SPECIAL INVESTIGATIVE AGENCIES- INTRO & LOOPHOLES

 

SPECIAL INVESTIGATIVE AGENCIES

 

On the other hand the seeds of Special Investigating Agencies have been sowed in the lands of India ever since the early stages of World War-II, when the Government of India had realized that Vast increase in expenditure for war efforts had provided opportunities to unscrupulous and anti-social persons who were indulging in bribery and corruption at the cost of public and the Government. It was at that time that SPE (Special Police Establishment) was set up as a Special Investigating Agency.

The Special Investigating Agency is an organ of the society developed for the preservation of social order and protection of the state authority. It is an instrument forged to serve a particular purpose of investigation.

The effectiveness of the instrument depends on the capability of the wielder of the instrument, as also on the quality of the instrument. How the instrument has been kept and in what condition, where and when and against whom it is to be used, will determine its success or failure.

Any analysis of the adequacy or inadequacy of the Special Investigating agencies in the country naturally leads us to examine the system under which such agencies function. The way in which any social system functions are themselves often responsible for leading to situations which can develop into internal threats.

The law enforcement machinery has been in existence since ancient Hindu Period. The investigating agencies like Police (Dandadhikari) and Spy (Detective) were primarily responsible for apprehending the criminals and investigating into 403 commission of offences.

 Thus the system of law enforcement as well as crime investigation system is as old as Human Civilization. The Special investigating agencies are the law protectors and the provisions contained in a number of statutes clearly depict that the officers connected with Central and state level investigating agencies have been equipped with wide-range of powers for combating crime and criminals in an effective manner.

It is the constitution of India i.e. Father of Law, which is at the Core’ of all the laws and provisions which tend to regulate the functioning’ of the Special Investigating Agencies in the lawful manner. Articles 20, 21, 22 of the constitution of India enjoy an obligation upon all the Government authorities including Police and investigating agencies to per from their duties within the four corners of law.

By and large the C.B.I. is also involved in achieving the basic goal of Law Enforcement in Co-ordination with other investigating agencies. For unearthing the conspiracies hatched at International level or for apprehending criminals, having their movement in more than one country, it functions though its Interpol Wing. India follows the principle Rule of Law’ but what is Rule of Law.

What happens when the Rule of Law’ is abused. How does it affect the working of Investigating Agencies. Protecting the rule of law is essential for progress and development in all societies. The laws relating to corruption are violated like many other laws and the enforcement machinery is weak for pursuing action against the violators.

 There is wide disregard for the law and its instrumentalities and consequently, lack of respect for law. Corruption is used as a method to violate the laws, break rules and regulations, abuse powers and exercise discretion in a wrongful manner.

Thus the state apparatus becomes dysfunctional due to institutionalized corruption across all departments of the government. Finally both the law and legal institutions are manipulated in such a way by corruption that, it becomes a tool for promoting lack of respect for the rule of law.

Violators and offenders overcome legal scrutiny or law enforcement by paying bribes and engaging in other forms of corruption. Hence the rule of law’ is replaced by the rule of powerful people

 

 

 

 

 

 

 

The Special Investigating Agencies have assumed a supplementary role in the administration of criminal justice. The fundamental problems of police administration have been referred to a National Police Commission from time to time.

It was devoutly wished that the commission succeeded in finding solutions to these problems, such as may help not only to remold our police into a better instrument for the discharge of the traditional police functions, but also to strengthen the foundations of democracy in this country.

The formation of Special Investigating Agencies was the best possible way out from discharging the police from some very indispensable; works, like investigating crimes. The Ministries of Home at the Center as well as in the states are now controlling the police administration in India. In brief, these has been a material change in the quality of legal enforcement techniques.

The purpose of a criminal Justice System must be to enhance the public‘s safety and to address the challenge of crime effectively, fairly and speedily. When all of the agencies are functioning in smooth coordination; the process works and the accused are caught, tried, sentenced, punished, rehabilitated, controlled and rendered harmless to the society. The critical challenge is to safeguard the society while scrupulously protecting and observing the rights of the accused and balancing these interests against the equally valid right of the next potential victim to be safe and secure in his person.

