliminated and he gets a chance of leading a normal life in the society.

Thus according to this theory punishment is used as a measure to reclaim the offender and not to torture him. The theory therefore condemns all kinds of corporeal punishment. The major thrust of this theory is rehabilitation of inmates in penal institution so that they are transformed into good citizens.

OBJECTIVE

In this theoretical framework of capital punishment the main focus of my study evaluate the effect of capital punishment on society with respect to its deterrent

►Whether the society forbear to commit crime because there is capital punishment for it?

►Whether the capital punishment serves as an instrument to deter the society for committee serious crimes?

►Whether capital punishment has deterrent effect on society or not?

HYPOTHESIS

“Capital punishment serves as a deterrent effect to the society”.

Capital Punishment – Independent variable

Deterrent effect – Dependent variable

The hypothesis signifies a tentative relationship between the two variables. The statement is testable by the data collection from field survey by questionnaire put before students, general public and lawyers and also by studying other relevant materials.

OPERATIONALIZATION

For the purpose of my study the term used in the hypothesis have the following meaning.

Capital punishment means Death sentence.

Deterrent Effect means effect by which the society forbears to commits crime.

METHOLOGY

This being an empirical research is based on data collected from primary source and survey of secondary sources.

The primary sources of data collection are the opinion of students, general public and lawyers. The tool that is used for data collection is questionnaire. This questionnaire consists of structured questions with all closed-ended questions. The secondary sources are books of IPC and articles on capital punishment etc.

SAMPLE

The method of sampling is to be used is simple random sampling.

SELECTION OF AREA

As data has to be collected by field survey. Respondent have to be selected from universe of the study. The hole of Delhi is my universe. But due to paucity of time and money, I limit my area of study to North Delhi and that two only students, general public and lawyers of Tis Hazari Court.

SAMPLE SIZE

As regard sample size, I choose 30 respondents. Out of these 10 are Students of Faculty of Law Delhi University, 10 are person from General Public selected from Kamala Nagar Market and 10 are Lawyers.

SCOPE & LIMITATION OF THE STUDY

Scope of this non-doctrinal research is limited because the research is conducted within small universe in a restricted geographical area. It is always possible that the replication of this study with a larger universe and availability of time may give more accurate result.

Respondents Number

Students 10

General Public 10

Lawyer 10

ABOUT SURVEY CONDUCTED & DIFFICULTY FACED

I conducted this non-doctrinal research in a very limited area and that too in a very short span of time between 2nd January to 10th January. I interviewed 30 respondents, classification of which is given earlier in the report.

DATA ANALYSIS

The responses to questions asked are analyzed with the help of tabulation and data is represented. The responses obtained in the study are pictorially represented in the form of pie diagram wherever found appropriate. Keeping in mind the limitation, the study is predominantly to test the hypothesis.

Q.1. Do you know that people who commit crime get convicted?

This was an introductory question just for setting the respondent up for the question. To this all respondent (30) responded affirmatively.

Q.2. Do you know that crime affect society as a whole?

Table-1

Option Students General Public Lawyers

Total

Number Percentage

Yes 8 6 10 24 80

No 2 4 0 6 20

Out of 30 respondents 24 were of the view that crime affect society as a whole. Among them 80% students, 60% General Public and 100% Lawyers answered in affirmative.

It shows that people are generally aware that crime affects society as a whole.

Q.3. Do you know that law provide different punishment for different crimes?

Option Students General Public Lawyers

Total

Number Percentage

Yes 6 5 10 21 70

No 4 5 0 9 30

Out of 30 respondents 29 knew that Law provides different punishments for different crimes. Among them 100 % students, 90 % general public and 100% lawyers were answered in affirmative.

It shows that majority of the people knows that law provides different punishment for different crimes.

Q.3.1. If yes, do you know that following kinds of punishment has been provided by law?

1. Death Sentence or Punishment

2. Life imprisonment

3. Imprisonment

4. Forfeiture of Property

5. Fine

TABLE-3

Option Students General Public Lawyers

Total

Number Percentage

Yes 4 5 9 18 60

No 6 5 1 12 40

Out of 30 respondents only 18 knew that Law provides above kinds of punishments. Among them 40 % students, 50 % public and 90 % lawyers answered in affirmative.

