One afternoon in late April 1997, the Principal Secretary to the then Prime Minister received a call from one of the government’s senior-most law officers wanting an urgent meeting for consultation and directions. The long and short of what the agitated law officer had to tell the Principal Secretary was simple: Justice J.S. Verma had gone off the reservation. That was the time Justice Verma was presiding over the Hawala bench and the country was indignant to its righteous core. The Principal Secretary was surprised to learn that the law officer had been summoned to the Justice’s chamber and given an ultimatum: “the government has 10 days to come up with a credible plan to give up its control over the Central Bureau of Investigation.” Alarm bells rang. An audience was sought with the Prime Minister that very evening. But the new Prime Minister had too many other important matters on his plate and could not be distracted by a Supreme Court judge’s fancy. It was left to the officials to devise a way to humour the rampant Justice.
Charged discourse
In the event, the Hon’ble Supreme Court judge agreed to the law officer’s suggestion that the Principal Secretary (who had acquired a certain fame with his famous “nexus” report) was eminently qualified to be asked to suggest ways of making the premier investigative agency free from “extraneous influences.” N.N. Vohra, in turn, enlisted the services of a former Cabinet Secretary, B.G. Deshmukh, and a former Vigilance Commissioner, S.V. Giri, to cobble together a report, most of which Justice Verma was shrewd enough to incorporate in his famous Hawala judgment of December 1997. That decision, in turn, was hailed as a landmark pronouncement, liberating the CBI from the clutches of the bad “politicians.” Away from the camera, the judge was more than happy to accommodate the legitimate concerns of the government of the day; but, in public, he had invented a highly charged discourse of “autonomy.”
This is being recalled 15 years later because another bench of the apex court is once again trying to reinvent the autonomy wheel. The beleaguered Manmohan Singh government has come up with a convoluted blueprint in order to appease the bench. All of this can only end up in a lose-lose situation for all those stakeholders who are enjoined to preserve and enhance the vitality of the Indian state.
The larger point is that Justice Verma was not a stranger to the political context of the day. Only a naïve soul can believe that judges are or can be insulated from the political controversies or that the highest judiciary remains supremely indifferent to the manufactured narratives of the day. Justice Verma had correctly sized up the I.K. Gujral government’s political precariousness and its meagre respectability. Nor was Justice Verma beyond playing to the gallery. And, that is where trouble reared its ugly head.
Our national experience so far would suggest that autonomy for an investigative agency in a democratic set-up is not only a flawed but a positively dangerous idea. There will always be the Joginder Singhs and the U.N. Biswases who will seek to punch above their institutional weight. An autonomous CBI under such officers can become an anti-thesis to the very goal of good governance. And, nothing illustrates the danger more graphically than the CBI performance in two different cases, the Isharat Jahan fake encounter case and the so-called Coalgate case. In both cases, the CBI has acted more like a bull in a china shop rather than as a professional investigator.
Unseemly spat
The spat between the CBI and the Intelligence Bureau (IB) has become so openly unseemly that it can only hurt the Indian state’s long-term interests. The IB argument, and a fair one at that, is that its officer exercised his judgment in evaluating certain intelligence inputs; in retrospect one can question or disagree with that judgment but it is an altogether different matter to insist that the IB officials were a party to the Gujarat Police’s cold-blooded conspiracy. The Ishrat Jahan encounter took place at a time when the security set-up throughout the country was still cheerfully enamoured of the U.S.-devised “9/11” discourse, and the political leadership had calculated considerable electoral dividends if the minorities were made out to be in bed with the global jihadis. Now, out of a sense of organisational loyalty, the IB finds itself having to reveal its hand; reporters are being allowed to “access” the armoire of intercepts, reports. Given the present judicial mood of wanting to set free the caged parrot, the CBI is infused with a false sense of a false mission.
In Coalgate, the agency feels emboldened and empowered by the Supreme Court. But because of its practised pettiness, the agency has succeeded in sullying the image of one of the finest public servants, H.C. Gupta, the former Secretary in the Ministry of Coal. The legend in the senior bureaucracy is that if past and present IAS officers were asked to name three men of rectitude and integrity, Mr. Gupta would probably figure in everyone’s list. Yet this honest officer had to step down as member of the Competition Commission because through leaks and innuendoes, the agency managed to create an impression of criminal wrong-doing on his part. And, then, the agency titillated the public with its “interrogation” of former officials in the PMO.
In fact, autonomy comes down to a police raj, and that, most of the time, means a stupid policeman raj. While it is entirely legitimate for a polity to want to cure itself of corrupt men and corrupting practices, it is time for us to realise how easy it is for a policeman to wave the “corruption” flag and then proceed to take great liberties with the citizen’s privacy and freedom. Only a few months ago we were treated to the great spectacle of the IPL spot fixing; no one was inclined to take note of the frightening and all-intrusive power of detention the Delhi Police chose to exercise, and not just in the capital but in all other parts of the country. Anyone or everyone, it seemed, could be arrested and brought in for questioning, just on the basis of suspicion or hearsay of this or that bookie. And, we all puffed up our righteous chests and pretended to have been morally uplifted, thanks to a bunch of zealous policemen.
As it is, the CBI is an arrangement anchored in unscrupulous calculations and considerations. All political parties which have had a chance to govern in New Delhi saw to it that the agency remained a manageable instrument of control and coercion. Of course, the Congress party gets the loudest rap but only because it has been longer in power; when it got a chance, the BJP was equally suspected of misusing the agency. In fact, within weeks of assuming office, the NDA government sent a CBI director packing because he had dared to send his officers to a prominent businessman’s house.
Virus of over-reach
A developed democracy is defined by its impersonal institutions, manned and headed by professional officers, discharging their mandate within the letter of law. Such institutions develop and thrive on an organisational culture of professionalism, restraint and responsibility. Unfortunately, all our institutions — be it a CAG or a judge — are infected with the virus of over-reach. In this context, our quest for autonomy for the CBI becomes definitely problematic; it is neither a pre-condition nor a guarantee of professionalism, especially in a country which makes such a mountainous virtue of the principle of “seniority.”
It is bad enough that judicial functionaries should take it upon themselves to cleanse the political system; this proclivity has produced its own unintended consequences, ensnaring judiciary in political games. It would not be a wise course to put our faith in the infallibility of a CBI director. Democratic aberrations can be sorted only by democratic processes. The infirmities of a democracy cannot be cured by a policeman, even an uncaged policeman.
(Harish Khare is a senior journalist, political analyst and former media adviser to Prime Minister Manmohan Singh. He is currently a Jawaharlal Nehru Fellow)
