The Mumbai Mayhem

 The Mumbai Violence- Failure of Police Preventive Action

The manner in which the incident of violence that occurred in Mumbai on August 11 was handled by the police has evoked mixed reactions.  While some, including a few retired police officers, have commended the police for controlling the situation by using minimum force, others have condemned the soft approach adopted by the police in tackling the situation.
  
By transferring the head of the Mumbai police so soon after the incident, the Maharashtra Government has given the impression that they hold him responsible for failing to control the public order situation.  Mr R. R Patil tried to convey that the Police Commissioner’s transfer was a  routine administrative decision and had nothing to do with his handling of riotous situation.  Nobody has bought this theory.  The government kicked the officer upstairs to occupy a chair which no Mumbai Police Commissioner would willingly like to inhabit.

The fact that transfers, postings and appointments of police officers have been badly politicised in this country is well known.  What makes the situation uglier in this case is that the transfer was done after  Raj Thackeray demanded his resignation in his speech at MNS rally.  This has sent a signal and it confirms a peculiar notion that has developed in this country during the last couple of years following Anna Hazare and Baba Ramdev’s agitation that anyone who can collect a crowd can shape governments’ decisions. Walter Lipmann, the famous American journalist had seen the dangers to democracy itself of pandering to large scale unrestrained and unauthorised expression of public opinion. We are witnessing this happening day in and day out in this country.

 The crowd puller can also commit violations of law brazenly and with impunity.  MNS had not been given permission by the police to march from Girgaum Chowpatty  to Azad Maidan, but they did it openly, knowing fully well that the government would not dare to take action against them.

  The handling of Mumbai incident has some similarities with the way the police dealt with riots that occurred in London and some other cities of the UK in August 2011.  The initial response of the UK Police to the rioting was weak and incompetent. They took considerably long to reclaim the control of the streets and to bring some semblance of order. In the beginning, the deployment of strength was inadequate and their tactics were softer than what the situation required.  What happened there was “criminality, pure and simple,” as the British Prime Minister called it.  The public complaint against the police, which was also shared by the government, was that “the police response had not been robust enough...”  The Home Secretary Theresa May told the British Parliament “…police only retain the confidence of the wider community if they are seen to take clear and robust action in the face of open criminality.”  What happened in Mumbai was also a clear exhibition of open criminality and the public in this country also felt that the police handling of riot was too soft to inspire confidence.

The police handling of riots received criticism from many quarters in both the countries. The police response to governments’ reactions in the two countries was, however, significantly different.  Unlike what happened in Mumbai, where a police officer was humiliated by his own boss in the presence of the mob and the chief himself was transferred from his post after a few days of the event, the relationship between the police and the political executive in the UK was of a different shade altogether.   The president of the Association of Chief Police Officers in the UK, Sir Hugh Orde reacted sharply to the criticism of police handling of riots.  He felt that attacks on policing were totally unjustified and negative. He also opposed the Prime Minister’s decision to invite former Los Angles Police Department Chief, Bill Bratton to advise the government on policing in the UK.  The government had to drop the idea of inviting an outsider for advice.

 Policing of public order in Mumbai on that day does raise the issue of what is meant by the concept of minimum force.  Obviously, the senior police officer on the spot has to decide the quantum of force to be used, but the concept of minimum force under no circumstances can be stretched to include releasing an arrested person, who was a member of the riotous crowd and rebuking the officer who had arrested him.  This act was too conciliatory to deter the rogue elements in the crowd from committing their depredations, besides producing definite adverse effects on the morale of police officers and men.

Erring on the side of caution may be legitimate tactics but only if it does not lead to emboldening the rioters to commit further and more serious acts of violence and destruction. For some time that day, the rioters did run amok, vandalizing property, burning TV vans, desecrating the Martyrs memorial, injuring citizens including police personnel and molesting police women.

Riot drill teaches the police officers to plan their tactics of dealing with a mob in three stages-the preparatory, action and after action stage.  The inept handling of the Mumbai police is seen more at the preparatory than at other stages.  It is learnt that intelligence was available with the police that there was a danger of serious disturbance occurring at Azad Maidan on that day.  The hooligans came prepared and armed, travelling long distances by trains and other means, but no action was taken to stop them from reaching the trouble spot.  Eight hundred police personnel were deployed.  The strength might have been adequate, but its composition, that included a large contingent of women police, and its deployment  did not inspire confidence.  Considering the disruption that occurred, the force was not found to be match fit.

