Leave it to the court

It is not suggested that matters like a delay in investigation or the alleged failure of the CBI to complete investigation or omission of important aspects of the case during the investigation cannot be discussed in Parliament. In fact, any attempt to shut out open discussion over these issues would be equally improper, as has been done in the past on the specious grounds of the matter being sub judice or of official secrecy.

As a young CBI officer, I had watched the proceedings of the Lok Sabha way back in 1974 when the Pondicherry license scandal case was being discussed. The House was exercised over allegations of favour being shown to some Pondicherry firms in the matter of grant of licences on a quid pro quo basis. It was alleged that signatures of some ruling party MPs had been forged to facilitate the grant of licences. The government hadinformed the House that the CBI had registered a criminal case, and assured the members that they would be taken into confidence first as soon as the investigation was complete. The government, however, did not keep its commitment. Just a day before the House assembled for its winter session in November 1974, a chargesheet was filed in the court. The Opposition was enraged. But the point was conceded that, once a chargesheet had been filed, the facts mentioned in it could not be discussed on the floor of the House.

But, in the case of Bofors, speaking on the motion of thanks to the President, Leader of the Opposition Sonia Gandhi started her maiden speech in the Lok Sabha by raising the issue of Rajiv Gandhi’s name in the chargesheet. She called this a “vindictive’ and “malicious” act on the government’s part and described it as “despicable”. Repeated demands were made from the Congress benches in both Houses to delete the name. Even a veiled threat to stall economic Bills in the Rajya Sabha, where theCongress is in a majority, was held out. Speaking earlier, Congress MP Mani Shankar Aiyar described the chargesheet as “premature”, “partial” and “half-baked” with the only objective to “put down a dead man as accused”. He said there was not a “shred of evidence” that Rajiv had benefited from the deal.

They did not stop there. The party’s spokesman, who also happens to be an eminent lawyer, and some other MPs took exception to Information and Broadcasting Minister Arun Jaitley’s assertion that inclusion of a dead man’s name was nothing new and that the names of Indira Gandhi’s assassin Beant Singh and Rajiv Gandhi’s killer Dhanu had also figured in column 2 of the CBI chargesheets. How can Rajiv Gandhi, a “martyr”, a Bharat Ratna, be equated with self-proclaimed killers, they asked. This was a distortion of what Jaitley had said. He had only stated the legal position and status of an accused, alive or dead, in a legal document. No comparison of personalities was being attempted. But are not allequal in the eyes of law? Were not Congressmen seeking to give a new meaning to the rule of law?

Then, the final shot at their constant target, George Fernandes. Attempts to malign him over the Admiral Vishnu Bhagwat case or the Kargil conflict did not work. So why not drag his name into it? And what better than to cite the Baroda dynamite case as a precedent to buttress the demand for withdrawal of Rajiv Gandhi’s name from the chargesheet?

There is legal provision under which withdrawal of the accused from prosecution can be done. The move has to be made by the public prosecutor, with the permission of the Central government in a CBI case, and this is subject to the consent of the court under Section 321 of the Cr PC. It is not an unfettered power of the Central government that can be exercised for a political purpose or as a quid pro quo or under a threat. If that were to happen, it will be the end of whatever is left of our criminal justice system. The day will not then be far when this power will beused to obtain support for gaining majority or sustaining a minority government in state assemblies and the Lok Sabha.

One may not agree with it as a means, but an act amounting to a criminal offence against an unconstitutional authority or illegal government cannot be equated with cases of corruption or crimes committed for personal gains. As far as as I know, Fernandes never claimed innocence in the Baroda dynamite case. Instead of acquiescing in an autocratic rule, he preferred to go underground to carry on a movement, maybe violent, against it and fight for the hard-won freedom and rights of citizens. For that matter, and without the remotest attempt to equate personalities, it may be recalled that even Mahatma Gandhi had admitted the charge of sedition when he was produced in a court at Champaran in Bihar. On the other hand, those speaking on Rajiv Gandhi’s behalf claim that he was innocent and there was not a “shred of evidence”against him.

Moreover, withdrawing name of an accused from undergoingtrial for prosecution in a criminal case is not the same thing as asking the CBI to delete someone’s name not sent for trial from column 2 of the chargesheet, after it has been filed in the court. Would it not amount to tinkering with a legal document which is already before a court of law? Would it also not mean vesting in the political executive an unprecedented power of interfering in the process of justice?

The anxiety about a dead man not being able to defend himself is understandable. But does not the remedy lie in the court of law where the accusation can be challenged and fought as far as the main charge of criminal conspiracy is concerned?

The writer is a former CBI officer