The Hindu : OVER TO BANGALORE

Online edition of India's National Newspaper
Thursday, Feb 19, 2004

Opinion

Opinion - Editorials

OVER TO BANGALORE

BY FIRMLY REJECTING the Tamil Nadu Chief Minister Jayalalithaa's plea to have the two disproportionate assets cases against her transferred out of Karnataka, the Supreme Court has underlined the rule of law significance of its November 2003 order. There are two aspects of the apex Court's latest ruling that stand out. First, the Court has given short shrift to Ms. Jayalalithaa's contention that she would not get a free and fair trial in a Bangalore special court on account of the bitter differences that exist between Tamil Nadu and Karnataka over a couple of inter-State issues. It has held that there is no linkage whatsoever between the Cauvery river water dispute and the activities of the forest brigand, Veerappan, on the one hand and "the judicial function of the [Bangalore trial] court" on the other. The Court has also expressed satisfaction over the security arrangements assured by the Government of Karnataka for the accused and the witnesses.

Secondly, the Court's ruling implies that it is largely irrelevant where the trial is held as long as the conditions exist for it to be held independently and fairly. After all, the reason for transferring the two wealth cases out of Tamil Nadu was the judicial determination that the course of justice was hopelessly subverted after Ms. Jayalalithaa returned to power in May 2001. Witnesses were recalled for cross-examination on flimsy grounds, without any opposition from the prosecution; as many as 64 of them resiled from their previous statements; and no attempt was made to have these witnesses declared hostile. "It does appear," the Court observed witheringly in its November 2003 judgment, "that the new [special] public prosecutor is hand in glove with the accused." As for the Tamil Nadu Chief Minister's plea that the case should be transferred to Pondicherry, a basic point of law is clarified: under Section 406 of the Code of Criminal Procedure "whenever it is made to appear ... that an order under this section is expedient for the ends of justice," the Supreme Court can order the transfer of a case from the jurisdiction of one High Court to the jurisdiction of another; but there is no question, under this section, of transferring a case within the same jurisdiction.

What the Supreme Court's extraordinary determination highlights is a large institutional issue. This is the imperative need for independent investigation and prosecution of allegedly criminal acts by those in power. Long experience demonstrates that the Indian criminal justice system is frequently undermined by the fact that the supposedly independent functions of police investigation and public prosecution are susceptible to political interference and indeed control. Whether it is the Narendra Modi Government's cynical manipulation of the Gujarat genocide cases or the own goals scored by the Central Bureau of Investigation in the Ayodhya demolition cases or the non-registration of a criminal case on Bofors between April 1987 and January 1990, the problem is the same: the lack of an independent system of police investigation and public prosecution. Criminal investigation and prosecution are so seamlessly linked that distortions in either process can defeat the ends of justice, effectively ensuring for those in power immunity against serious investigation and prosecution of corruption, misconduct, abuse of power, and other criminal acts. The latest case has spotlighted the plight of the justice delivery system when the official prosecution and the accused are, in a manner of speaking, one and the same. Fortunately, the higher judiciary has intervened from time to time to prevent miscarriage of justice, but such judicial activism cannot be a substitute for a robust and enduring system that insulates the process of criminal investigation and prosecution from political or any other kind of external interference.

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