POLICE REFORM- THE NEED OF THE HOUR

 POLICE REFORM- THE NEED OF THE HOUR 

For police officers in the country, September 22 is a day to remember.  It was on this day in 2006 that the Supreme Court delivered its long pending judgment in Prakash Singh’s case.  The judgement directed the state governments to comply with a set of six directives to kick-start police reform.  These directives included constituting a state security commission in every state   to act as a watchdog over the functioning of the police; prescribing a procedure for selection of the head of police; giving him and some other police officers a fixed secure tenure to reduce their vulnerability to outside pressures; setting up  police establishment boards to deal with transfers, postings and other service-related matters of police officers; constituting police complaints authorities at the state and district levels to look into complaints against police officers; and separating investigation from law and order work.  

Most state governments have not shown any inclination to implement the judgement. Some have given affidavits of compliance, even though there has been no change at the ground level. Majority of states have come up with some difficulty or other in implementing the directions of the Supreme Court. Fifteen states have enacted new Police Acts, more with a view to legitimising the status quo rather than complying with the Court’s directions. This is what Justice K.T. Thomas, who was appointed by the court to monitor the implementation of the judgement, had to say in 2010: “practically no State has fully complied with those Directives …. in letter and spirit, despite the lapse of almost four years since the date of the original judgment.”  

The judgement is noteworthy as the apex court for the first time attempted to insulate the state police forces from the illegitimate control of political executive; the Havala case judgement of 1998 had tried to do the same, but in case of CBI only.  However, like the Havala, this case too failed to make a significant impact.  The case was filed in 1996; it took the Court ten years to deliver the judgement and seven years later we remain more or less where we were before the judgement was delivered. 

A history of policing in this country shows that the police have often worked to serve the interests of the regime in power rather than to protect the rule of law.  There have been innumerable examples of police not doing their job professionally to please their political masters.

It is in this context that the resignation letter of Mr. Vanzara should be seen.  Till the other day, Vanzara was a rogue police officer, but now he is being projected by some politicians as a victim, who needs sympathy because his ‘God’ failed him in time of need.  Even if one accepts what Vanzara has said as the gospel truth, more than the God, it is the disciple “who could not rise to the occasion.”  Enforcement of orders given by a senior cannot be invoked to justify any departure from law. National as well as international instruments prohibit law enforcement officials from doing so. What Vanzara’s letter unwittingly advocates is the urgent need for police reform in the country.

What has happened recently in Muzafarnagar highlights the same need.   From all accounts received so far, it is obvious that there was an enormous failure of law enforcement machinery during the recent communal riots in Muzafarnagar.  This is not the first time that such failure has occurred.    A number of judicial enquiry commissions set up to enquire into communal riots have commented adversely on the handling of such disturbances by the police. The National Police Commission referred to the stringent criticism received by it that the police often did not act impartially and objectively.   Considering the fact that the communal violence has continued to rear its ugly head repeatedly in this country since Independence, if there is any area of law and order management where the police should have acquired mastery by now, it is in dealing with communal riots.  But this has not happened.  Why? It is because the police have been so badly politicised that their will to act impartially and courageously in conformity with law has been thoroughly weakened.  As the Parliamentary Standing Committee of Home Affairs in its Eighty Eight Report (April 2002) said: “Today we have a police, which is politicised and politically polarised.  For it has become a pawn in the hands of its masters.  In return, the policemen get political patronage, which has become essential for their survival.”  The worst victim of this system of politicised policing is the common man, who really wants efficient and reliable policing but is not being heard.  This also has serious practical implications for such basic issues as democracy, freedom, rights and dissent.

Thus police reform is the need of the hour, but it is being fiercely resisted. Non implementation of Supreme Court’s judgement shows how deep seated and strong has been the resistance to police reforms.  It is obvious that insulating the police from politicisation and criminalisation and accountability of police are at the heart of reform and in need of urgent and vital attention from the point of view of addressing public needs and sustaining the constitutional system and rule of law. But it is exactly this type of reform that the political executive is not willing to effect. As long as this reform does not occur, officers like Vanzara will keep on worshiping a false God and Muzaffarnagar will continue to be repeated elsewhere.

TACKLING THE RAPE MENACE

 THE REAL DETERRENT

The Delhi gang rape incident of December 16, 2012 led to such widespread public outrage as to force the central government to enact tougher anti rape laws. The incident appeared to have shaken the conscience of the nation to such an extent as to trigger a sense of hope that we would see a reduction, if not the end, of such incidents in future. The hope has been belied. Since then, the country has continued to witness a number of high profile rape incidents, where victims were not only Indians, including minor children, but even foreign tourists. The Mumbai gang rape incident of the 22 year old girl is the latest in this sequence of ugly events, which continue to take place unhindered and uninterrupted.

