PUCL Bulletin, April 2004
For fearless and free system of administration of justice
-- By K.G. Kannabiran
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.
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!
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.
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.
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.