Politicians yes, but bureaucrats too The Supreme Court must enlarge the ambit of its direction to fast-track cases against elected representatives to include bureaucrats

Narender Hooda and Seema Sindhu  | SNS | New Delhi : In a Writ Petition pending for adjudication before the Supreme Court of India and even before adjudicating the matter finally, the Court has directed all High Courts to appoint special judges to fast track cases against elected representatives – apparently with the objective of sanitising “democratically elected institutions”. It intends to fast track not just cases under special legislations like Prevention of Money Laundering Act and Prevention of Corruption Act etc but all sorts of criminal cases against them including Indian Penal Code offences, regardless of their gravity.

That’s holy! It would be more interesting to watch out how the matter unfolds during arguments and how the Court finally gives it a piece of its mind.

A relevant Prayer clause in the Petition reads: “direct the Respondent- 1 (Union of India) to take appropriate steps to set up Special Courts to decide the cases related to people’s representative and public servants within one year and implement the important electoral reforms, proposed by the National Commission to Review the Working of the Constitution, Law Commission of India in its 244th and 255th Report and Election Commission of India”.

Going by the Prayer Clause, it seems the Petitioner takes only elected representatives into its circumference. But legally speaking the term “Public Servant” takes a wide range of people into its girth, as defined in Section 21 of IPC and Section 2 of the Prevention of Corruption Act. However, both the litigators and the Court have selectively narrowed the task to elected representatives.

This is evident from the Court’s own words: “The Court was of the opinion that such special consideration was required not only because of the rising wave of criminalization that was occurring in the politics in the country, but also due to the power that elected representatives (sitting or former) wield, to influence or hamper effective prosecution. Additionally, as legislators are the repositories of the faith and trust of their electorate, there is a necessity to be aware of the antecedents of the person that is/was elected. Ensuring the purity of democratically elected institutions is thus the hallmark of the present proceedings.”

It is strange that Caesar is under suspicion and Caesar’s Wife is beyond suspicion. It’s a biblical truth that there’s an iron welded nexus between politicians and bureaucrats. Honesty needs no friends, but dishonesty needs a group.

Though speedy justice is part of the edifice of any civilised society and this right accrues to everyone, every time the governments shrug their shoulders citing funds constraints to augment the inadequate judicial infrastructure.

Former Chief Justice of India TS Thakur once expressed his helplessness regarding arrears and scare infrastructure with a lump in his throat, breaking the judicial oath of not getting emotional. The Court may justify fast tracking a category of cases like the rape and POCSO cases or now a class of people’s cases on the anvil of “intelligible differentia” – this is an exception to Article 14 which guarantees every person the right to equality before the law or the equal protection of the law.

While Article 14 forbids class legislation, the doctrine of intelligible differentia permits classification or differentiation supported by reasonable grounds of distinction. However the test for the intelligible differentia principle is that there must be a substantial basis for making the classification and there should be a nexus between the basis of classification and the object sought to be achieved.

The Court has already spoken its mind on the rationale behind fast tracking cases involving elected representatives, but what it seems to have overlooked is that the definition of Public Servant takes a wide range of people into its fold and fast tracking cases only of elected representatives would be unjust application of intelligible differentia. Even if this wider definition of Public Servant is not pleaded before the Court, it must rise to the occasion to involve bureaucrats in this class trial to meet the full objective. It would be pertinent to mention here the most early and most famous conviction in the history of politics of former Chief Minister of Haryana OP Chautala in the JBT teachers’ recruitment scam. Interestingly, the scam was opened up for legal scrutiny by a bureaucrat, Sanjeev Kumar who went to Court saying that the CM had forced him to change the original list of selected candidates.

It was argued by Chautala that the bureaucrat was incited by his political rivals to annihilate him. It is ironic that bureaucrats remain silent when it is their duty to speak. Becoming whistle-blowers only after retirement has become fashionable. Not going behind their motives, the moot point is that corruption involves teamwork between politicians and bureaucrats, and it would be unfair to leave bureaucrats out of the net of fast track courts. It takes two to tango and sometimes yes three to tango. It would only partially solve the purpose of the Court to sanitise the system, netting only elected representatives into speedy justice. Further, it’s a gospel truth that Indian judicial system is creaking under immense work pressure and in that scenario, cognizant of scarce resources, the Court may also consider speedy trial of cases against “Public Servants” on basis of gravity of offence.

Elected representatives are vulnerable to vexatious and vindictive accusations and a gravitybased fast track trial would save the judiciary’s time and resources for dispensing justice to ordinary people whose faith in the judicial system is chipping off like plaster from unrenovated walls. George Orwell had famously said: “All animals are equal, but some animals are more equal than the others.” Politicians and bureaucrats together belong to the latter category and the Court must deal with them with an equal hand.

The writers are Senior Advocate and Advocate, respectively, practicing at the Supreme Court.