February 13, 1998
According to recent reports, the Uttar Pradesh Government has decided to withdraw cases against kar sevaks who participated in the Ayodhya agitation in 1991 and were charged with rioting, breach of peace and raising provocative slogans which led finally to police firing and some damage to the Babri Masjid. These cases were launched during the regime of Mulayam Singh Yadav. The state government has argued that it is within its powers to take such a decision.
The conduct of the Kalyan Singh Government raises an important question regarding the real face of the Bharatiya Janata Party (BJP). It came to power by throwing to the winds all norms of democracy and undermining its highly moralistic position on political life. It has rewarded all defectors from the Congress and the Bahujan Samaj Party (BSP), and has permitted a super-jumbo council of ministers of 93. Over 30 of these have a criminal background. The Speaker of the Assembly has turned a blind eye to the provisions of the Anti-Defection Act and refusedto discharge his responsibility under the Act. According to reports, he has now threatened the Election Commission that proceedings will be launched for breach of privilege if the Commission continued to interfere in the work of the legislature. The state government, for its part, continues to flout the Commission’s directives one after the other and takes the high moral ground on its powers being curtailed by the Commission. This record raises questions about the BJP’s commitment to the rule of law, the Constitution and norms of democratic governance.
A reference must also be made to the cases filed by the Central Bureau of Investigation against the leaders of the BJP, Vishva Hindu Parishad, the Shiv Sena and other political parties and organisations in connection with the demolition of the Babri Masjid. One should not be surprised if a similar move is made to withdraw these cases if the BJP comes to power at the Centre on the specious plea that it is necessary to let bygones be bygones and to promotecommunal peace and harmony. Electioneering is the time when voters are taken for a ride and it is presumed by political parties that all the people can be fooled all of the time. In this category was L.K. Advani’s unbelievable statement that it was the Congress which must be blamed for the demolition of the Babri Masjid and that the BJP was innocent!
Let us turn to the limits of powers of the government to withdraw from prosecution, as defined in Section 321 of the Code of Criminal Procedure (Cr. P.C.). This section enables the public prosecutor to withdraw from the prosecution of any person, but for doing so the court’s consent is necessary. Unfortunately, the section does not indicate the reasons which should weigh with the public prosecutor to move the court nor the grounds on which the court will grant or refuse permission, but the essential consideration which is implicit in the grant of permission is that it should be in the interest of the administration of justice. Thus the consideration for theprosecuting authority may be either that it will not be able to produce sufficient evidence or that subsequent information before it will falsify the prosecution evidence, or similar circumstance. It is the court’s duty to see that permission is not sought on grounds extraneous to the interest of justice. It has been held by the full bench of the Kerala High Court that the power to withdraw, though an executive power, should be exercised in the light of public prosecutor’s own judgment and not at the dictation of some other authority, however high.
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Time and again, these lofty objectives have remained on paper. The appointments of public prosecutors are mostly made on political grounds and the incumbents have hardly the courage to exercise independent judgment. It is a rare case indeed where a public prosecutor resists the diktat from the government to withdraw from the prosecution. Second, the courts often go by the requests of the prosecutor to withdraw cases and do not probe the reasons. The lawunfortunately does not require the court to record its reasons for permitting the withdrawal of cases. Perhaps this is seen as an easy way of reducing pending cases. One would normally expect the courts to object to the announcement by a Chief Minister of withdrawal of cases. It would have helped to bring home to the executive the limits of its powers.
Another scandalous case of this kind was the withdrawal of hundreds of eases by the Government of Maharashtra under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. These cases were instituted following large-scale riots and destruction of the property of SCs over the changing of the name of the Marathwada University to Babasaheb Ambedkar university. The Chief Minister announced with a flourish the withdrawal of cases. There was no effort to segregate the cases involving serious crimes. But there were no reports of the courts in various districts turning down these requests.
The Maharashtra Government similarly withdraw casesunder Section 153A and B of the Indian Penal Code against Shiv Sena chief Bal Thackrey. The cases were instituted by the erstwhile Congress government only when a public-interest litigation was launched in the Bombay High Court. But soon after the coalition government of the Shiv Sena and the BJP came to power, these cases were withdrawn. When the matter was agitated in the Bombay High Court once again, the state government took the stand that it was not incumbent on it to give reasons for the withdrawal of case! Sadly, this contention was upheld by the high court.
Several provisions of various enactments need to be reviewed in light of their working. Three provisions of the Cr. P.C. readily come to mind as having been grossly misused. These pertain to the prosecution of public servants (Section 197), withdrawal of prosecutions (Section 321), and anticipatory bail (Section 438).
It is time democratically elected governments realised the limits of their powers. They are arrogating to themselves powerswhich are not theirs under the law. It is also time for the courts to start exercising greater vigilance in bringing to book state governments which overstep the limits of their authority.
The writer is a former Union Home Secretary rnment
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