On CBI reform,the court stepped in where the government failed. But that cannot be the end of the story
Where does the Supreme Court get the power to oversee the Central Bureau of Investigation? Which other government will countenance the SC wanting it to bypass Parliament with an ordinance so that a law [making Indias premier anti-corruption agency independent is put in place before the next date of hearing? The lawyers amongst you will point to the 1997 Vineet Narain judgment and its successors,whereby the SC expanded its powers under Articles 21,141 and 142,creatively interpreted the CBI manual and criminal procedure code,and sought to insulate sensitive investigations from political control. But that begs the same question: where did the courts get the power to make these judgments? It is not given in the Constitution,is mentioned in no statute. Yet the Congress blinked first,sacked its law minister,tasked senior ministers with drafting a law to appease their lordships,and upheld this power of the courts. Whats more,the court move is popular with the public. How came we to this?
The obvious answer is the political failure to lead. Beginning in the 1980s,judicial activism has taken place in the context of Congress decline,the coalition-era and non-Congress politicians wanting a strong court to protect them. Yet,the courts have not always won. On issues where there is unanimity among them,politicians have stood up to unfavourable verdicts. Parliament,for example,has passed no fewer than six constitutional amendments nullifying judicial decisions that limited reservations. The problem is with this particular governments approach to corruption. The scale of the 2G and coal controversies have no precedent. Its unwillingness to take graft seriously has also allowed other institutions the Comptroller and Auditor General,the army chief,the SC,even the Press Council chairman to step in where the Centre has failed. Had the Congress passed a half-decent Lokpal bill last year,giving real autonomy to an anti-corruption body,none of this would have occurred. But the government version of the bill is weak,and has not made it past Parliament. The court stepped in where the government failed.
This court intervention is popular with at least some politicians. Even before the open contempt with which the previous law minister appeared to treat SC strictures,the CBI had long been the Centres whip to blackmail regional parties. When the DMK withdrew its support to the UPA,its scion M.K. Stalins house was raided by the CBI. And the many twists in the CBIs investigations into Mulayam Singh Yadavs assets and Mayawatis role in the Taj Corridor scam mirror their own twisty relationship with the Centre. The upshot is this: government control of the CBI is not as dear to politicians as reservations are; if the court attempts to create a genuinely independent CBI,Parliament will not act as one to nullify that verdict.
The reason for the SCs boldness in this case is also that corruption has caught the popular imagination. Part of it is the sheer scale,the other part is demographic. The emerging Indian middle class,unlike the earlier middle class with its moorings in state institutions,has grown up in private India: private schools,colleges,and jobs. They are appalled by corruption now viewed not as the feudal perks of their mai-baap,but a contractual breach of their citizenship rights. Given the presence of lawyers (such as Santosh Hegde,Prashant and Shanti Bhushan) in the Anna Hazare-led anti-corruption movement,the solution was a law creating an independent Lokpal,insulated from political machinations. The SCs concerns over a political CBI reflect this popular movement.
A final push is from police officers tired of political meddling. Even the CBI director,Ranjit Sinha,has parroted the courts withering comment that the CBI is a caged parrot. Retired officers are typically part of private batch-specific email chains. These email chains are a peephole into what the service is thinking. I recently accessed three such email chains,and the dominant theme was that the court posturing on the CBIs autonomy was an opportunity for state police reform where the real malaise lies. D.R. Karthikeyan,a former CBI director I spoke to,bemoaned the fact that while in opposition,parties cry themselves hoarse about police independence; but when in power the first thing they do is appoint their man as station house officer.
Karthikeyan knows a thing or two about investigations. In the early 1990s,he went after the killers of Rajiv Gandhi. He says that more than threats from the LTTE,I feared politicians trying to interfere with my investigation. He agreed that the SCs 1997 ruling on CBI autonomy has not stopped government interference in the CBI. The key reform,he felt,was a transparent process for director selection. In the United States, he says,the president nominates the FBI director,but has to be confirmed by the Senate… The entire confirmation process is televised and in the open. The nominee can be asked all kinds of questions. Karthikeyan also felt that the director must have the power to choose his staff. To this,add a third component constant supervision of the CBI by bipartisan select committees of Parliament. This would ensure independence as well as accountability both of which are needed for the CBI to function effectively.
The stars are aligned. You have a comatose Centre,a combative court,invigorated opposition parties,middle-class mobilisation in favour of CBI autonomy,and police officers whove had enough. The government has even tasked senior ministers to draft a law and place it before the court. An opportunity presents itself. But the right thing can be done in the wrong way,and the courts are the wrong way to go. History tells us that court monitoring and judgments,in the absence of political will,rarely work. The Vineet Narain judgment has not made the CBI any more independent,the Prakash Singh judgment on state police reform is gathering dust,unimplemented. Besides,given this governments contempt for judicial etiquette,it is probable that the draft placed before the SC will be an eyewash. The law must be debated and scrutinised in Parliament,not moulded through court diktats. For a truly autonomous and accountable CBI,it is Parliament that must give it birth. The court is at best a midwife.
The writer is a PhD candidate at Princeton University,US and visiting scholar at the Centre for