Monday, October 25, 2021
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Judiciary vs Police: Striking a balance

The Maharashtra imbroglio has shown the need to keep a balance between institutions. It is best to apply the first principles of criminal law here police investigate, judges decide.

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By Justice Kamaljit Singh Garewal

Sixteen years ago when the Punjab & Haryana High Court was celebrating the Golden Jubilee of the move to Chandigarh, the editorial committee tasked with producing a commemorative volume, began to look for a suitable emblem for the court. And unraveled a balance. It was not an ordinary balance but an uneven one, which, according to the architect, Monsieur Le Corbusier, was not a “balance with two equal weights but one which is counter balanced in the complexities of the determinant factors: the length of the lever arms and the different weights which they support”. So the uneven balance became the emblem of the Court.

The design of the Capital Complex itself reflected the separation of powers, with the Secretariat and the Legislature standing as close neighbours. The High Court at some distance, designed as a great gate, was inspired by the Buland Darwaza at Fatehpur Sikri. Everyone was supposed to enter through this huge gate and come under the Court’s judicial umbrella. Now only judges, whose court rooms are in the old wing, enter this way. But after the courts assemble, one sees lawyers and litigants standing un­der it awaiting their turn. The uneven balance, translated to real-life situations in a court, balances justice between the humble citizen and the mighty state, the fulcrum shifting towards the citizen to balance the state’s immense power. A very apt emblem for a High Court, simple, contemporary and down to earth. The oft used symbol of justice is Justitia, the Roman goddess of justice, who is blind-folded, holds a sword in one hand, and the Scales of Justice in the other. Justice has to be open-eyed.

Coming back to striking a balance. Judges try to do so when a matter is presented before them. But there are so many things for judges to examine before pronouncing a balanced verdict. At the time of giving injunctions, judges look for balance of convenience and at the end of a civil trial, look for balance of probabilities. Just as the finance minister balances budgets, companies their balance sheets and powerful nations look for balance of power.

In the strange situation which has arisen between the former home minister of Maharashtra and the former commissioner of police, one is left to wonder what is really going on. Everything seems to be one-sided and not balanced at all. It is like the kettle calling the tea-pot black. Without commenting on the matter on the basis of news reports and the wild allegations against the minister, let it be said that judges have to decide nothing at this stage. In fact, they can’t decide unless full facts are before them. But the damage done to the police force is enormous in terms of reputation, integrity and so on.

Balance is important in nature as in life. Imbalance in nature can have disastrous consequences, as nature tries to recover its balance, causing storms, floods, droughts. In life, imbalance in diet leads to health issues, and the first thing your physician would advise you is to have a balanced diet, a bit of everything and not too much of one thing. In governance, lack of balance has caused this very piquant situation, which reflects a basic flaw in the power-sharing structure between the holder of political power and the holder of a senior police post, leading to political jousting. Both offices are a part of the executive. The police must never enter this contest because it requires judicial determination, through due judicial decision-making process.

Decisions which judges make are based on the material collected by investigators, but these are decisions of judges alone. Judges do not collect the evidence. Judges are the decision-makers, while police officers have been spared from this onerous duty. After a crime, big or small, has been committed, the police investigators have a very limited choice, but perform a vital function. To register the case or not, is the first question. If the information constitutes a cognizable offence, the case is registered and its first report or FIR comes into existence. If the information does not constitute a cognizable offence, no case is registered, only a record of the information is kept. When the case has been registered, investigation commences. After the investigation, if an offence appears to have been committed, a report is sent to the court. This is called the final report. This brings to an end the duties of investigators, between the first report and the final report. The matter then goes into the hands of prosecuting lawyers who take it before judges for trial. Lawyers and judges know the law and, therefore, know what crime seems to have been committed, when, where and by whom.

Too much sarcastic criticism of judges by lawyers, public figures, media, writers, academicians has become the fashion of the day, and is causing great imbalances. Certain judgments, happenings in and outside courtrooms in the past few years, whispers in the corridors, murmurs among the judicial fraternity are going to take their toll, by weakening the judicial system. And strengthening the forces who benefit by creating imbalances. Soon the chief justice of India shall step down from the bench and the senior-most judge of the court shall replace him. Fair criticism of judgments is fine, but a constant harangue about each and every aspect of important judicial functions causes disquiet, and certainly has the effect of lowering the majesty of law and diluting our jurisprudence.

Therefore, what is at stake in the Maharashtra matter is the reputation of the executive arm of the government and its police force. Both are a part of the same home department. Home ministers have always been more powerful than justice ministers, even though they have got nothing whatsoever to do with justice. This cosy, colonial arrangement is still in vogue in our country in spite of the decades that have gone by. The police continue to dominate the system, no one is prepared to keep it under check. When things go wrong with the system, commissions are appointed to find ways to improve it, but these commissions are always manned by police officers. They report to the home minister, not to the justice minister, even though matters relate to the justice system.

Punjab has taken a very big first step in this direction by appointing a retired high court judge as the state’s chief vigilance commissioner. The centre and other states have their own inbred police led internal systems to deal with corruption in investigations without in-house judicial oversight.

Read Also: Highly derogatory statements made against Indian govt, ministers & judges; bar shall refrain from such comments: Delhi HC declining bail to Shahrukh Pathan

This is not the place to critique important judgments of the past decade, but to alert everyone about the need to keep a sense of balance, while criticising judgments and orders which have become final. There is no point in commenting on something about which everything is not yet known, waiting to be uncovered and forensically examined. The best way to look at the whole affair is by applying the first principles of criminal law police investigate, judges decide. This is where the balance must and should be struck.

—The writer is former judge, Punjab & Haryana High Court, Chandigarh and former judge, United Nations Appeals Tribunal, New York

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