GREAT ESCAPE: THE STRANGE CASE OF LALU YADAV
Ram Jethmalani has done it again. His legal acumen and forensic ability collapsed the Hawala case against L.K. Advani into an untidy legal heap to obviate further trial. Hawala transactions did occur. The ‘who-dun-it’ was known. But Jethmalani paralysed the law on a technicality. The flamboyant Lalu has amassed a lot of power and wealth. Stories about this are legendary. Somehow he has managed to save himself. At some point in time he had the protection of Kapil Sibal whom he made a Rajya Sabha MP. Now “Ram” has found an escape route. The difference from the Hawala case is that Lalu has an acquittal. Advani did not go to trial. The controversy centers around whether the state government could appeal the acquittal to the Patna High Court; and then the Supreme Court. On 20 September 2007, the Patna High Court felt that an appeal against Lalu’s acquittal lay. Lalu and the CBI, which was investigating his case, appealed to the Supreme Court which decided that the Patna High Court was wrong. Accordingly, if the Union government did not appeal, Lalu was scot-free on these charges after the trial court’s verdict of acquittal.
Is this a case where the ‘law’ has been ‘hoodwinked’ by politics? Common sense would suggest that a serious corruption case should not just stop at a trial court acquittal. Any politician, other than Lalu, may have wanted exoneration from the higher court. But not Lalu. It would appear the Manmohan Singh-Sonia Gandhi government wanted to give Lalu a reprieve. The politics arose in this way. In 1997, the Patna High Court ordered a CBI inquiry into these charges. The CBI charged Lalu with assets of Rs.46,26,827 in excess of known sources of income under the Prevention of Corruption Act (PCA). As the state police was not the prosecuting authority (since Lalu was in power) and CBI prosecuted, it was for the CBI or Central Government to appeal. But neither appealed. Both claimed that the investigation had been conducted properly. Justice Lodha’s judgment (for Chief Justice Balakrishnan, himself and Chauhan J) of 1 April 2010 states that the CBI informed the Court that “the central government after considering the conclusions and findings of the trial out took a conscious and considered decision that no ground whatsoever was made for filing an appeal from the judgment”. Good grief! Is this politics? Surely! Was the investigation that bad? Was the trial court judgment that good? Who took the decision not to appeal? Home Minister? Law Minister? On whose advice? The Attorney General? 10 Janpath? Suspicion will always lie that Lalu’s support was necessary to keep the UPA coalition alive.
Now, to the law. Justice Lodha is a skillful judge who has the uncanny ability to define and redefine the law at will. The judgment itself has abstruse references to dictionaries and 18th-19th century English cases – ignoring Justice Krishna Iyer’s dictum: “Lexicons and outdated moth eaten judicial expressions are not a safe guide to interpret law for the people”. In a panoramic sweep, Justice Lodha recounted that appeals against acquittal were not allowed in 1861 but were provided in 1872, 1882, 1898, 1955 and 1973. The controversy is whether the State government or the original complainant can appeal an acquittal? No doubt, because of the regime change, this means the State government of Nitesh Kumar – an arch enemy and rival of Lalu. The conclusion that an appeal can only lie at the instance of the Union government seems like intricate and involuted politics as well as bad law.
Normally, appeals are not allowed against petty cases (Section 376) and where the accused pleads guilty (Section 375). This is not a petty case or one where Lalu pleaded guilty. Lalu could have appealed against conviction (Section 374). But Lalu has not been convicted. Normally, the State government can appeal against sentence and acquittal (Section 377-8); and the Union government against sentence and acquittals (Section 377-8) when the CBI investigates the matter. But is the State government helpless where the Central Government refuses to appeal in CBI investigated cases?
For this we have to go to Section 378 of the Code. Normally, the State government can direct “the Public Prosecutor” to appeal “in any case” (section 378 (1) (b)). But, in this case, since the investigative agency was the CBI, it is said that the Central government can “also” direct “the Public Prosecutor” to appeal (Section 378 (2)). The operative word is “also”. As Omar Khayyam puts: “Yes! And if a single alif were the clue, could we but find it to the treasure house and peradventure to the master too!” Everything depends on this alif. “Also” should mean the state government can appeal in any case and the Central Government can also appeal. But, according to Justice Lodha, the legislature clearly maintained a “mutually exclusive division in the matter of appeal” of the Central and State governments respectively. Why? Surely, the State government was at least the notional complainant, and normally invites the CBI to investigate cases. But for this invitational consent, police investigation is normally a state subject. Here the CBI was brought in by the Patna High Court. Such crossing of federal lines by the courts has been approved by the Supreme Court recently. This should make no difference to the interpretation of the Criminal Procedure Code. The State government is a stake holder, not just for itself but also the rule of law.
It is this aspect that seems to be forgotten. The rule of law both protects the accused and ensures justice. To interpret the law in the manner Justice Lodha has done provides an immunity to Lalu not directly provided by the law. All that Lalu had to do was to persuade his political allies in the Central government to look the other way. Political corruption stalks through our polity in embarrassing proportions – no less in Lalu’s case where the acquittal should have been tested at the highest level. To block “access” to that level on a whim of the Central Government and the speculative interpretation of the law by the Supreme Court threatens federalism, justice and the rule of law.
But, one question survives. If the Union government declined to appeal, was this on the advice of the CBI which gave up on its own investigation? Or by Union government off its own bat? What does the file say? Could the Supreme Court or High Court have asked for the file to discern whether plausible reasons existed for not filing an appeal? Now that the investigation and decision has been made, in my view a ‘Right to Information’ application lies to probe the matter which is not forbidden by the RTI Act 2005 as the investigation is over (see Section 8(b) of the RTI Act).
Lalu may have won. But justice and federalism have suffered. Politics has intervened. The judges (including the retiring Chief Justice) have validated this political intervention. The judgment came on 1 April 2000. April Fool’s Day. Unfortunately this is no joke. It is the law of the land.