COVER STORY

Setting out the legal rationale

Arun Jaitley, Minister of State for Information and Broadcasting, has been the principal spokesman for the Government on the Bofors issue in the Lok Sabha. Though prudently emphasising that the matter does not fall within his ministerial charge, he was willing to offer some comments on it as a lawyer. Following are excerpts from an interview he gave Sukumar Muralidharan on November 8:

Could you elaborate on the rationale behind the inclusion of Rajiv Gandhi's name in the charge-sheet?

In India, we have now developed a system where you have independence of investigating agencies. By this I mean, it is the police officer and the investigating agency who have functions under the Criminal Procedure Code to perform. It is no part of the obligation of the political government of the day to interfere in the investigative process. The administration of the police and the CBI can be functions of the State and Central governments respectively. But the investigative functions of those agencies have to be completely independent. In fact, there is a famous line in a British judgment which says that no Minister of the Crown can ever tell an officer of the law whom to charge-sheet or whom not to charge-sheet. In India, we have followed this principle. Our Supreme Court has reiterated it in the hawala and the fodder scam cases.

You had given some explanations on the logic underlying the inclusion of Rajiv Gandhi's name.

I am not arguing for the CBI, but as a former lawyer I can understand the legal rationale. First, under Section 173, the pro forma under which a charge-sheet is filed is prescribed by the CrPC. Column 2 speaks of accused who are not being put up for trial. It is past practice that the CBI continuously follows, that when a particular person may have been involved in an offence, but is either absconding or has died, his name is not put up for trial. Whatever practice or precedent has been applied to any deceased accused in the past has been followed in this case. It would be a very bad precedent to change that practice merely because a person is politically influential.

I gave the illustrations of Beant Singh and Dhanu. In the St. Kitts case, A.P. Nanday has been named in column 2. Now I am very sad to say that an argument has been put forward by the Leader of the Opposition that we are comparing her late husband to Beant Singh and Dhanu. This is wrong. Nobody is comparing the late Shri Rajiv Gandhi to those people.

You made a point that it is necessary to include the name in order to sustain the charge-sheet. Could you explain?

This case can go in three stages. It can be a case of bribery, or of abuse of position by a public servant to benefit a third party, or it can be a case of destroying or covering up evidence. In a conspiracy case, the principle of evidence is very clear under Sections 8 and 10 of the Evidence Act. Each accused person or each conspirator is bound by the acts of the others. Each is answerable for the actions of the others, because they are all done in pursuance of the common intention.

In a corruption case, the central figure is the public servant. The conspiracy revolves around him. Assuming that the allegation is that a public servant has abused his position to grant pecuniary advantage to a third person, can you only prosecute the third person without naming the public servant? If there is no public servant, the Prevention of Corruption Act itself would fall. And the central figure in this case is the man who took all the decisions, the man to whom Quattrocchi was close.

There could be a certain reservation in the public mind because there is no evidence yet that Rajiv Gandhi was a recipient of the illicit payoffs. Secondly, he is no more and if it is necessary to name him to sustain the charge-sheet, there could be some sympathy for the view that the charges have abated.

These are three different points. The first is, what is the direct evidence that the money was passed on to Rajiv Gandhi? It is a matter of individual culpability. The matter is before the court and it is not fair for me or anybody to comment on it.

But let me clarify on a matter of law. Under the PCA, bribery is not the only act of corruption. Section 13(1)(d) of the Act says that if a public servant abuses his position to cause pecuniary advantage to a third person, then he is independently liable. Money may or may not have reached him.

Finally, since Rajivji was a former Prime Minister and the leader of a very important party, should he at all be named in the charge-sheet? Well, in law, there is only room for evidence, there is none for sentiment. In another branch of law, can a person say that I am a very good social worker, so the bank should not file a case for recovery of dues against me? And here, because Shri Rajiv Gandhi is dead, he has not been charge-sheeted, he will not be put up for trial, no evidence against him will be led, no charges against him will be framed. He is named in column 2 because the legal requirement of the case is that evidence relating to his conduct will be led against the other accused. In a conspiracy case, you cannot break the links in the chain of events.

What about the argument that in the Baroda dynamite case, the government did intervene to have a name deleted from the charge-sheet?

This is again based on two incorrect surmises. Under Section 321 of the CrPC, the public prosecutor alone can move an application for withdrawal of a case. The government can only advise the public prosecutor, who will not be bound by this advice and would have to apply his mind independently. In this case, there is no prosecution against Shri Rajiv Gandhi. So Section 321 does not come in at all.

Secondly, one of the considerations for withdrawal is that it is in the public interest to do so. If after 13 years of investigations and breaking through the secrecy of the Swiss banking system, you have made a breakthrough in a case which shook the conscience of Indian society, the public prosecutor cannot possibly stand up and say that I want to withdraw prosecution. I think that would be the grossest misuse of the provision.