印度在被英國人統治之前,國王是凌駕于法律之上的。獨立后,憲法開始生效,“法治”占據主導，以公開狀態來捍衛一條基本定律，無論違反者是誰,國王或普通人都會受到審判。 “法治”的概念是由英國法學家提出并由理論家阿爾伯特•維恩在他的書中《憲法建設》深化。法治本質上包含三個概念,法律至上,法律面前人人平等和法律優先精神。首先闡明:“當我們說“法治”是我國的特色,不僅如此,這里每一個人,不管他的級別或條件, 沒有人凌駕于法律之上,都處于普通法的領域和受普通法院管轄。
In India, kings were above the law. That was prior to the Britishers coming in. After independence, and with the Constitution coming into force, ‘rule of law’ took shape and it became the avowed object of the state to defend this fundamental law of governance irrespective of who the violator was – king or the ordinary man. This concept of ‘rule of law’ was crafted superbly by British jurist and constitutional theorist Albert Venn Dicey in his book Law of the Constitution. Rule of law inherently incorporates three concepts – supremacy of law, equality before law and predominance of legal spirit. Dicey elucidated: “When we speak of ‘rule of law’ as a characteristic of our country, not only that with us, no man is above the law, but that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary courts.”
But the question which now arises is whether rule of law actually practiced? Prima facie, one gets a straight and simple answer. Ordinary citizens face the rigour of law just as any public servant charged/convicted of an offence loses his job on the precinct of losing general trust. But does law take similar toll on politicians? Would an action be taken on them through the process of law or just by an adverse public opinion?
The little drops of humanness which jointly make humanity a cherished desire of mankind seemingly dry up when the canons of justice are poured in favor of politicians and police who create cobwebs of criminalized nexus to veil justice from the society.
“In these formative years of our nation-building, it is more important than ever to recognize that in a pluralist society law is the greatest and the only integrating factor.”
Quest for truth shall be the foundation of the criminal justice system … It shall be the duty of every functionary of the criminal justice system to actively pursue the quest for truth.
It is time and again highlighted by the media that there exists an intricate nexus between police and criminals. As a result, police seldom takes effective crime-control-measures to curb criminal activities and other anti-social elements. But this nexus is more than just a link or connection. It connotes an establishment of a link with a motive for mutual benefit. The motive may be a financial benefit or a shared ambition. The nexus of politics and crime and eventual induction of criminally inclined politicians, if not criminals themselves, in the process of governance, contravenes the rule of law. It violates the spirit of constitutional and democratic governance. For, if the government is run by such elements, the law is enforced by forces that might swear by it but would believe neither in constitutional government nor in the rule of law. Coalition politics perchance legitimizes this process.#p#分頁標題#e#
We are living in a system which is operated with an axis between criminals (smugglers, inter alia, of arms and drugs, jehadi terrorists, mafia gangs) and corrupt politicians, police, bureaucrats and businessmen. Together they coalesce into a sadistic system to manipulate and monopolize power.
In certain parts Marxian theories appear true. The State has emaciated and the rule by the underground criminal gangs and extortionists, who are sometimes disguised as terrorists, Maoists, etc., has come to the vanguard. Even the ministers and senior officers pay them regular ransom to remain in power.
Social and economically blaze issues are marginalized for short-term political power gains. Even well-intentioned policies fail as determination in policy implementation is forfeited to curry favour to attain and sustain power. Power-brokers, number-makers, small selfish groups of criminals combine around a lattice of self-serving interests and get to run the country resulting in deceleration of the quality of governance.
In theory, the Indian criminal justice system does not discriminate in favour of influential persons, yet, in practice, politicians are seldom punished for their criminal offences. Although the police personnel and politicians taken identical oaths i.e. to uphold the rule of law and preserve the sanctity of the constitution, policemen conspicuously witness politicians supporting only their caste and community. Practices that are contrary to law benefit the politicians and police alike. Since police shields the politicians, the policemen assume immunity from all disciplinary actions from their misdeeds, most importantly, corruption. This has enabled many police personnel to become multi-millionaires even before completing half their service careers.  Police officers often accept bribes and either refuse to take actions against criminals or even if they are forced to take actions against criminals they try to cover-up the case through faulty investigation so that the accused escapes punishment.
The role of criminals in politics is seen through the protection they seek from the politicians and paying them for it in advance by helping them in elections and otherwise. Since nobody pays his hard-earned, tax-paid money to the politicians, funds from the underworld and business houses come in handy. Naturally, the politicians become subservient to these dons and businessmen. Of late, these dons and businessmen have realized that elections are being won with money and muscle power, hence they themselves have taken to politics.
