Legitimacy of a court appointed prosecutor

IN THE "TANSI land deal cases" and in the "Pleasant Stay Hotel case", the Madras High Court has directed the former Advocate General, Mr. K. V. Venkatapathy, to argue the appeal on behalf of the prosecution, and the incumbent Public Prosecutor, Mr. Gomathynayagom, has been excused of that job. The court seems to accept the plea that soft-pedalling by the newly appointed prosecutor may be a public concern, as the new prosecutor happens to be the appointee of the accused herself - Ms. Jayalalithaa. Here the court observation may look fair, timely and proper prima facie, but the order actually challenges the democratic practice throughout the world in prosecutions, especially in countries where separation of powers is an important constitutional rule.

Ms. Jayalalithaa, the main accused in the cases, is now the Chief Minister of the State after the trial court verdict, and the Chief Minister, being the head of the State Executive, is the chief prosecutor of the State also. When the people elect a Chief Minister on popular vote, that is the basic reason and power behind the Chief Executive (here I do not refer to the legality of Ms. Jayalalithaa's swearing-in as Chief Minister). A chief executive has got the power to order to prosecute or not prosecute any criminal, withdraw any prosecution, remit any sentence, or to release any prisoner without assigning any reason. That power is the power of the chief executive and historically unchallengeable.

American exampleOn the question of a court-appointed prosecutor, the Watergate case of America and Clinton-Lewinsky affair give us the guidance of an activist and loud legal dialogue. The Watergate prosecution team was accused of being soft on the defendants, who were Nixon loyalists, and so there was uproar in Congress that for a proper and effective prosecution of the case, there has to be a court-appointed or Congress-appointed prosecutor to defeat any clandestine scheme by Nixon to derail the prosecution case. About a Congress/court appointed prosecutor, there was a lot of media debate and congressional filibustering, and at the end of a full debate the move for a Congress/court appointed prosecutor was abandoned. It was accepted that Watergate and Nixon can simply be one more criminal case, and one more accused among the tens or thousands of cases and criminals standing in the dock of American courts, and American democracy cannot have special law for restructuring the President's right alone as an accused.

The plea that Nixon would influence and even coerce the prosecutors in his Justice Department and therefore these cases are doomed to fail against Nixon and his cohorts in crime, was rejected. (It is an irony of history that the Nixon appointed special prosecutors all turned out to be Nixon-hunters). Watergate cases were all along conducted by the Justice Department prosecutors or the Nixon appointed Special Prosecutors - Archibald Cox and Leon Jaworski - the notorious Nixon baiters. These two had been Frankensteins to their creator. It is a different question whether the prosecutorial pretensions of Cox and Jaworksi as extra-constitutional power-centres, had not been anti-traditional and illegitimate, but ultimately the American dialogue for a court appointed prosecutor ended in the court giving up that claim. Congress also resiled from the populist move for a Congress appointed prosecutor, concurring with the traditional view that prosecution is entirely an executive act.

An executive job

But in the case of Ms. Jayalalithaa, the court takes a different position, which the American courts have felt as too dangerous to take. It is not easy for a prosecution to succeed when the executive wants it to fail.

The Indian Constitution and the laws have built up checks and balances among the three wings of the government - the executive, the legislature and the judiciary. Prosecution has been an executive job, and that role cannot be changed without serious consequences to our politics and jurisprudence. We must also remember that even at the height of the Watergate bitterness, neither the court nor Congress questioned the power of President Nixon to pardon the five defendants who broke into the Watergate complex on the night of June 17, 1972. He could have pardoned himself and all other accused in the case, and there was no law stopping him from doing so. But it was his political morals that stopped Nixon.

In the TANSI cases and the Hotel case, the power of the executive to appoint a new prosecutor is a right which is constitutional and a power that cannot be challenged. Why are such powers given? These powers are there to protect the governmental system and state machine, and the right and wrong of an executive action will be determined only by the people in the next ballot. If Ms. Jayalalithaa wants to withdraw the prosecutions against herself, she can do so, and any such arrangement is within the powers of the chief executive. If the Chief Minister refuses to commit that way, it is not because the law does not allow it, but because she does not want it in the exercise of her political discretion. The power of the executive cannot be modified or curtailed to suit personalities and occasions, and the great merit of law is that it shall be applicable to all uniformly. Maybe the prosecution against a Chief Minister or Prime Minister will be great sensation, but it is illegal as well as dangerous to subject the law to a differing interpretation. The dictates of law often run counter to populist notions.

N. HARIDAS

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