The after action stage should have seen immediate identification and arrest of ring leaders.  According to reports, while some louts have been arrested, the organisers, particularly those who incited the crowd to resort to violence, have not been touched.

Such incidents, whenever they occur, are used by the political parties to score brownie points against each other. Protests are launched; assemblies and parliaments are stalled; and demands are made for punishment of police officers and resignation of ministers.   The outrage, however, does not last long.  Events happen; dreadful noise is made and then after a few days, the dust settles till another incident of lawlessness takes place.

This time, the police must do a root and branch examination of what happened in Mumbai on that day and how the situation was handled to draw some lessons. They must guard against getting “mired in a ‘damned if they do and damned if they don't’ mindset,” which can produce some undesirable consequences for the future of public order policing in the country.

The Supreme Court on Mayawati’s Disproportionate Assets Case

The Supreme Court, Mayawati & Her Disproportionate Assets 
                                         
The recent judgement of the Supreme Court in Mayawati’s disproportionate assets case has evoked mixed feelings.  While most feel that the judgement confirms their assertion that the CBI is being used by the government as a tool to harass opponents, there is also a rather unhappy reaction that the apex court has allowed Mayawati to get away with her allegedly ill gotten wealth.

Mayawati and her party have already hailed it as a great victory.  Though the court  has more or less been silent about Mayawati’s guilt or innocence in so far as possession of disproportionate assets is concerned, it has definitely agreed with the petitioner’s contention that the CBI was harassing her.

The case against Mayawati has been quashed on legal technical grounds and not because no evidence was found against her.  The court had asked the CBI in 2003 inquire into various irregularities committed  in the Taj  Heritage  Corridor  Project.  The court’s objection is that the premier investigating agency on its own registered another FIR to inquire into the disproportionate assets in possession of Mayawati.  The police under the Cr P C do not need anyone’s permission to investigate a cognizable offence, but the problem is that the CBI’s  jurisdiction is determined by the Delhi Special Police Establishment Act.  Section 6 of this Act prohibits the CBI from exercising its powers and jurisdiction in a State without the consent of the Government of that State.  Since UP government had not given any permission to the CBI to investigate into the assets of Mayawati, the CBI’s “roving” inquiry was without jurisdiction and therefore declared null and void.

The court gave two more arguments disputing the unnecessary zeal shown by CBI in the case.  One, the complainant in the case was wrongly shown as the Assistant Registrar, PIL Branch,  Supreme  Court  of  India, New Delhi who had issued   no  such  order  or  direction   for registration of the case.  Two, many letters sent by the petitioner to officials including the PM representing against the inquiry being done by the CBI wrongfully went unanswered. The absence of  any  reply by any of the  authorities, according to the court,  shows   there  was  no direction or authority to the CBI to lodge an FIR or to investigate into the  assets  of  the  petitioner.

The court has doubted the motives of the CBI in registering the DA case against Mayawati. The judgement clearly states this was done “with mala fide intentions.”  If the CBI acted with dishonest intentions, the implication clearly is that they were working at the behest of the central government.  The judgement, right or wrong, has definitely damaged the credibility of CBI badly. It has only strengthened the general public perception that the CBI in its work is influenced by political considerations that favour those in power. When the  CBI was set up on April 1, 1963, its founding Director D. P Kohli,  a very eminent police officer of his time, exhorted his officers and men in these terms: "The public expect the highest standard from you both in efficiency and integrity. If the faith is to be sustained, the motto of CBI ‘Industry’, ‘Impartiality’ and ‘Integrity’ must guide your work.”  The faith has definitely not been sustained. 

The Supreme Court also does not cover itself with glory through this judgement, The CBI registered the case in 2003.  Mayawati kept on challenging it from the beginning and finally petitioned the court in 2008 to quash it.  In between, both filed points and counter points before the court.  The question that the court has to answer is why should it take them nine years to decide that they were not interested in hearing the case.  They could have dismissed it in the beginning itself and saved considerable time, resources and effort of the parties involved in the case.  They kept on accepting arguments from both sides.  While Mayawati informed the court that the CBI was discriminating against her, the investigating agency told them that they had collected huge evidence against her of amassing unaccountable wealth.  According to the judgement, “the fact that this Court had stopped monitoring the   assets  case  was again reiterated in the order dated 07.08.2006 passed by this Court.” This contention is not supported by facts.  The court kept on hearing the assets case  long after the order of 2006.  Indeed, as recently as 26 September 2010, the Supreme Court slammed the CBI for dilly-dallying on the issue of prosecuting Mayawati in the disproportionate assets case. A bench of Justices B. Sudershan Reddy and S. S. Nijjar bluntly told the CBI counsel that if it was not keen on pursuing the case, then the “petition must go.”

