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CONSTITUTIONAL QUESTIONS AND CITIZENS' RIGHTSAn Omnibus Comprising Constitutional Questions in India and Citizens' Rights, Judges and State Accountability$

A. G. Noorani

Print publication date: 2006

Print ISBN-13: 9780195678291

Published to Oxford Scholarship Online: October 2012

DOI: 10.1093/acprof:oso/9780195678291.001.0001

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Integrity of Prosecutions 1

Integrity of Prosecutions 1

Chapter:
(p.133) 16 Integrity of Prosecutions1
Source:
CONSTITUTIONAL QUESTIONS AND CITIZENS' RIGHTS
Author(s):

A.G. Noorani

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195678291.003.0082

Abstract and Keywords

The special judge trying the hawala case, Mr V B Gupta, made a remark that the CBI seems to be applying 'double standards', different accused in the same case. This calls into question the credibility of the central investigative agency. Such a police force is an affront to the Constitution. The steps necessary to ensure the independence of the police have yet to be taken in India despite the reports of the National Police Commission recommending such institutional checks. The CBI, the national police agency, falls within the sway of the prime minister. Despite judicial pronouncements that make it clear that the police agencies are bound to function according to the provisions of the law, the agencies frequently seem to take orders from political masters.

Keywords:   hawala case, central investigative agency, independence of the police, National Police Commission

The remarks which the special judge trying the hawala case, Mr V.B. Gupta, made on 8 February 1996, raise an issue of cardinal importance. Referring to the CBI's ‘double standards’, he said: ‘I fail to understand as to why the CBI, which is the prime investigating agency of this country, is applying different sets of rules for different accused in the same case. Some accused were arrested in the present case, while others were not.’

Earlier, on 16 January when the matter was heard by the Supreme Court, Justice J.S. Verma made pointed observations of the same tenor: ‘Our intelligence agencies have men of high competence … but unfortunately they function only with people in power … we are constrained to say that the people in power have completely bent it (the investigating agency).…’

Credibility

He said also: ‘In order to restore (sic) its credibility, the CBI will have to lay its hand on top politicians involved in the case as being in power they can blunt its edge’ (italics mine, throughout). The implications are far-reaching. Such a police force is a standing affront to the Constitution. It is as violative of the fundamental rights of the citizen, especially his right to ‘equality before the law or the equal protection of the laws’ (Article 14), as government-controlled electronic media is of his right to freedom of speech and expression (Article 19). The Supreme Court has already ruled to that effect in the latter case. One hopes so will it of the former, before long.

(p.134) British works on constitutional law never fail to discuss the legal status of the police force. It impinges directly on the rule of law and the citizens’ rights, for example, the right to assemble. The Changing Constitution, a work of erudition edited by Professors Jeffrey Jowell and Dawn Oliver, contains an illuminating essay by Professor Geoffrey Marshall, one of the most respected authorities on constitutional law, and Mr Barry Loveday on ‘The Police: Independence and Accountability’.

What they write is of striking relevance to our situation:

The impartiality of the police is one of the main components of the rule of law. In recent times impartiality has been guaranteed by the doctrine that all police officers have a degree of independence guaranteed by the law that is enjoyed by no other central or local executive officer. The police, on this view, are the servants only of the law and not of any elected local or central body. Many have seen in this a dilemma of democratic government. How can the police be made accountable to some body that is representative of the community and yet not be subjected to political pressures that would diminish their ability to administer the law impartially as between different groups or classes in society.2

They proceed to discuss the various institutional checks devised since 1964 on the basis of the independence of the police—the Complaints Board and the Complaints Authority.

In India, the first steps have yet to be taken to ensure their independence. The reports of the National Police Commission which recommended institutional checks have been ignored. Not only does the national police agency, the CBI, fall within the sway of the prime minister but Mr P.V. Narasimha Rao exercises, as a chronology has detailed, almost daily supervision over its investigation into the hawala case though he was himself cited as a recipient of Rs 3 crores by S.K. Jain in his statement to the CBI on 3 May 1995. This gives him an advantage denied to others so cited in Jain's diaries and statements. This is a palpable breach of Article 14. In similar circumstances, the British Home Secretary, Mr Reginald Maudling resigned in 1972.

