Will Durant, a philosopher, has written that the doubt he had in his youth on whether the democratic system has failed has later amazed him and made him introspect (Fallen Leaves, 2014). The cause for this unpleasant question was a review of the bad habits of American democracy. Social thinker Henry A. Giroux describes in another recent book how unimaginative and unthinking American people have turned their country into a fertile land for corporate democracy (The Violence of Organised Forgetting: Thinking Beyond America’s Disimagination Machine; City Lights, San Francisco).
The gist of these observations is that the falling standards of society, its constitutional institutions and media lower the standards of democracy itself. Journalism that thrives in sensationalism and superficiality and the tickling visualisation of politics deny mature democratic thoughts. Courts are constitutional institutions that should always be vigilant against this deterioration. But if judicial establishments too succumb to the media sensationalism that is seen today, the future of democracy will be dark.
The practice of courts over-enthusiastically intervening in matters and issuing instructions on the basis of mere accusations, without properly assessing things and without making an attempt to examine the credibility or circumstances of the accuser, is not judicial activism but litigious activism. This writer himself had expressed this opinion about 20 years ago (Mainstream, 19-10-1996).
I am not happy to repeat now the argument made then that the situation created when the errors made by courts come together with the exaggerated, cynical and superficial role of the media and the business of making accusations is not healthy for democracy. In the context of the accusations made against the chief minister before the Solar Commission and the instruction given by the vigilance court in Thrissur to prepare an FIR, political and legal issues relating to our democracy must be discussed.
Legal aspect
The legal principle of Lalitha Kumari case that if allegations are made, including in corruption cases, an FIR must be registered and an inquiry must be done is not properly understood even now. The verdict written by the chief justice of the day, Sathasivam, for the constitutional bench details it. It also explains the nuances of meaning of Section 154 of the Criminal Procedure Code.
Paragraph 120.1 of the verdict states that an FIR is mandatory in cases where the police officer can arrest a person without warrant. However, the duty of the police officer to register the case should be assessed in the context of the nature of the accusation and the other paragraphs in the verdict.
Paragraph 120.3 states that “if the inquiry discloses the commission of a cognizable offence”, an FIR must be registered. This means there must be an inquiry and a “disclosure” of the offence as a result of the inquiry between the accusation and the FIR. The offence need not be proven, and evidences need not be collected. But, an inquiry and a disclosure of offence are undisputedly needed.
Paragraph 120.4 describes the duty of the police officer to register an FIR. But it must be read with paragraph 120.3. Paragraph 120.6 makes it clear that the interpretation that an FIR is mandatory even if an offence is not revealed by an inquiry is not right in the case of corruption allegations.
Paragraph 120.6 states that preliminary inquiry can be done in corruption cases. And paragraph 120.7 points to the balanced approach to protect the rights of the accused and the complainant.
The vigilance court’s instruction to register an FIR on the basis of the accusations made against the chief minister before the commission inquiring the solar fraud case was a hurried one. What makes the vigilance court’s intervention legally weak is that there has been no inquiry on this matter and no subsequent disclosure of an offence.
A preliminary inquiry should consider the nature of accusation, the credibility of the accuser, the circumstances, the delay and the inconsistencies. More than that, when procedures are under way as per the Commissions of Inquiry Act, 1952, another agency getting forced to conduct a parallel inquiry as per a court order will create strange situations.
Democracy will be meaningful only when those in power are subjected to incisive and factual criticism. Elected representatives are duty bound to handle authority without giving scope for allegations. However, a situation in which authority and regime are determined only on the basis of the business of accusations should not arise. Not just the ruling class, but even the opposition, the media and the general public should have this realisation. The people in power should pay attention to remain undoubtedly clean.
However, the situation in the state today is just the opposite. The public must decide its future not on the basis of only accusations, but on the basis of mature and incisive assessments of such allegations.
(The writer is lawyer in the high court and the Supreme Court)
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