THE LAW Accountability

http://www.gfilesindia.com THE LAW | Accountability Probes to now hereAgencies investigating criminal charges against the influential should be accountable to an independent authority by NL RAJAH WHENEVER there is a piece of “breaking news” of a scandal relating to criminal acts by the powerful or influential, an all-too-familiar pantomime unfolds. In the beginning the news is broken; this is followed either by a stock denial or stoic silence by the person concerned; the political opposition or public interest groups then clamour for an investigation; a CBI probe or a police inquiry is ordered; then the powers that be sanctimoniously intone that the law will take its own course; silence follows while the investigation is on; a chargesheet is filed; finally, aeons later, when the incident has been given a proper burial in public memory, we hear that the concerned person has been acquitted. This state of affairs exists because there is a serious hiatus in our criminal justice dispensing system. An investigation begins with filing of a First Information Report. The proceedings during the course of investigation take place in a dark tunnel. No external agency or authority other than the concerned investigating team and the concerned Ministry can have access to any information relating to the investigation. Even the Right to Information Act is incapable of unearthing information regarding what is happening during the investigation. The charge sheet, when finally filed, is open to public scrutiny. Since it is ordained by law, the judiciary has been protective of this procedure. In Union of India vs Prakash P Hinduja (AIR 2003 SC 2612), the Supreme Court held that the manner and method of investigation should be left to the discretion of the police and even the magistrate cannot interfere. This position in law is exploited to the hilt when an investigation concerns those in power or the influential. Even a minor but crucial discrepancy in recording the results of an investigation or the manner of conduct of an investigation (which occurs, quite often, intentionally) becomes a brahmastra in the hands of a competent lawyer to make mincemeat of the case. The accused sings his way home. In short, there is no accountability to any independent authority during this crucial phase of prosecution. The US recognized this vital flaw in the criminal justice system quite early. In 1978, in response to the outcry that followed the Watergate scandal and the Saturday Night Massacre, Congress drafted the Ethics in Government Act or the Independent Counsel Act. The Act provided for the creation of the office of a Special Prosecutor, which later came to be known as the office of the Independent Counsel. This office would be used by the legislature or the Attorney General (either suo motu or on a request from the investigating agency) to investigate individuals holding or formerly holding certain high positions in the federal government and in the national election campaign organization. What happens at the State level to ensure accountability in investigation? As things stand, there is no accountability to any independent authority as regards investigations by the State police. The investigating agency, when it feared interference by the high and mighty, could ask for the probe and prosecution to be done under the watchful eyes of the Independent Counsel so that there would be no executive interference. The Constitutionality of this office was upheld by the US Supreme Court in Morrison vs Olson. The office has been put to good use to investigate charges of alleged use of drugs by Jimmy Carter aide Hamilton Jordan (1978), the Iran contra affair (1986-93), corruption charges against Mike Espy (1994-2001), the suicide of Vince Foster who was involved in the Whitewater scandal (1994-2001) and, most famously, the Monica Lewinsky scandal (1994-2001). The Independent Counsel supervises the investigation and, more important, insulates it from executive and other influence. IN India, recognizing a similar flaw in the criminal justice dispensation system, the Supreme Court, in the celebrated case of Vineet Narain vs Union of India, conferred powers of supervising investigation of sensitive cases involving public servants on the Central Vigilance Commission. Several directions were passed by the Supreme Court to insulate this authority from political interference. These directions finally (though not with the same vigour, but that is another story) assumed the status of legislation with the passing of the Central Vigilance Commission Act, 2003. The impact of this reform has been restricted, since the Central Bureau of Investigation (CBI) has jurisdiction to investigate a very limited category of cases, i.e. corruption by public servants of Central government departments, Central Public Sector Undertakings, economic crimes, terrorism, and the like. A large number of cases continue to be investigated by the State police. So what happens at the State level to ensure accountability in investigation? As things stand, there is no accountability to any independent authority as regards investigations by the State police. However, the Soli Sorabjee Committee which drafted the Model Police Act, 2005, has done commendable work in borrowing from the idea of the CVC and developing an authority called the Police Accountability Commission at the State level and Police Accountability Authority at the district level. The model Act (Sections 158 to 179) contemplates the establishment of an Independent Police Accountability Commission at the State level and in each district. The model Act draws from the concept of an Independent Counsel and the Central Vigilance Commission when it mandates, in Section 167 (2): “The Commission may also inquire into any other case referred to it by the Director General of Police if, in the opinion of the Commission, the nature of the case merits an independent inquiry.” The attempt here is not to curtail or interfere with the powers of investigation of the police but to ensure accountability to an independent authority rather than just the powers that be. The Commission is to consist of five members, ie, a retired High Court judge, a retired police officer from another State cadre, a person with a minimum of 10 years’ experience as a judicial officer, public prosecutor, practising advocate or a professor of law, a person of repute and standing from civil society, and a retired public administration officer from another State, provided that at least one member of the commission shall be a woman and not more than one member shall be a retired police officer. The Commission effectively provides a window to the dark tunnel of investigation, through the office of the Police Accountability Authority. Pursuant to the Supreme Court directions in the Prakash Singh case, many State governments have enacted a new police Act. However, virtually no State has provided for establishment of a Police Accountability Commission. The existing procedures have nothing to commend their acceptability other than their antiquity. Only public pressure can salvage the situation. The writer is a senior advocate of Madras High Court.