It shows that though majority of people knows about various kinds of punishments but still a lot of people does not have knowledge about it.

Q.4. Do you think that by giving punishment law can prevent the incidences of crimes?

TABLE-4

Option Students General Public Lawyers

Total

Number Percentage

Yes 6 8 7 21 70

No 4 2 3 9 30

Out of 30 respondents 21 were of view that law can prevent crime by providing punishment for it. Among them 60 % students, 80% public and 70% lawyers answered in affirmative.

It shows that the society realize that by giving punishment incidents of crime can be prevented.

Q.5 Do you think that capital punishment should be given in all crimes?

TABLE-5

Option Students General Public Lawyers

Total

Number Percentage

Yes 2 2 1 5 17

No 8 8 9 25 83

Out of 30 respondents 25 were of view that capital punishment should not be given in all offences. Among them 80 % students, 80 % public and 90% lawyers were answered in negative.

It shows that the large majority of people do not want application of capital punishment in all offences. It means society do not want it to be given in all crimes.

Q.6. Do you think that capital punishment should be given in cases of heinous, brutal, barbarous, premeditated crimes?

TABLE-6

Option Students General Public Lawyers

Total

Number Percentage

Yes 8 6 8 22 73

No 2 4 2 8 27

This question is sequel to Question-5. Out of 30 respondents 22 were of view that capital punishment should be given in brutal, barbarous crimes. Among them 80 % students, 60 % public and 80 % lawyers were answered in affirmative.

It shows the view of society that it wants its application in serious and heinous crimes.

Q.7. Do you think that before committing crime, people think about the punishment provided for the same?

TABLE-7

Option Students General Public Lawyers

Total

Number Percentage

Yes 7 6 9 22 73

No 3 4 1 8 27

Out of 30 respondents 22 were of view that before committing crime, criminals have in their mind about punishment. Among them 70 % students, 60 % public and 90 % lawyers answered in affirmative.

It shows that in the general opinion of the society, criminal have impact of punishment.

Q.8. Have you heard about any person who has been given capital punishment?

TABLE-8

Option Students General Public Lawyers

Total

Number Percentage

Yes 8 7 10 25 83

No 2 3 0 5 17

Out of 30 respondents 25 have heard about a person who has been awarded capital punishment. Among them 80 % students, 70 % public and100 lawyers answered in affirmative.

It shows that the thumbing majority of the people have heard about capital sentencing of a person.

Q.9. Do you think that capital punishment discourages the criminal conduct on the part of those who are aware of existence of capital punishment?

TABLE-9

Option Students General Public Lawyers

Total

Number Percentage

Yes 7 5 8 20 67

No 3 5 2 10 33

Out of 30 respondents 20 were of view that knowledge of capital punishment discourages the offender for proceeding towards crime. Among them 70 % students, 50 % public and 80 % lawyers answered in affirmative.

It reveals that majority of the society think that existence of capital punishment discourages the people for committing crime.

Q.10. Are you of view that incidences of crime in the society can be prevented without giving any punishment?

TABLE-10

Option Students General Public Lawyers

Total

Number Percentage

Yes 2 3 0 5 17

No 8 7 10 25 83

Out of 30 respondents 25 were of view that crime can not be prevented without giving punishment. Among them 80 % students, 70 % public and 100 % lawyers answered in negative.

It shows that majority of the people are of view that for the prevention of crime punishment is sine qua none.

Q.11. Do you think that before proceeding towards crime, the fear of punishment cum in the mind of offender?

TABLE-11

Option Students General Public Lawyers

Total

Number Percentage

Yes 7 8 8 23 77

No 3 2 2 7 23

Out of 30 respondents 23 thought that fear of punishment came in the mind of criminals before proceeding towards crime. Among them 70 % students, 80 % public and 80 % lawyers answered in affirmative.

