“No legislature in India, including its parliament and all the state assemblies, has any member with a criminal case pending against them”.

How would you like seeing such a headline in the international media? I am sure all Indians would be proud of having got rid of a taint that the country had to live with for over two decades. Rest assured, the country is fast moving in that direction. But is that a reason to rejoice? The answer is hinted, without much subtlety, in the following headlines:

It should be clear from these headlines that members of parliament and legislative assemblies accused of committing crimes will soon be a thing of the past not because (a) they will all be honourably acquitted in the cases pending against them, or (b) political parties will stop giving tickets to people with pending criminal cases or (c) voters will stop voting for candidates with pending criminal cases, but because pending criminal cases against politicians aspiring to contest elections will be withdrawn by governments in power.

Provision of withdrawal of criminal cases

The legal provisions for withdrawal of criminal cases are contained in the Criminal Procedure Code (CrPC) , Section 321 of which reads as follows:

“321. Withdrawal from prosecution.—The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal,— (a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences; (b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences…”

While this is the bare language of the CrPC, there are a large number of decisions by the Supreme Court and various high courts that provide detailed interpretations of the section. These are described in what are called “commentaries” on the CrPC. Given below are some of the excerpts from one of the better-known commentaries, The Code of Criminal Procedure by Sarkar:

“The statutory responsibility for withdrawal squarely vests on the Public Prosecutor. It is non-negotiable and cannot be bartered away in favour of those above him in the administration” (page 1605). “The withdrawal from prosecution is an executive function of the Public Prosecutor and the ultimate decision to withdraw from the prosecution is his; the Government may suggest to the Public Prosecutor that a particular case may not be proceeded with, but nobody can compel him to do so” (page 1605). “Grant of consent by Court on the ground that application for withdrawal filed by the Public Prosecutor in view of the Govt. order is bad in law” (page 1606). “Public Prosecutor cannot act merely on instructions of Government” (page 1607). “A Public Prosecutor must have full freedom so that he can function effectively, independently and fearlessly” (page 1607). “The fact that the Public Prosecutor has been instructed by the District Magistrate to apply for withdrawal is no reason. The trying Magistrate must not surrender his own independent judgment and act judicially. It is improper for the Public Prosecutor to communicate such intrusion of District Magistrate” (page 1610-1611). “The discretion must not be surrendered to the wishes of the police” (page 1611). “Consent cannot be given unless the Public Prosecutor satisfies the Court that withdrawal is in the interest of justice” (page 1611).

Can public prosecutors function effectively, independently and fearlessly?

Given that the entire edifice of withdrawal of criminal cases rests on public prosecutors, it becomes critical to assess if public prosecutors can indeed act effectively, independently and fearlessly. One way of making this assessment is to see how public prosecutors are appointed. Section 24 of the CrPC deals with this issue and says, inter alia:

“24. Public Prosecutors.—(1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. (2) The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case or class of cases in any district or local area. (3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district: (4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district.

Regarding assistant public prosecutors, section 25 of the CrPC states:

(1) The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates. (1A) The Central Government may appoint one or more Assistant Public Prosecutors for the purpose of conducting any case or class of cases in the Courts of Magistrates.”

Given that the appointment of public prosecutors is solely the prerogative of the state government, with some exceptions where the central government can also play a role, the issue whether public prosecutors can indeed “function effectively, independently and fearlessly” calls for serious reflection.

It may have been possible when the Criminal Procedure Code for India was first passed by the British parliament in 1861, and even for a few years after independence (it was amended in 1969, and was actually replaced by a new Code in 1973). But given the prevalence of the politician-bureaucrat-corporate nexus in the country, the probability of public prosecutors to “function effectively, independently and fearlessly” becomes seriously doubtful.

Assuming that the public prosecutor approaches the court with a request to withdraw from the prosecution presumably after applying his/her mind “effectively, independently and fearlessly”, then the court has to also act independently and fearlessly in giving or withholding its consent.

It is very sad that the situation of the judiciary in India does not inspire much confidence. This may sound pessimistic but the state of affairs in the high courts of Orissa and Allahabad is symptomatic. Of course, the ongoing confusion in the Supreme Court starting with the unprecedented press conference by four senior-most judges of the Supreme Court is deeply distressing. Given this state of the higher judiciary, how might the lower judiciary be functioning does not require much imagination.

The idea is spreading and getting sharper

As can be seen from the dates of the news headlines given above, this current phase of withdrawal of cases seems to have begun in 2015. Undoubtedly, it must have also happened earlier, but now it seems to be catching up. On February 7, 2018, the papers carried two news items, one from Karnataka (Karnataka minister in Assembly: ‘May drop small cases if Hindu outfits approach); and another one from Haryana (Haryana placates Jats, to withdraw 85 cases).

If proof was needed that these are not stray or one-off incidents, there was another headline on February 6, 2018, this one from UP (Muzaffarnagar riots: Drop cases against Hindus, BJP MP Sanjiv Balyan, khaps tell CM Yogi Adityanath.)

As the last three headlines show, withdrawal of cases is now becoming a “demand”. The Karnataka government, of course, seems to have gone a step further and ‘invited’ “Hindu outfits” to “approach” it to get cases withdrawn.

Another significant feature of the last three news items is that the demands are for the withdrawal of cases against members of specific religions and specific castes. What it means is that the law will either be different for different communities, castes and religions or at least it will be applied differentially. This is what amounts to subversion of the rule of law.

Can something be done?

With the public prosecutors and the judiciary being either not able to or not willing to “function effectively, independently and fearlessly”, and repeated calls for reforming the law and order maintenance machinery falling on deaf ears, the scenario appears to be dismal. It is widely known that the primary reason for this inability and unwillingness is the overpowering stranglehold that the political establishment has on all the organs of governance in the country.

The best we can do to think of ways to deal with this intractable situation is to turn to the architect of the constitution of India, B.R. Ambedkar. This is what Ambedkar said in his last speech in the constituent assembly on Friday, November 25, 1949:

“I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics.”

The question then becomes “How do we get good people to work our constitution?” The “instruments” for this, according to Ambedkar, are the political parties. So, if we need to make a serious effort to prevent this subversion of the rule of law, “We, the People” have to make sure our political parties work correctly. How that can be done is another story.

Jagdeep S. Chhokar is a former professor, dean and director-in-charge of IIM, Ahmedabad. Views are personal.