To monitor or not

The Supreme Court will step in to monitor the CBI’s work only if it is necessary for a ‘fair and impartial’ probe, to ensure that justice is not only done, but also seen to be done.

July 12, 2015 01:01 am | Updated 03:44 am IST

The demand for the Supreme Court to monitor the Central Bureau of Investigation’s probe into criminal cases and deaths linked to the multi-crore Vyapam recruitment scam is actually an appeal to do “complete justice” in the case. This is motivated by the perception that the Supreme Court will render greater functional independence to the CBI than otherwise, considering the control over the agency by the political executive.

Article 142 of the Constitution confers the Supreme Court with extraordinary powers to pass orders it sees necessary for doing complete justice in any cause or matter pending before it.

A Bench led by Chief Justice of India H.L. Dattu has, while transferring the Vyapam investigations to the CBI, kept the request to handhold the probe in abeyance. The Bench observed that if justice required, the court would consider the plea for monitoring at a later stage in consultation with the premier investigative agency.

The court’s circumspection to keep an eagle eye over the CBI is based on self-imposed restrictions and settled judicial precedents that its extraordinary powers should be used rarely.

The court has intervened in several sensational cases such as the 2G spectrum scam in which the CBI-Enforcement Directorate investigation is monitored by the apex court.

In each of these cases, the Supreme Court has confined its intervention or monitoring to see that “fair and impartial” probe is done. Its intention has never been to usurp the statutory powers of the investigating agency or influence the trial court.

In September 2011, the Supreme Court refused to further monitor the probe into the complaint made by Zakia Jafri into the murder of her husband and former Congress MP, Ehsan Jafri, in the Gulberg Society carnage during the 2002 riots. Though faced with mutually differing reports from the SIT and amicus curiae Raju Ramachandran on the case investigation, the Bench chose to leave it to the Gujarat trial court to take the final call.

The court explains its philosophy of monitoring investigations in the Taj Corridor scam judgment: “In cases monitored by this court, it is concerned with ensuring proper and honest performance of its duty by the investigating agency and not with the merits of the accusations in investigation, which are to be determined at the trial on the filing of the charge sheet in the competent court, according to the ordinary procedure prescribed by law.”

In Union of India versus Sushil Kumar Modi and the historic Vineet Narain case, the court said its monitoring of a case should stop the moment the charge sheet is filed.

What the Supreme Court aims for by monitoring investigations is explained in the age-old dictum that “Justice should not only be done, but must also be seen to be done”.

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