Single party rule at the centre has come after a gap of around three decades. Three decades ago the roles were in a reverse configuration from the present. The political party that was then in the opposition is in power today. And the party in the opposition today was the sole custodian of power at that time. However, there are striking similarities in the style of governance employed by these single parties in power notwithstanding the long time period that separates them. The most striking of similarities is the regime’s dealing with those who oppose the Establishment.The mechanism used to assert power over the recalcitrant remains unchanged. Over decades, the state almost unfailingly has been invoking the offences of sedition or corruption when seeking to discipline an adversary. That was the position in the past and that is what continues to remain unchanged in the present. But why these two offences– sedition and corruption? Because it is easy to accuse someone of sedition or corruption. Considerable leeway is available to the Investigative Agencies under the existing statutes on sedition and corruption. With a little creative thinking a chargesheet on sedition and corruption can always be crafted.
It is to the credit of the judiciary that most such foisted cases end in acquittal. This, however,does not cause any ripples or change in the actions of those wielding the levers of power. In India the process is the punishment. Moment someone becomes an accused in a criminal proceedings he gets entangled in the dilatory criminal judicial system prevalent in the country. Efforts have to be made by him to avoid police custody and custodial interrogation, get anticipatory bail to avoid arrest, get regular bail from the court, appear at all hearings,the list goes on. The hearing process can go on for years. Interlocutory orders passed from time to time may require challenges in upper courts. All this involves costs and time, the two commodities in short supply in the modern world. So what happens after ten years when the case is dismissed first in trial and then in appeal. The accused has lost ten years of the best period of his life and also lost all his savings and is now in debt. His entire family,wife , children , aged parents have been stigmatised Seeing his miserable state after his judicial victory other potential dissidents are tempted to desist. The objective of the state has been realised.
Foisting cases over political opponents sometimes results in piquant situations which strengthens the thesis of bringing about some systemic changes in the present arrangement. While the case is under trial, elections take place and the accused and his party wins and becomes the government of the day. The Agency that is prosecuting would now have to employ considerable dexterity to sabotage the case and ensure acquittal for its current masters. A case built up on the pressure of the erstwhile government which is currently in the opposition. We would not venture to speculate as to what would happen when after the next elections the roles again get reversed and status quo ante takes place on ground.
Lest there be any misunderstanding it must be stated that there does exist an effective system of checks and balances, before an Agency of government moves a court of law to prosecute a person. The complaint and the Investigation Report is scrutinised at various levels within the Department and also the Law Department and the Directorate of Prosecution and corrective steps taken and gaps filled through additional investigations and scrutiny.. The gravity of the offence and sometimes the stature of the accused determines how high would be the level of such scrutiny.
In an arrangement as elaborate as described above the possibility of wide scale abuse is non existent . But if a view is taken that even one abuse is one too many then something in addition to the existing arrangement is required to be put in place.The Investigative agencies and the Directorate of Prosecution are after all departments of government as is the body that gives its legal opinion to the Agency. So the additional intervention has to come from those who are outside the control of the government. At the same time they must be familiar with the working of the government and its style of functioning . In short the new arrangement must blend with the existing system and not degenerate to one of constant confrontation with the Investigative Agencies.That would be a totally counter productive outcome.
We are talking here of a Referral Body to which cases where the state intends to prosecute on grounds of sedition or corruption are sent for scrutiny. The Referral Body then gives its opinion as to whether the cases attract the provisions relating to sedition or corruption both in letter and , very importantly, in spirit. The latter, namely the spirit is often not gone into by the Investigative Agencies. An action that looks apparently seditious may on scrutiny and reflection be construed as patriotic in the spirit of things.. A case of procedural shortcut in procurement of an asset may appear to be a case of corruption. However, on detailed examination it may turn out to be a bold initiative taken by a young officer that has actually saved crores.These two are extreme examples. However, there are a myriad of cases strewn across the country where the letter and the spirit of the law collide. A balance needs to be provided. The Referral Body would endorse the action proposed by the Agency if the case is sustainable both in letter and in the spirit of the law.. If not, then depending on how far the case falls short the Referral Body would opine whether the case should be dropped outright or further investigated or some other penal section should be invoked. This way the allegations of ingress of government bias in prosecution would be significantly dented.
We have today in the country a huge pool of retired civil servants who in their working years have closely dealt with these issues as magistrates or as officers in the Home Department or as police officers or as judicial officers. They are familiar with the nuances of this problem and how things can be stretched here or ignored there in the shaping of a case of sedition or corruption. Their past experiences and familiarity with the issues make their advice that much more acceptable to the Agencies who would not consider their contra views as capricious. In short the Referral Body would draw upon the collective wisdom present in this pool of retirees while giving its opinion. Such an arrangement would blend well with the existing setup and contribute to enhancing the purity of the process.
A criticism against the arrangement may be that it is inadequate for a problem that is way too big. Bulk of the prosecution in this country is carried out by state governments. It is inconceivable that all states would readily accept such a system. Such reforms are brought in piecemeal. If the Central Government adopts the new arrangement slowly the states would come around especially if it is seen to add value to the existing set up. Once the bulk of the states acquiesce the courts would compel the reluctant ones to fall in line. It may be questioned as to why should the advice of the Referral Body be not made mandatory for the Investigative Agency. Such a course would not be advisable on two counts. Firstly it would take a lot of time as the existing laws would have to be amended. Secondly it would be stiffly resisted as it would be viewed as curtailing the powers of the Investigative Agencies. Usually small reforms of an administrative nature yield huge dividends. Their small and innocuous nature allow them to slip in unobtrusively in the existing system and blend in unnoticed. And most importantly it is easily doable if there is a will to act. As the Mahatma once said the difference between what we do and what we can do would solve eighty percent of the world’s problems.
Sayan Chatterjee is a retired IAS officer of Kerala Cadre, 1976 batch. He has held numerous assignments in diverse areas ranging from Land Revenue matters, petroleum pricing issues, small scale industries, biotechnology and so on. He retired as Secretary, Ministry of Health in 2012 which was preceded by such key appointments like the Director General, Sports Authority of India, Director General, Bureau of Indian Standards and Principal Secretary Water Resources Government of Kerala. He was also the Deputy Election Commissioner in the Election Commission of India for 7 years from 1996 to 2003.He worked with the UNDP in Afghanistan for their elections in 2005.He led the Indian delegation in Elections in Algeria and Cambodia and post retirement was both leader of the Indian delegation and one of the three apex members to monitor the elections in Fiji in 2014.He was also a member of a five nation group of experts to review and suggest changes in the electoral laws of Papua New Guinea.He is a writer who has published 5 books (all fiction),3 of which are books on short stories and 2 are novels.He is an alumni of St. Stephen College and the University of Glasgow. He can be reached at firstname.lastname@example.org