PUCL Bulletin, April 2004

For fearless and free system of administration of justice

-- By K.G. Kannabiran

“In a democracy political opponents play an important role both inside the House and outside the House”, observed the Supreme Court while dealing with a transfer application filed by DMK of a case pending before the Special Court against the reigning Chief Minister. The Court went on to observe political opponents do perform a role in a democracy. They are really interested in the administration of justice and as a party are interested in the matters of transfer of a case from one court to another within the Sate and to a court in another State under the jurisdiction of the High Court. In fact the principle of transfer of cases is a statutory recognition of more than one principle of natural justice.

The supreme Court found that the Public Prosecutor and defence counsel were working in tandem in subverting the judicial processes by recalling around seventy eight witnesses and for securing permission to answer interrogatories addressed to her in lieu of her presence in court to explain incriminating evidence to the court as an accused under 313 of Cr.P.C and instead she was given the facility of answering interrogatories. I remember in the early stages of my practice in a family dispute before the High Court on its Original Side, a Minister of the Madras Government filed a petition that he be examined on commission on the ground that being a minister, he may not find time to attend the court to give evidence. He was a witness and not an accused. The court rejected the petition admonishing the minister quite sternly by pointing out that it is a very elementary duty of a citizen to give evidence in a court when called upon to do so. What still rings in my ear is the prophetic sentence the learned judge used. He pointed out that the lessons of history should not be forgotten that in the antechambers of democracy dwells despotism.

That kind of inter-institutional discipline was slowly giving way to indulgence leading to the present state of decay. Little incursions permitted indulgently by the people and the Courts led to a grotesque caricature of democracy we are living with today. If the party or person at the helm of affairs is corrupt, the kind of massive appropriation of which Jayalalithaa is accused of, namely 65 to 66 crores of disproportionate wealth, cannot be acquired without wrecking the constitutional machinery. Corruption has the insidious quality of destroying the governance of the society like a termite. Corrupt governments are a hundred times more dangerous than terrorist violence and in fact terrorist violence thrives on corrupt governments. It is not terrorism that is destructive of governance but the massive corruption we have been reading about and living with.

Once the Supreme Court comes to the view that justice is not possible in the courts in Tamil Nadu in cases against the reigning Chief Minister, will mere transfer orders meet the ends of justice? It has been found by the Court that the Chief Minister has been subverting the judicial process. It is different from the ordinary run of cases courts deal with. The issue of constitutional morality is also involved in such cases. It would have been a case for impeachment if that procedure was available. An impeachment doesn’t foreclose a prosecution under ordinary law. It is a crime committed by the head of the government calling for the evolution of a different set of principles to insulate the community against these depredations. A criminal prosecution deals with an indictment of a crime without reference to and without interfering with the political status a criminal holds. An accused Chief Minister facing the trial in his/her courts was a situation, which was not contemplated at all and so not provided for. We do not have separate category of political offences committed by power wielders and a law to try these political offenders.

This should be in addition to prosecution of crimes under ordinary law. Soon after the Emergency 1975 and in the wake and as response to the Report of Shah Commission, politicians of all hues made some feeble efforts to discipline their conduct while in office. They however were not willing to legislate on their political status while under trial and the political consequence on conviction for their foul deeds while in office. Special Courts Act was passed in the wake of the findings given by the Shah Commission. In these fifty years of Independence no honest effort has been made to contain misgovernance. In the Special Court Bill debate in the Supreme Court Justice Chandrachud observed “Parliamentary democracy will see its halcyon days in India when law will provide for speedy trial of all offenders who misuse the public office held by them. Purity in public life is a desired goal at all times and in all situations, emergency or no emergency” and Justice Iyer wrote “the impact of ‘summit’ crimes in the Third World setting is more terrible than Watergate syndrome as perceptive social scientists have unmasked.

