By: A.G. Noorani

A DISHONEST judge perverts the course of justice — a dishonest prosecutor ensures that the course justice doesn’t even begin. Recent events in the US, concerning the appointment of Robert Mueller as special counsel for the Russia investigation, holds lessons for every country governed by the rule of law.

The situation could not be murkier. Resp*ected by both Republicans and Democ*rats, the former FBI director was recently appoin*ted by deputy attorney general Rod Rose*nstein after President Trump’s dismissal of James Comey as FBI director had created a deep, nation-wide crisis of confidence. Attor*ney general Jefferson Sessions had to recuse himself and hand the investigation over to his deputy after it was revealed that he had kept suspiciously silent about his meetings with the man at the centre of these intrigues, Russian Ambassador Sergey Kislyak.

Kislyak was also responsible for Michael Flynn’s short stint as national security adviser being terminated by Trump after disclosures of secret conversations with the ambassador — which he lied about — were published by the press. In conversations with then director Comey, Trump sought pledges of loyalty and assurances that he himself was not under investigation, and capped it with a word of ‘advice’ on the investigation into Flynn’s alleged misconduct — “I hope you can let this go”. Comey’s refusal brought about his dismissal. No ordinary prosecutor or investigator can do the job required of him because the threads reach the White House.

There is a long and instructive tradition of the special counsel in the US. After Watergate came the Iran-Contra and Whitewater probes. Nixon’s successor, president Carter, secured the enactment of the Ethics of Government Act, 1978. It envisaged the appointment of a special counsel by the court to which he reported. The act lapsed in 1999, but the Department of Justice issued internal regulations enabling the attorney general to appoint a special counsel.

As special counsel, Robert Mueller has a wide remit and ample authority to fulfil his duties. He is authorised “to prosecute federal crimes arising from the investigation of these matters” and “any matters that arose or may arise directly from the investigation”. He is especially authorised to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump”. He can press criminal charges.

An impartial public prosecutor is needed to uphold the law.

In the UK, the first Labour government fell in 1924 because it withdrew a prosecution for political reasons. The minutes from a cabinet meeting on Aug 6, 1924, recorded: “No public prosecution of a political character should be undertaken without the prior sanction of the cabinet being obtained”. It was rescinded in 1931. The independent Crown Prosecution Service came into being in 1986.

Institutions and procedures may vary, but the fundamental principle remains unchan*ged — political considerations must not be allowed to interfere with the course of justice. India adopted a legal system based on British law. Rulings of its supreme court affirm the independence of the prosecuting agency from governmental and political influence or consideration. But the reality is its direct opposite.

Prof D.H. Bayley, author of the definitive work The Police and Political Development in India, observed that “a dual system of criminal justice” emerged. “The one of law, the other of politics … the rule of law in modern India, the frame upon which justice hangs, has been undermined by the rule of politics. Supervision in the name of democracy has eroded in the foundations upon which impartiality depends in a criminal justice system.”

The pogrom of Muslims in Guj*arat in 2002 saw a near total collapse of the cri*m*inal justice system. Many a prosecutor, none too enthusiastic to begin with, turned defence counsel. There were, however, a good few notable exceptions and some important figures were brought to book.

However, nea*rly a quarter century after the demolition of the Babri mos*que in December 1992, the prime accused in the conspiracy case are yet to be brought to book. One of them, L.K. Advani, became union home minister, in charge of the Central Bureau of Investigation that was pursuing the case. Recently, there has been a spate of cases in which Muslims were falsely charged with terrorism and spent years in prison, only to be acquitted. Their lives and those of their families were shattered.

After 2014, the National Investigation Agency under the Modi government has treated Hindus accused of terrorism with kid gloves. There is no danger of India having a Robert Mueller any time soon. In no case can one rely on executive restraint. Restraint must be imposed by law, and the law must be inscribed within the constitution. If the constitution can establish a comptroller and auditor-general, why can it not establish the office of an independent director of public prosecutions?