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Bring back the staid and boring Supreme Court, writes Shekhar Gupta

The CBI/Alok Verma issue is no longer top of the mind for it. It is now the Supreme Court. The blame for the current crisis has shifted, from the Modi government to the judiciary

Updated: Jan 16, 2019 21:08:52

By Shekhar Gupta

The Narendra Modi government seems bent on flushing the institution of the CBI down the chute. And the CBI is now threatening to take the judiciary down with it (Biplov Bhuyan/HT PHOTO)

Nobody will feel sorry for the Central Bureau of Investigation (CBI) even if the Narendra Modi government seems bent on flushing it down the chute. Trouble is, the CBI is now threatening to take the judiciary down with it.

The question is, must the judiciary allow this to happen? And, if it doesn’t, what can it do to rescue itself?

The description of “caged parrot” for the CBI isn’t just a tired and overused cliché, it is also a ridiculous understatement. The CBI has been a rogue organisation for years. It has played hitman for governments of the day. It has merrily misused its powers, vastly expanded by the courts, and exploited the special protections granted to it.

The higher judiciary, beginning with the Jain hawala case during PV Narasimha Rao’s time as prime minister, has shown great faith in the CBI as a sword-arm in its well-meaning war on corruption. How masterfully it has exploited this judicially exalted status to become a deeper state within the larger Lutyens deep state should merit a book in the Bob Woodward genre. No surprise then that three of its last four directors face investigations for corruption — often in the same cases of corruption the agency was handling under them.



Since the late JS Verma as CJI (1997-1998) intervened in the Jain hawala case, at least 10 CJIs and many other honourable judges have given CBI more powers and autonomy and their direct supervision and protection. A new cosmic mantra has been invented too, called SIT, or Special Investigative Team. This has been a blunder, except for those CBI worthies heading these.

What is the CBI, except a club of Indian Police Service officers of varying seniority imported from different states on deputation? The judges have to be gullible, hubris-driven, or both, to imagine that some of the same policemen who twist the law and mostly specialise in creative writing in FIRs and chargesheets for their political masters would become Yudhishthiras and Satyavadi Raja Harishchandras once they come to the CBI. There are exceptions. But exceptions do not make an institution.

If the higher judiciary introspects, if it ever holds even a closed-door equivalent of a brainstorm, it might even realise that its dabbling with anti-corruption inquiries in general, and with the CBI in particular, has been disastrous for itself. It has brought an emboldened executive, led by the CBI, to its own door. We have seen the self-destructive spectacle of the Supreme Court intervening to protect its own from the CBI investigations. This isn’t to say the CBI was right, but only to underline the loss of institutional, moral and political capital this has brought in its wake.

The CBI’s incompetence and political complicity have only made the judiciary look helpless and silly. In the spectrum and coal block allocation cases, the result has been pure failure and embarrassment.

From Bofors to 2G, the CBI’s record on high-level corruption is as poor as cricketer Jasprit Bumrah’s batting. But, while the CBI can rarely get evidence to pass judicial scrutiny, its institutional genius lies in destroying lives and reputations through leaks and insinuation. Track its history from Jain hawala to Christian Michel.

This is why the Modi government was so frightened of risking the CBI with an unfriendly boss like Alok Verma even for a day. Because even if he had only registered a preliminary inquiry in Rafale, never mind the facts or evidence, it would have finished the coming election for them, and blighted many individual BJP ministers’ lives for years. It’s been done to others before.

Like any other power city, New Delhi is cynical, brutal and unforgiving. The CBI/Alok Verma issue is no longer top of the mind for it. It is now the Supreme Court. The blame for the current crisis has shifted, from the Modi government to the judiciary. Was it wise for the court to inveigle itself in the process of selecting the CBI director? If it did, should it have let the government get away with removing in a midnight raid a man selected with its endorsement just 23 months ago?

Should it have then given such a wishy-washy order reinstating Alok Verma? And if so, why did it take 77 days doing it? This order could have been given in an hour.

Pitchforking Justice AK Sikri — by all accounts and reputation a fine, clean judge — into what was always going to be a vicious fight between the government and the opposition was a misstep. That it was done despite the foreknowledge that he had already been given a post-retirement sinecure compounded it. To be sure, Justice Sikri has declined the offer. Under the Modi government, 21 Supreme Court judges have retired. Nine of them got sarkari sinecures. The UPA was much worse at it. Of the 42 SC judges who retired under it, a majority were “accommodated”. The executive knows that most of the top judges become job seekers at 65.

Draw a bottomline on this score sheet and you will find the following: The government is the hands-down winner and the judiciary the loser. The latest controversy over changes in the list of collegium appointees to the Supreme Court worsens it.

One year ago, four seniormost judges held that joint press conference in a stirring show of institutional assertion. Three of the four have meanwhile retired. But one remains. It is for him to reflect on whether the open wound in his institution has begun to heal under his watch. He has the experience and wisdom to know what is best.

Here are my three simple suggestions on what the judiciary could do to protect itself:

* Start a voluntary pledge not to accept post-retirement government jobs except where constitutionally mandated, as in the NHRC or NGT. Even for these, a transparent mechanism must be put in place to take away discretion.

* Collegium proceedings should be opened up to some kind of institutional and public scrutiny. It can no longer function as a secret society, a judicial Freemasons guild.

* Third, and the most important, the judges should resolve to minimise headline hunting PILs and obiter dicta. They must return to their original calling of interpreting the text of law and Constitution in the context of life, as Chief Justice Gogoi said Monday, speaking at the release of a book dedicated to late CJI Y.K. Sabharwal.

Finally, what our country needs, most desperately, is the return of the era of the staid, “boring” old Supreme Court.

 

First Published: Jan 16, 2019 18:40:00

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