Transparency and accountability are key for rule of law. The recent Assagao case prompts one to ask: Who has called the shots? What could be the system that could ensure transparency in the administration?
The Right to Information Act, 2005, was one such piece of legislation. But the Act has been diluted by amendments by the present regime and further by some decisions on the interpretation of its provisions.
One of the key pillars of transparency is to make all the laws accessible. But ironically, the Goa Police Subordinate Service (Discipline and Appeal) Rules, 1975, under which departmental inquiries can be held against any police personnel from the rank of police inspector and below, are not available in the public domain. People have had to apply under the Right to Information Act, to get a copy of the same, and that too with great difficulty.
Action taken reports against police officers are not furnished, claiming exemption under Right to Information Act. There is an order of the Goa State Information Commission to the effect that even if no action is taken after passing an order in a Departmental Enquiry, the applicant should be informed that no such order has been passed. If the Applicant is the complainant following whose complaint, the Departmental Enquiry should be initiated, then that person should have the information about action taken, purely as a principle of natural justice. It does not even need an application under the Right to Information Act.
But if the Goa Police are going to hide under exemptions in the Right to Information Act, then there will never be transparency in the processes of maintaining law and order. If there has been political interference, or interference from the superior, that will never be known. This then gives a kind of impunity to the officers, because they know they can be protected, as the orders passed are not in the public domain and therefore not subject to any public challenge. Those who ask for such orders are sent on a merry chase with letters being forwarded from one section of the police to another.
This in turn will mean that suspensions of police will be an eyewash or a scapegoating to quell societal outrage, which dies out with the passage of time and with the emergence of other issues that cause outrage. And that in turn will mean that the concerned officer will get quietly reinstated, with no publicity about what has happened – whether a preliminary enquiry was conducted, whether a departmental enquiry was conducted, what was the outcome of the preliminary enquiry, whether the suspension was revoked, even as the departmental enquiry was not even initiated, giving the concerned police officer the leverage to intimidate or influence witnesses.
And again, if you ask what were the circumstances under which time was allowed to elapse, and if an inquiry is indeed initiated against those responsible for causing the revocation of the suspension and of lifting the probation of the concerned officer, again, there is total silence about the outcome of such an inquiry if conducted.
If the police officer is not found guilty, focus will have to be on what systems enabled a brazen act of demolition without demolition permissions from the Panchayat. For example, if the contention that the police officer followed the instructions of the Director General of Police, and the latter denies, there will have to be an elaborate exercise in establishing who is speaking the truth. Therefore it may be better if the law requires that where possible, as in a case of demolition, a police officer should only be bound to follow instructions in writing. This will ensure both a paper trail and help to pin accountability.
Again, when a third party complains against the police and a departmental inquiry is initiated, the complainant as much as the charged officer should have a right to know what is going on and to have copies of all the proceedings. The complainant is clearly motivated to complain, either for good reason or with vested interests. Whatever be the cause of the motivation, it is that zeal that will ensure that the inquiry reaches its logical conclusion. Otherwise, this also leads to matters getting quietly hushed up inside.
When there is no transparency, what easily follows is that there is no accountability. There is room for manipulation, room for truncating of procedures at the cost of fairness and due diligence. That in turn leads to a crumbling of law and order, a lack of faith in the system, vulnerabilities at various levels, including vulnerabilities of the persons who are the victims of the arbitrary brazen acts. You can easily have situations, where if there was unanticipated outrage, the victims are bought over, and then they become hostile witnesses. In the bargain, the unconstitutional immorality of impunity then gets deeply entrenched.
The criminal case suffers, without evidence, given the standards of proof required in a criminal case, namely, to prove the case beyond reasonable doubt. There has to be a way out, which is besides the route of criminal cases, and intransparent departmental inquiries. A public accountability system has to be evolved. The devil is in the detail. Therefore carefully thought out required prescriptions need to be in place. This is particularly needed in the area of notings. In the internet age, there can also be electronic mediums of communication that can be considered valid, from the official numbers, that is. However, these electronic messages have to be duly transcribed or printed out or stored, in a way that they cannot be manipulated. In so far as the police are concerned, this can also find space in any Goa Police legislation that is enacted.
Similarly at the level of sanction to prosecute, there has to be accountability if the concerned authorities fail to seek the sanction to prosecute Government officers, and also transparency in the whole process of sanction for prosecution. Otherwise, the powers that be can direct illegalities, and a police officer will temporarily be made a scapegoat, and thereafter they will deny the sanction to prosecute him after the outrage has died out, lest the skeletons come out of the cupboard.
When the required soft infrastructure for transparency and accountability, such as that discussed above is missing, rule of law becomes a casualty.
(Albertina Almeida is a lawyer and human rights activist)