A volatile system

Published : Dec 03, 2004 00:00 IST

Some recent acquittals of persons who wield power have undermined the credibility of the criminal justice system. It is time for the Supreme Court to step in and effect a course correction.

IT is an interesting time for those who have been closely watching our criminal justice scene. Several things have happened in the past few weeks that evoke conflicting emotions: despair (arising from dubious executive decisions) and optimism (flowing from categorical judicial pronouncements).

Perhaps, the most bizarre of recent events is the action of Zahira Sheikh, the main complainant in the Best Bakery case, to go back on her earlier affidavit to the Supreme Court seeking re-trial of the case outside Gujarat. It was in response to her prayer that the Supreme Court had ordered the re-trial now in progress at a Mumbai Court. Zahira was to depose there shortly. It is reported that she has been elusive in accepting the summons to appear before that court. On November 3, she went on record before the Vadodra District Collector totally retracting from her earlier version of the March 1, 2002, attack on Best Bakery. In her affidavit to the Collector, she has said that the original Vadodra trial court's verdict acquitting all 21 accused was on the right lines. Also, in total deviation from her plea before the Supreme Court, she now says that she was not threatened by Bharatiya Janata Party legislator Madhu Srivastav in connection with her testimony before the Vadodra court where she and all the other witnesses turned hostile. What is most disconcerting is her categorical assertion that she is under pressure from social activist Teesta Setalvad to indict innocent persons before the Mumbai court. Worse is her charge that Teesta had wrongfully confined her earlier for this purpose. Teesta has sought anticipatory bail before the Mumbai High Court, which has sought the views of the Gujarat government.

All criminal justice agencies, including the apex court, should be rightfully incensed at Zahira's extremely strange conduct. Her two different versions of the incident are proof enough that she has lied under oath on one of the occasions. This calls for the utmost condemnation, and there is a justified demand that she be prosecuted for perjury. I am somewhat sorry for her. She is apparently under immense pressure to shift her stand constantly. Several forces could be at work to ensure that she is totally discredited and justice is denied to the victims of the Vadodara outrage. It is difficult to prove that the criminal elements that are trying to obstruct justice have a nexus with those in authority. It will, however, be a mockery of the exalted system if such elements are allowed to succeed. All over the country, there have been so many acquittals in the recent past of those who wield power. These have almost totally undermined the credibility of criminal justice agencies. I am sure the apex court is not amused over the turn of events, not only in the Best Bakery case but in other cases as well. I have the greatest confidence that it will act swiftly to do some course correction.

In the ultimate analysis, no major damage may be caused to the prosecution by Zahira's antics. There are several other eyewitnesses to testify to the incident and the participation therein of named individuals. At worst, Zahira's testimony could be ignored by the court as that of an unreliable witness. Against this backdrop comes a significant Supreme Court ruling a few days ago, on the weight to be accorded to an eyewitness in a case involving violence. The realism displayed by Justice Arijit Pasayat and Justice C.K. Thakker is highly commendable and should warm the hearts of prosecution officials all over the country. It reflects the apex court's sagacity as also its sensitivity to recent distressing happenings in the field.

In this case of murder reported from Madhya Pradesh, the High Court had overturned the trial court's order holding the three accused guilty. This was on the grounds that the accounts of eyewitnesses were not in harmony with the medical evidence on record. The Supreme Court found the High Court's logic unacceptable. In the opinion of the two Judges who heard the appeal of the State, where the eyewitnesses are credible and their version is consistent, their evidence should not be discredited solely because it is at variance with the medical evidence on record. Justice Pasayat, who is one of our most outstanding Judges and who wrote for the Bench in this case, has said that the account of an eyewitness needs to be tested independently. In his view, it would be erroneous to treat such evidence as the "variable", while holding the medical evidence as the "constant". The judgment by implication refuses to countenance theories and counter-theories normally advanced by medical experts - either on their own or in response to questions at the trial - as superior to facts elicited from unimpeachable eyewitnesses. Pragmatic rulings like these by the highest court of the land somewhat stem the rot at a time when there is a widespread feeling in the country that the most solid of criminal cases could be easily demolished by introducing a red herring in the form of an expert witness from whom a clever defence lawyer can extract theories that run counter to the prosecution story. Such rulings also reverse the state of despondence induced by many high-profile cases failing in court. Further, lower courts derive courage and clarity from such a lucid and decisive stand adopted by the apex court on crucial issues impinging on the health of the criminal justice system.

AGAINST this optimism come certain questionable executive decisions that undermine the independence of investigating agencies. The revival of the infamous Single Directive that fetters the Central Bureau of Investigation (CBI) from proceeding suo motu against public servants of and above the rank of Joint Secretary to Government of India is one dampener. The matter has been taken to the Supreme Court on a public interest litigation (PIL), and the judgment is awaited. This irritant adversely affects the earliest step of investigation, namely, registering a first information report (FIR) to proceed on a Regular Case (R.C. in CBI parlance). Worse off are State Vigilance Bureaus, which, unlike the CBI, in most States need a government endorsement even for doing a Preliminary Enquiry (P.E.) against top civil servants. If investigating agencies somehow get over this impediment, there is one more hurdle that they will have to cross before they can to court with a charge-sheet against the accused against whom investigation had thrown up ample evidence. This takes the form of a legal requirement of obtaining a prior sanction for prosecuting a public servant. Section 197 of the Code of Criminal Procedure and Section 19 of the Prevention of Corruption Act lay down this condition, without which no court can take cognisance of a charge-sheet. While the former makes such a sanction mandatory even in the case of a former public servant, the latter does not. The stipulation is unexceptionable because we could otherwise have undue harassment of an honest public servant who had merely discharged his duties but had possibly exceeded his legal authority or had fallen foul of the executive for extraneous reasons. I am told that there is a line of thinking in favour of amending the Prevention of Corruption Act to bring it on line with the CrPC so that sanction is required also in cases of former public servants hauled up for corruption. On the face of it, this seems in order. Whether the current abominably high levels of corruption in public services warrant this move (that offers a measure of protection to corrupt officials) is, however, an entirely different question.

