By Sayan Chatterjee
A one-party rule at the Center came after a gap of about three decades. Three decades ago, the roles were in an inverted configuration from the present. The political party that was in opposition then is in power today. And the opposition party was today the sole guardian of power at the time. However, there are striking similarities in the style of governance employed by these unique ruling parties, despite the long time between them.

The most striking similarity is how the regime treats those who oppose the establishment. The mechanism used to assert power over the recalcitrant remains unchanged. Over the decades, the state has almost flawlessly invoked the offenses of “sedition” or “corruption” when seeking to discipline an adversary. This was the situation in the past and this is what remains unchanged in the present.

But the question is: why these two offenses of sedition and corruption? The simple answer is: it’s easy to accuse someone of sedition or corruption. Investigative agencies have considerable leeway under existing sedition and corruption laws. With a little creative thinking, a charge sheet on sedition and corruption can be drafted.

It is to the credit of the judiciary that most of these forced cases lead to an acquittal. This, however, does not cause any ripple or change in the actions of those who wield the levers of power. In India, the process is the punishment. By the time someone becomes accused in criminal proceedings, he or she becomes entangled in the dilatory criminal justice system that prevails in the country. Efforts must be made by such a person to avoid police custody and interrogation in custody, obtain provisional release to avoid arrest, obtain regular bail from the court, appear at all hearings … the list is long.

The hearing process can take years. Interlocutory orders made from time to time may need to be challenged in higher courts. All of this involves cost and time, both of which are in short supply in the modern world. So what happens after 10 years when the case is dismissed first at first instance and then on appeal? The accused lost 10 years of the best time of his life and also lost all his savings and is now in debt. In addition, the whole family, spouse, children, elderly parents were stigmatized. Seeing this person’s miserable state after his judicial victory, other potential dissidents are tempted to give up. The state’s objective has been achieved.

The dismissal of cases on political opponents sometimes leads to stinging situations which reinforce the thesis of the achievement of certain systemic changes in the current arrangement. During the trial, elections are held and the accused and his party win and become the government of the day. The prosecuting agency should now show considerable dexterity to sabotage the affair and ensure the acquittal of its current masters. A case built under pressure from the former government which is currently in opposition. We wouldn’t dare to speculate on what would happen when, after the next election, the tables were again reversed and the status quo ante happened on the ground.

Lest there be any misunderstanding, it must be said that there is an effective system of checks and balances, before a government agency proposes a court of law to prosecute a person. The complaint and the investigation report are reviewed at different levels within the department as well as the legal department and the prosecution branch and corrective action taken and gaps filled through further investigation and review. The seriousness of the offense and sometimes the stature of the accused determine how high the standard of review would be.

In such an elaborate arrangement as the one described above, the possibility of large-scale abuse is non-existent. But if one considers that even one abuse is too much abuse, then something in addition to the existing arrangement must be put in place. Investigative agencies and the prosecution branch are, after all, departments of government. So further intervention must come from those beyond the control of the government. At the same time, they need to be familiar with how government works and how it works. In short, the new arrangement must blend into the existing system and not degenerate into constant confrontation with investigative agencies. It would be a counterproductive result.

We are talking here about a referral body to which cases in which the state intends to prosecute for sedition or corruption are referred for consideration. The referral body then decides whether the cases fall under the provisions relating to sedition or corruption both in letter and, above all, in spirit. The latter, namely the spirit, is often not addressed by investigative agencies.

An action which seems apparently seditious can, after examination and reflection, be interpreted as patriotic in the spirit of things. A case of a procedural shortcut in the procurement of an asset may appear to be a case of corruption. However, upon detailed examination, this may turn out to be a bold move taken by a young officer who actually saved crores.

These two examples are extreme. However, there are a myriad of cases scattered across the country where the letter and the spirit of the law collide. A balance must be provided. The referral body would approve the agency’s proposed action if the case is sustainable both in letter and in the spirit of the law. Otherwise, depending on the failure of the case, the referring body would decide whether the case should be dropped altogether or whether another criminal section should be invoked. In this way, the allegations of government bias in the prosecution would be significantly distorted.

Today in the country we have a huge pool of retired civil servants who, during their years of work, have dealt closely with these matters as magistrates or as officers of the Ministry of the Interior or as ‘police or judicial officers. They know the nuances of this problem and how things can be stretched here or ignored there, in the formation of a case of sedition or corruption.

Their past experiences and familiarity with the issues make their advice much more palatable to agencies that would not view their counter-views as capricious. In short, the reference organization would rely on the collective wisdom present in this pool of retirees while giving its opinion. Such an arrangement would blend well with the existing configuration and help improve the purity of the process.

A criticism of the arrangement may be that it is inadequate for a problem that is far too large. Most of the prosecutions in this country are carried out by state governments. It is inconceivable that all states would willingly accept such a system. Such reforms are made on an ad hoc basis. If the Center slowly adopts the new arrangement, states will pull themselves together, especially if it is seen as adding value to the existing structure. Once most states nod, the courts would force the reluctant to come on board. It is questionable why the advice of the referral body should not be made mandatory for the investigating body. Such a course would not be desirable in two respects.

First, it would take a long time because existing laws would have to be changed. Second, there would be strong resistance as it would be seen as a reduction in the powers of investigative agencies. In general, small administrative reforms pay huge dividends. Their small and harmless nature allows them to slip discreetly into the existing system and blend in unnoticed. More importantly, it is easily doable if there is a will to act. As the Mahatma once said, the difference between what we do and what we can do would solve most of the world’s problems.

The author is the former secretary of the Indian government