It is the abiding lesson of history. One of the most formidable challenges facing the organized State, whether in ancient times or modern, is to control its armed services. Wherever, and whenever the civilian control over the forces has weakened, the State – as an entity of governance – has perished. It was a major cause of the downfall of the Roman Empire. “There was no one to guard the guardians.” Arguably, a similar fate awaits the nascent Indian democratic state.

The forward march of the police state appears to be unstoppable, and the irony is truly stark. A nation that takes pride in the fact that it is  the world&’s largest democracy with the finest written Constitution anywhere in the democratic world, is unable to control its main police agency – the CBI.  There is little doubt that  the agency is being encouraged, however indirectly, by certain  observations of the judiciary. 

The ‘caged parrot’ is threatening to turn into a ferocious bird of prey. If not recaptured, clipped and put under firm civilian control, it will seriously impair all decision-making by the permanent civilian executive. As it is, the speed of disposal in the Government has slowed down considerably, a situation which will, in all likelihood, only degrade the much-advertised growth initiatives of the present Government to mere wishful thinking.  There  can be no action against inaction.

The latest swoop by the  CBI has been the raid  on the duly elected Chief Minister of Delhi.  Ostensibly, the CBI has, in a laughable display of legal sophistry described it as a raid on the Principal Secretary to the Chief Minster. The explanation is perhaps proffered for the simple reason that the CBI has no jurisdiction over state government employees, including duly elected state ministers. The public alibi insults the intelligence of the common man. It betrays a complete ignorance of the Allocation of Business Rules of the Government. The personal staff of the chief minister  do not head any department or ministry. By that token,  they have no independent status, unlike other State Secretaries such as, say, Commerce or Industry. A secretary to the chief minister has no independent “charge” or “office” – he merely assists the Chief Minister in the discharge of his official functions. 

Even on the merits of the case, the CBI&’s action betrays a complete lack of knowledge of laws and Constitutional propriety. The raid on his residence was conducted under the provisions of the Prevention of Corruption Act, a drastic if not draconian piece of legislation. The CBI has filed an FIR under the provision of the Act which punishes a public servant for misusing his office to obtain a “pecuniary advantage or a valuable thing”.

Even after the raid, nothing tangible, or valuable, was discovered, according to the ‘search list’, except some 4,000 odd dollars, documents and files pertaining to the grant of tenders to a private party. There is no mention in the FIR of any ‘valuable consideration’ or ‘pecuniary advantage’ having been asked, or given, to the public servant concerned. The only ‘allegation’ in the FIR is that decisions have been taken to procure equipment for official use through open tenders. During the raid, a certain quantity of liquor was found which is marginally more than what an “individual” is allowed to possess, under the Delhi State Excise law. Even at the time of the raid, the public servant was not alone but with his spouse. The total quantity of liquor ‘seized’ is well below the legally permitted limit once it is divided by two. Shockingly, the CBI nevertheless obtained another FIR from a state Government inspector of Excise to investigate the “seizure”.

The courts resent two FIRs in the “same matter or connected matters.” The second FIR – without an iota of evidence of any wrongdoing – has been filed by the state excise inspector directly with the CBI, a Central agency. This amounts to gross irregularity on the part of the CBI, to manoeuvre an FIR from the lowest functionary of a state department.  Assuming that there was a shred of evidence, the proper, lawful course for the CBI should have been to first ensure a reference from the state Government.

The two FIRs taken together do not disclose any evidence of wrongdoing under either of the two Acts. The High Courts have been vested with the powers to pass any order “to prevent the abuse of process of any court or to secure the ends of justice.” The Supreme Court in a landmark case has categorically ruled that if, prima facie, the FIR does not disclose any evidence of a cognizable case, it ought to be quashed straightaway.

There is an African proverb that if elephants fight, the grass underneath gets crushed. Something similar is happening in the Capital of supposedly the world&’s largest democracy. In the ongoing war of nerves between the Central Government and the State Government, the hapless and unprotected civil servants are suffering, for no fault of theirs. In the bargain, the CBI is virtually dancing to the tune of its pro tem political masters. The Director, CBI should have stood up for the cause of law and justice rather than slap cases against senior civil servants in such an extra-legal manner.

Undeniably, in this latest manifestation of the emerging police state, the wily politician is busy playing political games, at the expense of the permanent executive. That the institution of the civil service is being emasculated is, one imagines, nobody&’s concern. And the wily politician has corrupted the ‘obliging’ CBI in a very insidious way, by dangling before the retiring top brass the carrot of post-retirement rewards.

The First Police Commission in independent India had recorded that one of the main reasons for endemic police corruption is the tendency of some retiring policemen to “hobnob” with ruling politicians in the expectation of post-retirement rewards. The Commission was so alarmed with this phenomenon that it recommended banning this practice by law. But the political executive had the last chuckle – it virtually institutionalized this practice by appointing them as Governors.

The situation became hopeless as the earlier ruling party virtually declared the post of Governor as a “cadre post” for retiring policemen. Indeed, at one stage most of the Raj Bhavans in the country were under police occupation. Fortunately for the country and our fragile democracy, the policy was promptly reversed by the present dispensation and most of the policemen occupying the Raj Bhavans, though not all were asked to pack up and go home.

To revert to the main issue of the CBI raid on a senior civil servant without proper evidence, there is hope yet that such actions do not become a regular police practice. The Supreme Court in a momentous judgment has ruled that if a public servant harasses an innocent citizen in a case of malicious prosecution, damages, including punitive ones, can be realized not only from the State but also from him personally. With the onset of liberalization, it was hoped that the ‘Inspector Raj’ will be rolled back. Indian democracy must constantly be on guard that it is not supplanted by ‘Police Inspector Raj’.

The writer is a retired IAS officer.