It shows the thinking of the society that before proceeding towards crime it think about punishment provided for the same. In other words it means severe the sentence greater will be the thinking before proceeding towards it.

Q.12. Do you know that now days a demand has been arisen for abolition of capital punishment?

TABLE-12

Option Students General Public Lawyers

Total

Number Percentage

Yes 8 6 10 24 80

No 2 4 0 6 20

Out of 30 respondents 24 were aware about demand of abolition of capital punishment. Among them 80 % students, 60 % public and 100 % lawyers answered in affirmative.

It shows that society is aware about demand of abolition of capital punishment.

Q. 13. Are you in favour of its abolition?

TABLE-13

Option Students General Public Lawyers

Total

Number Percentage

Yes 7 8 7 22 73

No 3 2 3 8 27

Out of 30 respondents 22 were of view that it should not be abolished. Among them 70 % students, 80 % public and 70 % lawyers answered in negative.

Though this question is not related to hypothesis but in directly it reveal that society wants its retention because it discourage people in general for committing heinous crimes.

OBSERVATION

During analysis of data, it was observed that students of Law Faculty were more aware about answers in comparison to General Public but hesitant to answer in comparison to Lawyers. I observed mixed response form public.

HYPOTHESIS TESTED

On the basis of aforesaid observation and analysis oh the responses to the questions which were put to the students, public and lawyers it can be said that the hypothesis-

“Capital punishment serves as a deterrent effect to the society”

is proved up to the satisfaction, because responses shows that capital punishment has deterrent effect on society and member of society forbear to commit heinous crime due to its existence

QUESTIONNAIRE (ANNEXURE – I)

IDENTIFICATION PARTICULARS (Optional)

Name -

Age -

Sex -

Occupation - Student /General Public/Lawyer (Tick one)

Q.1. Do you know that people who commit crime get convicted?

 Yes

 No

Q.2. Do you know that crime affects society as a whole?

 Yes

 No

Q.3. Do you know that law provide different punishment for different crimes?

 Yes

 No

Q.3.1. If yes, do you know that following kinds of punishment has been provided by law?

6. Death Sentence or Punishment

7. Life imprisonment

8. Imprisonment

9. Forfeiture of Property

10. Fine

 Yes

 No

Q.4. Do you think that by giving punishment law can prevent the incidences of crimes?

 Yes

 No

Q.5 Do you think that capital punishment should be given in all crimes?

 Yes

 No

Q.6. Do you think that capital punishment should be given in cases of heinous, brutal, barbarous, premeditated crimes?

 Yes

 No

Q.7. Do you think that before committing crime, people think about the punishment provided for the same?

 Yes

 No

Q.8. Have you heard about any person who has been given capital punishment?

 Yes

 No

Q.9. Do you think that capital punishment discourages the criminal conduct on the part of those who are aware of existence of capital punishment?

 Yes

 No

Q.10. Are you of view that incidences of crime in the society can be prevented without giving any punishment?

 Yes

 No

Q.11. Do you think that before committing crime, fear of punishment come in the mind of offender?

 Yes

 No

Q.12. Do you know that now days a demand has been arisen for abolition of capital punishment?

 Yes

 No

Q. 13. Are you in favour of its abolition?

 Yes

 No

BIBILIOGRAPHY

BOOKS:-

* Fitzgerald P.J. : Salmond on Jurisprudence (12th Ed.)

* Moberly W.: The Ethics Of Punishment (1968)

* Bames $ Teeters: New Horizons in Criminology (3rd Ed.)

* Gaur H.S.: Penal Laws of India (4th Ed.)

ARTICLES:-

* Basawar Raju, C: Who deserves capital punishment- An Analysis, SCJ (2002)

* Gupta D.: Capital Punishment and the Poor

* Hood R. : Capital Punishment at the Start of 21st Centaury

* Grant R.B.: Capital Punishment and Violence

POLICE REFORMS: An Inevitable Need of Democrac

POLICE REFORMS: An Inevitable Need of Democracy*

The police force is an instrument for prevention and detention of crime. Every State Government establishes its own police force, which is formally enrolled. The experience of the last 156 years since the passing of Police Act 1861 reveals that it fails to achieve its object and to meet the needs of 21st centaury. In this paper I would like to emphasise that, there is an urgent need of Police Reform with special reference to the Supreme Court’s judgment on police reforms, the reports of various commission, committee and views of experts.