Corruption and repression – cousins in such situations- hijack developmental process” and goes on to state that this process leads only to erosion of confidence of the people in the constitutional value system and processes. Murtuza Fazl Ali, J in V.C. Shukla’s case said that the Act is a permanent one, This Act however was not to remain for long in the Statute Book. As soon as Mrs. Gandhi came to power without even a murmur of protest this Act was repealed as having become infructuous!
So we are left with the ordinary criminal law to deal with crimes by political leaders who committed crimes, which are in abuse of their powers. The essential preconditions for a successful prosecution are an impartial and independent investigation into the crime and an equally independent prosecuting agency. These are the sine qua non for a functioning criminal justice system.

The chapter on investigation proceeds on the assumption of an independent and impartial investigation into crimes reported. The provisions of the Code dealing with the powers and duties of the Public Prosecutor emphasize the independence of the Public Prosecutor. There is a catena of cases of the Supreme Court emphasizing the importance of the role of these two agencies if the criminal justice is to make any sense. The major ruling premise is the government should respect the law, which it expects its citizens to obey. This respect for law should find expression in its compliance with the scheme of legislation setting down norms and the consequence of their breach. The Constitution is the charter for the existence of the State and the Union, and any breach of its terms sets apart the government as a law breaker and it breeds contempt for law from the law breakers the government sponsors and encourages.. This occurs when the politics of the Party in power takes precedence over the Constitution and the laws.

A Chief Minister bending the institution of justice brazenly only with the object of ensuring her continuance in power and another for legitimizing the theocratic designs of a political party ignoring the Constitutional mandate and driving Rule of Law in search of safe havens to function fearlessly is a tragedy the like of which was never witnessed even in the worst periods of authoritarian trends in this country. Should we allow Rule of Law to take to flight like a fugitive? Or should the acts of these two chief Ministers be taken, as breakdown of the Constitutional machinery is the question confronting .the country today. WE were already up against the objection raised by the Karnataka State to the transfer of the case for trial in that State. The Chief Minister of Karnataka soon realized the untenability of such an objection and so did not act upon the objection.. Nonetheless the Chief Minister of Tamil Nadu moved the Supreme Court again for transfer of the case against her, to some other State on the ground that the relationship between the two States is soured due to Kaveri River Water dispute. The inter state river water dispute, which is about water sharing of the common natural resource by the people of riparian regions has been converted into a Chauvinistic and senseless fight between people of the two regions leading to riots between two linguistic groups.

This speaks volumes of our understanding of politics, the constitutional arrangements of the relationship between the states inter se and with the Union. The concept of enmity between two states, alien to any constitutional scheme, federal or quasi-federal, is promoted and nursed and kept ready for use by the prevailing vulgar adversarial political practice.

This dimension never invaded the debates and affected the decision making process in courts. A composite judiciary in a quasi federal set up is now called upon to bestow thought on the rise of regional politics and parties and the consequent weakening of the center leading to breakdown of judicial authority. This attitude exposes the ignorance of the history of Constitution making and the absence of a working knowledge of the Constitution. This ignorance even of an awareness of Constitutional politics has produced the modern Chief Ministers like Jayalalithaa, Narendra Modi and a whole lot of leaders at the state and the center for whom election means occupation of the power structure and governing without reference to the Constitution and its values. Can this fleeing Rule of Law successfully evade the long arm of corruption and abuse of power?

Nor can we expect the Chief Ministers facing similar accusations help the fugitive Rule of law to function freely and fearlessly. And the Constitutional system seems to be paralyzed.

Fundamental Rights of a huge collectivity of citizens in the country who have been told by the Courts that their right to vote is a fundamental right, that they have a right to a corruption free government and that a fearless and free Administration of Justice system is a part of the basic structure of the Constitution and yet Courts appear to be helpless in these situations. Surely the Courts, which came up with the principles of Prospective Over Ruling and the Basic Structure of the Constitution during periods of crisis, can innovate ways to secure a corruption free government by providing them with a stable, fearless and free system of administration of justice.

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