Why is this happening and why are we not able to control it? When the rape incident of Delhi girl was followed by the gang rape of a Swiss tourist woman in Madhya Pradesh, the Chinese Communist Party-run Global Times newspaper felt that “the frequent rape cases cast a shadow on the quality of Indian democracy.” They called it an indicator of the “failure” of India’s democracy to ensure good governance” and “the weakness and incompetence of India's democratic system.” The quality of governance at present may not be of the required standard, but to ascribe the increasing incidence of rapes in the country to the failure of democracy is somewhat far-fetched and fanciful. The reasons for continued assaults on women’s dignity that keep on happening in this country lie elsewhere. There are many reasons, but two are prominent. One is weak law enforcement and the other is conservative mindset.

Whenever such incidents occur, people blame the laws. The anti rape law in the country presently is quite harsh, as 20 year sentence is a fairly severe punishment. But people want stricter penalties, like chemical castration, death penalty, hanging the accused in public, flogging them etc. Despite all the evidence, we are not willing to accept that the effectiveness of laws in dealing with crimes lies not in how harsh they are or how stringent is the punishment they prescribe, but in how successfully they are enforced. Research done in the field of criminology has clearly established that it is the certainty of punishment and not its severity that deters people from committing crime.

This element of certainty is missing from the scene because law is not being enforced effectively. Enforcement of law has to be interpreted not merely in terms of police action but as the effective completion of the process of criminal justice, from the registration of FIR to final judgement in the case. The way the criminal justice system is functioning in this country, it holds no great terror to even the first timers, what to talk of the hardened criminals. While crime is increasing, conviction rate is declining. In 1971, conviction rate of total IPC crime was 62%, but by 2010, it had declined to 40.7% and in respect of rape it was as low as 26.6 %. Thus about 73.4% of those accused of committing rape get away after committing crime. This figure would be much higher if you include the number of cases in which FIRs are not registered or police do not succeed in charge sheeting the accused. Add to this the fact that the number of cases pending in courts is becoming alarmingly large and it takes years to settle them and you have the full picture about the ineffectiveness of the law enforcement machinery. According to data compiled by the Parliamentary Research Services (PRS), on 30th September, 2010, 2.8 crore cases were pending in subordinate courts, 42 lakhs in High Courts and 55 thousands in the Supreme Court. Justice is being delayed and denied. It is this ineffective enforcement that has reduced the deterrent effect of law.

Another reason why such crimes continue to occur in our society is our mindset, the way we look at women in our day to day lives. The cultural norms and traditions that flourish in our patriarchal society lower the dignity of women. Inside or outside the family, we do not treat them with respect. Violence against women gets its support from this type of environment.

A French tourist woman who came to India complained that even though she did not face any molestation, she was always afraid of the violence she saw in the eyes of some Indian males. Similar experiences were encountered by an American student Michaela Cross, from the University of Chicago, who came to India on a study trip for three months last year. During her stay, she experienced such relentless sexual harassment that she returned to her country with post-traumatic stress disorder. In her write up on the visit “India: the Story You Never Wanted to Hear,” she says that though she had prepared for the visit, “there was no way to prepare for the eyes, the eyes that every day stared with such entitlement at my body, with no change of expression whether I met their gaze or not. Walking to the fruit seller's or the tailor's I got stares so sharp that they sliced away bits of me piece by piece.”

Societal attitudes will take time to change. What the police and others like parents and teachers need to do is to draw lessons from the “Broken Windows” theory of criminology. According to this theory, small acts of deviance, if ignored, escalate into more serious and major crimes. Do not therefore ignore incidents of eve teasing or molestation on the basis that youngsters are entitled to some indulgence or of domestic violence on the ground that they are a family matter. In addition, the whole criminal justice system must work so that crime against women no longer remains a “low risk” proposition. Resources must be devoted to making the functioning of the entire criminal justice system more effective than it presently is.

 This is the original version of the  article published in the India Express dated August 27, 2013

WILL THE CENTRAL GOVERNMENT’S AFFIDAVIT ENSURE CBIs AUTONOMY?

 WILL THE CENTRAL GOVERNMENT’S AFFIDAVIT ENSURE CBIs AUTONOMY?
                      
