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The law and its potency

Print edition : Oct 28, 2000 T+T-

The recent conviction of two major political personalities in corruption cases offers lessons that could help institute long-overdue reforms in the process of accountability.

"WITH us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same legal responsibility for every act done without legal justification as any other citizen. The Law Reports abound with cases in which officials have been brought before the courts and made, in their personal capacity, liable to punishment or to the payment of damages, for acts done in their official character but in excess of their lawful authority. A colonial governor, a Secretary of State, a military officer, and all subordinates, though carrying out the commands of their official superiors are as responsible for any act which the law does not authorise as is any private and unofficial person." Dicey cited cases in support of his reference t o each of these high officials in his classic on the Law of the British Constitution. In the United States, Judge John J. Sirica could comfortably stretch the arm of the law to reach a President in office, Richard Nixon, in the Watergate affair.

Any legal system, based on the rule of law, which claims impartiality and efficacy must fulfil four conditions. It must, first and foremost, enable any citizen to set in motion the machinery of the law, civil and criminal, without any impediment and quit e regardless of the wishes of the men in power. In Britain, for instance, any citizen can prosecute even the highest in office except in cases such as breaches of the Official Secrets Act where the Attorney-General's consent is required. In India, prior sanction of the government itself is required in order to prosecute its Ministers and officials under Section 197 of the Criminal Procedure Code, 1973, a faithful replica of Section 197 of the colonial CrPC of 1898, and under Section 19 of the Prevention of Corruption Act (PCA), 1988.

Even if the citizen surmounts this hurdle, his success will depend on the integrity and efficiency of the investigating agencies, the State police or the Central Bureau of Investigation (CBI), and the independence and competence of the prosecutor. Lastly , of course, as the great jurist Ehrlich said, "there is no guarantee of justice except the personality of the judge".

Does the Indian legal system meet these tests? It is necessary to face them squarely in order to appreciate the significance of the two convictions, on charges of corruption, on October 9 of the former Chief Minister of Tamil Nadu and All India Anna Drav ida Munnetra Kazhagam (AIADMK) supremo, Jayalalitha, in two cases relating to the TANSI land deal (Jaya Publications and Sasi Enterprises) and on October 12 of former Prime Minister P.V. Narasimha Rao, in the Jharkhand Mukti Morcha (JMM) MPs' bribery cas e. On November 10, 1999, Kerala's former Electricity Minister, R. Balakrishna Pillai, was convicted of corruption in the Idamalayar project case (Frontline, December 10, 1999).

How did the arm of the law, enfeebled for long, reach out to Jayalalitha and Narasimha Rao, after all? It is only if the record is properly analysed that we shall be able to draw lessons to institute reforms in the process of accountability which are lon g overdue.

In both cases it was judicial intervention at the instance of the citizen, through public interest litigation, that led to the conviction. In both, judicial integrity and independence was amply demonstrated, albeit after a hiccup in the Jayalalitha case. But the quality of investigation and prosecution in the Jayalalitha case was far superior to that in the Narasimha Rao case. In his case, as many as 49 witnesses turned hostile and bar his Cabinet colleague, Buta Singh, all others were acquitted. The tw o convictions therefore do not warrant complacency. The crucial question is: Will the prosecutions have been possible while the former Prime Minister and Chief Minister were in power?

In 1992, the Dravida Munnetra Kazhagam (DMK) presented a memorandum to the Governor requesting sanction to prosecute Jayalalitha. The Hindu reported on February 9, 1993 that "the Janata Party chief Dr. Subramanian Swamy has sought Tamil Nadu Gover nor Bhishma Narain Singh's permission under Section 19 of the Prevention of Corruption Act to prosecute Chief Minister Jayalalitha on some specific corruption charges." On August 27, 1993, the president of the Tamil Nadu Congress(I) Committee, Vazhapadi K. Ramamurthy, presented a memorandum on the coal import deal. On March 16, 1994, a comprehensive memorandum of charges was presented to Governor M. Channa Reddy by both parties. The TANSI land deal figured in it in detail as it did in the memorandum sub mitted by S. Ramadoss of the Pattali Makkal Katchi (PMK) on April 24, 1995. Alandur Bharati filed a private complaint in the court.

