This Article is From Jun 23, 2014

Does A Minister Have No Rights?

(Nalin S Kohli is spokesperson for the Bharatiya Janata Party (BJP) and Director of the party's Public Policy Research Centre. He is also a lawyer and has extensive experience in media and education.)

Much is being debated on the issue whether Mr Nihalchand, Minister of State for Chemicals and Fertilisers, should resign or be sacked. The opposition parties are demanding that Mr Nihalchand should be sacked immediately since he is accused of committing rape.

The opposition parties are also contending that Prime Minster Modi's government is protecting the minister instead of sacking him. The counter view-point is that when Mr Nihalchand has been declared innocent by both a police investigation and a Rajasthan court, why must he step down or be sacked? The issue has generated considerable media attention.

A dispassionate examination of the facts and the investigation conducted reveal several interesting facets that cannot be ignored.

The root of the controversy appears to be some sort of dispute and marital discord between the woman and her husband. In 2011, both parties filed separate FIRs levelling various allegations against each other and their respective in-laws.  The husband filed an FIR in Rajasthan while the lady preferred to file it in Haryana. During the police investigations, the lady's statement was recorded on two separate instances under Section 164 of the CrPC. Interestingly in both cases, she did not name Mr Nihalchand.

The woman also petitioned both the National Human Rights Commission (NHRC) and the DG of Haryana Police where again she did not name Mr Nihalchand. Throughout, she levelled allegations primarily against her husband and in-laws. 

It is only subsequently in a fresh FIR filed in Jaipur in 2011 that for the first time the lady accused 19 persons including one Nihalchand, "father's name unknown and resident of Jaipur" of committing rape. It is fascinating to note that the details of the Nihalchand mentioned in the FIR were scanty despite his being a prominent political person who had been elected to the Parliament for three terms (now four), and whose father himself was a well-known MLA.

During the investigation, the state police found eight names to be fictitious. Eventually the police concluded the allegations to be untrue and in December 2012, filed a Closure Report in the court. It is worth recalling that at this time the Congress Party was in government and Mr Ashok Gehlot was the Chief Minister of Rajasthan.

The complainant challenged this Closure Report. However, after hearing her arguments through her counsel, the court dismissed the lady's Protest Petition and accepted the police's Closure Report in February 2014. Subsequently, she approached the higher court appealing against the decision by the lower court. 

At this point, one of the accused in the case approached the High Court to direct the lower court to first hear all the concerned accused before deciding on her Revision Petition. As a result of this, the court has issued notices to all the 19 persons named in the FIR so that they may present their versions. It is the receipt of this notice by Mr Nihalchand that is being highlighted as reason for him to resign or be sacked.

However, given the facts, the police investigation and eventual acceptance of the Closure Report by the court, can Mr Nihalchand still be treated as an accused person? While the complainant is within her rights to approach a higher court challenging the decision of the lower court, are Mr Nihalchand's rights to be ignored merely because he is a minister in the union government?

Another aspect that also needs to be considered is whether Mr Nihalchand is being wrongly framed for some ulterior or unknown reason.

If true, this also reveals a dangerous trend where prominent persons might be falsely or unnecessarily dragged into cases or controversies for satisfying personal agendas. Equally alarming is the expectation that Ministers should resign despite being falsely implicated. 

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