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Tightening the noose on legislators facing criminal charges

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A new order of the apex court attempts to clean the rot in public life and punish politicians who have criminal cases against them. It is also time the Court protects witnesses who have testified against them.

By Rajbir Deswal

IT is an order that could spell trouble for legislators facing criminal charges. The Supreme Court recently passed a direction asking the chief justices of all High Courts to decide within two months all cases where a stay had been granted in trials against sitting and former legislators. It also gave a year’s deadline to try criminal cases against them. The bench of Justices NV Ramana, Surya Kant and Hrishikesh Roy also asked the chief justices to designate a special bench which included themselves to monitor the progress of the trials.

Before I discuss the impact, desirability, effectiveness and consequences of the apex court’s directions, especially when provisions of judicial trials, procedures, etc., are already present and the criminal offences are clearly defined, let us look at the background of this issue.

A one-year deadline to try criminal cases against sitting and former legislators and setting up of special courts for each district were part of the key recommendations made to the Supreme Court in a report tabled by Senior Advocate Vijay Hansaria. Hansaria had been assisting as amicus curiae in a PIL demanding steps to fast-track trials against tainted politicians. The list of recommendations also included a presiding judicial officer with a minimum fixed tenure of two years and a dedicated top cop in every district to be the nodal prosecuting officer.

It may be recalled that the Supreme Court had ordered the setting up of these special courts in 2017, after which 12 such courts were set up across the country. The Court’s direction comes in a PIL filed by BJP leader Ashwini Kumar Upadhyay who had demanded fast-tracking of criminal trials against tainted politicians and a life ban for those convicted in such crimes. Hansari had suggested radical measures based on statistics of criminal cases pending against these politicians as had been received from High Courts.

Sampat Singh, a sufferer himself and a former minister of Haryana, welcomed the Court direction. He said: “I have been a proponent of probity in public life and speedy trial of cases involving lawmakers. At the same time, I have also been a victim of political vendetta and prolonged trials.”

Singh painfully recalls:

“In 1985, I had prepared a memorandum against Chief Minister Bhajan Lal listing alleged acts of corruption involving him after strenuous and often risky efforts. The memorandum was signed by 100 MPs. Chaudhary Devi Lal and I along with many leaders presented the memorandum to Prime Minister Rajiv Gandhi who referred it to the Jaswant Singh Commission. However, Bhajan Lal returned to power, and on January 9, 1993, a case under the Prevention of Corruption Act was registered against me. Over 50 officers and 2,000 policemen were involved in raids that took place in 26 places. Thankfully, in March 2002, I was acquitted by the special court.”

In 2004, the complainant filed a revision petition in the Punjab and Haryana High Court; it was dismissed in 2010. Thus, it took 17 years for the case to be finally decided. “There is need for an effective mechanism to discourage registering criminal cases to settle scores,” he said.

Kushal Pal Singh, a former DGP of Haryana, has slightly different views. He said: “The issue’s significance in the present socio-political milieu cannot be overemphasised. At the same time, it is a delicate subject and any decision may have far reaching consequences. It is advisable that all the pros and cons be evaluated in a full, frank and fair manner before arriving at a conclusion. The nexus between politicians and criminals is an obvious fact. However, we should not ignore the fact that politicians may also be at the receiving end of the power game. There is enough evidence to suggest that political opponents are framed at the behest of the ruling dispensation. As a former police and prison administrator who interviewed several convicted prisoners, I can say that the criminal justice system is vulnerable to errors. Investigations can be tainted. Witnesses can be procured. Proceedings in courts may be influenced by several extraneous factors, including trial by the media.” Classifying politicians as a separate group for conducting speedy trials may, at times, lead to biases, resulting in miscarriage of justice, he added. “There is a new trend of giving a time limit for conducting trials in some special legislations like the POCSO Act 2012, but it would not be advisable to tinker with the general procedural code in order to fast track criminal trials against politicians as a category.”

Lauding the Supreme Court decision, Aloke Lal, former DGP of Uttarakhand, said criminal cases involving legislators ought to be fast-tracked because a tainted unconvicted legislator is no less dangerous than a convicted one and often leads to innocent people getting dragged into criminal cases. “The need for witness protection cannot be over-stated and effective measures need to be devised for this,” he said. “Appeals should also be fast-tracked. For this, special provisions will have to be put in place. However, conviction in the trial court should be enough to disqualify the legislator.”

Sarban Singh, a former IAS officer, said that in India, there are specific courts such as labour courts, consumer forums, environment courts, etc. Similarly, having special courts for deciding specific cases in a time-bound manner should be welcomed. But in fixing a time limit, it has to be ensured that no one goes unheard. A standard operating procedure will have to be simultaneously put in place so that all parties and stakeholders are involved.

Shashi Kant Sharma, former Additional Director, Prosecution, Chandigarh, emphasised the need for witness protection as these people would be pitted against powerful politicians and be more vulnerable. He said there were gaps in various prosecution and judicial procedures which are to be filled up to ensure the completion of the trial within a year. He suggested that even top bureaucrats should come within the ambit of the latest directions.

Deepak Bura Singh, District Attorney, Chandigarh, believes that although the Criminal Procedure Code does not prescribe a time limit for winding up a trial, Section 309 makes it clear that once the examination of witnesses begins, it shall proceed on a day-to-day basis until all of them are examined. But it is no easy task for the lower judiciary as legislators will engage a battery of advocates who will leave no procedural aspect unquestioned before allowing the trial to commence. These highly privileged undertrials draw comfort from the snail-paced judicial system and use all delaying tactics to prevent the court from reaching a final judgment.

There are various Law Commission reports which emphasised having a witness protection programme in our country. Even the Malimath Committee report endorsed it, but didn’t specify it.

The Law Commission’s 198th report on “Witness Identity Protection” and “Witness Protection Programmes” of 2006 was forwarded to states for inputs. Unfortunately, all of them didn’t respond positively.

The centre in 2016 then tasked the Bureau of Police Research and Development with examining the issue and studying the financial implications as well. In a way, the issue seems to have been brushed under the carpet one more time. In fact, the National Crime Records Bureau does not tabulate information on murder or elimination of witnesses exclusively. If this was done, the figure would be a eye-opener.

The Supreme Court has, on many occasions, called for enactment of laws relating to witness protection. In the matter of Swaran Singh vs State of Punjab, the Court observed that “a witness has to visit the court at his own cost. Every time the case is deferred for a different date. Nowadays it has become more or less fashionable to repeatedly adjourn a case. Eventually, the witness is tired and gives up.”

The Court further observed:

“While adjourning a case without any valid cause, a court unwittingly becomes party to miscarriage of justice too. Most witnesses have to wait their turn out. And when their time for deposing or the giving of evidence comes, the lawyers examine and cross examine them as if they themselves are the perpetrators of the crime.”

The criminal justice system is a maze and often, it is innocent people without powerful connections who suffer.

—The writer is a retired IPS officer, an advocate and a commentator

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