It is the interpretation of orders issued by the court on different occasions that is at the heart of controversy.     While the court held that no orders were given to CBI to investigate the assets case, the ASG Mr. Mohan Parasaran  felt that the permission was clear from  orders given on 19.07.2004, which gave the CBI three months time   to complete investigation into the DA case. The order dated 25.10.2004  said that the CBI was at liberty to proceed with and take action on  the  basis of their investigation in the DA case.    The court has acknowledged that   their  order dated 25.10.2004 granted liberty to  the  CBI that in case any link was disclosed in the course of   investigation between the Taj Corridor Project and the assets, CBI was free to bring it  to the notice of this Court.  If the interpretation of orders by the CBI was wrong, why didn’t the court bury the case in the very beginning by refusing to hear it.  The judgement fails to explain this convincingly.

National Counter Terrorism Centre

Countering the National Counter Terrorism Centre

The National Counter Terrorism Centre (NCTC) was countered before it could even come into existence. This UPA government has shown remarkable ability to kill its own ideas, even the good ones, through sheer brashness and lack of political management skill.

The outcry against the establishment of NCTC has been prompted as much by the way the notification was issued as by what it contained.  The state governments felt hurt because they were not consulted on such an important proposal, which infringes on their powers. According to most chief ministers, the establishment of NCTC violates the principle of federalism enshrined in the Constitution.

The Police and Public Order are indeed State subjects under the Constitution of India.  But then this is not the first time the central government has established a federal police organisation.  The central government has taken active interest in policing in the country. From the very beginning, it has focused on raising and expanding its own para military set up. Till 1962, only two central para military forces existed- the Assam Rifles (AR) and the Crown Reserve Police (CRP), but now there are eight and their combined strength had reached a staggeringly large figure of 8,38,893 by the end of 2009.   They have all been heavily deployed on law and order duties in states.  The increasing deployment of central para military forces has come to be accepted by state governments.  They indeed demand this deployment when needed.

So why this chorus of disapproval of a central organisation that is needed to fight terrorism? Obviously, the state governments are not convinced about the intentions of the central government. They are looking at NCTC not as an agency that will merely coordinate the functioning of different organisations engaged in the fight against terror, but also as an outfit that will function as a part of IB to create and fish in troubled waters. Ms Jayalalita’s apprehension that these powers “can be misused to suit ends that are motivated by reasons other than fighting terror” cannot be dismissed outright.

There are two clear problems with the way the NCTC has been conceived.  One, it has been given wide ranging arrest and search powers under Section 2(e) of the Unlawful Activities Prevention Act of 1967.  Two, it will function under the IB, which is a clandestine intelligence organisation that specialises in collecting not only criminal and security related intelligence but also in gathering and feeding the government with political intelligence.  In fact, the I B does not have any statutory base.
It was established as the Central Special Branch by an order of the Secretary of State for India in London on December 23, 1887 and given its present nomenclature (IB) in 1920.  The Prime Minister, in his reply to the chief ministers, said that the “primary purpose of NCTC is to coordinate counter-terrorism efforts across the country as the IB has been doing so far. It is for this reason that the NCTC has been located within the IB and not as a separate organisation.” Location of NCTC in the IB may be all right, but in that case investing it with powers of arrest, search and seizure will always create the type of resistance that was recently seen.    Since the NCTC has been put under the IB, the legal powers that the new organisation has been given will devolve on the IB too.  In other words, an organisation that is not statutorily backed will come to enjoy legal powers.

The central government also forgot another important fact. A proposal may be legally viable, but along with that, its functional viability has also to be assured.  An organisation like the NCTC cannot function effectively without full support and cooperation of the state governments.  Turf wars also come on the way. When the Mumbai bomb blasts occurred in July 2011, there were reports that Mumbai Anti Terror Squad showed reluctance to associate National Investigating Agency with the investigation.  Though at that time, P.C. Chidambaram issued a statement dismissing such reports,   two months later the report was confirmed when the Union Home Minister sought transfer of the case to NIA, but the Maharastra Government prevailed on him not to shift the investigation from their team.

