Supreme Court’s priorities expose its lack of confidence in every other institutional process except for its own.
Why is the Supreme Court, the highest court of our country, monitoring criminal investigations like Godhra SIT or other cases like 1984 riots or implementation of its orders in the BCCI case on a day-to-day basis instead of focusing on constitutional issues?
Although nobody really asked this seemingly audacious question, the apex court answered it in a ruling this week.
“It is only to ensure that there is no interference during the course of investigations from anybody, whether due to political pressure or executive pressure or any other pressure (including, as it seems, ‘judicial pressure’) that could compromise the investigations,” a bench comprising justices Madan B. Lokur and U.U. Lalit said.
The court addressed this question in a ruling while dismissing a plea by several Army officers in which they asked the Lokur-Lalit bench to recuse themselves from hearing the Manipur encounters case.
Close monitoring of criminal investigations involves a great deal of judicial time and resources, which can be spent on more pressing issues involving fundamental rights. When key constitution bench hearings in cases like demonetisation have not been taken up in two years because the court doesn’t have the time, it is worth taking a relook at the court’s priorities.
The 20-page ruling in the Manipur encounters case talks about why the Supreme Court has to take up the task of ensuring that criminal investigations are conducted fairly.
The Attorney General of India had made arguments that this bench’s regular hard-hitting oral observations against the armed forces showed a bias against them. “It has demoralised our soldiers in Manipur fighting insurgency,” the attorney general had said.
In one hearing, the court had asked in an oral observation why “murderers were roaming the streets of Manipur”, referring to cases in which no arrests were made in alleged fake encounters despite preliminary inquiries. Such oral observations, which do not form a part of the official record were widely reported.
The case related to encounter killings in Manipur has been under the court’s radar since 2012. The issue gained steam after a bench of justices Lokur and Lalit began hearing the case. The bench has issued multiple orders against the government, set up a Special Investigation Team and even directed personal appearance of the CBI Director to give the court an update on this case, causing the government a lot of inconveniences.
The need for court-monitored investigations
When the court decides to monitor investigations or other cases, it does so to ensure that its orders are fully implemented by the government. These cases where implementation is monitored for years, even decades, are done through judicial innovation known as “continuous mandamuses”. Mandamus is a legal writ where the court orders a person or entity to do something.
Apart from criminal investigations through Special Investigation Teams and court-monitored probes supervised by retired judges, the court also routinely throws in public interest litigations for constant monitoring.
PILs involving the sealing activity in Delhi, the Manipur encounters case, are examples of continuous mandamuses. Such cases are given pre-decided slots and special benches are set up.
Justice Lokur, who routinely hears many such cases, explained why criminal investigations need to be monitored through continuous mandamus.
“Yet another purpose of a continuing mandamus is to ensure that the investigating officer or the investigating team (as the case may be) does not deviate from the natural course of investigations for whatever reason, either due to pressure or due to a misdirection or some other extraneous reason. This is the limited role of a constitutional Court in monitoring investigations in a continuing mandamus.
It is only when the investigating officer or the investigating team is given a free hand that the investigations will be meaningful, fair and with integrity,” the court said.
The Supreme Court’s reasoning for its priorities exposes its lack of confidence in every other institutional process except for its own. Significantly, in the absence of general rules on what cases merit close monitoring, the court gets to pick and choose cases it wants to keep track of.
While Manipur encounters and Muzaffarpur shelter home cases are being closely monitored, the apex court refused to monitor the Vyapam scam in which mysterious deaths of people related to the case continue to date.
Another troubling aspect of these ‘constant monitoring cases’ is that once the Supreme Court is hearing cases on a day-to-day basis, the forum is the highest constitutional court of the country even for the smallest of permissions.
For example, the apex court has to be approached for cutting of trees in Himachal Pradesh since the subject matter is part of the “Forest case”, T.N. Godavarman vs Union of India, another environmental case that the Supreme Court is monitoring since 1995.
The Manipur encounters case
It is unprecedented for the government to seek recusal of judges alleging that they are biased. However, the case came up before the same judges against whom the allegations are made and they dismissed the plea.
Interestingly, the court’s reasoning is not that they are not biased or that their observations are fair. The court simply says that since the “substantive legal and factual issues” of the case have already been decided and the court is only monitoring the implementation of its orders, recusal of the judges makes no sense at this stage.
The court also did not dispute media reports attributing the statements to the judges, which shows that the court stands by its words.
The case will be heard next on 26 November at 2 pm.