The cover was blown off on 17 February. One of the officials handling the hawala case told a responsible correspondent that though charge sheets against other persons were ready, ‘we are awaiting the (p.135) signal from the Ministry of Personnel’—which is under the PM's direct control.

The second report of the National Police Commission of August 1979 recalled:

As far as investigative tasks are concerned we have a clear ruling from the Supreme Court that the nature of action to be taken on conclusion of investigation is a matter to be decided by the police only and by no other authority—(para 18) … AIR 1968 Supreme Court 117. … It may, therefore, be safely projected as a fundamental principle governing police work that the investigative tasks of the police are beyond any kind of intervention by the executive or non-executive (sic). Any arrangement in which the investigative tasks of the police are sought to be brought under executive control and direction would go against this fundamental principle spelt out by the Supreme Court and hence should be deemed illegal.

Arrangement

But precisely such an ‘arrangement’ exists in India today and in no other cases is its working more blatantly evident than in the hawala scam, St Kitts scam, other Chandraswami cases, not to forget Bofors. First things first. The present ‘arrangement’ in the hawala case must be altered. How, is entirely for the Supreme Court to determine.

What a British Home Secretary, Mr William Whitelaw told a conference of police officials on 10 June 1981 deserves to be quoted in extenso:

I think most people in this country would agree that it is highly desirable that the enforcement of the criminal law should not be subject to political control or influences. As Home Secretary, I cannot give direction to chief constables on operational matters and neither can police authorities. As practical politicians most of us would not want this power.

I do not believe the majority of people in this country would welcome or would tolerate the situation in which local or national politicians could direct the police operations or influence decisions on who should be prosecuted for a criminal offence. And, let us be clear, the kind of powers over the police which are being sought in some quarters would make this possible. The present constitutional arrangements for the police service are designed to minimize the risk of political control or interference of this kind.

In 1959, the Indian Commission of Jurists appointed an enquiry committee, headed by Mr N.H. Bhagwati, a former Supreme Court (p.136) judge, and comprising jurists like Mr M.K. Nambyar to investigate charges of undermining the rule of law made against the first communist government of Kerala. It was interfering with the police and directing withdrawal of cases.

Police Duty

The committee was constrained to observe: ‘It must be emphasized that the police are not the servants of the State Government in the sense that the Government can order the method and the manner of the performance of the various acts committed to the police by law; and when the requisite conditions in the specified provisions of the law are present, the police are under statutory duty to function in accordance with the mandate of the Legislature; and it would be a gross violation of the statute for the State Government to alter the Code of Conduct contrary to the provisions of the law. The moment an offence is committed or intended to be committed, the law takes its own course; and it is not open either to the police officer or the Chief Minister to change the course of law, much less to prohibit the policeman from doing his legal duty in accordance with the provisions of the various Acts.’3

In 1967, a special Bench of the Calcutta High Court authoritatively stated the law in the famous Gherao case. Chief Justice Sinha said: ‘The criminal law of he land is principally contained in the Indian Penal Code and the Criminal Procedure Code. The former lays down the substantive law and the latter the procedural law. There are police Acts which are applicable in various jurisdictions. Various other Acts have declared the commission of certain acts to be penal offences. Once the laws are made, whether substantive or procedural, neither the Governor nor the Cabinet nor the Ministers nor a subordinate executive authority has the power to add to or detract from its content, to interfere with its working or to effect any discretionary power given under it unless such power is clearly granted under the Constitution or the laws.’4

The law in India is no different from that in Britain. What is different is the actual set-up which is brazenly violative of the law.

(p.137) Nation Must Stand by Judges

Everyone knows that, despite the law, the State and Central Governments freely order police officers about. It is the government which controls investigations, prosecutions, and withdrawal of prosecutions in cases which impinge on the interests of its leaders and favourites. This is patently violative of the constitutional guarantee of equality as the US Supreme Court held in the celebrated case of the Chinese laundry men in San Francisco.5 Only persons of Chinese origin were prosecuted and arrested for breach of a municipal ordinance.

