Government's game of prosecution

The present dispensation uses prosecution as a tool to silence critics and opponents in a way that makes the legal process a punishment in itself.

Disha Ravi, a young climate activist arrested for sharing a “toolkit” on social media, was granted bail by a Delhi court on February 23.

J ulio Ribeiro, a prince among police officers of the highest rank, notable alike for his high integrity and superb efficiency, rendered a great service by bringing home to the Indian reader the allegations of manipulating and planting in the Bhima Koregaon case. He had heard Mark Spencer, head honcho of Arsenal Consulting, a private digital forensics company. Ribeiro had heard Spencer on an Indian national TV channel “certifying that the police in India had been taken for a ride by an extremely clever hacker”. His article in The Indian Express on February 22 is entitled “ The truth is out there ” under the sub-heading “Allegations of manipulating and planting evidence in Bhima Koregaon case must be investigated. Integrity of police investigations is at stake”. Thanks to the findings recorded by Arsenal Consulting. The Washington Post reported Arsenal’s findings.

Ribeiro wrote: “The evidence against the activists was based on the retrieval from their computers of incriminating correspondence that linked them with the banned Maoists’ outfit. There were 10 letters found on the computer of the Delhi-based activist, Rona Wilson. Those disputed letters were addressed to the Hyderabad poet-activist Varavara Rao and others now under arrest.

“It is obvious that Wilson was surprised by the presence of such letters on his computer. Suspecting that the long arm of the government would not ensure a true and fair finding in the country of his birth, Wilson’s lawyer used the good offices of a human rights body in the U.S. to refer the pen drive given to him by the prosecution as evidence to be used in court (mandatory as per criminal procedure laws) to a highly-respected private company, Arsenal Consulting, which undertook the examination pro-bono. The Washington Post was given a copy of the company’s findings. It checked with three other leading digital forensics experts. Each separately examined the pen drive and confirmed the findings.

“I heard Spencer on TV. He came across as a seasoned professional and stated that he had never encountered such bold and clever manipulation. The 10 impugned letters, he said, had been inserted through malware into Wilson’s computer over a period of two years between the time the laptop was first compromised and the moment the attacker delivered the last incriminating document in a hidden folder…

“The mention of a plan to kill the PM was the initial cause of my own suspicions. To involve as many as 15 disparate individuals from different parts of the country in such a diabolical plan appeared incredulous. The degree of danger to the plan unravelling if so many persons were involved was way beyond the limits of safety and the secrecy required for the plan to succeed. Another cause for my suspicion was the arrest six months ago of a Jesuit priest, Stan Swamy, by the NIA [National Investigation Agency]. To accuse a Jesuit of siding with Maoists and their violent proclivities stretched the limits of my credulity. The Jesuits take a vow of obedience to their superiors before ordination as priests. And church doctrine is diametrically opposed to Maoist ideology as far as the use of violence to achieve objectives is concerned. Swamy would be risking expulsion from the Jesuit order if he disobeyed church diktats. And he certainly did not fit the bill of a rebel. This is a fit case where the courts should intervene to ensure justice.”

Bhiwandi riots

The question is who were the sponsors of that man who perpetrated the diabolical plan. But this is far less important than the question who employed and paid him to do the dirty work. This is by no means unprecedented. The D.P. Madon Commission of Inquiry into the Bhiwandi riots of May 1970 exposed a sordid conspiracy to put Muslims of the city on trial on false charges based on concocted evidence. It was at the last stage of the commission’s hearings that a police officer blurted out the hitherto secret of the trial proceedings. The case was withdrawn.

In all the 73 years of India’s independence, have you ever seen such a swarm of first information reports (FIRs) or such a plague of prosecutions? On February 23, 2021, Additional Sessions Court judge Dharmender Rana made justifiably scathing remarks while granting bail to 22-year-old Disha Ravi. NDTV’s anchor Sonia Singh pointedly remarked on the courage shown by “lower” courts. She was playing safe. She wanted clearly to express a wish that the Supreme Court had been as protective of the citizen’s rights.

