Corruption: No instant Justice possible

By Cleofato A Coutinho
26 August 2015 21:55 IST

The grant of anticipatory bail to Digambar Kamat and denial of bail to Churchill Alemao has become controversial over issues extraneous to law and crime control. Perhaps the only other anticipatory bail that created such hype here, is the one granted to Dayanand Narvekar in the infamous ticketgate.

The Louis Berger bribery scandal has rocked Goa recently. In the gloomy picture of administration riddled with corruption, with zero accountability, the society is baying for instant justice. In 2011, it was death to the corrupt and the super watch dog jan lokpal was    advocated as a panacea to all evils. In 2012 it was death to the rapists and a new was demanded ‘here and now’.   

Due to our slow investigative and judicial process, the justice is not seen as done and the demand for offenders be sent to the gallows with minimal due process is seen as the only solution. The collective conscience of the society wish to avenge corruption through ‘jail the corrupt’ even before conviction. The anger is understandable.

But India takes pride in telling the world that even Ajmal Kasab was given a fair trial. We follow certain civilized principles (a) the offender must be proved guilty beyond doubt (b) the investigation and trial shall be fair and the fairness includes right to silence. Our law accepts that no innocent be punished and in the process if many offenders goes scot free, that is tolerable.  

The Justice Malimath committee on criminal law had recommended that the court should be empowered to question the accused and if the accused continues to remain silent and/or refuse to answer any question put to him the court would be entitled to infer adversely from that silence. The recommendation being against the principles of ‘right to silence’ were vociferously rejected. Possibly Fali Nariman then a Rajya Sabha MP was the sole dissenter.Let us make no mistake about it. In the discovery of truth in the investigation or trial, the offender is almost a mere spectator! The investigator has to collect enough material despite the offender’s silence to nail him.

Despite such stringent due process there has been some convictions and  two  of them being of two sitting chief ministers both under Prevention of Corruption Act. Both are now pending before the Supreme Court with one conviction upheld and the second one upset. Quick and sophisticated investigation with dedicated fast track courts dealing only with the corrupt could be a way out on the criminal side with no compromise on the civilized principles.

Arnesh Kumar (SCC 2014(8) 273) accused of dowry harassment case and denied anticipatory bail, actually rescued Digambar Kamat. When the accused is entitled to the right of silence the only question that had to be answered was, in what way, him being the custody would help, dig the truth?

The Supreme Court observed … “arrest brings humiliation, curtails freedom and casts scars forever. Lawmakers know it so also the police. There is a battle between the lawmakers and the police and it seems that the police has not learnt its lessons; the lesson implicit and embodied in Cr. P.C. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public “... Power to arrest greatly contributes to its arrogance so also the failure of the magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable...”.  

The court further stated that “…In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised”.

With such words, what option did the sessions judge have?  It was Divine intervention for Kamat that the investigating officer did not record reasons for arrest mandated by Sec. 41A Cr. P.C. God was not so kind to Churchill!

Proving corruption as a crime has always been difficult. There are no finger prints and no weapons or undergarments to be recovered. The booty may find its way beyond the shores. Like adultery, it is something that happens within four walls. This is not India’s problem only. Even American gangster Al Capone could not be convicted for any serious offence despite the FBI.

While keeping trial of corrupt within accepted principles, there are various other methods that are available and have not been pressed to bring accountability for corruption at high levels. To my mind the greatest unused weapon in the armoury of the state is attachment of assets more than the known sources of income.  Attachment can dry the tap of greed and drying that tap can be best accomplished if the ill gotten wealth is taken away and used for the state. In case of attachment, the burden is always on the offender and not on the state.

There is nothing wrong with corrupt act to be treated as a civil wrong additionally. It has to be a multipronged attack on the corrupt.  Serious fight against corruption can come only when there is no attempt to create a spectacle. 

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Cleofato A Coutinho

Cleofato Almeida Coutinho is a senior lawyer and one of the constitutional expert in Goa. A member of Law Commission of Goa, he also teaches at Kare College of Law in Madgao.

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