 A free and democratic society imposes a heavy burden on its agents to achieve this very delicate feat of balancing society’s need, the rights of the accused and the next victim’s interests and safety. Acknowledging immediately that crime is merely a symptom of society‘s malaise, it is nevertheless required of us to address those symptoms much more effectively than we have so far done.

The fact is that the criminal justice system was established precisely for the purpose of combating these symptoms and the efficacy of the total effort will be judged on the basis of our success or failure in controlling our criminal population.

The historical development of the agencies in the Criminal Justice System has been characterized by disparate growth. Some of the agencies have been waxed while others were wanted.

 It is the tendency of each of the agencies to function in isolation and independence that creates most of the problems. The same situation happened in the case of Mumbai Terror Attacks‘ when the Federal Bureau of Investigation; a special investigating agency of United States of America failed to exchange information with Indian Intelligence agencies due to lack of coordination between them. As a result India had to witness the rampage which occurred due to Pakistani terrorists on 26th Nov. 2008.

 It is due to the fact that each agency is reluctant to undertake the trouble necessary to insure effective co-ordination of effort. Each agency within the system must reform and strengthen itself from within if it is to function as a strong link in the chain. A criminal justice system that functions is not possible unless the human, material and physical resources are distributed intelligently.

The overall system must be made to generate meaningful, useful and timely data to all components of the organism. The flow of relevant data now a hopeless-trickle, must be accelerated. Each agency should prepare brief but cogent annual reports that reflect the status, progress (or lack thereof), and programs of the organization (Special Investigating Agency).

The problems faced by Special Investigating Agencies in a developing country are varied and complex in nature. Since a democratic country has also the logic of the increasing expectations of the people who want better performance from the Special investigating Agencies in respect of its well recognized duty of maintenance of law and order in society.

The very nature of the development process, while it tries to contain and resolve the prevailing tensions also gives rise to new tensions and causes for friction.

 

 

 

 

 

LOOPHOLES

Efficient and adequate staff

The Special Investigating Agencies need to have adequate investigating officers. National Investigation Agency (NIA), another special investigating agency of India formed after the 26/11 Mumbai terrorist attack deals with cases related to terrorism, narcotics and counterfeit currency. Lately cases related to Maoists are also being investigated by them. The home ministry, which oversees the work of the agency, has asked it to recruit investigators instead of poaching from agencies such as Intelligence Bureau and the CBI. Many times, investigations are either conducted by low-ranking officers who lack experience or are new in service or by officers from other departments, which are totally unaccustomed to the investigation process. Due to their caliber not matching with an investigator’s caliber, the quality of the investigations is lowered. Ultimately the trial is affected by such lacunae. Due to inadequate staff, the work load is excessive, hence the quality of investigations is adversely affected. The National Investigating Agency drafted its second prospective plan for expansion in 2011. The staff was increased from 250 to 950. Also a strength of 609 was sanctioned. Hence, the Special Investigating Agencies (SIA) require qualified officers in sufficient numbers in order to have efficient investigations

Special Investigating Agencies with earmarked staff

.Most countries have their own specialized investigative agencies which handle specific category of crimes. But again when the investigation comes into the scene, the police is marched ahead with the responsibility of investigating. Since the main theme of police is to maintain social order and peace, hence the priorities of police come in between the investigation process. The police prefers social order to be maintained first, thus there is a lack of sustained and systematic investigations. The police preference for social order paves a way for inordinate delays and hence there is a consequential loss of valuable evidence. Most countries have no staff, earmarked exclusively for investigative work. Although, the special investigating agencies have their own staff, yet the preliminary investigations, before the case is entrusted to the specialized agency, are conducted by the police, as happened in the case of Aarushi Murder Case’. Although India has no dearth of Special Investigating Agencies but I suggest there should be adequate staff which is exclusively earmarked for conducting such special investigations. Only the particular staff which is trained for those special purposes (investigations) need to be conducting such investigations.