The Vohra Committee studied the criminalization of politics and nexus among criminals, politicians and bureaucrats in India. It concluded that the existing criminal justice system is unable to deal with the activities of the politicians, police and the criminals as the provisions of law are emerging weak enough to fracture this nexus.#p#分頁標題#e#
The need of the hour is to liberate the police and bureaucracy, who are at the mercy of politicians for their survival, from their deadly clutches. And so there is need for an autonomous body operating in the states to administer the activities of the criminals, police and politicians for shattering this nexus.
The Sohrabuddin Sheikh fake encounter was a case with strong political repercussions as Sohrabuddin Shaikh, a criminal and alleged terrorist was politically used for ulterior motives by Amit Shah, a close confidant of chief minister Narendra Modi, who himself was allegedly involved in a gigantic extortion racket. The police had initially claimed Sohrabuddin as a terrorist with Lashkar-e-Toiba connections who died while trying to escape from custody. Then, in a media expose by journalist Prashant Dayal, followed by a Supreme Court mediated inquiry conducted by the state CID, the fake encounter was revealed and several top police officers were arrested. This case succintly proves the vicious nexus of police and government in colluding with rule of law in the country.
The prosecution is inefficient, the judiciary is sluggish and the jails have become dens of corruption. It would be no exaggeration to say that police constitutes the central pillar of the structure, and its failures and weakness could bring about a collapse of the criminal justice system. In India, the criminal justice system is a quadrilateral structure with four supporting pillars, each of which derives and, in turn, lends immense strength to the other. These are – police, prosecution, judiciary and jail.
But, when the protectors of crime become the perpetrators of crime, then where can one expect justice? This is the most basic and critical question that faces any law abiding citizen. “You commit a crime and there is 93.5 percent possibility – if it is heinous – that you will get away with it.”
The Best Bakery Case is a great intervention to deal with the manipulation of information. The case has raised fears of blatant violations of rights of citizens, especially those from minority communities. The case has highlighted the importance of appointing politically and ideologically neutral public prosecutors to ensure justice and retain people’s faith in judicial system. There is ample evidence to prove that no genuine attempt was made by the Gujarat government to secure justice for the aggrieved parties in the various cases relating to the Gujarat riots of 2002. It is shocking that most public prosecutors were in some way or the other related to the saffron brigade. In this situation how can one be assured of receiving justice? Commenting on the decision of the trial court in the case, the Supreme Court observed, “In fact when a large number of witnesses turn hostile in any case, it should raise the reasonable suspicion in the mind of the judge that the witnesses are being threatened or coerced”.#p#分頁標題#e#
The working of the judicial system reveals that in most cases the public prosecutors do not act in a manner befitting their position. They do not take any step to meet the ends of justice by prosecuting the offenders. Further, the investigating agencies are most callous in investigating and collecting clinching evidence. Defence lawyer Rebecca Mammen says, “It’s not just the rich and influential who manipulate the law. Officers of the state are at times dishonest in the means they use to get a conviction. They substitute good investigation with false evidence”.
In Priyadarshini Mattoo case, the status of the accused Santosh Kumar Singh, son of a former Inspector General of Police, resulted in sub-standard investigation and the anxiety to protect the culprit was responsible for granting benefit of doubt to the accused by the trial court. It was due to activism of the media that CBI succeeded in getting an early hearing of the appeal by the High Court of Delhi and subsequently the judgment of the trial court was over-ruled. Death penalty was awarded to Santosh Kumar Singh on October 30, 2006. The court condemned the brutal rape and murder by implicating it in ‘rarest of the rare’ cases.
For society, the trial is a test of faith in the justice system. If the system is seen to deal with crimes through manipulation of information rather than a committed statement of facts, the credibility of the system is undermined. When this process of criminal trials is commonly understood in society, unscrupulous individuals take to crime. Organized crime then becomes a decisive factor in societies to the extent that attempts to reform both the process and the institution are hampered. Ordinary citizens gradually lose faith in the judicial process thereby leading to complete breakdown of the justice delivery mechanism.
When the fence itself eats into the crop which it has to protect, where will one appeal? In India even after more than 60 years of independence, life is not ‘free’. The criminals in power are looting the exchequer and are posing a greater threat to unity and integrity of the nation than terrorists and foreign powers. The politicians, bureaucrats, police treat common men like slaves. The poor is convicted and mighty is acquitted. Judges too, at times, use corrupt methods for personal gains, the case in point being Dinakaran,J. and Soumitra Sen, J.
