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Clarity begins at Home

The responsibility of hauling up the police for not taking action lies with the Home Minister, writes AG Noorani.

india Updated: Mar 07, 2006 10:21 IST
AG Noorani

In our justified distrust of political interference in investigation of, and prosecution for, crime and in the maintenance of law and order generally, an inseparably related aspect has been overlooked — the government’s accountability to Parliament for the integrity and efficiency of all the three processes.

When he became Union Home Minister in March 1998, Lal Krishna Advani showed a lively awareness of his responsibilities in this regard. He warned: “The previous government knew about Romesh Sharma’s activities but he was not prosecuted even once. Earlier Romesh Sharma used to think that nobody would touch him because he had links with those who governed the country. He forgot that Atal Bihari Vajpayee’s government was not like the previous ones.”

But, while his exertions in this case rank among his better kept secrets, there is no secret whatever about his dereliction of duty in a scandal of monumental proportions that erupted under his very nose — the gruesome murder of Jessica Lall on April 29, 1999, in Delhi and its brazen cover-up; virtually in full view of the entire world. Advani once called his predecessor S.B. Chavan the worst home minister India ever had. The remark was perfectly true when it was made. Within a few months of Advani’s tenure in that office, it ceased to be.

K.P.S. Gill, former DG of Police, Punjab, reveals: “I remember when news of the Jessica Lall murder first broke in 1999 and the circumstances of the case as well as the persons involved in it came to be known. I had predicted to friends that nothing would come of it, and that the guilty would never be punished. This was not cynicism, but an understanding of what the Indian criminal justice system has come to.”

That impression was widely shared even by persons who did not have his experience and insights. Did Advani not share it? Not even when steady TV coverage and press reports exposed how the case was falling apart? Not a breath of suspicion, not a whisper of doubt? Had he bestirred himself and asked for a report, as he was duty-bound to, he would have received ample information from ‘anguished sources’ in the police and the wrong-doers would have been deterred from inflicting the damage they did. One of the gravest miscarriages of justice in recent decades might have been prevented.

The law on a minister’s powers, as also his limitations, was authoritatively laid down by a distinguished judge of the Supreme Court, Justice J.L. Kapur, in his report as Commission of Inquiry into the “conspiracy to murder Mahatma Gandhi” submitted on September 30, 1969. Citing legal authorities copiously, he said: “In the opinion of the Commission, although the Home Minister is in charge of the police and police administration and answerable to Parliament about it, still he has no power to direct the police how they should exercise their statutory powers, duties or discretion” under the Criminal Procedure Code and under the Police Acts.

Justice Kapur drew a clear “distinction between the constitutional responsibility of the minister for the exercise of executive power in respect of public order, police and enforcement of criminal law on the one hand and statutory duties of the police and magistrate to exercise powers vested in them by the Police Acts and Code of Criminal Procedure” on the other.

No minister can direct the police how to quell riots. But he can and must call it to account if it fails to do so. He is accountable to Parliament if he fails to discharge his duties. The minister cannot order a person to be arrested. But he is bound to question the police if there is a cover-up.

As Justice Kapur explained: “It is the constitutional duty of the minister, as head of the department in charge of the police, who are instruments of maintenance of public order and enforcement of criminal law, to ensure that the police discharge their functions and exercise their powers properly and diligently. But beyond that, the minister cannot go and give specific instructions as to the manner of exercise of their statutory powers. That would amount to interference. The distinction between the administrative supervision ends and direct interference with statutory powers begins, a well-recognised principle of Rule of Law.”

The judge recognised that no minister can be responsible for every failure or lapse by the police. The crucial qualification which he proceeded to mention is very relevant to Jessica Lall’s case: “But when it comes to cases of gross negligence or general failure or neglect to perform its statutory functions by the police in preventing the commission of offences or of bringing offenders to justice or there is a general failure to maintain law and order or in the protection of a man like Mahatma Gandhi, it may be different and should, in the opinion of the commission, fall under the constitutional ministerial responsibility, although it is a matter entirely for Parliament to decide.”

The minister disciplines the police in accordance with the law. Parliament disciplines the minister in accordance with the Constitution.

The law so clearly stated by justice J.L. Kapur applies no less to a crime which has been compared in its gravity to Gandhiji’s assassination — the demolition of the Babri masjid on December 6, 1992. The criminal proceedings have taken a shockingly tortuous course with the CBI shifting its position repeatedly.

In his judgment at an interim stage in the case, concerning a technical flaw of which the accused — including Advani, Murli Manohar Joshi, Uma Bharati and others — took full advantage, Justice Jagdish Bhalla of the Lucknow bench of the Allahabad High Court said on February 12, 2001: “According to the prosecution, the accused persons are either rich, influential or politically strong. In the process, I recall the observations of the Hon’ble Apex Court… which are as follows: ‘The slow motion becomes much slower motion when politically powerful or rich and influential persons figure as accused. FIRs are quashed. Charges are quashed. Interlocutory orders are interfered with. At every step, there will be revisions and applications for quashing and writ petitions. In short, no progress is ever allowed to be made. And if ever the case reaches the stage of trial after all the interruptions, the time would have taken its own toll; the witnesses are won over; evidence disappears; the prosecution loses interest — the result is an all too familiar one.”

In such a case, the government would be sorely remiss if it did not inquire of the CBI why no revision application was filed against L.K. Advani’s discharge in the case relating to the inflammatory speeches prior to the mosque’s demolition. The queries were perfectly justified. The BJP’s wrath is understandable. Not so, the government’s defensiveness.

The government ought to publish a white paper containing the two FIRs, the CBI’s consolidated charge sheet against Advani and others, and the texts of orders made by the courts over the last decade. It will not be very bulky; it will be most edifying. The government has every right, and a clear duty, to oversee the progress of proceedings launched by the CBI, within the parameters of the Kapur report.

First Published: Mar 07, 2006 01:01 IST