By Apoorva Mandhani, Symbiosis Law School, Pune.

Early History

The premier armed force for internal security of the Union of India, the Central Reserve Police Force was initially constituted as the Crown Representative Police in 1939. It holds the distinction of being one of the oldest Central Para Military Force.

CRPF was raised as an aftermath of the political turbulence in the then Princely States of India following the Madras Resolution of the All Indian Congress Committee in 1936, as also to satisfy the yearning of the Crown Representative to supplement the existing law and order machinery of the native states. The Force was renamed as CRPF on enactment of the CRPF Act on 28th December, 1949.[1]

Role

The attributes of the CRPF include its mobility, malleability, broad gamut of duties and graded response. Sardar Vallabhbhai Patel, the Home Minister when the law was enacted, envisioned a multi dimensional role for CRPF, its primary role being to aid and assist the States in internal security management. It possesses an all-India character, both in organization and in deployment.

The Central Reserve Police Force has proved its mettle and allegiance to the country time and again. Whether it is dealing with the Maoists in the inflicted regions or the insurgents in the Kashmir valley, the CRPF, largest of the Central Armed Police Force with 230 battalions has fulfilled every responsibility endowed upon it, sometimes even more than that. However recently, there has been a sharp attrition in the strength of the CRPF, with over 16, 843 officers and personnel having left the paramilitary CRPF in the last four years, as in February, 2014. Even though this decline had been attributed to “personal and domestic reasons” by the Minister of State for Home R.P.N Singh, one cannot help but notice that the attrition rate is much lower in the BSF, ITPB and CISF.[2] This decline has to be viewed as something more than mere personal reasons.

Laws & Rules

The Central Reserve Police Act, 1949[3] has been criticized on various fronts[4] and is accused of not providing proportionate rights to the country’s premier internal security force. It is often termed as outdated and outmoded, as it still retains several provisions from the Crown’s Representative Police Force Law, 1939.

Several provisions of the Act violate the Fundamental Rights guaranteed under the Constitution of India. They violate their Right to Equality, equal protection in public employment and the Right to protection of life and personal liberty.

Further, Section 14(2) of the CRPF Act states,

Notwithstanding anything contained in the Code of Criminal Procedure 1898 (1973) the Central Government may invest the Commandant or an Assistant Commandant with the powers of a Magistrate of any class for the purpose of inquiring into or trying any offence committed by a member of the force and punishable under this Act or any offence committed by a member of the force against the person or property of another member

This provision has been bone of contention while determining the viability of the Act. The provision necessary vests judicial powers of a Magistrate, to an executive authority, thereby violating Article 50 of the Constitution of India which states,

“The State shall take steps to separate the judiciary from the executive in the public services of the State.”

The 41st Report of the Law Commission of India[5], which was submitted in September, 1969 desired dispensing with the arbitrary exercise of discretionary powers and acting in a manner consistent with known principles of law. It hence recommended the separation of the judiciary from the executive on an all-India basis to guarantee upgrading in the quality of justice by having judicial Magistrates, who were appointed by the High Courts. After being discussed by a Joint Select Committee and being approved by both Houses of Parliament and the President, Cr.P.C 1973 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 Cr.P.C 1973, and all ministerial functions were left to the Executive Magistrates.[6]

This provision has been duly incorporated in Cr.P.C, 1973, but the CRPF Act has not yet been updated with this change. The separation of the Judiciary from the Executive was a reform for which Indian leaders had been disconcerted for a very long time. Consequently, the separation the issue found mention in the Directive Principles of State Policy. Even Montesquieu has put it as “there is no liberty if the power of judging be not separated from the legislative and the executive powers”.[7]

The Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but he functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can very well be said that out Constitution does not contemplate assumption, by one organ or part of the state, of functions that essentially belong to the other.[8]

Hence, assuming of judicial functions by the executive should be done away with in the CRPF Act, in order to materialize the aspirations of our founding fathers and keep the Act in line with the Constitution of India, as well as Cr.P.C, 1973.

