Has SC over-stepped its limits in Amit Shah's prosecution?

The English rule of law says the King can do no wrong, and this assumption may apply to the top ruler of the state as well. In a federation like India there are two parallel states, one of the Centre and the other of the states, exercising separate as well as sovereign jurisdiction in their own areas.

Neither the Constitution of India nor the criminal procedure code has specifically empowered the courts with the power of prosecution. The power of the court to order a criminal prosecution is a power invented by the Indian courts which is supported neither by the English rule of law nor the burgeoning power of American judicial review.

The United States supreme court — the most powerful judicial tribunal on earth — hitherto has not ordered the prosecution of any crime. The American courts only try prosecutions in their normal duty. But the Indian courts are not only ordering prosecutions but supervising and monitoring the investigation of the same. By tradition, history and practice, the prosecution of an offender is the sole job of the executive, namely, the cabinet.

Now, the news world is abuzz with the prosecution of the former Gujarat minister of state for home Amit Shah by the CBI on a charge of crime. If chief minister Narendra Modi had removed Amit Shah from the cabinet and ordered his prosecution that would have been a legally and constitutionally valid act.

In the present case, the top ruler of the state, that is the chief minister, did not order Shah's prosecution. Then, the supreme court interfered and ordered the prosecution of Shah in exercise of its power of judicial review. The court has ordered that the investigation and prosecution shall be conducted by the CBI which is the prosecuting arm of the Central government.

Narendra Modi is crying foul of a political vendetta and asks  whether the Central government and the state government are sworn enemies. The prosecution has brought to the fore unprecedented questions on constitutional law, common law traditions, and the separation of powers.

It has become an established practice for Indian courts to order prosecution of crimes which evidently is not their turf. The court, according to common principle of law, is kept away from criminal investigation; it has the power only to try the prosecution and render the verdict.

It is true that under the French system, the judge is associated with the investigation, and he is allowed to try the crime also. But India follows the English system, where the courts clearly keep away from investigation which is a police job.

Shielding a criminal
One may take the high moral ground and ask whether a victim has any remedy at all when the all-powerful executive is allegedly shielding a criminal. But we must remember that the courts are only a corrective agency and when the executive or the legislature is bent on sabotaging a prosecution, there is no escape from it. Even when a court orders a prosecution, its progress and effectiveness depend on the goodwill of the executive and the resources at its command.

When the CBI is directed to prosecute, it is important to note that that police force is under the command and control of the Union executive. If the Central government refuses to cooperate, the prosecution will only limp along with wrong excuses and the situation reaches an impasse.

In the Amit Shah case, as the Centre and the state of Gujarat are ruled by different political parties, the order to prosecute may find support from the Union executive. But suppose this prosecution was against a Congress party minister, the fate of such prosecution could have been different. The supreme court has established a very dangerous precedent by ordering the prosecution of a state minister by the CBI — an arm of the Union executive.

I will point out another dangerous aspect. As we all know, law and order is a state subject. Following the above logic, what prevents a state government from prosecuting a Central minister (in power) or even the prime minister? No law except the practice stands in the way. Of course, such an act will be devastating to the Centre-state relations, but that places the prime minister in the dock of a criminal. A dare-devil chief minister may do it.

Since law and order is a state subject and if a prime minister visiting state capital commits a crime (say, by smoking a cigar in the Raj Bhavan) why can’t he be prosecuted by the state? The supreme court through the Shah case is opening the law’s Pandora’s box.

Investigation ordered by the supreme court by CBI constitutes a state prosecution. A state prosecution can be withdrawn by the state at any given moment. If convicted, that sentence itself can be remitted by the state and thus for the state executive the escape routes are many. The court-ordered prosecutions usually fizzle out midway because of non-cooperation by the executive in providing sufficient material for prosecution.

The Gujarat minister may have committed a crime but it is the responsibility of the chief minister to remove him from power and prosecute him, and it is not for the Centre or the CBI. Regarding the head of the executive, the punishment shall come from the electorate.

(The writer is a retired judge of Kerala)