March 23, 2007
My dear Dr. Manmohan Singh ji,
There are certain lessons which have emerged from West Bengal, especially in the context of what has happened in Nandigram. I refer here specifically to the police action, the obvious absence from the scene of the Executive Magistracy, the neutralization of the District Magistrate and action by senior police officers in contravention of Chapter X, Cr.P.C and the relevant police manual which applies to West Bengal. From newspaper reports it seems that the District Magistrate and his Executive Magistrates were absent from the scene and a police officer of the rank of Inspector General was the one who was directing use of force illegally against the villagers.
Under the scheme of things in India the use of civil force to disperse a crowd is permitted under Chapter X, Cr.P.C, in particular Section 129. Any Executive Magistrate can order an unlawful assembly to disperse and if it does not do so, the Executive Magistrate can direct the police to use necessary force to disperse such assembly and arrest and confine persons who form part of such an unlawful assembly. In the absence of a Magistrate the officer incharge of a police station can exercise the power to use force for dispersal of an unlawful assembly. Under Section 130, Cr.P.C. an Executive Magistrate can call upon the armed forces to disperse an unlawful assembly which cannot be handled by the police. If for any reason an Executive Magistrate is not present or cannot be contacted, a commissioned officer of the armed force can cause an unlawful assembly to disperse, but as soon as possible such officer is required to report the matter to an Executive Magistrate and thereafter take instructions from him. It is inconceivable that in an operation which was preplanned and in which more than 3000 policemen took part it was not possible to contact an Executive Magistrate, conduct the operation under his supervision and take his orders before using force. This clearly indicate that either the police deliberately kept the District Magistrate out of the picture or, conversely, the District Magistrate washed his hands of the whole affair under political pressure. Under both circumstances the District Magistrate and the senior police officers acted contrary to law and deserve severe condemnation.
I have been told by very senior people in West Bengal that thirty years of one party rule has completely demoralized the services and made IAS and IPS officers into mere tools of the ruling party. Unconfirmed reports suggest that the police was working under the instructions of local politicians in Nandigram. Once again one has to refer to Cr.P.C. In the maintenance of public order as given in Chapter X, Cr.P.C. there are only three actors who have a role. The primary role is that of the Executive Magistrate. Then there is the police in which an officer of and above the rank of sub-inspector can take action. The third actor is an officer commanding a unit of the armed forces. Ultimately both the police officer and the armed forces officer is required to take orders from the Executive Magistrate. Nowhere is there mention of the Chief Minister, a Minister or any other political office holder having any power under Chapter X, Cr.P.C. If a Magistrate or police officer takes orders from a politician, including the Chief Minister himself, in dealing with a situation in which he is required to act under Chapter X, Cr.P.C. or Chapter XI, Cr. P.C, ' Preventive Action of the Police' , he acts in violation of law and can be held accountable for this. An order from any other authority not having jurisdiction cannot be pleaded in justification for wrongful action.
In West Bengal obviously the Magistracy and the police act only on the orders of politicians and it seems as if the officers posted there no longer act according to the provisions of law. This is precisely what has happened in Nandigram. When Shri L.K. Advani was Deputy Prime Minister I had written to him that the ultimate cadre controlling authority of the All India Services is the Central Government. It is the duty of the Central Government to bring home to All India Service officers that, regardless of the political color or leaning of the party in power in a State, the officers were required to function according to law even if this means earning the displeasure of the Chief Minister and the Ministers. It is in the context of arrest of Shri K. Karunanidhi at 0200 hours by the Commissioner of Police of Madras, at the instance of the then Chief Minister, Jayalalitha, without a FIR having been lodged under Section 154, Cr.P.C, that I suggested to Shri Advani that the Centre should transfer the services of the Principal Secretary, Home, DGP and the Police Commissioner of Madras from Tamil Nadu to the Centre and thereafter launch departmental proceedings against them for acting contrary to law, for slack supervision and the failure at government level to give correct directives to the police. My objective was that if the Centre punishes All India Service officers who, though serving under State Government act contrary to law, the lesson would go home to the All India Services that they are the servants of the law, they cannot plead political pressure as justification for illegal or improper action and that if the State Government protects them the Centre will step in to punish them. Once the Services know this they will automatically act according to law and not take orders from politicians as seems to have happened in Nandigram.
My submission is that the Chief Secretary, West Bengal, Principal Secretary, Home, West Bengal, the District Magistrate of the District in which Nandigram is located (who are all IAS officers), the DGP, West Bengal, the IG Incharge of the range in which Nandigram is located, the DIG of the range and the SP of the district (all IPS officers) should all be transferred to the Centre, charge-sheeted for gross negligence and for acting illegally in contravention of the provisions of Cr.P.C, for failure to provide the police guidance and for failure to exercise superintendence, direction, and control over the police. Such officers are not fit to be kept in service and should be dismissed. At the same time the Central Government should directly address All India Service officers throughout the country and tell them that if they act contrary to the law and norms of good governance, the Centre will reach out and punish them. That is the only way in which we can restore a sense of perspective and propriety to our All India Services, bring back in them a respect for law and restore morale and 'lan as All India Services. This is the only way in which we can de-politicize the Services, which would be in consonance with the Constitution which mandates apolitical, honest and law abiding Civil Services. A dozen such dead crows strung up would send the correct shock waves down the line to the Civil Services and remind them that they must act impartially and that any failure in this behalf will invite severe punishment.
(M N Buch)
Dr. Manmohan Singh ji,
Hon'ble Prime Minister of India,
1. Shri Shivraj Patil, M.P. Hon'ble Union Minister of Home Affairs, North Block, New Delhi.
2. Shri Suresh Pachauri, Hon'ble Minister of State Personnel and Parliamentary Affairs, North Block, Central Secretariat, New Delhi.
3. Shri B.K. Chaturvedi IAS, Cabinet Secretary, Government of India, Rashtrapati Bhavan Estate, New Delhi.
4. Shri Satyanand Mishra IAS, Secretary, Department of Personnel and Administrative Reforms, North Block, Central Secretariat, New Delhi.
(M N Buch)