(I)Introduction

The Police Act 1861 was legislated by the British in the aftermath of the Mutiny of 1857 or the First War of Independence. The British, naturally at that time wanted to establish a police force that would suit the purpose of crushing dissent and any movement for self government. This Act continues to this day in most states of India despite far reaching changes in governance and India’s transition from being a colonized nation to a welfare State. The government and its police today are obliged to respect political diversity and guarantee a climate of peace in which people feel secure in the exercise of their Rights and the protection of their freedoms. Because these sentiments are not reflected in the legislation governing the police, it has contributed to the police remaining outside the loop of prevailing democratic values. It is also the primary reason for the police being perceived by many as the handmaiden of the political elite rather than as an organization that provides essential services through ensuring peace and security to the people.[1]

(II) A Critical Appraisal Of Police Act 1861

The preamble of the act provides that the object of the act is “to re-organize the police and to make it amore efficient instrument for the prevention and detection of crime” Thus the object of the act is two fold i.e. prevention and detection of crime. However as compared to present status of the Police force maintenance of peace in the society and thereby establishing law & order is also one of the prime objects.

The act further provides that the pay and all other conditions of service of Members of the subordinate ranks of any police force shall be such as may be determined by the State Government.[2] The force consists of such number of officers and men as is constituted in such manner as the State Government may decide from time to time. The overall administration of Police in the entire State is vested in the Inspector-General of Police. The administration of police in every district vests in District Superintendent of Police under the general control and direction of District Magistrate who is usually collector of the district.[3] Every police officer appointed to the police force other than the Inspector-General of Police (or Deputy or Assistance Inspector-General of Police) and District Superintendent of Police receives a certificate in the prescribed form by virtue of which he is vested with power, function and privileges of a police officer. The certificate ceases to be effective and shall be returned forthwith when the officer ceases to be a police officer.[4]

State Government may, from time to time, make under this Act, the Inspector-General, Deputy Inspectors-General, Assistant Inspectors-General and District Superintendents of Police may at any time dismiss, suspend or reduce any police-officer of the subordinate ranks or may award anyone of the following punishments like one month’s pay, Confinement to quarters for a term not exceeding fifteen days with or without Punishment-drill, extra guard, fatigue or other duty etc to any police-officer [of the subordinate ranks] who shall discharge his duty in a careless or negligent manner, or who by any act of his own, shall render himself unfit for the discharge thereof,. [5]

.In the exercise of this power State Government transfer, dismiss or suspend at its will and even in some states the practice of offering bribe to politicians for favorable posting has been started.

According to Section 23 “it shall be the duty of every police-officer promptly, to obey and execute all orders and warrants lawfully issued to him by any competent authority; to collect and communicate intelligence affecting the public peace; to prevent the commission of offences and public nuisances; to detect and bring offences to justice and to apprehend all persons whom he is legally authorized to apprehend, and for whose apprehension sufficient ground exists; and it shall be lawful for every police-officer, for any of the purposes mentioned in this section, without a warrant to enter and inspect, any drinking-shop, gaming-house or other place of resort of loose and disorderly characters.” Thus the burden on the shoulders of the police is very heavy.

Every police-officer who shall be guilty of any violation of duty or willful breach or neglect of any rule or regulation of lawful order made by competent authority, or who shall withdraw from the duties of his office without permission, or without having given previous notice for the period of two months or who shall engage without authority in any employment other than his police duty, shall be liable, on conviction before a Magistrate, to a penalty not exceeding three months’ pay, or to imprisonment, with or without hard labor, for a period not exceeding three months, or to both.[6]

The punishment given in this section is very inadequate in comparison to loss, which the society suffers due to negligence in discharge of the duty by police officers.

