“Public perception has no place in judicial proceedings.” Ordinarily this basic truth, expressed pithily by the trial court judge, O.P. Saini, who presided over the 2G trial, would have been a testament to how good institutions function. The judge seems to have gone by the evidence placed before him. But the observations made in the judgment are a serious indictment of many of the most powerful institutions of the state. And the acquittals of all those accused in the alleged 2G scam will also have profound political implications.
Let us look at the losers after this judgment. This judgment does, unwittingly, dent the authority of the Supreme Court of India. Admittedly, the 2G case before the Supreme Court involved a different issue: Whether the policy governing spectrum allocation was arbitrary. But, as this column argued, (‘Governance after 2G’, February 9, 2012) the Supreme Court’s reasoning in that order was internally incoherent. It is true that the court was deciding on the arbitrariness of policy, but it is hard not to see that its perception of arbitrariness was shaped by the public perception that ministerial corruption may have been involved. It tried to do Parliament’s work by taking a call on a petition based on a CAG report, and thus elevated the CAG report to a definitive document that it is not. It also jumped the gun, and all principles of procedural justice, by letting all the attention fall on A. Raja and the bureaucrats. Raja has now been exonerated. It indiscriminately punished all businesses. It is the Supreme Court that has consistently reposed faith in the CBI and emboldened it.
The second institutional loser is the IAS. The judgment is an indictment of the bureaucracy. It argues the bureaucracy does not understand the rules it drafts, its notes to ministers are unclear, if not deliberately misleading. It creates a fog of convoluted reasoning that obscures the issues. The subtext of the judgment is that the ministers are more straightforward and clearer than the best and brightest in the IAS. Whether this is true or not can be debated. But the judgment paints a picture of bureaucratic incapacity of the highest order.
But bureaucratic responsibility now seems to be supplanting ministerial responsibility. In the coal scam, where there was an indictment, bureaucrats, not ministers, were held responsible. Even here, something similar is going on. Part of the reason the prime minister is absolved of responsibility is based on the idea that the bureaucrat’s note was five pages long and convoluted and the PM cannot possibly be expected to have command of the details. As a factual matter, this may be true, but one has to wonder what ramifications this has for bureaucracy-minister relationships. The courts seem to be giving politicians benefit of the doubt more than bureaucrats.
The third institutional loser is the CAG-Parliament relationship. The CAG’s reports are, in our constitutional scheme, not meant to be definitive. They are to be presented to Parliament that has to take a view on them. While we can blame the CAG for grandstanding, we must not forget that it was parliamentary dysfunction that made it all possible. Parliamentary dysfunction is what has emboldened non-elected institutions, from the CAG to the Supreme Court, to usurp authority and exceed their brief. Parliament is the ultimate locus of accountability. If it cannot perform truth-mediating functions, or hold ministers to account, everyone will step into the breach. When Parliament abdicates, the entire administrative law and constitutional scheme gets distorted. In all our handwringing about corruption and arbitrariness, let us not forget that no solution will be possible to this problem without restoring integrity to Parliament.
The judgment will damage the CAG’s office. The ability of CAG reports to spark public reaction will now be diminished. The judgment does not harm the authority of the CBI for one simple reason: The CBI’s credibility is so low that it cannot sink any further.
Let us look at the political implications. The judgment is a shot in the arm for the Congress. The Congress may now play victim and claim there was a conspiracy against it. But let us not forget this. A disfiguring state-business nexus was endemic during Congress rule. It was not the media and the CAG that created the frenzy. It was the other way around. The experience of corruption was pervasive. This is what gave the CAG reports and media frenzy a degree of plausibility. But there is no denying that for all political purposes, the charge of corruption against Congress will now become less of an issue. After all, the prosecution has taken place under the watch of a BJP government. Indian politics will now return to its standard normalcy: Both parties have been accused of crimes and both absolved by the legal process.
Many conspiracy theories will arise: From connections of particular businessmen to political calculations. But the problem with conspiracy theories is that they are too clever by half, and often work without evidence. The door may now open for a BJP-DMK understanding. But even assuming the BJP had a hand in the way the prosecution was conducted (there is no evidence for that), it is hard to imagine why the BJP would have frittered the political capital it would have got by indicting the UPA easily. But these theories will be symptomatic of a deeper malaise. Whatever be the truth of the matter, trust in the ability of formal institutions to deliver justice is still going to be low. Just like each person in India is an expert doctor, with a remedy for everything, each Indian will now become an authoritative guide to guilt and innocence of the accused, since institutions are not seen to deliver.
The judgment is a wake-up call to the BJP in one respect. For all its brandishing of anti-corruption credentials, basic institutional reforms are not in place. The reforms that are needed are not the controversial ones like CBI autonomy, but ones that have to do with basic state capacity. The Enforcement Directorate is still inadequately staffed and may yet again turn out to be no legal match for the legal arsenals that everyone from Vijay Mallya to Karti Chidambaram may deploy. Incapacity is probably an even bigger issue here than active political malfeasance.
But finally, the progressive promises of the anti-corruption movement have been struck a grievous blow. Justice Saini did his job, given what was presented to him. But the institutionalising of justice and accountability is still a distant dream.