Training

Since, a special investigating agency is expected to deal with complex financial, economic, criminal, organized etc. types of crimes, hence it is suggested that the investigators should possess the qualifications ranging from; Diploma or Degree in Forensic Investigation, Diploma or Degree in Criminal Justice, LL.B. Degree in Police Science, Diploma or Degree in Computer Science etc. They should be imparted with basic training which should include, practical investigation techniques, self defence techniques, use of firearms, law and legal issues etc. The training should definitely deal with use of computers since it is a computer age. Regular workshops by experienced investigators should be held so that they share 417 their own experiences with the new unit of investigators. The workshops should also include the tactics of having the skills of arrest, search, compilation of evidence, giving oral evidence in court etc. Not only this, both the training as well as the workshops should update the investigators with investigation techniques, criminal prosecutions, asset seizure procedures, computer specialization, crime intelligence gathering and analysis, crime scene management, interviewing, questioning and interrogation skill etc. The training should definitely deal with use of computers since it is a computer age. Regular workshops by experienced investigators should be held so that they share their own experiences with the new unit of investigators. The workshops should also include the tactics of having the skills of arrest, search, compilation of evidence, giving oral evidence in court etc. Not only this, both the training as well as the workshops should update the investigators with investigation techniques, criminal prosecutions, asset seizure procedures, computer specialization, crime intelligence gathering and analysis, crime scene management, interviewing, questioning and interrogation skill etc. More Strong and Effective Legislations

 To make strong and effective legislations to fight corruption, organized crime, financial and economic crimes and fraud. Although there is no dearth of laws but money laundering and political interference still needs efforts in order if not remove then, lessen these omissions. Political interference can be seen with naked eyes in decision making about anticorruption investigations. To fight corruption, organized crime, financial and economic crimes and fraud. Although there is no death of laws but money laundering and political interference still needs efforts in order to; iff not remove then at least lessen these omissions. Political Interference can be seen naked eyes in decision making about anticorruption investigations. Justice in corruption cases has to be fast and for this we must have adequate number of judges, investigative agencies need to be given constitutional status, adequate manpower and equipment. As cited by Sh. Joginder Singh (Former CBI Director) in his book ―The Central Bureau of Investigation and 2G Scam. 418 We need to have laws which are based on ground realities and not drafted by the Law Commission whose members have never visited any trial court to see the conditions of the judges and witnesses there. I suggest the legislators need to make much more stronger and stringent legislations which serve as a severe deterrent for unabiding citizens who follow corruption and commit organized and financial crimes. These are the root causes which serve as a plague for the Indian Country. The Special Investigating Agencies have to function in between these citizes which leave no space for them to breathe, ultimately the plague of corruption and other evils do not let them untouched. With the advent of advance Science and Technology, the tactics and working of investigating authorities has completely changed and in this regard the role of Forensic is the most important. The scientific evidence plays a vital role in criminal investigation. Infact most of the criminal cases need scientific investigation and the courts also look for scientific evidences. Scientific technology is now the call of hour. In the fixation of paternity / maternity and in settling of many other issues, uses of scientific techniques is a boom for the scientific community. In number of countries like United Kingdom, United States of America, Germany, France, Holland Australia, etc. and of course in India, the Investigating officers and the courts are more and more relying on the newly advanced scientific techniques as for the investigation of crime is concerned.