Besides above mentioned functions of police the Act further provides that it shall be the duty of the police to keep order on the public roads, and in the public streets, thoroughfares, ghats and landing places, and at all other places of public resort, and to prevent obstruction on the occasions of assemblies and processions on the public roads and in the public streets, or in the neighborhoods of places of worship, during the time of public worship. Thus though the object of the Act is prevention and detection of crime, but maintenance law & order on roads, gats and landing places is essential for prevention of crime, so this provision strengthen the object.

(III) Causes for popular dissatisfaction with the police

What are the causes for popular dissatisfaction with the police and who is responsible for it? What follows are examples of popular discontent against the police. The issue is not whether all of these are absolutely true or not but whether they exist in the public mind and whether there is any justification for them.

1. Police are the principal violators of the law and they get away with impunity.

2. Some sections of the police are in league with anti-social elements. Consequently they indulge in selective enforcement of the law.

3. Police exhibit rude behavior, abusive language and contempt towards courts and human rights; they indulge in all forms of corruption.

4. Depending on the socio-cultural status, economic power and political influences of people who approach them, police adopt differential attitudes, violating equality and human dignity.

5. Police are either ignorant of the precepts of human rights or they deliberately disregard them in the matters of arrest, interrogation, searching, detention and preventive policing.

6. Given the dismal record of prevention and successful investigation of crimes, the police lack accountability in protection of life and property.

7. While crimes are getting sophisticated, the police are becoming less professional. There is no evidence of a collective desire within the police organization to redeem its public image.

8. The police are insensitive towards victims of violent crimes. They sometimes behave rudely with victims, as if they are responsible for their fate.

9. At least a section of policemen think of human rights as antithetical to effective law enforcement. They blame the law, lawyers and courts for their own inefficiency.

Of late, some policemen have publicly shown leniency towards fundamentalists and terrorists, manifesting a dangerous threat to security and constitutional governance enshrined in the constitution..[7]

(IV) Why we need reform in Police?

Experience shows how over the years the police has not only misused but also grossly abused its powers. Consider what the Third Police Commission had to say: "Sixty per cent of all arrests in the country under normal laws are unnecessary or unjustified and that unjustified Police action accounted for 43.2 per cent of the expenditure in jails." Thus, over the years not only have the police become more and more powerful but also less and less accountable. The rule of law expects that every one would be free and safe in the egalitarian society. Our constitution embodied the concept of welfare state, which not only requires individual’s freedom but also aims to provide atmosphere in which it could be exercised.[8]

The functions of police can be generally divided into four heads: -

· As a primary function to serve as an agency for prevention of crime.

· Investigation of crime.

· Maintenance of Law & Order.

· Any other special function assigned by the State Government.

With regard to primary function as an agency for prevention of crime, the department fails to achieve its object and it can be proved by the high incidence of crime record shown by National Crime Record Bureau.

As to the second function, the Police prove to be lacking and it can be understood by the help of conviction rate. Nowadays the high profile criminals, who had committed murder at public place, have been acquitted e.g. Jessica Murder Case the accused were initially acquitted. Why the rate of conviction is very high in a cases investigated by Central Bureau of Investigation (CBI) in comparison to cases investigated by ordinary Police?

As far as the third function is concern, it is not hidden from the public that Delhi, the capital of India is also designated as Rape Capital of India. It shows that the Police fail to maintain Law & order in society.

The Police also fails to perform effectively any special function assigned to it e.g. in Election it performs its function with the help of paramilitary forces and not on its own.

It is worthwhile to note that all the above functions cannot be look al isolated from each other. They are intermingled and complementary & supplementary to each other.

Umpteenth number of Commissions has been set-up over the years. From the Dharma Vira Commission, down to Julio Riberio Committee, Soli Sorabjee Committee and the Padmanabiah panel. All have zeroed in on the maladies of the 145-year-old Police Act of 1861 and drawn the same conclusions --stop political influence and change the mindset of the force, improve the public interface and image and prevent politicisation, criminalization and corruption in the police. The result: zilch.