The Constitution establishes a federal system of policing, but there are clear indications of disturbance in the system.  Heavy expansion of para military forces and the power to deploy them in aid of civil power, use of  CBI to browbeat the ruling opposition in some states, establishment of a National Investigation Agency, setting up of four new NSG hubs in state capitals, amendment of All India Service Rules to dilute the disciplinary power of the state governments, the drafting of a piece of legislation on communal violence, the drafting of Lokayukta Bill, the amendment of Railway Protection Force Act and now the establishment of NCTC are some of the developments that indicate  a trend towards centralisation of policing. If extremist or terrorist violence increases further in the country, this trend is likely to be accentuated.

With the emergence of coalition government at the centre and dominance of regional opposition parties in states, the trend towards centralisation of policing will always be challenged and resisted by states.  Whichever party rules the centre, it will require a much more deft handling of such issues than has been shown by the present government at the centre.  “Cooperative federalism” will have to be the order of the day

Prsecution Sanction- Law Provides Protection

Sanction for Prosecution

Introduction

Human rights violations by security force personnel and corruption scams by public servants keep on occurring in this country with regular frequency. An important reason why this continues to happen is an environment of impunity that has been built up over a period of time through a combination of legal provisions and tardy functioning of the criminal justice system. There are three ways in which the culture of impunity prevents the perpetrators of violations and scams from being brought to justice.  One, every attempt is made to suppress the incidents from being brought to light.  Two, once the offences cannot be hidden, they are not investigated properly.  In fact, there are provisions in law that do not allow even inquiries to be done against public servants of certain ranks involved in corruption scams.   Three, even if investigations succeed in establishing criminal responsibility, the perpetrators are not allowed to be prosecuted, tried and duly punished.

This paper does not discuss  the culture of impunity in all its aspects.  It focuses only on the third aspect- the one that does not allow prosecutions against public servants without sanction from the government.  This subject received prominence in a  judgement delivered by the Supreme Court in Dr. Subramanian Swamy’s case (To be referred as Subramanian Swamy’s case here-in-after) on January 31, 2012.  The main points of this judgement will be analysed while discussing  important issues relating to the subject.

Legal Position

Sanction to prosecute a public official is required under certain provisions of law, two of which are significant- Section 197 of the Criminal Procedure Code (Cr P C), 1973 and Section 19 of the Prevention of Corruption Act( P C A), 1988.

Section 197 Cr P C says that whenever a judge or magistrate or a public servant is accused of any offence alleged to have been committed by him “while acting or purporting to act in the discharge of his official duty”, no court shall take cognizance of that offence without sanction from the concerned government.  Sanction would be needed from the central or state government, depending on whether he was employed in connection with the affairs of the Union or a State at the time of the alleged commission of the offence.  The Section further debars the court from taking cognizance of any offence alleged to have been committed by a member of the armed forces of the Union while acting or purporting to act in the discharge of his official duty without sanction of the central government.  If the Armed Forces Special Powers Act, 1958 is applicable to any disturbed area, it provides further protection by mandating that “no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.” 

Section 19 of the Prevention of Corruption Act (PCA), 1988, on the other hand, is different.  It says that no court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 of the PCA Act alleged to have been committed by a public servant, except with the previous sanction of the concerned government.  It would be central or state government depending on whether the public servant is employed in connection with the affairs of the Union or a State and is not removable from his office “save by or with the sanction” of the central or state government.  This Section is not applicable once the public servant has ceased to be employed in the post which the public servant is alleged to have abused or misused for corrupt motives and is no longer serving in connection with the affairs of the Union or a State.  In 2008, the central government tried to extend impunity even to retired public servants by bringing them within the scope of Section 19 of the Prevention of Corruption Act, 1988 through an amendment.  This attempt was made mainly to undo a judgement  of the Supreme Court , where it held that section 19 of the PCA did not protect former public servants. Luckily, the amendment to the Act was not ratified by the Rajya Sabha even though it had been cleared hurriedly by the Lok Sabha.