The Government of India’s affidavit on CBI’s autonomy filed in the Supreme Court on July 3, 2013 has already come in for considerable criticism.  It has been called a “farce” a “camouflage” and a “remedy worse than the existing problem.”

 Even if some of this criticism is treated as part of the overblown rhetoric, the fact remains that the government is definitely unwilling to let its control over the CBI go or even be diluted.  The organisation is too important for the party in power to be allowed autonomy in its functioning.  In fact, what the affidavit conveniently neglects to say is much more important than what it says.

What it says can be briefly summed up under the following main heads:

Appointment and Removal of the Head of CBI

According to the affidavit, the CBI director will be appointed by a collegium comprising the Prime Minister, Leader of Opposition and the Chief Justice of the Supreme Court.     Even if this collegium succeeds in selecting the best from amongst the available lot, how this provision makes him autonomous in functioning is not clear. The affidavit does not say that the head of the organisation will not be entitled to any post retirement job under the central or state government.   The last few years’ experience shows that the prospect of a post retirement gubernatorial or other cushy assignment reduces the resistance, if any, of the head of the organisation to outside pressures.  This makes the clause relating to security of tenure almost redundant, though Director, CBI under the existing rules does enjoy a tenure of two years.

Setting up of an Accountability Commission.

It has been suggested that a panel of three retired judges of the Supreme Court or the high courts will be appointed by the government to entertain and inquire into "allegations of misbehaviour, incapacity, impropriety or irregularities" of CBI officials.      However, most allegations against CBI are not made against individual officers but against the organisation, particularly about its being misused to harass and intimidate political opponents or to favour those who are the ruling party members or supporters. The affidavit is silent on this point.   In any case, whatever its charter may be, how it will make the CBI autonomous in its functioning is not clear. This, in fact, is likely to saddle the bird with another master to sing to, instead of freeing it.

Exercising superintendence over the CBI

This is at the heart of the problem of making the CBI autonomous.  The CVC exercises superintendence over the CBI’s work relating to corruption cases and in respect of its other work, the central government does so.  The affidavit not only maintains this system of dual control, but makes no attempt to define what superintendence means and this gap in the existing law having bearing on the autonomy of CBI continues to exist   What the affidavit says is so inadequate and general that it really becomes farcical: "while exercising the power of superintendence the Central government shall not exercise powers in such a manner so as to require the Delhi Special Police Establishment(CBI) to investigate or dispose of any case in a particular manner."  It does not say that the government shall not interfere in any manner to influence CBI’s investigation work.  It does not even admit the government has no power under law to do so.  Even the havala case judgement was more direct and to the point in this regard.  It ruled that “…the  process of investigation, including its initiation, is to be governed by the statutory provisions…..  This is not an area which can be included within the meaning of “superintendence” in section 4(1)”

In addition, the administrative control over the CBI remains with the government and it is this which gives them an unwritten power to interfere and control.  Despite the fact that Director CBI will now be chosen by a high powered body, even then he is not considered good enough to select officers of his choice or remove the dead wood from the organsiation.  He has to go to the government for this purpose.  "Director CBI shall, recommend officers for appointment to the posts of the level of superintendent of police and above and also recommend extension or curtailment of the tenure of such officers," the affidavit says.  This is exactly what is done under the present arrangements.

Sanction to Investigate and Prosecute

Director CBI has no freedom either to investigate or to prosecute some cases without government’s sanction.  The Single Directive, which debars CBI from undertaking any inquiry or investigation against officers of the rank of Joint Secretary and above without government’s permission, still remains, even though the Supreme Court in its Havala case judgement had declared it null and void.

The affidavit poses to be generous by declaring that the CBI can go ahead with prosecution, if the sanction does not come within three months. This is not a new idea.  The Supreme Court in its various judgements, the latest being Subramanian Swami’s case decided in 2012, clearly maintained that sanction for prosecution should be deemed to be given, if it is not received within three months.    The Parliamentary Standing Committee of the Ministry in its 37th report in March 2010 had clearly recommended that sanction must come within a period of 15 days, if Director of Prosecution concurred with the view that prosecution was necessary

NEITHER A CAGED PARROT, NOR AN UNRULY HORSE

What Should the Functional Independence of CBI Mean?
(The new law must define CBI 'autonomy' and government 'superintendence')

Exasperated with the "sordid saga" of the handling of the CBI's coal scam status report by all concerned, the Supreme Court asked the Central government to frame a law that would ensure the CBI enjoyed functional independence. The government accepted the need and appointed a group of ministers to frame such a law.

