JAMSHED Nagarwala, an exceptionally able deputy commissioner of police in charge of the Bombay CID, was disturbed by the first and unsuccessful attempt on Gandhi`s life on Jan 20, 1948, by Madanlal Pahwa. Nagarwala sought Bombay home minister Morarji Desai`s permission to arrest Savarkar, a leader of the Hindu Mahasabha. Desai refused.
In law, Nagarwalla was not bound to seek any minister`s permission and the minister had no right to speak. But the ministers, new to power, had a disdain for the law. (Read The Faltering State by that upright of ficer of the highest rank who rose to be head of Pakistan`s federal police. His account of political interference is shocking.) In law, Nagarwala had no business to seek Desai`s permission and Desai had no right to give or refuse it. But for this, Gandhi`s life might have been saved.
The law is clearly stated by a British judge of the highest eminence, Lord Denning: `I hold it to be the duty of the commissioner of police of the metropolis, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought. But in all these things he is not the servant of anyone, save of the law itself.
No minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.
The police force is a creature of the police law that no minister can override. `Every responsible citizen has an interest in seeing that the law is enforced: and that is sufficient interest in itself to warrant his applying for certiorari or mandamus to see that it is enforced,` wrote Lord Denning.
In January 1996, India`s supreme court observed: `Our intelligence agencies have men of high competence … but unfortunately they function only with people in power … We are constrained to say that the people in power have completely bent it [the investigating agency].
AreportoftheNationalPoliceCommission of August 1979 recalled: `As f ar as investigative tasks are concerned we have a clear ruling from the supreme court that the nature of action to be taken on conclusion of investigation is a matter to be decided by the police only and by no other authority… .
`It may, therefore, be safely projected as afundamental principle governing police work that the investigative tasks of the police are beyond any kind of intervention by the executive or non-executive. Any arrangement in which the investigative tasks of the police are sought to be brought under executive control and direction would go against this fundamental principle spelt out by the supreme court and hence should be deemed illegal.
In 1967, a special bench of the Calcutta high court authoritatively stated the law in the famous `gherao` case: `The criminal law of the land is principally contained in the Indian Penal Code and the Code of Criminal Procedure. The former lays down the substantive law and the latter the procedural law. There are police acts which are applicable in various jurisdictions. Various other acts have declared the commission of certain acts to be penal offences. … Once the laws are made, whether substantive or procedural, neither the governor nor the cabinet nor the ministers nor a subordinate executive authority has the power to add to ordetract from its content, to interfere with its working… .
In The Role of the Supreme Court in American Government, the special prosecutor Archibald Cox, mentioned his dilemma in the matter of the Nixon tapes. `The habit ofcompliance the notion that a powerful executive official has no choice but to comply with a judicial decree is a f ragile bond.
Who could say in an age of presidential aggrandisement that if one president succeeded in his defiance, he and others might not follow that example until ours was no longer a government of law? How far was a man justified in provoking this kind of constitutional crisis with the outcome so uncertain? “My fears proved fantasies. President Nixon`s announcement [of sacking Cox] evoked a public reaction which his chief aide later described as a `fire storm`. Within seventy-two hours, the president changed his mind and promised to comply with the decree. A bit later, a new special prosecutor was appointed and the independence of the Watergate Special Prosecution Force was restored.
The judges nobly stood by the nation. The nation must stand by the judges and see to it that the government abides by the court`s orders and the law of the land. The writer is an author and a lawyer based in Mumbai.