Governor Channa Reddy accorded sanction to prosecute Jayalalitha, on a petition presented by Subramanian Swamy in April 1995. The High Court upheld the sanction. She went on appeal to the Supreme Court against this. Cases were registered.

On July 9, 1996, a case was registered against Jayalalitha, Mohammad Asif and three others. The charge-sheet was laid on November 15, 1996 under various provisions of the Indian Penal Code and the Act of 1988. In the related Sasi Enterprises case on a co mplaint from C. P. Sosamma, IAS, Secretary to Government, Small Industries Department, Chennai, a case was registered at the headquarters of the State Crime Branch, Criminal Investigation Department, on July 9, 1996 and the charge-sheet was filed on Octo ber 22, 1997, against Jayalalitha, N. Sasikala and others on similar charges.

Jayalalitha filed six separate petitions in the High Court for grant of anticipatory bail in respect of six different cases, the TANSI case being one of them. All six were dismissed by Justice C. Shivappa of the Madras High Court on December 8, 1996. The Judge found that she had a case to answer and rejected charges of "political vendetta".

The crucial question in this case is what would have happened to the evidently well founded memos in the two TANSI cases if the Governor had refused to accord his sanction to prosecute? The Bhartatiya Janata Party government has appointed party figures s uch as Sunder Singh Bhandari, Bhai Mahavir and Suraj Bhan as Governors.

The Supreme Court laid down the law in the cases concerning the former Chief Minister of Maharashtra, A.R. Antulay. Cognizance of an offence can be taken upon a private complaint (A.R. Antulay vs Ramdas S. Nayak & Ors. (1984) 25 CC p.500). The court note d (on page 508): "It is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary" (emphasis added, throughout). Indian law provides sweeping exceptions not only in Section 19 of the PCA, 1988. Section 197 of the CrPC raises the hurdle of sanction in respect of any criminal offence committed by any "public servant" which is alleged to have been committed by him "w hile acting or purporting to act in the discharge of his official duty". The sanction is to be given by the authority which has the power to remove him; probably the one at whose behest the offence was committed.

The Supreme Court has ruled that in the case of a Chief Minister, it is the Governor who is competent to accord the sanction; not on the advice of his Council of Ministers, but in his discretion (State of Maharashtra vs Ramdas S. Nayak & Ors. (198 2) 2 SCC 463). Grant or refusal of sanction is open to judicial review. Jayalalitha's appeal sought to overrun this ruling.

It is time that the sanctions provisions are challenged in and struck down by the courts as being violative of Article 14 of the Constitution which embodies the fundamental right to "equality before the law or the equal protection of the laws". This is n ot a case of a reasonable classification which bears a reasonable relation to the object to be achieved. It is palpably unreasonable in both respects. The courts have ample power to punish vexatious or frivolous complaints. The need to protect honest pub lic servants will surely weigh with the courts. As against this are the impediment it creates and the violation of the basics of "criminal jurisprudence" which the Supreme Court noted. Nor can the court which hears the challenge overlook the fact that no other democracy has sanctions provisions.

It is a fundamental principle of law that as in the case of any statutory body, the police force cannot be directed how to exercise its discretion in investigating cases by anybody, including the government. The law was stated by Lord Denning in the clas sic case of R. vs Metropolitan Police Commissioner (1968; 2 Q.B. 118): "I have no hesitation, however, in holding that, like every constable in the land, he should be and is, independent of the executive. He is not subject to the orders of the Sec retary of State... I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their a ffairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things, he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answer able to the law and to the law alone." The police can be compelled to do its duty by a writ of mandamus, he added.

This principle was also laid down by the Calcutta High Court in the "gherao case" (Jay Engineering Works Ltd. & Ors. vs The State of West Bengal & Ors. (AIR 1968 Calcutta 407). In India this principle has been flouted systematically. There existed the notorious Single Directive which required the CBI to obtain "the prior sanction of the Secretary to the Ministry" even before embarking on an "enquiry", a stage preliminary to investigation proper. Prosecution comes last. The process of accountabili ty was thus aborted at its birth.

One case illustrates the situation. It was a change in the stewardship of the Ministry of Surface Transport that left the CBI free to file a first information report in the Bombay Port Trust case in 1996.

