Schoolbag, judicial activism and the deficits

We commend the Apex Court for their timely and sensitive decision to limit the weight of school bags that students are forced to carry, due to ever increasing number of books, notebooks and other material.

The question is why the teachers, the principals, school management or the management committees of the schools, or even the board or the ministry did not see it necessary to give such a directive. Why did it need the Apex Court to intervene in a matter which is fundamentally the domain of the executive functions of the institutions and of the government?

The above incident – the judiciary having to intervene in the work of the executive – clearly indicates as to the inertia of the executive domain of the society. It cannot bode well for any society and for the orderly function of any public authority to see the judiciary having to pass such orders. Nobody will dispute that the judiciary must act if the executive branch fails to do so. But it can't be a desirable situation.

To any sympathetic and dispassionate observer, the deficits of executive firmness, both political and bureaucratic, insofar as it relates to expeditious settlement of our public affairs would be apparent. Take for example, the ecologically and economically damaging illegal encroachments on the river-networks, particularly those surrounding the capital city. The court has umpteen times directed the concerned authorities to remove the unauthorised structures that have nearly strangulated the metropolis. The response has been less than satisfactory. There is no doubt that the situation would not have deteriorated if the regulatory teeth of the magistracy and the police were operating in full force.

Another highly significant segment of enforcement slackness and slipshod investigation relates to the adulteration and poisoning of drugs. Scores of children have died after consuming poisonous analgesic medicine while illicit drugs and narcotics are about to destroy an entire generation. The cost of lax supervision and enforcement coupled with shoddy investigation in drug administration is very heavy. The deficits therein have created obstacles in dispensing proper justice.

Coming to law enforcement scenario of the developing countries, a cynical view is that politicians do not want to professionalise the police because control over it is central in a polarised society. Ironically, our political leaders, who, since 1947, occupied positions of power were enamoured by the administrative and police system left behind and enjoyed exercising power and authority, oblivious of their own demand of yesteryears for far-reaching administrative reforms. The periods of unconstitutional rule in Bangladesh brought out in full virulence the repressive role of the inherited police system.

So far as police officers are concerned, the register for inquiry under Section 54 maintained at police stations has not been properly supervised. Every inquiry of arrest under Section 54 needs to be disposed of within fifteen days and if no specific case is made by then, the arrestee has to be discharged. This has not been ensured. The majority of such arrests lead to no case being made against the arrested persons. However, for unlawful arrest or damage in terms of liberty or honour, no police officer is charged.

In a scenario where the police have not been able to adequately revamp itself, the concern of the judiciary to keep the police on the democratic path is gratifying. The reality is that the police, the government and the judiciary bear a mutually informing position to one another in democracy. A progressive police force is essential to ensure fair and impartial law enforcement.

In the above context, the November 13 report in this newspaper appears very significant and salutary. The said report records the Supreme Court's observation to the effect that "In our country we find no concern of the police administration about the abusive powers being exercised by its officers and personnel. The department has failed to maintain required standard of integrity and professionalism". It is also reported that police's top brass finds it hard to tackle crime committed by lower-tier cops and that there is corruption in recruitment and behavioural recklessness is attributed to errant policemen's political link. The Apex Court further observes, "On a look into the law and order situation, we have reasons to believe that it (law enforcement agencies) has forgotten its core value that it is accountable to the community it serves".

While the role of the Apex Court in the area of police misconduct is enlightening and that of a caring guardian through its selective activism, much of the improvement has to come from within the police organisation itself.

It would be relevant to quote Lord Atkin, who famously said: "In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice. And it is the tradition of British justice that judges should not shrink from deciding such issues in the face of the executive."

Finally, it needs to be emphasised that while we may remain poor in per capita income, we should strive to be rich in individual freedom.

The writer is a former IGP and a columnist for The Daily Star.