Same Wording

The Court held:

Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by a public authority with an evil eye and unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.

The guarantee of equality in the Indian and American Constitutions are worded identically (Article 14 and the fourteenth amendment, respectively). In the USA and in Britain there are directors of public prosecutions who function independently of the executive. This is what makes the guarantee effective in actual practice.

One notorious lapse is strongly censured as being ‘constitutionally improper’ in a well-known work on British constitutional law. On 6 August 1924, the British Cabinet decided that ‘no public prosecution of a political character should be undertaken without the prior sanction of the Cabinet being obtained’. It was rescinded.6

The rule that governs the practice today was set out in an authoritative pronouncement of the prime minister in the House of Commons on 16 February 1959:

It is the established principle of government in this country, and a tradition long supported by all political parties, that the decision as to whether any (p.138) citizen should be prosecuted, or whether any prosecution should be discontinued, should be a matter, where a public as opposed to a private prosecution is concerned, for the prosecuting authorities to decide on the merits of the case without political or other pressure.

The prime minister went on to say that the Attorney-General was to act in a quasi-judicial capacity and should ‘absolutely decline to receive orders from the Prime Minister or Cabinet or anybody else that he should prosecute’. The DPP works under the AG's general supervision.

In the USA, the Ethics in Government Act 1978, as amended in 1994, empowers the court to appoint an independent prosecutor. One such prosecutor is at work now in the Whitewater case. President Bill Clinton has been questioned.

Toned Down

In India, the CBI, reportedly, sought the Union law ministry's advice on the questionnaire to be administered to Mr P.V. Narasimha Rao—and toned it down. Why can he not be interrogated straightaway?

The Act of 1978 was enacted in the wake of the Watergate scandal. In his lectures on The Role of the Supreme Court in American Government, the special prosecutor, Professor Archibald Cox, movingly describes the agonizing dilemmas he faced, as he demanded access to the Nixon tapes, and its aftermath. It holds lessons for us:

Suppose that the President's defiance were successful. The habit of compliance—the notion that a powerful executive official has no choice but to comply with a judicial decree—is a fragile bond. Who could say in an age of Presidential aggrandizement that if one President succeeded in his defiance, he and others might not follow that example until ours was no longer a government of law? How far was a man justified in provoking this kind of constitutional crisis with the outcome so uncertain?

Fire Storm

‘My fears proved fantasies.’ President Nixon's announcement (of sacking Cox) evoked a public reaction which his chief aide later described as a fire storm. Within seventy-two hours the President changed his mind and promised to comply with the decree. A bit (p.139) later, a new Special Prosecutor was appointed and the independence of the Watergate Special Prosecution Force was restored. The people proved their determination—and their moral and political power—to require the highest officials to meet their obligations under law.’7

The hawala and the St Kitts cases, not to forget others like Bofors, will get nowhere unless the people of India show similar awareness and determination. The Judges have done nobly by the nation. The nation must stand by the Judges and see to it that the Government abides by the Court's orders and the law of the land.

Notes:

(1) The Statesman, 22 February 1996

(2) Jeffrey Jowell and Dawn Oliver, The Changing Constitution, Clarendon Press, Oxford University Press, 3rd edn, 1994, p. 295

(3) Report of the Kerala Inquiry Committee, Journal of the International Commission of Jurists, Winter 1959–Spring Summer 1960; vol. ii, No. 2, pp. 139–214, at p. 179.

(4) Jay Engineering Works Ltd. & Ors. v The State of West Bengal & Ors., AIR 1968 Calcutta 407

(5) Yick Wo v Hopkins, 118 US 356 (1886)

(6) K.D. Ewing; Constitutional and Administrative Law, Longman, 12th edition, 1998. p. 448

(7) Archibald Cox, The Role of the Supreme Court in American Government, Clarendon Press, Oxford University Press, 1976, p. 8