The legal and political commentariat have been, in recent days, discussing the reasons and methods regarding the arrest of former finance minister P Chidambaram. While many have been critical of the unusual haste in the arrest of Chidambaram, several analysts have expressed suspicion that this could be political vendetta of the Union government against one of its sharpest critics. Beyond the routine nature of political polarisation on this subject, the public discourse needs to engage with the vexed questions of impartiality and fairness in our law enforcement machinery and criminal justice system. A fair criminal justice system is the lifeline of a healthy constitutional democracy which ensures that the liberty and freedom of an individual will not be curtailed on the whims and fancies of the state. The fundamental purpose of the criminal justice system is to deliver justice to all by convicting and punishing the guilty and preventing them from offending again, while at the same time respecting their basic rights. The justice system on this account presents a bulwark against the potentially overweening power of the State and other vested interests.
A concern for due process, checks and balances, core values and an underlying institutional strength informs this perspective, rather than the pragmatic appeal to the effective and efficient control of crime. Fair trial is one such component of the criminal justice system which ensures that the right of an accused to not getting an arbitrary conviction is duly respected. Every democratic legal system has adopted certain principles to entertain evidence, conducting a trial and announcing the verdict. Free and fair investigation, presumption of innocence and proof beyond reasonable doubt in criminal cases constitute the doctrinal core of a just criminal justice system to protect an accused from any kind of prejudice. The Indian Constitution has provided safeguards for the rights of accused in criminal cases. Article 20 of the Constitution of India stipulates the following legal safeguards for individuals against excesses of the prosecutorial system:
-No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence
-No person shall be prosecuted and punished for the same offence more than once
-No person accused of any offence shall be compelled to be a witness against himself
While dismissing Chidambaram’s plea for anticipatory bail, the high court had held that he was the kingpin of the whole series of economic offences which have allegedly been transacted and concluded by his son Karti Chidambaram. Anticipatory bail, provided for under Section 438 of the Code of Criminal Procedure (CrP.C.), involves issues of individual liberty and protection from coercive action. The court cited the gravity of the offence as the reason for denial of bail. The court failed to appreciate that the gravity of offence is not a subjective concept in criminal law. Gravity of offence can only be judged by the quantum of punishment given for such offences. Offences like murder and rape qualify as grave offences as they entail a higher quantum of punishment. Moreover, the court failed to consider that the object of pre-trial detention of the accused person is primarily to secure his appearance at the time of trial and to ensure that in case he is found guilty, he is available to receive the sentence. If his presence at the trial could be reasonably ensured otherwise than by his arrest and detention, it would be unjust and unfair to deprive the accused of his liberty during the pendency of the criminal proceedings against him.
Even as concerns were raised about the conclusive nature of these pre-trial prima facie findings that betrayed a sense of unusual certitude, the concerns about investigative processes that informed the prosecution are also important. In this context, the foundation of the suspicion of crime — the testimony of the approver witness — needs to be interrogated.
In the present case, the main witness against Chidambaram in the INX Media case is co-accused and now approver, Indrani Mukerjea. This practice has been employed in previous high-profile cases as well. In the case of the alleged fake encounter of Ishrat Jahan, David Headley, a conspirator in the Mumbai terror attacks, became an approver witness. During his deposition in a Mumbai court, he mentioned Jahan’s name from options given to him by public prosecutor Ujjwal Nikam. Headley, who is now cooperating with the prosecution as an approver, was testifying about the attack on 26/11 when he was asked about “female suicide bombers in LeT.” Headley’s testimony is significant to the narrative. The killing of a college student produces a starkly different public reaction compared to that of a suspected terrorist. According to the lawyer of Jahan’s mother, Vrinda Grover, the questions about Jahan’s death are more “pointed” because “there is nothing to link Ishrat at all to any terrorgroup or criminal activity.”
Thus, both these cases present the infirmities of the practice of adjudicating on the basis of a testimony of the approver witness. There are inherent perverse incentives for the ‘approver’ to acquiesce to the putative institutional bias of investigative agencies. This clearly makes the accused vulnerable to investigative excesses while mitigating the threshold of checks and balances for the prosecuting agencies.
Reading Section 133 of the Evidence Act along with Section 114(b), it is clear that the most important issue with respect to accomplice evidence is that of corroboration. The general rule regarding corroboration that has emerged is not a rule of law but merely a rule of practice which has acquired the force of rule of law in both India and England. The rule states that: A conviction based on the uncorroborated testimony of an accomplice is not illegal, but according to prudence, it is not safe to rely upon uncorroborated evidence of an accomplice and thus, judges and juries must exercise extreme caution and care while considering uncorroborated accomplice evidence. The Supreme Court has laid down what is known as theory of “double test” in the case of Sarwan Singh v. State of Punjab. Firstly, the court has to satisfy itself that the statement of the approver is credible in itself and there is evidence other than the statement of the approver that the approver himself had taken part in the crime. Secondly, the court seeks corroboration of the approver’s evidence with respect to the part of other accused persons in the crime and this evidence has to be of such a nature as to connect the other accused with the crime. Clearly, the spirit of these guidelines and legal safeguards needs to be imbibed in the functioning and execution of our criminal justice system.
However, even as the prosecutorial processes present several infirmities that directly and substantially prejudice the constitutional safeguards of the accused, the public debate in these high-profile cases should be a subject of critical reflection. In recent times, there has been an increase in ‘mediatised’ criminal investigations which are successful in creating a prejudice against the accused. Much media criminology is underpinned by an often implicit assumption of media influence: the media distortion of crime and deviance has a significant impact on society, and this impact is somehow detrimental.
On the political right, the concern has been that media glamourises crime and encourages criminality. Today, image and representation penetrate all areas of social existence. The media taps into and reinforces social and political concerns. It helps shape individual and collective identities, sensibilities, fears, anxieties and appetites. It provokes public outcry and, at times, generates moral panic. Most importantly it is pertinent to note that media, with its 24*7 reporting and commentary on the investigation and administration of justice, tends to function as an extension of the State’s apparatus and is susceptible to political control.
The case in point is a premature vilification of the former minister as an absconder and uncritical endorsement of the point of view of the investigative agencies. While this mode of functioning presents the fourth estate as a biased statist propaganda platform that readily paints the Opposition in a detestable manner, it also shows a need for neutrality and restraint in the functioning of our institutions. This assumes pronounced importance in this case as senior advocate Kapil Sibal alleged that counter-affidavits and legal documents were being unethically leaked by the investigative agencies to media houses.
Hence, as a democratic society, both the public and its institutions needs to engender a higher degree of respect for legal and constitutional safeguards, including for those who may not enjoy majoritarian sympathy. This is not about the legal protection and defence of a former Cabinet minister belonging to the political Opposition, but about the protection and safeguarding of an impartial and fair criminal justice mechanism that complies with the constitutional safeguards and processes in letter and in spirit.
Ultimately, as Justice HR Khanna prophetically enunciated in the famous Emergency-era ADM Jabalpur case: “the history of personal liberty is largely the history of insistence upon procedure.”
Updated Date: Aug 30, 2019 18:25:30 IST