The Union Home Ministry's decision to refuse sanction sought by the CBI to prosecute former Minister Captain Satish Sharma for various Indian Penal Code offences has triggered a debate whether the executive is using its authority to issue sanction with objectivity. I am certain that the case has been examined threadbare at various levels, and a decision has been taken on merit and justifiable grounds. The fact, however, is that law officers in government often take a stand based largely on the probability of a case succeeding in court. This again is reasonable taking into account the huge pendency in courts and the need to save them from being burdened with flimsy cases. Nevertheless, a decision not to prosecute an accused needs to be balanced with the oft-quoted judicial position that prosecutors should not usurp the role of the judiciary. This is the major criticism levelled against the Crown Prosecution Service (CPS) in the United Kingdom. Many police officers in that country complain that the CPS is irrational and arbitrary in its decisions, because of which fewer cases than those merited eventually go to courts. Some prosecuting and judicial officials have always told me that police investigators should leave decisions to courts after placing all relevant facts. It is not for them to anticipate the mind of a Judge before remitting a case, as long as it has been well investigated.

AT the beginning of this column I referred to "conflicting" emotions. Close on the heels of the Satish Sharma case comes the Supreme Court's ruling that State Governors enjoy the authority to sanction prosecution of a State Minister, even where the Council of Ministers had refused to accord such a sanction. This is a shot in the arm for those who stand for probity in public life. This is again a case from Madhya Pradesh that had gone to the apex court. Here, the Lok Ayukta looked into a complaint against two Ministers that they had illegally released 7.5 acres of land in favour of its original owners. After investigation, the matter went up to the State Council of Ministers for giving the sanction for prosecution. The latter denied sanction on the grounds that the material placed before them did not warrant it. The State Governor, however, felt that there was adequate material and accorded the sanction. When the legality of the Governor's action was taken to the Madhya Pradesh High Court, the latter held that the Governor's discretion under Article 163 of the Constitution did not extend to the authority to sanction prosecution. In a landmark judgment on November 5, a five-Judge Constitution Bench of the Supreme Court, headed by Justice N. Santosh Hegde, struck down the High Court ruling and said that a Governor did in fact enjoy the power. Those who are strongly of the view that the Governor is a titular head of State only and derives his authority solely from the Council of Ministers could be surprised at the apex court's categorical stand. What has possibly weighed in the mind of the court is the growing abuse of executive authority to protect people in high places who have been caught for a flagrant violation of standards of integrity. Justice S.N. Variava, writing for the Bench, has highlighted the inherent danger of permitting the executive unfettered authority to ignore corrupt practices. There cannot be a more telling statement than this: "It would then lead to a situation where people in power may break law with impunity, safe in knowledge that they will not be prosecuted as the requisite sanction (for prosecution) will not be granted."

Closely allied to the issue settled in favour of the State Governor is the question whether a government's (State or Central) decision to turn down an investigating agency's request for sanction to prosecute a public servant is justiciable or not. There is a lack of perception among some on whether the executive decision in such matters can be questioned at all in a court of law. There are several rulings by various High Courts that by inference point to the justifiability of a refusal to accord sanction. The Madhya Pradesh High Court had said, that according a sanction for prosecution was a statutory function and not a discretionary matter. The Andhra Pradesh High Court had ruled that the sanctioning authority should display a sense of responsibility and the industry required to examine relevant material placed before it. Finally, the Rajasthan High Court had declared that the act of according sanction was not a judicial function and that it was purely an executive act.

A final word. All that has happened until now in the Best Bakery case has naturally triggered a renewed demand for expeditious statutory recognition to the concept of witness protection. The Law Commission's Consultation Paper on the subject released in August makes meaningful reading.

There are two aspects to the problem. The first is how to check the ease with which prosecution witnesses are bought over, so as to make them go back on their earlier statements to either the police or a magistrate. Courts have a major role here. More stringent and swift action for perjury is one antidote. They could also ignore those hostile witnesses who are either unimportant or are palpably speaking falsehood as would appear from their demeanour in court. Secondly, possibly more important than the first, is to offer physical or identity protection to those who come forward to depose in court. This is a difficult task if one reckons how porous public agencies are and how thoughtless a section of the media can at times be in prying into protected information.

The Law Commission's paper invites suggestions from the public. Let us hope the Commission finalises its recommendations early and the government enacts a practical law immediately thereafter. I know I am stating the obvious. Where there is no political will nothing much happens on the legislative front. In matters such as witness protection, there is no huge constituency for the political spectrum to be concerned about. This is the tragedy of the entire criminal justice system as it has evolved in India.

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