By Sayan Chatterjee
A single-party rule at the Centre has come following a gap of about 3 decades. Three decades ago, the roles had been in a reverse configuration from the present. The political party that was then in the Opposition is in energy today. And the party in the Opposition today was the sole custodian of energy at that time. However, there are striking similarities in the style of governance employed by these single parties in energy, notwithstanding the lengthy time period that separates them.
The most striking similarity is the regime’s way of dealing with these who oppose the establishment. The mechanism used to assert energy more than the recalcitrant remains unchanged. Over the decades, the State virtually unfailingly has been invoking offences of ‘sedition’ or ‘corruption’ when looking for to discipline an adversary. That was the position in the previous and this is what continues to stay unchanged in the present.
But the query is: Why these two offences of sedition and corruption? The very simple answer is: It is straightforward to accuse somebody of sedition or corruption. Considerable leeway is out there to investigative agencies below the current statutes on sedition and corruption. With a small inventive considering, a charge-sheet on sedition and corruption can be crafted.
It is to the credit of the judiciary that most such foisted instances finish in acquittal. This, nonetheless, does not bring about any ripples or modify in the actions of these wielding the levers of energy. In India, the approach is the punishment. The moment somebody becomes an accused in a criminal proceeding, he or she gets entangled in the dilatory criminal judicial method prevalent in the nation. Efforts have to be made by such a individual to prevent police custody and custodial interrogation, get anticipatory bail to prevent arrest, get typical bail from the court, seem at all the hearings … the list goes on.
The hearing approach can go on for years. Interlocutory orders passed from time to time may well need to have to be challenged in upper courts. All this entails charges and time, the two commodities in quick provide in the contemporary world. So what occurs following 10 years when the case is dismissed 1st in trial and then in appeal? The accused has lost 10 years of the most effective period of his/her life and also lost all savings and is now in debt. Also, complete household, spouse, children, aged parents have been stigmatised. Seeing this person’s miserable state following his/her judicial victory, other possible dissidents are tempted to desist. The objective of the State has been realised.
Foisting instances more than political opponents occasionally final results in piquant conditions that strengthen the thesis of bringing about some systemic alterations in the existing arrangement. While the case is below trial, elections take spot and the accused and his/her 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 assure acquittal for its existing masters. A case constructed up on the stress of the erstwhile government which is at the moment in the Opposition. We would not venture to speculate as to what would come about when following next elections the roles once again get reversed and status quo ante requires spot on the ground.
Lest there be any misunderstanding, it will have to be stated that there does exist an helpful method of checks and balances, prior to an agency of the government moves a court of law to prosecute a individual. The complaint and the investigation report is scrutinised at several levels inside the division and also the law division and the directorate of prosecution and corrective methods taken and gaps filled via more investigations and scrutiny. The gravity of the offence and occasionally the stature of the accused identify how higher 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 also a lot of, then anything in addition to the current arrangement is needed to be place in spot. Investigative agencies and the directorate of prosecution are, following all, departments of the government. So, more intervention has to come from these who are outdoors the manage of the government. At the exact same time, they will have to be familiar with the working of the government and its style of functioning. In quick, the new arrangement will have to blend with the current method and not degenerate to one of continual confrontation with investigative agencies. That would be a counterproductive outcome.
We are speaking right here of a referral body to which instances exactly where the State intends to prosecute on grounds of sedition or corruption are sent for scrutiny. The referral body then offers its opinion as to regardless of whether the instances attract the provisions relating to sedition or corruption each in letter and, really importantly, in spirit. The latter, namely the spirit, is usually not gone into by investigative agencies.
An action that appears apparently seditious may well, on scrutiny and reflection, be construed as patriotic in the spirit of points. A case of procedural shortcut in procurement of an asset may well seem to be a case of corruption. However, on detailed examination, it may well turn out to be a bold initiative taken by a young officer that has truly saved crores.
These two are intense examples. However, there are a myriad of instances strewn across the nation exactly where the letter and the spirit of the law collide. A balance demands to be offered. The referral body would endorse the action proposed by the agency if the case is sustainable each in letter and in the spirit of the law. If not, then based on how far the case falls quick, the referral body would opine regardless of whether the case need to be dropped outright or additional investigated or some other penal section need to be invoked. This way, allegations of ingress of government bias in prosecution would be drastically dented.
We have today in the nation a massive pool of retired civil servants who in their working years have closely dealt with these difficulties as magistrates or as officers in the home division or as police or judicial officers. They are familiar with the nuances of this issue and how points can be stretched right here or ignored there, in the shaping of a case of sedition or corruption.
Their previous experiences and familiarity with the difficulties make their suggestions that significantly more acceptable to agencies who would not contemplate their contra-views as capricious. In quick, the referral body would draw upon the collective wisdom present in this pool of retirees whilst providing its opinion. Such an arrangement would blend effectively with the current set-up and contribute to enhancing the purity of the approach.
A criticism against the arrangement may well be that it is inadequate for a issue that is way also massive. Bulk of the prosecution in this nation is carried out by state governments. It is inconceivable that all states would readily accept such a method. Such reforms are brought in piecemeal. If the Centre adopts the new arrangement gradually, the states would come about particularly if it is seen to add worth to the current set-up. Once the bulk of the states acquiesce, the courts would compel the reluctant ones to fall in line. It may well be questioned as to why need to the suggestions 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 current laws would have to be amended. Secondly, it would be stiffly resisted as it would be viewed as curtailing the powers of investigative agencies. Usually, compact reforms of an administrative nature yield massive dividends. Their compact and innocuous nature makes it possible for them to slip in unobtrusively in the current method and blend in unnoticed. Most importantly, it is very easily doable if there is a will to act. As the Mahatma when mentioned, the distinction among what we do and what we can do would resolve most of the world’s troubles.
The author is former secretary, Government of India