One has heard a lot of “tool kits” after news of the one by the Swedish activist Greta Thunberg. Disha Ravi had to spend 11 days in jail (February 13 to February 23) on “scanty and sketchy evidence available on record”, as the judge found. What does it speak for a police force which files the FIRs it does? What does it say of Public Prosecutors who allow cases on such FIRs to go on trial and defend them there? In India all such—from the Attorney General of India to the public prosecutor in a district—enjoy full protection. You cannot sue them in a civil court for damages or prosecute them in a criminal court because you need the prior sanction of their employer—the Central or the State government. In Canada one Attorney General had personally to suffer because of a false prosecution.

In India, five judges of the Supreme Court unanimously upheld the charge of sedition on a Communist. It did not require much legal learning or understanding for them to appreciate that if the framers of the Constitution of India consciously removed “sedition” from the Constitution, its survival in Section 124A of the Penal Code lost all legal force. What is one to say of the mentality of judges and lawyers who have kept on singing “Kedar Nath Singh” since 1958 when the Supreme court upheld sedition without a glance at the Constituent Assembly debates?

Attorney General’s role

There are questions of fundamental importance which, as a former Attorney General, Sir John Simon, pointed out in stark terms, every prosecutor must bear in mind. He said in the House of Commons on December 1, 1925: “There is no greater nonsense talked about the Attorney-General’s duty than the suggestion that in all cases the Attorney-General ought to prosecute merely because he thinks there is what lawyers call ‘a case’. It is not true, and no one who has held that office supposes that it is.

“I understand the duty of the Attorney-General to be this. He should absolutely decline to receive orders from the Prime Minister, or Cabinet or anybody else that he shall prosecute. His first duty is to see that no one is prosecuted with all the majesty of the law unless the Attorney-General, as head of the Bar, is satisfied that a case for prosecution lies against him. He should receive orders from nobody. But that is very different from saying that the Attorney-General ought in all cases to ask nobody else’s view, because he thinks there is a case to institute a prosecution without finding out what his colleagues or the government think. That is a ridiculous proposition. I should regard him … as a fool if he were to start on his own motion prosecutions which involve grave matters of public concern—treason, sedition, corruption and the like … if he did such a thing without knowing that, in the view of his colleagues, public policy was not offended by undertaking such prosecution.”

A similar view was expressed by the Attorney-General Sir Hartley Shawcross in the House of Commons on January 29, 1951. He said: “It has never been the rule in this country… that suspected criminal offences must automatically be the subject of prosecution. Indeed, the very first regulations under which the Director of Public Prosecutions worked provided that he should intervene to prosecute, amongst other cases: ‘wherever it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest. This is still the dominant consideration. … Sometimes, of course, the considerations may be wider still. Prosecution may involve a question of public policy or national, or sometimes international, concern ; but in cases like that, the Attorney-General has to make up his mind not as a party politician; he must in a quasi-judicial way consider the effect of prosecution upon the administration of law and of government in the abstract rather than in any party sense.” In one case, prosecution of a princess was abandoned because of its repercussions on relations with the state to which she belonged.

No government with a drop of democratic liberal blood in its veins would launch the kind of prosecution that governments in India have freely launched. Jane Borges of Sunday Mid-Day has compiled painstakingly a catalogue of the cases .

Tool kits are convenient weapons of oppression in the hands of illiterates. During the freedom movement leaders of all parties received loads of advice from foreign supporters. Gene Sharp has institutionalised this flow of advice .

Unlike in the United States, the United Kingdom and the democratic countries of Europe, the public prosecutor in India works under the thumb of the States. (Section 24 of the Code of Criminal Procedure 1973). Maharashtra deleted the words “after consultation with the High Court”. Section 25-A inserted in 2005 empowers States to appoint a Directorate of Prosecution comprising a Director and his Deputy. The Director is “under the administrative control of the Head of the Home Department”. Public prosecutors work under this Directorate. The scheme is clear. The Public prosecutor is under the Director who in turn is under the Home Ministry

This is of colonial vintage. The English had another system for years. Neither the Attorney-General nor the Director of Prosecutions can be dictated to by the politicians in power. One Attorney-General, Sir Patrick Hastings, one of the most brilliant of his generation, had to resign as Attorney-General in the first Labour government on the issue of withdrawal of prosecution in the Campbell Case in 1924.

There is, however, a wider question which is totally ignored in India. What are the factors the prosecutors can legitimately consider? In Britain, the two expressions “party political” and “political” mean differently. The former means political party interest as we in India know it. The other is a prosecution for “the interests of the state”. The Narendra Modi regime’s prosecutions are for intimidation of critics and political opponents.