Providing Statutory status to Central Bureau of Investigation (CBI)

In order to have efficient criminal justice system, our special investigating agencies should be granted constitutional status which is yet to be achieved. Central Bureau of Investigation is still governed by the DSPE Act, thus making hindrance for the investigators to do their jobs sometimes. Due to shortage in manpower, many times investigating the agencies poach investigators from other agencies such as the Intelligence Bureau others leading to inefficient investigations. A cook can not fit into the shoes of a cobbler. Same is the condition of our investigating agencies. Latest equipment and that too ample one should be provided to the investigating agencies, in order that they don’t face dearth of such minor things, thus creating obstacles in their aim of achieving an efficient criminal justice system. Most of the times, it seems very difficult to investigate and prosecute highly placed public officials and politicians and the reason attributed to it is lack of independence and autonomy. A dissenting note by a member of the Joint Committee who lamented the fact that public servants who carry out the errands of the political masters will go scot free and corrupt officers will rule the roost due to proximity to the seats of power seems to be the ultimate consequence of the fact that the Central Bureau of Investigation (CBI) has no statutory status. The Central Bureau of Investigation demands a statutory status for itself, as it is the country‘s premier investigating agency, together with the determination of constitutional validity with the determination of section 6A of the CVC Act 2003, which required the CBI to have prior approval before undertaking any inquiry or investigation against officers of the rank of Joint Secretary and above, from the CVC and not the Central Government. There is no statutory provision which expressly prohibits the Central Bureau of Investigation from appointing counsels of its own choice in matters pertaining to 420 investigations and prosecution of highly placed politicians and bureaucrats. The legislature needs to give appropriate directives in this issue under Article 32 and 142 of the constitution. Since, the counsels are the own choice of the premier investigating agency, hence one can make it out, how much well protected the politicians and bureaucrats are. Such counsels are mute spectators, who are simply puppets in the hands of the executive. The Role of Counsels (advocates) comes into foreplay over here. They being the paths to justice need to recuse themselves from representing the premier investigating agency, CBI in case against the members of the Executive and politicians under the general powers of the court. It is for the Supreme Court to give appropriate directions to the concerned Ministries in the Central Government prohibiting them from preventing the CBI to exhaust local remedies available to it under the laws of India in pursuing its prosecution attempts against the members of the Executive and Politicians. In the absence of statutory provisions requiring the CBI to obtain approval for pursuing the appeal route available under the laws of India, the Central Government does not deem to include authority to prevent the CBI from pursuing legal remedies available for prosecution.

Improvise the selection procedure of Investigating Officials

Acquiring a graduate or a post graduate degree for the eligibility for the post of an investigating official should be the least minimum criteria. There are certain situations in which an investigating official has to show his abilities purely on his balanced approach to such situations. Although education is a big factor in improvising such balanced approach of mind but there is another aspect which may termed as the faculty of mid’ which serves as the most crucial aspect for determining how balanced the Flight of Thoughts’ of such person are. How the person reacts to the necessary evils of society like the corruption, bribery, deceit, political inference, pressures etc. An investigating official not only needs to be intelligent, vivid book reader, brave, physically fit by also needs to be witty, problem solver, priority holder, on the lead and above all confident. All such traits can be found in a person only by testing him psychologically and this can be done through none other than a fine team of excellent psychologists. Our Indian Army recruits emotionally balanced people through their selection process. An effort has to be introduced where somewhere, the selection process has to be improvised. A.A. Siddiqui (Punjab D.G.P.) wanted to introduce community policing within the police system, as the police has to deal with 421 human beings and to develop a smooth and workable relationship with the community, policeman should be good at public relations.

 Cooperation between inter-agencies

There should be some more legislation enacted in order to make inter-agency cooperation function easily. Each agency wants to be isolated from another. The reasons attributed to it are different. In order, that the agencies cooperate amongst each other and share information which is necessary to be shared so that the national security of the nation is not hampered and we do not witness incidents like Mumbai Terror Attacks once again, we need to set up a forum which acts as a mediator between the agencies, so that all the agencies such as the Special Investigating Agencies and the Intelligence Agencies report to such agencies, on monthly basis. This step will help all the agencies to not to miss any credible information, also it will help in bridging the differences between them and make them cooperate amongst each other.

