A law minister’s mistakes cannot be used to introduce an institutional imbalance by creating an autonomous policeman through judicial intervention
As a nation we remain self-absorbed in our own hypocrisies. And perhaps there is no greater misconceived a hypocrisy than the notion that the Central Bureau of Investigation (CBI) should be — and, can be — functionally independent of the political executive of the Union. But our politically correct commentators and other noisemakers are obsessed with an “autonomous” CBI as a panacea for misgovernance; and, the politicians, when in opposition, decry the “political misuse” of the agency but once in office cheerfully lord over the CBI. Let us only recall how after L.K. Advani had manoeuvred to become the deputy prime minister during the National Democratic Alliance (NDA) regime, he strenuously tried to grab the CBI and bring it under his control, but that old fox, Atal Bihari Vajpayee, was shrewd enough not to let go of this investigative instrument. Indeed, no Prime Minister in his or her right political senses would let rivals control an asset like the Central Bureau of Investigation.
Time for moderation
Therefore, it would be a great misinterpretation of the constitutional scheme of things if a section of the judiciary were to seize upon the Union Law Minister’s supercilious stupidities to prise the CBI from the political executive. Admittedly, the incumbent Law Minister is punching way above his weight and has over the last few months demonstrated himself to be lacking that fine balance of temperament and competence that is so essential in a sensitive ministerial assignment. In normal circumstances, the Prime Minister would have perhaps sought the Law Minister’s resignation for having committed a grave impropriety, but these are not normal times. The Bharatiya Janata Party (BJP), in its present, destructively self-righteous mood, has bayed for the Law Minister’s blood a bit too loudly. An Opposition that does not believe in moderation cannot hope to shame the ruling party into doing the right thing.
Neither the BJP’s practised cussedness nor the United Progressive Alliance’s habitual obduracy should weigh heavily with the judiciary; there is certainly no reason for the judiciary to get too distracted by the political noise in the matter of the so-called coal allocation scam to try and manufacture an artificial and unsustainable “autonomy” for the CBI. If there was a time for moderation in judicial pronouncements and comments, it is now.
It was P.V. Narasimha Rao who cynically used the CBI to embroil his rivals within the Congress Party in the Hawala case. So blatant was this misuse of prime ministerial authority that the late Justice J.S. Verma seized a PIL case to pronounce a new doctrine of maximalist distrust. The court, quoting from its earlier verdict (in the case of Union of India and others versus Sushil Kumar Modi and others, 1997), insisted on ensuring “performance of the statutory duty by the CBI and the other government agencies in accordance with the law for the proper implementation of the rule of law. To achieve this object, a fair, honest and expeditious investigation into every reasonable accusation against each and every person reasonably suspected of involvement in the alleged offence has to be made strictly in accordance with the law.”
Since the Hawala case, an entire generation of higher judges has been in thrall of the idea of laying down what the CBI can and cannot do. The Hawala ruling prompted a new Central Vigilance Commission regime and for a while we applauded ourselves for having struck a blow against corruption among public servants. But given our addiction to this or that hypocrisy, we pretend that such judicial interventions have had a long-term salutary effect on matters that are essentially political in nature.
It is also an unfortunate fact that since the mid-1990s, there has been no Central government strong enough nor a Prime Minister so assured of the support of his own party and coalition partners that he would protest encroachment of the executive’s prerogatives. Judicial interventions have only encouraged the PIL-industry to make a nuisance of itself at the behest of corporate rivals.
Lok Pal debate
In the recent Lok Pal debate, the government and the Opposition were silently united in rejecting the demand that the CBI be brought under the proposed ombudsman. It was a rare display of political common sense so essential to sustained statecraft.
Undoubtedly, the political class is a rather unattractive lot and the middle classes are always willing to set policemen “free” from the presumed clutches of the elected politician. It is an attractive proposition that the “professional” police officer would be an honest, scrupulous, law-abiding and justice-dispensing public servant, and would hold his own against the errant politician. Hence, periodic judicial efforts to intervene or “oversee” investigations.
All these essays in judicial meddlesomeness have produced only a massive hypocrisy: the political supervision of the CBI got driven underground, while everybody pretends that the agency has been set “free.” A legitimate relationship of consultative advice — between the political executive and an investigating agency — has been rendered somewhat suspect; therefore, the communication and command rites are performed away from the public gaze. Whatever the colour of the government in New Delhi, its political managers were always anxious — and, rightly so — to ensure that the agency was not manipulated by rivals.
There is a history to this anxiety. Since the Allahabad High Court judgment against Indira Gandhi in 1975, sections of the judiciary have been happy to entertain political rivals using courts to settle scores and contests which otherwise should be sorted out in the electoral arena or in Parliament. A judicial pronouncement — even an oral observation would do — is seized upon to demand this or that functionary’s ouster from office. Every judicial pronouncement is seized upon to unleash a furious debate, generate indignation and anger, feeding distrust and discontent among the citizens towards lawfully constituted constitutional authority.
This over-reliance on finding a judicial solution to the abuse of power by ministers and bureaucrats has come at the expense of Parliament as the ultimate institution of accountability and democratic legitimacy. Rather than raise matters of ministerial transgressions in Parliament and make the Prime Minister explain his colleagues’ misdemeanours, the Opposition disrupts and stalls the functioning of the legislative institution. Political partisanship strangulates any debate over the merit or demerit in an alleged misdeed. Political leaders, from Prime Minister downward, are no longer willing to sit in moral judgment over this minister’s or that bureaucrat’s presumed guilt, because everyone assumes that sooner or later, the matter would end up in a court of law. The notions of democratic accountability and political responsibility stand considerably diluted.
Given the context of this political culture of suspicion and accusation, it would be tempting to judicially “liberate” the CBI. This can only produce an institutional disequilibrium of the most unhelpful kind. Any democratic society should be very suspicious of a policeman, however competent a professional he may be, with powers to determine political life and death. As it is, we have yet to evolve a code of conduct for an ever enlarging plethora of regulators and independent commissions. Everyone goes about hypocritically believing that we have found the magic formula to make honest appointments of honest individuals to such “institutions.”
Once an appointment has been wangled, then it is entirely open to an incumbent to take a maximum or a minimal view of his or her brief. We are becoming wise to another aberration: the potential — and, in a few cases, the reality — of a corporate house suborning these so-called “independent” authorities. Before we succumb once again to the allurement of installing unelected gods as our saviours, let us just remember that it is easy to proclaim and grab “independence” but it is much more difficult a task to produce the requisite institutional culture, anchored in balance, fairness and rectitude. That balance can be produced and enforced only by democratic processes of accountability. This balance can neither be produced nor imposed by a court.
(Harish Khare is a senior journalist, political analyst and former media adviser to Prime Minister Manmohan Singh. He is currently a Jawaharlal Nehru Fellow).
This article has been corrected for typographical errors.