The difference between Section 197 of the Code and Section 19 of the PCA is clear.  Sanction contemplated in Section 197 Cr. P C is in respect of offences which the public servant is accused of having committed while he was acting or purporting to act in discharge of his duties.  On the other hand, offences specified in Section 19 of the PCA, like giving or taking bribe, can by no stretch of imagination be linked to “acting or purporting to act in discharge of his official duty.”  This is why the Supreme Court has maintained that “Section 197 of the Code and Section 19 of the Act operate in conceptually different fields.”

Meaning of Cognizance

Law mandates that no court shall take cognizance of the offence without sanction from the government, but nowhere does it state what the word “cognizance” means. One of the objections of the government to the petition filed by Mr. Subramanian Swamy was that his private complaint seeking sanction for prosecution was premature as the question of sanction should arise only when the court decided to take cognizance. The Supreme Court did not accept this argument as taking cognizance, according to them, meant taking judicial notice of an offence. The Court clarified that it was different from initiation of proceedings.  Cognizance is taken at the initial stage when the magistrate applies mind to the facts mentioned in the complaint.  At that stage, the court has to refer only to averments made in the complaint and is not required to analyse evidence. The court endorsed the guidelines that the CVC had issued in 2005.

As per these guidelines, the grant of sanction is an administrative and not a quasi judicial function.  It is therefore not necessary in such cases for the competent authority to hear the version of the accused to decide whether prosecution sanction should be given or denied.  The authority should not undertake an inquiry to judge the veracity of allegations made against the public servant nor should it ask the investigating agency to further investigate the matter. All that is required is to assess whether the facts placed before the competent authority disclose prima facie commission of an offence by the public servant. If it finds enough evidence then it has to accord sanction; otherwise it can refuse.  But in both cases, according to the Court, the decision taken on the complaint of a citizen must be intimated to him.

Who can seek sanction for prosecution?

There has always been a presumption that only an investigating or a prosecuting agency can seek sanction to prosecute a public servant.  The significance of Supreme Court’s judgement in Subramanian Swamy’s case lies in the clear enunciation of a private citizen’s right to seek sanction to prosecute a public servant who is accused of having committed an offence under the Prevention of Corruption Act, 1988.  One of the main objections raised by the government in this case was that Subramanian Swamy had no locus standi to file his complaint as the CBI was already investigating the allegations.  The Court rejected this argument on two grounds.  One, there is no provision in law that debars a citizen from filing a complaint.  Two, an offence harms not only an individual but the whole society.  Every citizen, therefore, has a right to take an offender to court.  The Court has linked the right of a citizen to file a complaint with his right to access the court to set criminal law into motion.  This, according to the judgement, is a constitutional right, which cannot be “whittled down, circumscribed or fettered by putting it into a straitjacket formula of locus standi unknown to criminal jurisprudence…” 

Rationale for Sanction

The idea that public servants should be provided protection from being prosecuted in courts of law is a part of the concept of sovereign immunity that we have adopted.  The way the concept has developed, it has meant two things.  One, the sovereign can do no wrong; and two, no suit can be instituted against it without its consent. While the first idea has more or less been discarded by us in law, the second has been persevered with, mainly because this provided the post independence rulers of this country a shield to protect themselves from being held accountable.

The rationale often cited by the government to keep these provisions in law is, however, different. According to government explanation, the idea is to protect the public servants from the threat and ignominy of malicious and vexatious prosecutions, so that they can take their decisions without fear of being victimised.  There may be some truth in this contention, but   it raises more questions than it answers. One, the IPC has sufficient provisions to penalise people making frivolous and false complaints.  Two, section 170 Cr P C requires a case to be sent for judicial cognizance only when there is sufficient evidence.  Three, Section 190 of the Code gives discretion to the court to refuse to take cognizance of the case, which does not have merit. The court can dismiss the complaint at the initial stage itself if it is false or frivolous. Four, what is it that the competent authority has to assess before deciding whether sanction should be accorded or not?  According to the Vigilance Manual of the Central Vigilance Commission, the sanctioning authority must satisfy itself “whether the material placed before it discloses a prima facie case against the person sought to be prosecuted.”     Now, who is more competent to decide whether evidence is sufficient to make out a prima facie case against the accused public servant- the prosecuting agency like the CBI or the concerned government department? The C V C’s Vigilance Manual says: “There are adequate internal controls within the CBI to ensure that a recommendation to prosecute is taken only after a very useful examination of all the facts and circumstances of the case.”  In case this is so, why should it be necessary to seek sanction since the available evidence has already been weighed and assessed?

