Time to let the caged bird sing

In making a case for the investigative agency’s autonomy, the Supreme Court is only stepping in where the executive has failed

Updated - December 04, 2021 11:19 pm IST

Published - May 11, 2013 12:53 am IST

The proceedings in the Coalgate case earlier this week saw the Supreme Court asking the Central Bureau of Investigation (CBI) many uncomfortable questions. The Court also asked the government to tell it what steps it was going to take to enact a law to ensure the CBI’s autonomy. The Court’s remark that it would step in if the government did not take steps to free the CBI has once again revived the debate about “judicial overreach.” Just a day before the Court’s order, Harish Khare writing in The Hindu (editorial page, >“The false allure of liberating CBI,” May 7, 2013) observed in anticipation, “If there was a time for moderation in judicial pronouncements and comments, it is now.”

It is tempting of course to think that the Court is stepping outside its jurisdiction. There has been legitimate criticism that the Court has often made policy. But in the present context of the CBI’s abject admissions before the Supreme Court, the Court’s intervention would be not only justified but also be a constitutional duty.

The right to life under Article 21 of the Constitution is, as is too well known by now, not merely the right to physical existence but to a life of some quality and dignity. An expectation of good governance falls squarely within the scope of the right to life.

Similarly, the right of an accused to a fair trial is part of the right under Article 21. This right necessarily carries with it the right to a fair and impartial investigation. And when corruption undermines the Rule of Law, the right to equality under Article 14 is affected.

Article 32 of the Constitution guarantees the right to move the Supreme Court for the enforcement of fundamental rights, and the right under Article 32 is itself a fundamental right.

If these constitutional basics are remembered, the question of “expansionism” is resolved. It is the duty of the executive to ensure that fundamental rights are enjoyed, subject of course to the reasonable restrictions which the Constitution itself permits. If the enjoyment of a fundamental right requires a legal regime to be put in place, it is the duty of the executive to ensure such a regime by enacting legislation through the legislature. If it fails to do so, the Court as protector of fundamental rights has to do so.

Of course, the Court cannot compel the executive to get a law enacted. If, however, the executive fails to enact a law or decides not to bring in a law, the Court has not only the power but also the duty to give directions to ensure that fundamental rights are protected.

Rights of women

In Vishaka (1997) the Supreme Court was dealing with a Writ Petition for the enforcement of fundamental rights of working women under Articles 14, 19(1)(g) (the right to practice one’s profession etc) and 21. There were international conventions and norms which were consistent with the spirit of our Constitution, but no national legislation. So the Supreme Court laid down norms and guidelines, giving them binding force. It was only last month that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 received the assent of the President. For the last 16 years, therefore, the only protection which working women have had is the Supreme Court’s directions. Can it be legitimately argued that Vishaka was a case of overreach?

Vineet Narain came close on the heels of Vishaka . Here the Supreme Court gave directions (including directions with regard to the Central Vigilance Commission and the CBI) in order to ensure probity in public life. The proper implementation of the Rule of Law, the Court emphasised, was needed to ensure the equality guaranteed under the Constitution. The Court recognised that corruption had a direct bearing on Human Rights.

Police reform

In Prakash Singh (2007) the Court felt compelled to give seven directions with regard to (i) setting up of State Security Commissions; (ii) selection and minimum tenure of Directors-General of Police; (iii) minimum tenure of Inspectors-General and other officers; (iv) separation of investigation from law and order duties; (v) setting up of a Police Establishment Board; (vi) setting up a Police Complaints Authority and (vii) setting up a National Security Commission. The Court noticed that several Commissions and Committees had made similar recommendations over the years, but no steps had been taken to introduce police reforms.

The Court gave its directions in the interests of the working of the criminal justice system, which is so directly linked to Article 21. The Court acted “in discharge of [its] constitutional duties and obligations.” The Supreme Court can be trusted not to run amok.

(Raju Ramachandran is senior advocate, Supreme Court of India.)

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