To worsen the situation, the Commandant, after conducting a judicial trial for convicting and sentencing a member of the force, is also given the power to punish the same member of the force by dispensing with the departmental inquiry or any right of departmental defence arising therein, on the ground of criminal conviction. An opportunity of hearing and departmental inquiry and defence has been done away with, without any convincing reason for the same. Therefore, the Commandant may frame charges as a prosecutor, convict and sentence as a Judicial Magistrate and then impose a punishment as the Departmental head by doing away with the departmental enquiry of the basis of such trial.

The CRPF Act hence, needs to be brought in line with Cr.P.C, 1973 and Article 50 of the Constitution of India. Such changes have already been brought in the Navy, Air Force, Army and BSF. However, the CRPF Act has still not been updated with the changes.

According to a 2013 Press Release, the Central Reserve Police Force Bill, 2013 was supposed to be introduced.[9] The key objective of the Bill was to consolidate and amend the law relating to the constitution and regulation of CRPF as an Armed Force of the Union for the purposes of restoration and maintenance of law and order.[10] It was also reported that the Bill would provide the CRPF with powers of search and seizure without the presence of local cops. It would also allow the personnel to carry arms and ammunition anywhere in the country, without the orders of the state police. Another provision to be included in the proposed Bill was reported to be the requirement of sanction from the Central Government to prosecute a CRPF Officer. Though already a part of the Cr.P.C, this provision was proposed to be formally included in the CRPF Act.[11] However, further details and progress regarding this draft Bill are still not available.

Suggestions

Allotment of separate Cadre for judicial trained officers can prove useful. A ranking of judicially trained officers and further setting up of a Special Court such as the Security Force Court of the Border Security Force can bring the law at par with the Cr.P.C as well as the Constitution of India. The Fundamental Rights must be granted to the members of the CRPF in course of their duties and service to the nation. The high degree of discipline should not be used as an excuse to mete out treatment, disproportionate to the service that the force is rendering to the country.

[1] “History of CRPF”, Available at: http://crpf.nic.in/history.htm , accessed on 01.01.2015 at 2:45 pm

[2] “Over 16,000 officers, troops left CRPF in last four years: Centre”, PTI, dated February 19, 2014, available at http://www.firstpost.com/india/over-16000-officers-troops-left-crpf-in-last-four-years-centre-1399071.html , accessed on 01.01.2015 at 3:24 pm

[3] Available at: http://crpf.nic.in/crpf_actrule/acte.pdf

[4] http://www.insightsonindia.com/2014/12/29/10-leaving-the-current-state-of-affairs-to-the-outmoded-colonial-position-of-the-crpf-act-makes-it-an-unjust-arbitrary-unfair-and-discretionary-process-subject-to-bias-and-misuse-in-the-light/, accessed on 02.01.2015 at 3:42 pm

[5] Available at http://lawcommissionofindia.nic.in/1-50/Report41.pdf , accessed on 01.01.2015, at 10:16 am

[6] Malhotra Anil, “A law that failed to keep pace with time”, Available at: http://www.thehindu.com/opinion/op-ed/comment-on-the-crpf-act/article6732967.ece , dated 29.12.2014, accessed on 01.01.2015, at 10:05 am

[7] Justice S.T. Ramalingam v. State Of Tamil Nadu And Another, AIR 1994 Mad 252

[8] Ram Jawaya Kapur v. State of Punjab, A.IR.1951, S.C.32

[9] Available at: http://mpa.nic.in/MPA/pdf/preb13.pdf , accessed on 02.01.2015 at 5:20 pm

[10] “Parliament Session Alert- Budget Session: February 21-May 19,2013”, available at: http://www.prsindia.org/administrator/uploads/general/1361529873~~Parliament%20Session%20Alert%20-%20Budget%202013.pdf , accessed on 02.01.2015 at 3:49 pm

[11] https://www.facebook.com/crpf.friends/posts/123592717835877 , accessed on 04.01.2015 at 09:29 pm