The Problem

There are two aspects of the problem.  One is the denial of sanction and the other is the delay in giving it.  Neither the website of CVC nor of the CBI gives information about the number of cases in which sanction was sought and the number in which it was denied.     The entire process of decision making in such cases is marred by an element of arbitrariness and untrustworthiness.  According to a report in the Hindu, the Union Ministry of Home Affairs has rejected in the past four years alone “at least 42 requests to sanction the prosecution of military personnel found by the police to have engaged in crimes such as murder, homicide and rape in Kashmir….. Thirty-one of the cases in which sanction was denied relate to rape, culpable homicide or murder. The others involve a wide variety of crimes, ranging from criminal trespass to illegal confinement. In not a single case, The Hindu found, had sanction been granted.”  Committing crimes like rape is not an act done in exercise of powers conferred by the Act.  Recently, the Supreme Court  questioned the extent to which the army could claim blanket immunity under the AFSPA Act.  “You go to a place in exercise of AFSPA, you commit rape, you commit murder, then where is the question of sanction? It is a normal crime which needs to be prosecuted, and that is our stand,” a bench of Justices B S Chauhan and Swatanter Kumar remarked to Additional Solicitor General P P Malhotra, representing the Army.  The Supreme Court’s observations raise a very pertinent question-  why should there be any need for prosecution sanction  in those offences which have no connection with the discharge of official duties? The need for prosecution sanction even in such cases and inordinate delay in obtaining sanction are considered by the CVC as specific bottlenecks in the effective functioning of the CBI.  This results not only in impeding CBI’s functioning but also in providing impunity to the accused and thus defeating justice. The Supreme court in an earlier five bench judgement had warned of the dangers resulting from refusal to sanction prosecution where there was clear prima facie evidence of an offence having been committed by public servants.  The case concerned  two Ministers of Madhya Pradesh Government who were found guilty of corruption offences by the Lokayukta of the state.  The Governor of the state accorded sanction for prosecution despite the state government’s refusal to do so.  The High Court upheld the state government’s contention that the governor could not act contrary to the “aid and advice” of the council of ministers.  In a judgement  delivered on April 6, 2004, the Supreme Court quashed the orders of the High Court and upheld the right of the governor to give sanction to prosecute a minister charged with an offence.  Writing for the Bench, Justice SN Variava had said “democracy itself will be at stake” if the government refused to accord sanction for prosecution against ministers in matters where prima facie a clear case for prosecution was made out.  “It would then lead to a situation where people in power may break law with impunity safe in knowledge that they will not be prosecuted as the requisite sanction will not be granted.”

Powers to grant or deny sanction are being used by the government arbitrarily in many cases, mainly because the law does not prescribe any guidelines binding the authorities to decide the cases transparently and to give justification for denial of sanctions.

Most discussion on this issue has centered around the problem of delay in obtaining sanction from the government. The present website of the CBI does not indicate the number of cases pending sanction with government authorities. Sometime ago, this information was available and the data presented a somewhat dismal picture.  On 31 August 2010, as many as 342 requests for sanction under the Prevention of Corruption Act (PC Act) were pending with various authorities of the central and state governments. Of these, 182 requests had been pending for more than three months, out of which 30 cases had crossed the 12-month mark. One was awaiting clearance for 22 months, nine for 18 months, and 12 for over 15 months. Out of 32 cases that were pending sanction under the “non PC Act”, 5 had been pending for more than 24 months.   In the Subramanian Swamy case, the supplementary submissions made by the Attorney General of India before the Supreme Court contained a compilation of 126 cases pending for want of sanction for a period ranging from more than one year to a few months.   According to a recent newspaper report, the CBI has listed 80 cases involving 167 officers which have been pending with the central government for over a decade.  Of these, 71 are corruption cases in which sanction is required for prosecuting 147 senior officials.

The pendency continues unabated despite the judgements of the supreme Court and the guidelines framed by the CVC based on the judgements.  The most famous is the judgement in what is popularly known as the Havala case.  The judgement directed that sanctions for prosecution must be given within the maximum limit of three months. It was only in exceptional cases where consultation with the Attorney General became necessary that an additional one month might be allowed.   This direction was repeated recently by the apex court in the Subramanaian Swamy case.   The court has further mentioned that the prosecuting agency or the private complainant must be informed about the extension of the time limit if consultation with the Attorney or Solicitor General is being sought.  If the government does not give its decision within the time limit, the sanction will be deemed to have been given. The Department Related Parliamentary Standing Committee of the Ministry went one step further and recommended that once the investigating agency came to the conclusion that prosecution was necessary and Director of Prosecution concurred, the necessary sanction must be given within 15 days. In case it is not given within that period, it should be treated as “deemed sanction” and the CBI should file a charge sheet in court.