(V)The areas, which needs special attention

After accepting the need for police reform, a peculiar question arises that in which areas we need reform, what are the parameter while considering the reforms and what are the hurdles in implementing these reforms. For better understanding we can divide the areas in the following heads: -

(a) Inadequate no. of Police Personals: - The Population of India as for the Census 2001 is concerned is 102.8 crores. In 2005 it reached up to 109.0 crores. In comparison to such a vast population the no.of policeman is not sufficient. At All-India level the no. of people per policeman was 712 on01.01.2005. Thus one can imagine that how can a policeman manage such a big population. This ratio is 1:28 in Russia, 1:290 in United Kingdom, 1:334 in USA & even in Pakistan it is 1:625.

An area looked after by a policeman is about 2.07 sq. km. on01.01.2005.Is it possible for one man to control such a huge area?

Thus there is an urgent need to raise the no.of policeman countrywide.

(b) Structural Inherent Deficiency: - As for as the selection procedure of Police is concern it is well at higher level because the candidates are selected by one central authority i.e. UPSC. But the problem comes into picture at State level. The highest rank selected by State Service Commission is DSP & Sub- Inspector. Constable and Sipahi are at lower rank. As far as criteria of selection for Sub-Inspector is concerned, besides Graduation as an educational qualification the other requirements are related to physical aspects like height, weight, chest, eye etc. When we analyze these requirements for the law & order maintenance task, it sounds good. But when we come to other task like investigation, interrogation etc we need specialized personal. For example the investigation provides skeleton to the case of prosecution on which success of the prosecution depends that is why the rate of conviction in cases investigated by CBI is high in comparison to ordinary police because CBI has professional & skilled personal for it. Thus the selection procedure should be changed and there is a need to include persons having science background or having forensic knowledge because it will be helpful during investigation. Besides this there should be two separate branches in the department: one for general task & other for investigation.

(c)Political Interference: - From the experience of the past 60 years after independence, we can easily say that Police usually servers the ruling political party. There are various reasons for it like quick transfer, unreasonable interference in work, fear of suspension etc. The Police Act 1861 gives power to the state for transfer, removal and suspension with the object that State as a custodian of the masses exercise these powers with keepingin mind the interest of the State but unfortunately it is run by the whims and fancies of the Legislature particularly the ruling Political Party. Thus there is a need to remove this interference and give an atmosphere to the police in which it can perform its functions without any fear. This can be further supported by the views of Kiran Bedi given in an interview. She observed that “Transfers, promotions and the urge for medals is the reason behind their so-called insensitivity. Can the common man give them these? The obvious answer is NO; therefore they start serving the interests of those who can give them all these benefits. Let us remember that police is being controlled by political masters and influenced by the rich. Since their masters are someone else, how can they be faulted for having an indifferent attitude towards the poor?”[9]

Therefore there should be fixed tenure for policeman and some security in the matter of unreasonable suspension.

(d) Infrastructural Development: - There is also a need for Infrastructural development in Police Department like weapons, communicating devices, vehicles for patrolling, modern technologies. With the old outlook how can we expect from Police that they will cope up in present scenario. Now the criminals are becoming high-tech and incidences of cyber crime is increasing so some kind of special training should be given to the Police. The demand of online trail has been raised which saves time and money both, but it require additional equipment. The overall budget allotted for police should be increased to fulfill these demands.

(d) Inadequate Salary &Facilities: - The nature of job done by the Police requires more financial security and benefits. The condition of present residential and hospital facilities provided to the police are not in a good condition. There should be some limitation of working hours. These things should be reformed because without considering their problems one cannot expect better work from them.

(VI)Steps taken by Government

The Government of India after considering the far reaching changes that had taken place in the country after the enactment of the Indian Police Act, 1861 and absence of any comprehensive review at the national level of the police system after independence despite radical changes in the political, social and economic situation in the country, on 15th November, 1977, appointed a National Police Commission (hereinafter referred to as 'the Commission'). The commission was appointed for fresh examination of the role and performance of the police both as a law-enforcing agency and as an institution to protect the rights of the citizens enshrined in the Constitution.