Luckily for the government, the apex court prescribed two basic principles that should govern the formulation of such a law. The CBI should become neither a "caged parrot", nor an "unruly horse".

The "caged parrot" part of the apex court's observations received much wider publicity than the "unruly horse" portion. This is unfortunate, as these ideas are closely linked. Indeed, they flow from each other. The CBI, like any other police agency, enjoys enormous power, which must be controlled to prevent misuse. But then, controlling the agency itself becomes a source of power that can be misused to serve partisan interests. The new law for the CBI must, therefore, respect and balance these two ideas.

The present law vests the superintendence of the CBI in the Central government, though a part of the control has also been transferred to the CVC. However, the word "superintendence" has not been defined in any law, making it easier for the government to misuse the organisation to serve partisan interests.

The court tried to interpret the word "superintendence" in the Hawala judgment. According to the judgment, superintendence over the functioning of the department "would not include within it the control of the initiation and actual process of investigation". The judgment did not succeed in insulating the CBI from the illegitimate control of the Central government. The statutory laws governing the CBI remained silent on what the term meant, and no mechanism was put in place to ensure there was a shield between the CBI's functioning and political expediency.

The new law must focus on defining the term and fine tune it by prescribing the areas that should strictly be the preserve of the CBI chief, and where the government should have the power to intervene. It should specify what the word "superintendence" will include and exclude.

Just as the idea of superintendence has remained undefined, so has the doctrine of operational independence of police. Even in a country like the UK, where operational independence is a fundamental principle of policing, it has no statutory basis. It was articulated in judicial pronouncements, the most famous being the judgment of Lord Denning in the Blackburn case in 1968. Even though the Royal Commission on Police had endorsed it in 1962, till date, it has no constitutional or statutory basis. It has evolved over a period of time as a convention, which is fully recognised and respected by the government, the community and the police.

Being independent in functioning, however, should not mean that the investigating agency becomes unaccountable for its performance and behaviour. To ensure that lack of control does not mean lack of accountability, the Patten Commission on Policing in Northern Ireland substituted the concept of operational independence with that of operational responsibility: "Operational responsibility means that it is the chief constable's right and duty to take operational decisions, and that neither the government nor the Policing Board should have the right to direct the chief constable as to how to conduct an operation. It does not mean, however, that the chief constable's conduct of an operational matter should be exempted from inquiry or review after the event by anyone. That should never be the case." The group of ministers must take cognisance of this principle of operational responsibility and give it a statutory wrap.

Selection for the post of director of the CBI is of great importance for the doctrine of operational independence to succeed. The present arrangements allow the government to select a person of their choice. Even if the selection is done by a collegium, it should not be done on the basis of majority opinion. Leaders of opposition must be included in the collegium to balance the weight of different views. While providing security of tenure, the new law must have a provision debarring the incumbent of the post from holding a government job after retirement.

Operational independence means that the CBI should have full authority to inquire or investigate an offence, irrespective of the status of the person accused of having committed that offence. The Single Directive, which requires the CBI to obtain permission from the government to make an inquiry if the alleged offender is of the rank of joint secretary and above, should be discarded by the new law.

The new law must also do away with provisions of existing law that require obtaining of sanction to prosecute, particularly if the CBI is equipped with a separate directorate of prosecution, as was suggested by the apex court in its Hawala judgment. The directorate of prosecution will decide if the case is fit for prosecution.

In short, the new law must guarantee that the Central government's control over the CBI is so exercised as to ensure that the agency's performance is in strict accordance with law. The government's role is to formulate policies, provide sufficient budget, set standards and monitor performance, but it cannot give any operational direction to the CBI chief. The new law must delineate the CBI's powers as well as functions, specify that investigation will be its exclusive preserve and not allow any provision that can provide impunity. It must prescribe mechanisms to ensure the CBI's accountability for its performance and conduct.


(This article was published in the Indian Express dated May 25, 2013)
 

LIBERATING THE CAGED BIRD

The ALLURE IS NOT FALSE
(A Rejoinder to Mr Harish Khare )                                                              
                                                                                               
I read Mr. Khare’s article “The false allure of liberating CBI” published in the Hindu of May 7, 2013 with great interest but with greater anguish.

Mr Khare thinks that the clamour for making the CBI functionally independent is nothing but a “misconceived hypocrisy.”  He cites the example of politicians decrying the misuse of CBI by the party in power but doing exactly the same when they return to rule. “No Prime Minister in his or her right political senses would let rivals control an asset like the Central Bureau of Investigation,” he says. Mr Khare is correct in his assessment, but is wrong in drawing conclusions that are clearly invalid.

