Inheritance of loss - pre-constitutional law in oblivion


This Article is authored by Advocate Anil Malhotra.


Be it insurgents in Kashmir, Maoists in Chhattisgarh, terrorists in strife stricken areas, trouble shooters in communal tensions, deployment in Left Wing Extremism affected areas, guarding the borders in Punjab or any other situation for maintenance of law and orders in time of emergency, 230 battalions of India’s largest Central Armed Police Force, i.e the Central Reserve Police Force (CRPF) comprising of over three lac personnel are staunch sentinels. CRPF is stated to be the largest anti terrorism, anti-insurgent and Naxalite battling Armed Police Force of its kind anywhere in the world. Hearts weep when coffins of slain CRPF soldiers killed in action whilst on duty are delivered to their kith and kin. Posthumous awards provide no respite to those left behind in grief. What is more sad is, what happens to members of the force when they are alive and are dealt with in matters of disciplinary action, for they do not deserve the raw deal they get for the valiant services they perform for the nation. An introspection is needed without procrastination. Gallant soldiers must get their due.

The Central Reserve Police Force Act, 1949 (CRPF Act), an Act to provide for the constitution and regulation of an armed Central Reserve Police Force, is a colonial inheritance of the British Crown Representative’s Police Force Law, 1939. The ideology of dominance looms large. It quells insubordination. The Commandant rules by the barrel of the gun. Despite Indian independence and the Constitution of India coming into effect on January 26, 1950, we have retained certain provisions in the CRPF Act which are violative of fundamental freedoms, right to equality, equal protection in public employment as also right to protection of life and personal liberty which ought to be granted to the members of the CRPF in course of their duties and service to the nation as citizens of India. The jurisprudence of fundamental Constitutional rights evolved over a period of time needs to find a legitimate recognition in the CRPF Act governing members of this special force.

The CRPF Act prescribes less and more heinous offences to be adjudged by the Commandant of a Battalion by exercising powers of a Judicial Magistrate conferred by the Central Government and all trials are to be held in accordance with the procedure laid down in the Code of Criminal Procedure, 1898(1898 Code). Even though the Code of Criminal Procedure, 1973(1973 Code) repeals the 1898 Code, legislative changes have not followed in the CRPF Act, leaving no option but to read down the CRPF Act by assuming applicability of the 1973 Code by legal fiction 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 1973 Code clearly separates the judiciary from the executive in line with the constitutional mandate under Article 50 requiring this separation. However, the CRPF Act follows its on line under the 1898 Code.

The provisions of the 1898 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 submitted in September 1969 recommended separation of judiciary from the executives on and all India basis to ensure improvements in the quality of justice by Judicial Magistrates who would be legally qualified and trained persons appointed by the High Courts. Dispensing with arbitrary exercise of discretionary powers and acting in a manner consistent with known principles of law was desired. Upon being deliberated by a joint select committee and approved by both Houses of Parliament, as also receiving the assent of the President, the 1973 Code 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 1973 Code and all ministerial functions were left to the executive magistrates. Resultantly, all Judicial Magistrates are appointed by the High Court and special Judicial Magistrates can be notified by the High Court if they possess such qualification or experience in relation to legal affairs as the High Court may by rules specify. However, executive magistrates can be appointed by the state governments to perform executive functions.

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 summarily departmentally punish the same member of the force by dispensing with a formal inquiry on the ground of conviction on a criminal charge. Opportunity of hearing, a departmental inquiry being conducted or right of departmental defence is dispensed without assigning any reasons as provided by the CRPF Rules, 1955. In a hypothetical situation, a Commandant maybe 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 current provisions of the 1973 Code providing criminal trials by judicial magistrate or duly notified special Judicial Magistrates, besides the constitutional mandate of a departmental inquiry except in certain situations, the CRPF Act is a pre-constitutional law caught in a time wrap and consigned to posterity. Regardless of the need of a high degree of service discipline for members of an elite emergency force, they do not deserve such a summary strait jacket procedure which not only circumvents the law but also defies all cannons of the process of natural justice. The Government cannot remain oblivious of the laws made by the Parliament in providing fundamental Constitutional rights providing equality in matters of public employment and ignoring the mandate of basic criminal laws of the land. Clearly, the dauntless soldiers of CRPF who are at beck and call for every emergent need and who perform their duties courageously in most inhospitable terrains, do not deserve such an unsympathetic and insensitive treatment. Whilst they are alive, they need to be treated fairly and freely in the confines of a spirit of natural justice. This is the least respect they have earned for the solemn duties they perform selflessly without fear or favour.

The CRPF could in its initiative revisit the CRPF Act and CRPF Rules to amend them in line with the existing provisions of the 1973 Code and Constitution of India. Changes can be made by creating a rank and file of judicially trained officers lettered in law who could constitute a separate cadre in CRPF to exercise functions which may be required to be performed as the special requirements of this special largest armed police force in the country. Alternatively, a special Court like the Security Force Court as in the BSF could be constituted. Amendments can be made in the CRPF Act in tandem with the provisions of the 1973 Code for exercise of judicial functions to suit the requirements of this special force. Legal practices adopted by the Border Security Force, the Indian Army, Navy and Air Force which 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 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 thus be unfair to leave them to their fate while they serve us well.