The CBI charged that Kiran Chaudhary, general secretary of the Delhi Pradesh Congress Committee, had entered into a criminal conspiracy with the Bombay Port Trust (BPT) Chairman, Dinesh Afzalpurkar, and its Vice-Chairman, B. P. Pandey, in order to defrau d the BPT by getting prime trust property in Bombay leased out to her in 1993 for a pittance compared to the prevailing market rates. Government instructions and guidelines were flouted, it was alleged. Choudhary is the daughter-in-law of Haryana Chief M inister Bansi Lal. But, more relevantly, she was close to the then Minister for Surface Transport, Jagdish Tytler. He flatly refused to permit the CBI to file an FIR and asked the Minister of State for Personnel in charge of the CBI, Margaret Alva, to cl ose the file. Following a Cabinet reshuffle, the portfolio went to Chandrasekara Murthy. The matter then went to the Prime Minister's Office, which permitted the CBI to lodge the FIR. If this is how the CBI can be pushed around in a matter in which a Pr ime Minister is not involved, what assurance of fair play is there if he were involved?

States are free to withdraw their consent to the CBI to probe into cases in their territories, under Section 5 of the Delhi Special Police Establishment Act, 1946 which, incredibly, still serves as the CBI's charter. There are two exceptions to this. One protects pending cases. A Chief Minister may not revoke consent while a probe is on. (Kazi hendup Dorji vs CBI (1994) Supp (2) SCC 116).

The other derives from the court's authority to direct any police force, the CBI included, to investigate into an offence regardless of the wishes of the government, State or Central (State of West Bengal & Ors. vs Sampat Lal & Ors. (1985) 1 SCC 3 17).

The CBI's wilful inaction in the Bofors, HDW, Airbus and St. Kitts cases brought its name into the mud though no fault of the band of upright officials who served it. The memoirs of its former Joint Director N. K. Singh, The Plain Truth, reveal th at the blame lay with the Prime Minister and a particular CBI chief who sought to please him.

The Jain diaries brought matters to a head. They were seized on May 3, 1991 but were not referred to in the charge-sheets filed in March 1992 against two Kashmiris. On October 4, 1993, Vineet Narain moved the Supreme Court, which took its own time.

During the investigations, Amod Kant, a Deputy Inspector-General in the CBI, was shunted out in April 1995. So was his superior, B.R. Lal, a Joint Director. The Director of Enforcement and the Deputy Director in the office of the Director-General of Inve stigation in the Income-Tax Department were also transferred. In September 1995 a correspondent noted that "the Rao Government has shunted out all officers who were in anyway connected with the (hawala) case one by one and on one pretext or the other." ( Indian Express, September 27, 1995)

On March 1, 1996, the Supreme Court made this unprecedented order in the hawala case: "To eliminate any impression of bias and avoid erosion of credibility of the investigations being made by the CBI and reasonable impression of lack of fairness and obje ctivity therein, it is directed that the CBI would not take any instructions from, report to, or furnish any particulars thereof to any authority personally interested in or likely to be affected by the outcome of the investigations into any accusation. The direction applies even in relation to any authority which exercises administrative control over the CBI by virtue of the office he holds, without any exception." The CBI was directly under Prime Minister P.V. Narasimha Rao's control (Vineet Narain vs. Union of India, (1998)/ I SCC 225, on page 239).

The court explained that it was not concerned with the merits of the case; only with the enforcement of the rule of law and the "inertia" of the CBI. It had registered a case against the Jains on March 4, 1995. Prodded by the court, to which it was made to report its investigations in camera, the CBI filed charge-sheets against a host of leading politicians some of whom had to resign from Narasimha Rao's Cabinet on the eve of the 1996 general election.

N.K. Singh writes: "I had occasion to go through the FIR on the basis of which such a large number of charge-sheets were filed, and was astonished. The initial damage was done when the agency failed to take any action on the diaries for about four yea rs. When the Supreme Court intervened, it panicked and in the process went berserk... This dealt a severe blow on the crusade against corruption, because all those who have been discharged may not really be innocent, particularly in cases in which th ere was corroboration in the form of corresponding entries in other documents, or facts showing expenditure of the amount allegedly paid" (N. K. Singh, The Politics of Crime and Corruption, page 171).