(a)National Police Commission- The Chairman of the Commission was a renowned and highly reputed former Governor. A retired High Court Judge, two former Inspector-Generals of Police and a Professor of TATA Institute of Special Sciences were members with the Director, CBI as a full time Member Secretary.

Various seminars held, research studies conducted, meetings and discussions held with the Governors, Chief Ministers, Inspector Generals of Police, State Inspector Generals of Police and Heads of Police organizations. The Commission submitted its first report in February 1979, second in August 1979, three reports each in the years 1980 and 1981 including the final report in May 1981.

In its first report, the Commission first dealt with the modalities for inquiry into complaints of police misconduct in a manner which will carry credibility and satisfaction to the public regarding their fairness and impartiality and rectification of serious deficiencies which militate against their functioning efficiently to public satisfaction and advised the Government for expeditious examination of recommendations for immediate implementation.

In the second report, the commission recommends that the police reform is to secure professional independence for the police to function truly and efficiently as an impartial agent of the law of the land and, at the same time, to enable the Government to oversee the police performance to ensure its conformity to the law. A supervisory mechanism without scope for illegal, irregular or malafide interference with police functions has to be devised. The report also recommended the constitution of Statutory Commission in each State the function of which shall include laying down broad policy guidelines and directions for the performance of preventive task and service oriented functions by the police and also functioning as a forum of appeal for disposing of representations from any Police Officer of the rank of Superintendent of Police and above, regarding his being subjected to illegal or irregular orders in the performance of his duties.

With the 8th and final report, certain basic reforms for the effective functioning of the police to enable it to promote the dynamic role of law and to render impartial service to the people were recommended and a draft new Police Act incorporating the recommendations was annexed as an appendix.

(VII)Initiative taken by Apex Court

On 23 September,2006 the Supreme Court in its historic judgment in Prakash Singh & Ors vs. Union of India and Ors , ordered drastic changes in the police administration to make it more accountable and to protect it from political interference. Virtually overhauling the outdated, 156-year-old Indian Police Act outdated, the court directed the Centre and the States to implement its seven-point directive.

Order of Supreme Court: -

In discharge of our constitutional duties and obligations having regard to the affronted position, the Supreme Court issue the following directions to the Central Government, State Governments and Union Territories for compliance till framing of the appropriate legislations:

(1) State Security Commission

The State Governments are directed to constitute a State Security Commission in every State to ensure that the State Government does not exercise unwarranted influence or pressure on the State police and for laying down the broad policy guidelines and giving directions for the performance of the preventive tasks and service oriented functions of the police so that the State police always act according to the laws of the land and the Constitution of the country. The Chief Minister or Home Minister as Chairman and have the DGP of the State as its ex-officio Secretary shall head this watchdog body. The recommendations of this Commission shall be binding on the State Government.

(2) Selection and Minimum Tenure of DGP:

The Director General of Police of the State shall be selected by the State Government from amongst the three senior-most officers of the Department who have been empanelled for promotion to that rank by the Union Public Service Commission on the basis of their length of service, very good record and range of experience for heading the police force. And, once he has been selected for the job, he should have a minimum tenure of at least two years irrespective of his date of superannuation.

(3) Minimum Tenure of I.G. of Police & other officers:

Police Officers on operational duties in the field like the IG, DIG, SP and Station House Officer in charge of a Police Station shall also have a prescribed minimum tenure of two years unless it is found necessary to remove them prematurely following disciplinary proceedings against them or their conviction in a criminal offence.

(4) Separation of Investigation:

The investigating police shall be separated from the law and order police to ensure speedier investigation, better expertise and improved rapport with the people. It must, however, be ensured that there is full coordination between the two wings. The separation, to start with, may be effected in towns/urban areas, which have a population of ten lakhs or more, and gradually extended to smaller towns/urban areas also.

(5) Police Establishment Board:

There shall be a Police Establishment Board in each State, which shall decide all transfers, postings, promotions and other service related matters of officers of and below the rank of Deputy Superintendent of Police. The Establishment Board shall be a departmental body comprising the Director General of Police and four other senior officers of the Department.