Being the premier investigating agency of the country, the CBI should be treated as an asset of the country and not of the PM or the ruling party. Why do they treat the CBI as an asset? The answer is simple- so that they can misuse it for political gains.  They  use it to support some and threaten others.

What is the conclusion that Mr Khare draws from the great reluctance on the part of the PM to relinquish control over the organisation?  He feels that it would be a “great misinterpretation of the constitutional scheme of things (sic) of powers if a section of the judiciary were to …. prise the CBI from the political executive.” Nobody is trying to do that- neither the judiciary nor the “noisemakers.”  Both recognise the CBI to be a part of the executive, and in our system of governance, the minister concerned is responsible to Parliament for its efficient and honest functioning.  The Supreme Court had clearly recognised in its havala case judgement and reiterated it in its recent hearing in the coal scam that the government was within its right to exercise general oversight and  provide broad guidance and  policy directions to the organisation.  However, the apex court on both occasions clearly maintained that any interference by the executive in CBI’s investigations was contrary to provisions of law and this would be treated as illegitimate interference.  It is this basic distinction between the legitimate and illegitimate interference in the CBI’s work that Mr Khare conveniently overlooks.

Why is it important to recognise and decry government’s  interference in investigation work?  Mr Khare’s article frames the terms of debate wrongly and avoids discussing this important concern.

Illegitimate interference in the investigation work of CBI is harmful for three reasons.  One, it obstructs the rule of law, which requires that laws are enforced in a fair and impartial manner. This cannot be ensured if interference in CBI’s investigation work subjects the investigating  team to wrong types of pulls and pressures and undercuts their will to act courageously in conformity with law.  We saw it happening recently when the Director CBI had no compunction in showing the agency’s status report to the government. 

Two,it hampers the professional growth of the organisation.  The government to ensure that its directions to investigating officers are implemented in letter and spirit sometimes adopts unfair personnel policies.  Appointments, postings, promotions, transfers, rewards and punishments are decided not always on merit but on extraneous considerations.  This shatters the morale of honest officers and encourages the wrong ones to curry favour of those in power.  An officer of the team investigating coal scam was transferred and had to be recalled at the behest of the apex court. It is the part of the same story when CBI officers are accommodated by the government in gubernatorial or other important assignments after retirement.

Three, it damages the image of the organisation.  As the citizens have lost confidence in their local police forces, it is important that they have their faith in a central agency to seek  justice.  Unfortunately, over a period of time, the CBI’s image has been badly dented.  Calling it the Central Burial of Investigation or the Congress Bureau of Investigation may sound funny, but the harm it does to the image and professional esteem of the organisation is immense.  Some crooked politicians take advantage of this public perception.  Even where action taken against them is perfectly legitimate and is as per law, they invariably pose as victims of political vendetta and witch-hunting.

According to Mr. Khare, “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.”  One is tempted to ask: why are these not “normal times” or circumstances?  There is no emergency in the country. To consider these times abnormal simply because the “BJP has bayed for the Law Minister’s blood a bit too loudly” is abnormal reasoning.

According to Mr Khare, moderation should be the recipe not only for the opposition but also for the judiciary.  “If there was a time for moderation in judicial pronouncements and comments, it is now,” Mr. Khare cautions.  He feels that excessive “judicial meddlesomeness” has driven the “political supervision of the CBI” underground. The “communication and command rites are performed away from the public gaze.”  Mr Khare is blissfully wrong.   The citizens in this country have never been aware of any time in history when the central government’s supervision of the agency has been over ground.  Political supervision of the agency has always been a closed door affair.  It has been so not because of judicial activism, but because of attempts on the part of every government to misuse the agency for political gains.

The conclusion that a ”legitimate relationship of consultative advice — between the political executive and an investigating agency — has been rendered somewhat suspect” is not correct.  Legitimate use of the agency by the central government is recognised in law and by the High Courts and the Supreme Court.  What has been questioned is the illegitimate interference in the work of the agency.

The need to make the CBI an effective and an impartial organisation  is urgent .  It deserves to be discussed dispassionately, unaffected by personal prejudices.  Mr. Harish Khare’s analysis is found wanting in this respect.  “How much easier it is to be critical than to be correct!”

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The above was written in response to Mr. Harish Khare's article published in the Hindu dated May 07, 2013.  The article is reproduced below:

The false allure of liberating CBI

Harish Khare

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 Behari 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 of powers 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 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 from 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. 

Accountability

 

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 inequilibrium 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).