On December 18, 1997, the Supreme Court delivered its final judgment in which it struck down the Single Directive as being invalid and issued a set of directives one of which was that the Central Vigilance Commission be given statutory status (Vineet Narain & Ors. vs. Union of India (1998) 1 SCC 226). This opened an avenue as promising as that of public interest litigation, which was opened 20 years ago and paved the way for this. This precedent, set early in 1996, was followed in the Indian Bank case by the Supreme Court, in the Bihar fodder scam case by the Patna High Court, and in the JMM case by the Delhi High Court.

But while the Court can drive the proverbial horse to the pond, it can hardly force it to drink.

The CBI can be compelled to discard its "inertia" and act. It cannot be compelled to act impartially or efficiently. Arun Jaitley said in The Statesman's Annual Debate in 1998: "The accused in the Jain hawala case were let off not by the judiciary but by the investigation agencies which did not do a good job" (The Statesman, September 17, 1998).

The JMM case in which Narasimha Rao was convicted must be viewed in this context. His bacon was saved on July 28, 1993 when the no-confidence motion was defeated. Jandhama Paksh, a Hindi weekly from Kota in Rajasthan, exposed the affairs on Februa ry 28, 1994. Ravinder Kumar, president of the Rashtriya Mukti Morcha, lodged a complaint with the CBI on February 1, 1996 but citing its inaction, moved the Delhi High Court on February 22. The petition, settled by the noted lawyer P.N. Lekhi, was admira bly detailed.

The CBI registered four cases under Section 13(2) read with Section 13(1) (d) (iii) of the 1988 Act against Suraj Mandal, Shibu Soren, Simon Marandi and Shailendra Mahato, members of Parliament belonging to the JMM. Subsequently, in pursuance of an order by the Delhi High Court another case was registered against V.C. Shukla, Satish Sharma, R.K. Dhawan, Lalit Suri and others. After completing the investigation, the CBI submitted three charge-sheets dated 30-10-1996, 9-12-1996 and 22-1-1997 in the Court of Special Judge, New Delhi.

In the first charge-sheet it was alleged that these persons and other unknown persons entered into a criminal conspiracy to defeat the "no-confidence motion" by resorting to bribery and in pursuance thereof four members of Parliament belonging to the JMM accepted illegal gratification to vote against the motion and because of their votes and some other votes the government survived.

The second charge-sheet was in the nature of a supplementary charge-sheet wherein it was stated that investigation had further revealed that V. Rajeshwara Rao, N.M. Revanna, Ramalinga Reddy, M. Veerappa Moily, D.K. Adikeshavulu and M. Thimmegowda were al so party to the criminal conspiracy and that they had arranged funds and bribed the four JMM MPs. In the third charge-sheet dated January 22, 1997, it was stated that further investigation had been carried on and as a result the identity of the remaining accused persons had been established and that they were Ram Lakhan Singh Yadav, Ram Sharan Yadav, Roshan Lal, Abhay Pratap Singh, Anadicharan Das, Haji Gulam Mohd. Khan and late G.C. Munda. It was stated that even after securing the support of four JMM MPs, the Congress(I) government still required the support of some more MPs and that with this objective the Congress(I) was making efforts to win the support of some other MPs, including MPs belonging to the Janata Dal (Ajit Singh Group).

Bhajan Lal and others were cited as conspirators. Allegedly Bhajan Lal arranged funds and paid bribes to Ajit Singh and seven MPs of the breakaway Janata Dal (Ajit) as bribe to defeat the no-confidence motion. One of the four MPs of the JMM, Shailendra M ahato, was given pardon and gave evidence as approver.

The trial court framed charges against all the accused. They moved the High Court, contending that the MPs were not public servants and, in any case, had immunity from prosecution for anything said or done in Parliament by virtue of Article 105(2) of the Constitution. The High Court rejected both contentions on September 12, 1997. Three days later the trial court framed charges against Narasimha Rao and 19 others.