Judiciary to have a upper hand

Political pressures and interference can be witnessed in the working of the Special Investigating Agencies, just leading to delayed investigations and finally to acquittal of the accused, thus lowering the communication rate which is one of the most important aspect of knowing the overall development of a country. I recommend that the judiciary should have an upper hand to the executive. Although the investigating agencies should be directly responsible to the executive but the judiciary needs to keep a check on the investigating agencies by setting certain guidelines dictating, that the political interference if dealt by the investigating agencies, then it needs to be reported the judiciary at the first line rather than the executive. Although this recommendation might increase the work load of the judiciary but it would decrease the load of corruption on the shoulders of the Indian Democracy.

Last but not the least, effective implementation of laws T

he Legislation has done its job to make provisions in law suggesting ways and procedures to be adopted by investigating agencies in making the best criminal justice system. Though there are certain discrepancies which suggest that there are still areas, for which we need more stringent laws, but we are almost done in having laws. It is only the effective implementation of laws by the executive that is needed foremost now. Whether it is corruption, custodial torture, political, pressures or other 422 problematic areas, it is the implementation process which we are lacking. The Supreme Court has set guidelines and asked the agencies to follow the Certain diction but still, it is not followed to a certain extent. Amicus Crusial submitted that the interim reports of the Human Rights Commissions and the Committees suggested that the Apex Court’s directions in the D.K. Basu Case were not being implemented. To this a Bench comprising Justice R.C. Lahoti and Justice Brijesh Kumar made it clear that surprise checks should be carried out by atleast two members of the commission/ committee and the focus would be on finding out whether there was any custodial violence or violation of Human right. It was suggested that such valuable directions should be followed in practice in their real spirit. Since there is no such institution, organization, department where the rule of non implementation of laws is obeyed hence how could the Special Investigating Agencies be left untouched. It is not that the Central Bureau of Investigation or the Enforcement Directorate needs to implement laws. Each and every agency of the government needs to follow the principle of Implementation and that too effective one. All this cannot be achieved suddenly. We need a strategic movement in order that each and every individual associated with law implementation feels the need to implement the idea. Each individual should play his/her role in doing so. For this the people should also be made aware of their rights. It should be publicized adopting the means of media like the television, newspapers, internet etc. Tolerance paves the way for more intrusion into the rights of the person who permits such tolerance. Hence we need to know that being tolerant is good feature but absolute tolerance’ is also making the law implementing machinery more biased, corrupt and arbitrary.

Transparent and malpractices

Although India is a democracy, yet we have not achieved the standard of an ideal democracy’. Investigations are not always conducted in a fair and just manner due to extraneous factors such as lack of probity amongst the investigators, political pressures etc. With the (Right to Information Act (RTI) exempting certain investigating agencies from the purview of it’s ambit, has raised many eyebrows from different spheres. Corruption is an all pervasive problem that is widely present in India. It has become deeply institutionalized within the governance structure. The ground realities within India itself reflect a high degree of apathy and helplessness in dealing with corruption. Since, there is virtually NO INSTITUTION IN India that is free from corruption, then how can the specialized agencies be left behind. Corruptionincludes political pressures within it, thus the extent of corruption is alarming. Infact the problem of corruption has been significantly politicized, Consequently the political pressures can be felt in the working scheme of Special Investigating Agencies. Prashant Bhushan, a Senior Advocate of the Supreme Court of India, has observed: a corruption free society must have a) strong and adequate laws such as Anticorruption Acts, Right to Information Law, and laws to protect whistle blowers; b) Strong, independent and properly functioning institutions to enforce accountability and criminal justice such as investigative agencies vigilance commission and the judiciary; and c) An organized and vigilant civil society which monitors the conduct of public officials and exposes corrupt ones. Ultimately it is only a powerful civil society movement, which can break the vicious cycle of corruption in any society.362 Hence Transparency of action and accountability are two possible safeguards to prevent any abuse of the power. Justice A.S. Anand rightly remarked that the police or any other Investigating Agency should not take unfair advantage of the citizens. They must try to inspire confidence of the people and not instill fear in them. Fear must be reserved for the wrongdoers, hardcore criminals and economic offenders but not ordinary citizens.