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Rule of Law higher than the law

A CBI investigation under the supervision of the High Court must be made mandatory in all cases where the Central and State governments do not agree on such a course of action, says G RAMACHANDRA REDDY


Is justice getting served or hanged due to delays and dishonest investigations in high profile crimes? The issue is “consent” of State Government for a CBI enquiry where State is accused of dragging its feet in prompt and truthful investigation. Does such legal requirement of consent conform to Rule of Law (Principle of Equity and Justice) which is universal? Can the accused judge his own case?

A debate has been raging for the last few weeks on the death of Sushant Singh Rajput, namely whether it was suicide, or if someone abetted it or was it a case of murder. Nothing has been determined yet. At the outset, Bombay police came in for criticism for dragging its feet in prompt and honest investigation of the case.

After hearing from the media about the inaction of Bombay police and the alleged involvement of people in the political establishment, a CBI enquiry was demanded by the victim’s family and others. But the Maharashtra government quoted law to say that without its consent the CBI cannot step in since law and order is a state subject. The principle of federalism was also cited by the state government.

Meanwhile, the Bihar Government stepped in and registered a First Information Report. A CBI enquiry into criminal cases where the State government’s role is suspect, and it refuses to hand it over to CBI hinges on the discretion of High Courts or the Supreme Court. Costs involved in moving to High Courts and Supreme Court are prohibitive and not affordable to common man and there is possibility of evidence getting sabotaged with efflux of time.

Therefore, the battle is between truth and legal cobwebs, between Rule of law (Equity and Justice) which is a universal principle and laws and rules which are country specific. If it is true that as per legal provision, the consent of the State Government is required for CBI operation, gone are the days when such consent was easily given. Now due to increasing incidence of crime and corruption on the part of political and other supportive establishments, such consent is not given. The states want to sit in judgement over their own actions of corruption and crime.

It is here that the “principle” of Rule of Law (Equity and Justice) and the legal provisions or the principle of federalism clash. No doubt there is no absolute federalism in law and order and crimes. Criminal investigation is included in the concurrent list. So also the Constitution provides for imposition of President’s rule for failure of law and order by overthrowing legally elected State governments.Thus, there is no watertight separation of crime and law and order between States and the Centre.

Laws/legal provisions are not completely monitored with good intension or with common sense. The vested interests in society and government have a hand in framing them. This also applies to amendments. Let me cite a couple of examples. The NDA-led Central Government amended some time ago the anti-corruption Law (The Prevention of Corruption Act, 1988). Its key provision of disproportionate assets was diluted through amendment. The criminal provision of “abuse of public office” was deleted. What public purpose is served by these amendments, was there any social or political movement to dilute the law? In the same way, it is learnt that the Right to Information Act was amended. There is no public purpose served in weakening of anti-corruption laws or the RTI Act 2005.

Over the years, there had been progressive growth of anti-corruption law by adding the provision of disproportionate assets and abuse of public office. This growth has been nullified in a single stroke. Therefore, in the situation where the Centre and States do not agree on a CBI probe for an offence that occurred in a particular state, the matter should not be left to judicial discretion. Instead, it is better that a legal provision is made that in all contentious cases, CBI enquiry should be mandatory with a caveat that such enquiry is supervised by the respective High Courts of the day. This is a sane middle path in the route to discovery of Truth and Justice.

No state or person can sit in judgement over its acts of omission and commission. That is the first principle of Rule of Law. All laws and constitutional provisions and federal principles need to conform to the Rule of Law which is a universal principle (Dharma) and for furtherance of which our laws, rules and constitutions are framed and institutions established.

In the Rajput case it is highly unlikely that anyone will get convicted. Dishonest medical opinions are well known to police professionals. The autopsy report is under the lens for irregularities and infirmities. One missing link in a chain of 10 is enough to give benefit of doubt to accused and acquit him. Therefore, it is necessary that autopsies in all contentious cases are conducted more transparently where one family member of the deceased and a concerned citizen from civil society are present.

The writer is a retired Inspector-General of Police.