We need police force which is non-partisan, which functions according to law and is accountable to the people. An independent prosecuting agency too has to be created. The appointment of Public prosecutors should not be politically driven and instead should be made by an independent agency. (KK Sud case). The certainty of punishment will help improve the system and make the judiciary truly effective and independent. Police officers should perform their duties faithfully instead of preparing false statements and records. Prosecution should also prosecute the case on true facts. They should try to curb the menace of giving or preparing false evidence.#p#分頁標題#e#
Criminalization of politics, judiciary and police is on the rise. Guttural elements have become politicians who frequently indulge in fisticuffs, vulgar abuses in the precincts of the House itself. These raucous elements take money for asking questions in the parliament, to vote for bills and pass legislations favouring lobbies of rich crooks. The police frame and torture innocents and let out rich crooks for a price. It also destroys evidence and creates fake record. Finally there are judges who issue arrest warrants, give bail, give acquittal and pass favourable judgements. These corrupt are parasites and deadlier state enemies than naxalites and terrorists. All for a price.
Corruption has seeped in at all levels of governance. Be it the Commonwealth Games, the Adarsh Housing Society scam, 2G spectrum allocation scam, the list is increasing day by day. The National Alliance of Peoples’ Movements (NAPM) has called it shocking that politicians and bureaucrats who order without hesitation the demolition of hutments belonging to slum dwellers on the grounds of encroachment should themselves be encroachers of the highest order on land earmarked for war widows and their families.
The nexus remains secure and safe. Politicians collude with babus. Babus collude with contractors. Contractors collude with criminals. Criminals collude with politicians or, better still, decide to become politicians. The vicious cycle is seemingly cast in iron and cannot be broken; it has come to represent the ‘system’. Sadly, the people want it this way. Or else they would vote people like Narendra Modi and Nitish Kumar to power who have worked wonders in their respective states and their work speaks for them. The sheer fact that women outshone men in the recent Bihar Assembly elections by voting BJP-JDU alliance back to power, they voted for development, for security, for safe life.
The most important elements of police corruption are misuse of authority and misuse of personal attainment. It inverts the goals of the organisation, that is, it may encourage and create crime rather than deter it. One of the main causes for this is that the police officials have ceased to act as professionals and are politicized to a great extent. They are manipulated by political leaders, who have misused the power of appointments and transfers to patronize weak or corrupt officers for their own selfish purposes at the cost of public interest. Other police crimes may range from brutality, fake encounters, sexual harassment, custodial crimes, to illicit use of weapons.
Although the government spends huge sums on the police, there has been no noticeable improvement in the behavioral and attitudinal pattern of police personnel.
The right to self-defense is under a threat with more and more cases of custodial crimes and wrongful persecution and prosecution being reported. With the present day situation worsening, the basic Right to life granted under Article 21 of the Constitution is being denied. Cases of fake encounters, rising death toll in the prisons, and unnecessary delay in investigation makes one feel insecure and vulnerable.#p#分頁標題#e#
The Police Act, 1861 has remained unchanged for about 150 years and it is the testament to the unreformed nature of Indian police force. Over the years, powerful institutions of law and order have been bent to conform to executive’s will and convenience. Political authorities have to step in for stopping the situation from deteriorating further and also for its betterment.
A PIL filed by the former Director General of Border Security Force, Prakash Singh, was one of the first initiatives taken up to clean corruption in the country’s police force. He believed that India required a police force with a different working philosophy. A committee to draft an Act for making the working of the police department transparent and accountable was constituted on September 20, 2005. It is called The Police Act Drafting Committee (PADC). The committee will work towards formulating provisions to deal with issues of terrorism, human rights, crimes against women, and weaker sections of society, and the latest investigation methods.
Efforts for curbing corruption have to be bilateral; both police and civil society have to act. Society members need to be vigilant and recognize the long term disadvantages that corruption within the society offers. Concurrently, police has to show strong character and able leadership.
The taxing working conditions of police, inordinately long working hours, derisory police-population ratio, disproportionate pay structure, are some factors that force police to act as insensate and corrupt. Public prosecutors too are ill-paid, tempting talented lawyers to avoid prosecution and opt for defense.
“I like the dreams of the future better than the history of the past.” – Patrick Henry
The whole criminal justice system needs overhauling so that the constitutional mandate of equality before law is made meaningful and it should not be the case that higher courts are kept occupied by the persons with money or power, as in the case today. Our salvation lies in following and enforcing the principles of natural justice and rule of law.