THE integrity of the criminal justice system rests on three pillars — impartial investigation and arrest by the police, competent and vigorous prosecution, and impartial judges.

After the Gujarat pogrom and discovery of Hindutva terror all three have come under a cloud. What is sad and disturbing is that few have cared to protest. This is in glaring contrast to the national outrage in the UK following the murder, in a street in London on April 22, 1993, of a black teenager Stephen Lawrence by five or six white youths.

The Police Complaints Authority, a statutory body, found that London’s Metropolitan Police Service had bungled the investigation. The home secretary, Jack Straw, instituted an inquiry. Headed by Sir William Macpherson, it found “institutional racism” in the Metropolitan Police.

Inquiries into communal riots have been a whitewash.

In India, bar the cases till the early 1970s, reports of commissions of inquiry into communal riots have been a whitewash while very few prosecutions of persons guilty of crimes against Muslims, Sikhs, Christians and Dalits have succeeded.

Justice B.N. Srikrishna’s report on the riots in Mumbai in 1992-1993 found that “Police officers and men, particularly at the junior level, appeared to have an in-built bias against the Muslims which was evident in their treatment of the suspected Muslims and Muslim victims of riots.

“The treatment given was harsh and brutal and, on occasions, bordering on inhuman, hardly doing credit to the police. … The bias of policemen was seen in the active connivance of police constables with the rioting Hindu mobs on occasions, with their adopting the role of passive onlookers … and finally, in their lack of enthusiasm in registering offences against Hindus even when the accused were clearly identified….”

The National Investigative Agency, a central organisation, submitted last May a charge sheet dropping all charges against six of 11 accused in a case involving fanatical right-wing Hindus in the blasts in Malegaon in 2006 in contradiction to the Maharashtra state’s anti-terrorism squad’s findings. Gujarat witnessed cases of prosecutors behaving like defence counsel.

Were it not for the improper behaviour of Morarji Desai; Bombay’s home minister, and that of Jamshed Nagarvala of the CID, Gandhi would have escaped assassination on Jan 30, 1948. Following a bomb explosion at his prayer meeting on Jan 14, Nagarvala asked Desai for permission to arrest the Hindu Mahasabha leader V.D. Savarkar. It was refused.

In terms of legality, Nagarvala was not bound to seek or follow the minister’s order; the minister himself had no business instructing a police official. In 1970, J.L. Kapur, a former judge of the Supreme Court, made salient points in the report of the commission of inquiry into the conspiracy to murder Gandhi.

The report said: “In the opinion of the commission, although a home minister is in charge of the police and police administration and answerable to parliament about it, still he has no power to direct the police how they should exercise their statutory powers, duties or discretion.

“Both under the Criminal Procedure Code and under the Bombay City Police Act, the statutory duty is of the police both to prevent crime and bring criminals to justice. Therefore, the minister can and could only pass on the information of the commission of an offence.… If the minister were to give orders about arrests, to arrest or not to arrest, that would be an end of the rule of law.”

It is the constitutional duty of the minister, as head of the department in charge of the police to ensure that the police discharge their functions properly and diligently. He cannot issue specific instructions as to the manner of exercise of their statutory powers. That would amount to interference.

But, unless statutory safeguards are provided to the police and punishments prescribed by the law for political interference, judicial dicta alone will be of no avail.

The Supreme Court of India has delivered umpteen rulings on the independence and integrity of prosecutors. The reality is that they are appointed and are removable by state governments which pay their salaries or fees.

Few can emulate the intrepid prosecutor Ms Rohini Salian, who went public with the charge that she had been asked to ‘go slow’ in the cases involving Hindu accused in the Malegaon case.

A corrupt judge aborts the course of justice. A corrupt prosecutor ensures it does not commence. On Oct 1, 1986 the Crown Prosecution Service came into being with the director of public prosecution at the head. The Prosecution of Offences Act, 1985 buttressed the traditional independence of the DPP. He works under the superintendence of the attorney general, who in turn, acts independently of the government in such matters.

The constitution establishes an independent election commission. There is no reason why it cannot establish an independent director of prosecutions. The police will report to him.

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, July 30th, 2016