On April 17, 1998 came a ruling by the Supreme Court which astonished all. It held that MPs are "public servants" and therefore liable to prosecution under the PCA, 1988. But it upheld the plea of their immunity from prosecution by a narrow majority of t hree to two. The present Chief Justice of India, Justice Dr. A. S. Anand, was in the minority. (P.V. Narasimha Rao Vs State (CBI) (1998) 4 SCC 626). The alleged bribe-takers were thus granted immunity by this bizarre ruling.

The acquittal, on October 12, 2000, of all the accused save Narasimha Rao and Buta Singh has caused much surprise. The Hindustan Times of September 30 reported that in March 2000, Special Public Prosecutor R.M. Tewari gave a clean chit to all the accused who were eventually acquitted:

"Mr. Tewari had informed the court that the agency had clinching evidence for the conviction of Rao and Singh but lacked 'sufficient evidence' on record against the other accused. In the case of Satish Sharma, the synopsis had stated that except for a pa ssing reference made by approver Shailendra Mahato, there was no incriminating evidence against him.

"With regard to the other accused the agency had either stated that there was no evidence corroborating any material versions or any evidence to substantiate the charges." Thus, the CBI had given a clean chit to Satish Sharma, Rajeshwar Rao, Adikeshavulu , Thimmegowda, Veerappa Moily, Revanna, Ramalinga Reddy, Ajit Singh and Bhajan Lal. The defence lawyers were surprised by the CBI move since it had not come up with any fresh evidence in the intervening period while the probe was on.

Realising that they may have committed a faux pas the CBI changed its stand and submitted the fresh synopsis. "It was misconstrued and taken in a narrow sense by some defence lawyers who lost no chance to make a pointed reference to it in their respectiv e arguments that there is no evidence against the other nine accused, though it is not the case." It proceeded to argue that all were guilty. But the damage had been done. All one can say is that this was unfortunate in so sensitive a case. The ac quittals have caused surprise. The result is that the bribe-takers got protection thanks to the Supreme Court's rulings; the alleged bribe-providers and distributors went scot free. The organiser of the show and the beneficiary got convicted. No aspersio ns were, or are here, cast on Tewari.

To strike a balance, while the Supreme Court's path-breaking ruling does enable the citizen to move the court against offenders in power, he and the Court have to depend on the investigative agencies to deliver the result. And the performance of these ag encies - the CBI and the State police - is not always convincing.

The Second Report of the National Police Commission, submitted in August 1979, recommended institutional safeguards to protect the police against pressure from political, executive or other extraneous sources, notably an independent State Security Commission (page 31). The Report has been ignored studiously.

The legal system will grow on the precedents set. On October 14, the Chief Justice of the Sikkim High Court directed the CBI to initiate investigations into charges against the former Chief Justice of the Bombay High Court, A.M. Bhattacharjee, who had re signed following disclosures. The order was made on a petition filed by the Sikkim Citizen Forum (The Statesman, October 15).

A not insignificant gain is Special Judge Ajit Bharihoke's ruling that while MPs' acceptance of bribe may not be indictable as an offence, they enjoy no such immunity, as "public servants", for possessing assets disproportionate to their known sources of income. It is most unfortunate that there was delay in moving the Supreme Court to review its judgment on MPs' immunity and more so the Court's rejection of the petition on this ground. That ruling cries for its reversal.

The judiciary has acquitted itself creditably on the whole. However, it was most unfortunate that Justice S. Thangaraj discharged Jayalalitha on January 13, 2000 from the cases in the circumstances in which he did. The Supreme Court was constrained to or der it to "stand erased".

In Britain the first Labour government fell in 1924 because it withdrew a prosecution on political reasons. The Cabinet minutes of August 6, 1924 recorded: "No public prosecution of a political character should be undertaken without the prior sanction of the Cabinet being obtained." It was rescinded later. In India the prosecution machinery is entirely under the control of State governments. Courts can strike down improper withdrawal of cases. They can no more compel prosecutors to do their duty than th ey can the police. In both cases, unless basic institutional reforms are instituted, the process of accountability will perform like Dr. Johnson's woman preacher: He told Boswell on July 31, 1763, "Sir, a woman's preaching is like a dog's walking on his hinder legs. It is not done well; but you are surprised to find it done at all." The surprise which greeted the two convictions provides a revealing public judgment on the Indian legal system.