Report No. 239

4.3 Rationale behind keeping track of the cases of influential Public me.- pros and cons:

4.3.1 Before proceeding further, it needs to be considered. whether the criminal cases against influential persons in public life should be treated as a class and special attention should be paid to prioritize disposal of such cases. In other words, whether the delays shall be viewed more seriously in such cases when compared to delays in other cases and whether they should come up for special scrutiny. In this context, there can be two views reflecting the pros and cons of the issue. They are summarized below:

4.3.2 Criminal justice has to be administrated with even hand and there cannot be a different treatment of classes of accused. The fact that the accused are public persons occupying the positions of authority in the governmental structure should not normally be a ground to devise a special procedure for investigation or trial of such persons. One has to view the issue from the perspective of Article 14 as well and steer clear of the dimension of that Article. It is trite that expeditious investigation of offences and trial is a facet of rule of law and a component of Article 21 of the Constitution.

The society at large has legitimate interest that the persons accused of serious crimes should be proceeded against with promptness and expedition and the process should not get tainted by undesirable or extra-legal practices. Further, viewed from the point of view of the accused, speedy trial is a fundamental right under Article 21. For the achievement of these objectives, it does not matter who the accused is, whether an important person or a common man. Public interest demands that investigation, prosecution and trials ought not to be allowed to drag on for years together.

The bottlenecks coming in the way of prompt investigation and speedy trial should be removed. Old cases, irrespective of who the accused is, should not be allowed to clog the system. The causes for delays should be identified and remedial measures should be taken to remove all bottlenecks coming in the way of speedy investigation and trial. Special Courts for the so-called influential persons cannot be constituted without reference to nature of offences or class of offences as it would be against the basic principles of criminal justice.

Any such differential treatment would attract the wrath of Article 14. There shall be uniform application of criminal law irrespective of the status of the accused. If there is material suggestive of the fact that the investigation is not being done swiftly at the instance of such influential public men or they are resorting to dilatory or intimidatory acts, that may be a ground to put in place such measures as are necessary to remove obstacles, but not to place all the cases involving Public men en bloc on fast-track irrespective of the age of the case.

4.3.3 On the other hand, it is argued with much force that the cases of those who are in a position of authority or those who can wield considerable influence by virtue of their political affiliations and proximity to ruling party create the need to bestow special attention by the police and the Court system. Needless to say that such cases have social ramifications, because those persons in spite of their criminal disposition can pervasively enter and influence the political and democratic process.

It hardly needs emphasis that the criminalization of politics is a malady that is seriously bothering the society at the present juncture. According to the civil society alliance of the Association for Democratic Reforms and the National Election Watch, 153 Members of Parliament are accused in criminal cases, out of them 74 are accused of serious offences such as murder, attempt to murder, abduction, etc. 1 If this situation is allowed to remain, the fundamental right of citizens to have a clean democratic process will be in jeopardy.

It is, therefore, necessary to keep a tab on such cases only to ensure that the course of justice is not obstructed or deflected by extraneous influences. If the accusations against such persons remain uninvestigated or investigated in a slip-shod manner, it gives rise to a reasonable suspicion that the police is in the grips of their influence.

If the things are left out to take their own course without any scrutiny or monitoring at higher levels, the criminal justice process will take a devious course and throw up a challenge to the rule of law. Such situations should, therefore, be taken care of and in doing so, the authorities concerned do not adopt any discriminatory treatment. On the other hand, the community faith in the administration of criminal justice is thereby enhanced.

1. http://news.bbc.co.uk, visited 24.02,2012

4.3.4 So also, at the stage of trial of criminal cases involving the aforesaid persons, it is expedient and desirable to keep an eye over such cases to make sure that undue delays are not caused by reason of the attempts made by them to protract the trial or to make the witnesses scarce. It is only for this limited purpose, special attention must be bestowed on such cases so that the trial will progress unhindered, as is expected of the system and nothing more.

4.3.5 The Commission is of the view that the cases of influential persons in public life need to come up for special focus for the reason that the experience shows occurrence of long delays both in investigation and trial. This is because of the influence they can wield with the Police and witnesses. Delays are also often caused by their prolonged abstinence from the court proceedings and the Police not taking effective steps to produce them in Court.

Secondly, the persons holding public offices have a role to play in democratic governance and the people have legitimate expectation that the elected representatives are clean and free from criminal misconduct. Thus, public are equally interested in early conclusion of trial. The cloud cast on them should not linger on for years and decades.

4.3.6 In this context, it is useful to refer to the pertinent observations made by the Supreme Court. The Supreme Court in Ganesh Narayan v. S. Bangarappa, (1995) 4 SCC 41 observed: "the slow motion becomes much slower motion when politically powerful or high and influential persons figure as accused". The Supreme Court cited with approval the following observations of Krishna Iyer, J. in Re Spl. Courts Bill, 1978, (1979) 1 SCC 380:

"Courts are less to blame than the Code made by Parliament for dawdling and Government are guilty of denying or delaying basic amenities for the judiciary to function smoothly. Justice is a Cinderella in our scheme. Even so, leaving V.V.I.P. accused to be dealt with by the routinely procrastinating legal process is to surrender to interminable delays as an inevitable evil. Therefore, we should not be finical about absolute processual equality and must be creative in innovating procedures compelled by special situations".

4.3.7 In that reference under Article 143 of the Constitution, the legality of setting up of Special Courts to investigate the offences committed by persons who held high public or political offices had come up for consideration before the Supreme Court. The Special Courts were ordained to be set up to try the offences alleged to have been committed during Emergency (in 1976) and some months prior to that. The constitutional validity of that provision was substantially upheld. However, in so far as the offences committed prior to Emergency is concerned, the Supreme Court did not approve the rationality of such classification.1

1. 15 Ibid, per Chandrachud, J., para 103, at 439