In its judgement in Subramanian Swamy case, the Supreme Court stressed the importance of taking decisions about granting prosecution sanction in time.  The Court observed that the delay in deciding sanctions “stultifies judicial scrutiny and determination of the allegations against corrupt official” and thus erodes “the legitimacy of the Judicial Institutions”  and “deprives a citizen of his legitimate and fundamental right to get justice”.  The court further said that  Section 19 of the PCA, by being silent on time limit to decide sanction cases, has “virtually armed the sanctioning authority with unbridled power which has often resulted in protecting the guilty and perpetuating criminality and injustice in society.”

Concluding Remarks

The recent judgement of the Supreme Court in Subramanian Swamy case evoked considerable interest. It received a welcome response on two counts.  One, the Court fixed a time limit within which sanctions for prosecution should be granted.  Two, It affirmed a citizen’s right to seek sanction to prosecute public servants involved in corruption cases.

So far as the first point is concerned, this is not the first time that the apex court has said so. The judgement in Vineet Narain’s case in 1998 had laid down the same time limit    The CVC as well as the Department of Personnel had issued guidelines reiterating the same.  The Parliamentary Standing Committee of the Ministry of Personnel had even recommended a smaller time limit within which sanctions must be given.  Thus there have been many judicial and other authoritative pronouncements directing the government to issue sanctions for prosecution in time, but they have not been complied with.  The government has treated such directives with indifference, if not contempt, and the Court has not been able to do anything about it. 

Regarding the second point, this judgement has affirmed a private citizen’s right to seek sanction to prosecute.  However, one cannot be very optimistic about the outcome of this pronouncement, for the simple reason that an ordinary citizen will find it very difficult to dig out enough material to prove that there is prima facie evidence of a public servant’s commission of an offence under the PCA.  The private complainant will have to go to the government to obtain sanction, which the government under existing law can always deny without assigning any reasons. 

This brings us to our third point.  The Supreme Court in its judgements has dealt with the problem of delay in according sanction  to prosecute public servants and issued directions to set it right.  However, it has never questioned the need to obtain sanctions and the government’s right to deny them. Virtually, the concept of sovereign immunity embedded in the legal provisions like Section 197 of the Cr P C or Section 19 of the PCA or in other provisions of the special security legislation has never been  challenged or disputed in any judgement of the Supreme Court. 

The impact of this culture of impunity has been twofold.  One, it has promoted a climate which is conducive to violations of human rights of citizens, because the security force personnel or public servants are not deterred from wrong doing, safe in knowledge that sanction to prosecute them will not ordinarily be given.   Two, it has undermined the rule of law and damaged the democratic fabric of society. The basis of this culture is the inequality in the application of laws.  Though the government cites very laudable objective behind Section 19 of the Prevention of Corruption Act, 1988, the fact remains that this provision of law has been used more to protect corrupt than to shield honest public servants.

There is a definite need to earnestly review the entire working of the law relating to grant of sanction to prosecute.  The review may include the possibility of discarding the provision altogether from the statute book, as the Lokpal and Lokayuktas Bill, 2011 attempted to do.

Two Murder Cases Revisited

                         Two Murders- Comparisons and Contrasts

(One murder was committed in a distant land; the other one nearer home. The two cases differed in other ways too. This short article shows how.)
Two murders took place- one of a young man called Stephens Lawrence in the city of London, on April 22, 1993 and the other of a young woman named Priyadarshini Mattoo in the city of New Delhi, on January 23, 1996.  The London crime was a hate crime, born out of racist feelings; the one in New Delhi was a crime of passion.

In both cases, investigation done by the police was shoddy.  In London, the Metropolitan Police handled the investigation and did a bad job.  The police failed to unearth sufficient evidence to prosecute the five white young men involved in the case. The McPherson Commission of Inquiry that later inquired into the case found that “the investigation was marred by a combination of professional incompetence, institutional racism and a failure of leadership by senior officers.” 

