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).