(6) Police Complaints Authority:

There shall be a Police Complaints Authority at the district level to look into complaints against police officers of and up to the rank of Deputy Superintendent of Police. Similarly, there should be another Police Complaints Authority at the State level to look into complaints against officers of the rank of Superintendent of Police and above. A retired Judge of the High Court /Supreme Court may head the State level Authority, while District level Authority may be headed by a retired District Judge. The head of the State level Complaints Authority shall be chosen by the State Government out of a panel of names proposed by the Chief Justice; the head of the district level Complaints Authority may also be chosen out of a panel of names proposed by the Chief Justice or a Judge of the High Court nominated by him.

(7) National Security Commission:

The Central Government shall also set up a National Security Commission at the Union level to prepare a panel for being placed before the appropriate Appointing Authority, for selection and placement of Chiefs of the Central Police Organizations (CPO), who should also be given a minimum tenure of two years. The Commission would also review from time to time measures to upgrade the effectiveness of these forces, improve the service conditions of its personnel, ensure that there is proper coordination between them and that the forces are generally utilized for the purposes they were raised and make recommendations in that behalf. The National Security Commission could be headed by the Union Home Minister and comprise heads of the CPOs and a couple of security experts. The Central Government, State Governments or Union Territories shall comply with the aforesaid directions, as the case may be, on or before 31st December, 2006 so that the bodies afore-noted became operational on the onset of the new year. Members with the Union Home Secretary as its Secretary.

In its second order on 11Jan2007 the Supreme Court further extend the time for compliance to 31st March 2007.

(VIII)Conclusion

Despite the clear cut order of Supreme Court there are various problems in implementing the directions of Apex Court though the Court prescribed time limit but the State Governments appears to be not willing to implement the judgment and in its observation made on 11Jan, 2007 the Court held that some States have complied with some direction, but no State except Sikkim has complied with all direction.

Though the Government of India (GOI) emerges reasonably well in the whole transaction; the real difficulty is only with regard to State police forces, which, everyone knows, have unabashedly been converted into handmaidens of State governments (ruling party). While a few governments told the apex court that they had initiated the required measures, the majorities were not all that forthcoming. Some sought a little more time to act. The others pointed out difficulties in ushering in the prescribed reforms.

The stand taken by States was that appointment of a Director-General of Police (DGP) from a panel prepared by the Union Public Service Commission (UPSC) of officers fit for promotion to that rank was not acceptable, as such a prescription encroached on a State's right to appoint an officer of its choice.. No doubt not every Indian Police Service (IPS) officer can get into that panel, as standards of eligibility are high.

The affidavits filled by states went on to allege that the Leader of the Opposition and other independent members of the SSC could push their own agenda and politicize the proceedings of the body with a view to embarrassing the State government.

The lack of financial resources is another hurdle for implementation. As pointed out by S.S.A.Aiyar “The Supreme Court can decree many things, but cannot decree that additional revenue should fall out of the sky. So, lack of finance will be the Achilles’ heel of police reform.”[10]

We can hope that States will not fall beyond the line of 31st March 2007 provided by Supreme Court and implement the directions because the nation is waiting for such a reform in Police, which is inevitable for democracy, and strengthen it.

* Mayank Pandey, LL.M.2nd Year, Faculty of Law, Delhi University.

[1] Joshi, M.D & Daruwala,M., Police Act, 1861: Why we need to replace it? CHRI, July 2005

[2] Section 2

[3] Section 4

[4] Section8

[5] Section 7

[6] Section 29

[7] Menon N.R.M., Police reform: The imperative for efficiency in criminal justice (www.article2.org visited on 14 Feb, 2006)

[8] Poonam.I.K. Police Reform: Who should control the police? Central Chronicle 25 Oct,2006.

[9] Dilip/Dil Deka “Kiran Bedi and Police Reform” Mon, 15 Jan 2007 20:06:44 –0800 All India Radio

[10] Aiyar, S.S.A., One and a half cheers for police reform