Arun Jaitley
The founding fathers of our Constitution envisaged the Directive Principles of State Policy in Part IV of the Constitution. Article 44 of the Constitution states “The state shall endeavour to ensure for the citizens a uniform civil code throughout the territory of India”. Uniform Civil Code can only deal with rights of the citizens and not religious rituals. However, some people misguided themselves to believe that a uniform civil code would be an interference in their religious rights. The framers of our laws while still permitting separate personal laws dealing with civil rights did not make any exception with regard to criminal law. A crime is a crime irrespective of the birth marks of the criminal. His religious beliefs cannot determine his guilt or innocence.
The Union Home Minister, Sushil Kumar Shinde, has announced that he would be writing to all Chief Ministers to review terrorism cases against members of the minority communities. Obviously, he has only religious minority and not linguistic minority in his mind. He expects the State Government to set up Review Committees to deal with cases against a category of citizens and not all persons who have been charged for terrorism offences. This raises certain fundamental questions with regard to the propriety and the legality of the move initiated by the Home Minister.
The move is clearly political. There are several persons charged with offences of terror in India. The provisions have been invoked against those associated with certain radical Islamic groups. In the last few years there are a few members of the majority community also who were charged in a set of cases. Maoists have been charged in terror offences in several parts of the country. The provisions of the anti-terror laws have been invoked against some persons in the North-East and Jammu & Kashmir. There are pre-2004 cases pending under POTA. Subsequent cases are predominantly under the Unlawful Activities (Prevention) Act. A move that only a certain category of cases would be reviewed on the eve of election is intended to link the otherwise uniform application of criminal law with vote bank politics.
Such a move is clearly unconstitutional. Article 14 guarantees to every citizen a right to equality. There can be a reasonable classification based on an intelligible and distinctive criteria. The criteria that the facility of reviewing terror cases would be extended to persons depending on which faith they believe in or are born into is clearly unconstitutional. A crime does not cease to be a crime because a criminal practices in a particular faith. States are now being mandated by the Union Home Ministry to review cases of only persons belonging to a certain faith. An atheist, agnostic and believers in the Hindu faith would admittedly be kept out. A contradiction would also be there. The believers of Hindu faith would constitute a minority in Jammu & Kashmir and certain States of North-East. Would they be eligible for review in these States or would the majority in these States be treated as national minority and be eligible for review of cases? What would happen to cases (say against the Maoists) where some of the co-accused belong to one religion and others belong to a different community. There can be no doubt that the criteria adopted by the Union Home Minister is clearly violative of the constitutional guarantee of equality since it is not based on rationale or intelligible criteria.
The power to withdraw a prosecution is circumscribed by section 321 of the Criminal Procedure Code. It is only a Public Prosecutor who after application of mind for ‘good reason’ has the power to move the court seeking withdrawal of a case. The judge has to apply his mind to allow the withdrawal of a case. Criminal law does not provide for any review Committee for withdrawal of pending cases where charge sheets have been filed. Whenever law makers have felt the need, they have specifically provided for such a Review Committee. An extra legal review committee which substitutes the discretion of the public prosecutor and the judge follows a procedure unknown to law. The same is clearly violative of even the provisions of criminal law.
The directive/advisory of the Union Home Minister to the States to discriminate between criminals on basis of religion is based on an improper policy. It violates the constitutional guarantee of equality. It is violative of the fundamental principles and provisions of criminal law. The States are not bound by such unconstitutional directives of the Home Minister.
(The author is Leader of the Opposition in Rajya Sabha)
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