In Delhi, lack of professional competence and failure of leadership was seen from the beginning when nobody paid any heed to various complaints made by the girl alleging frequent stalking, sexual harassment and criminal intimidation to which she was being subjected repeatedly by the accused Santosh Singh.  The Delhi High Court in one of the hearings slammed the Delhi Police, saying they were the root cause of all this.  Had they taken action in time, the girl’s life could have been saved. “The girl has died because of you and not the boy (accused),"  said the judges.  The accused was the son of a senior Delhi police officer, a reason enough for him to enjoy the impunity.  

The Lawrence case was investigated second time by the Kent Police. The standard of investigation, as per the McPherson Commission report, was better, but did not lead to prosecution of the accused.  The Mattoo case was transferred to the CBI, but the trial court did not agree with the findings of the investigation and acquitted the accused on December 3, 1999.

In the London case, the parents of the murdered man pursued the case with huge dignity, courage and determination.  Their efforts supported by civil society finally pressurised the government to set up a Commission of Inquiry under Sir William McPherson of Cluny, a former High Court judge.  In the Mattoo case too, the father of Priyadarshini refused to be cowed down by the initial failures and perused the case with dogged determination till the pressure generated by the media and civil society and the sense of public outrage at the acquittal in Jessica Lal case forced the Delhi High Court to decide the long pending appeal in quick time.  Finally on Oct 17, 2006, the High court convicted the accused Santosh Singh for raping and killing Priyadarshini Mattoo.

Stephen Lawrence’s murder case, which was supposed to be dead long ago, came to life again when two of the five accused, Gary Dobson and David Norris were arrested by the police on September 7, 2010, and charged with murder. They were found guilty by the jury and sentenced by the trial court on January 4, 2012 to different terms of imprisonment.

The Lawrence as well as Mattoo case clearly show what civil society can do in a democratic society to fight against the denial of justice. 

The similarities end here.  The response of the police forces and the governments in the two countries was totally different.  In the Lawrence case, the police admitted that their investigations were defective. Sir Paul Condon, the then Commissioner of the Metropolitan Police Service, made a public apology to the parents: “ I, we in the Met. feel a sense of shame for the incompetence of that first investigation and for how the family were let down.  We could and we should have done better.”  The then British Home Secretary, Sir Jack Straw announced in the House of Commons on February 24, 1999 that he felt ashamed “that the entire criminal justice system, and the Metropolitan Police Service in particular, failed the Lawrence family so badly.”   In this country, clear evidence of bad investigation done by the police both in Jessica Lal and Mattoo cases came out, but no apology or remorse was expressed either by the police or the government.

Following the McPherson Inquiry report, the government in that country formulated an action plan to implement the recommendations.  Besides improvements in the policies governing recruitment, training, internal inspection, disciplinary and accountability processes of the police, the Race Relations Act of 1976 was amended in 2000 to see that all public services followed policies, practices and procedures that promoted race equality.  Here, we have yet to learn our lessons from the way the police forces and other public services have handled the communal riots.

The most significant outcome of the McPherson Committee’s recommendations was the establishment of an independent civilian oversight mechanism to inquire into public complaints against police personnel.  The Independent Police Complaints Commission started functioning in the United Kingdom from 1.4.2004.  In this country, despite the Supreme Court’s directives issued to the centre and states in Prakash Singh’s case on September 22, 2006, independent effective police complaint authorities are yet to be set up in most states.  

There has been considerable criticism of the police for their poor investigation  in  Jessica Lal as well as Priyadarshini Mattoo cases.  This is as it should be, as the police have to be accountable for their lapses.  But what about the failures of the courts in such cases?  The Delhi High Court called the judgment of the lower court “perverse”, which has “shocked the conscience of the judiciary.”   The trial court judge was convinced that Santosh Singh had committed the crime, but he didn’t find evidence sufficient enough to convict the accused- the same evidence on which the higher court felt that the sentence had to be either death penalty or life imprisonment.

There was considerable euphoria over the judgment of the Delhi High Court. Public campaigns for justice launched in Jessica Lal and Priyadarshini Mattoo deserve to be lauded, but they should not remain merely an urban middle class phenomenon.  There are so many Jessica Lal and Priyadarshini Mattoo belonging to poor and downtrodden families in villages and small towns of the country, but the civil society has not shown similar concern for their cry for justice.