Sunday, 3 July, 2022
HomeOpinionThe FactivistGive us back our staid, old & boring Supreme Court, dear Lordships

Give us back our staid, old & boring Supreme Court, dear Lordships

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If SC introspects, it will see how its dabbling with CBI has been self-destructive. So bad the blame has now shifted from Modi govt to judiciary.

Nobody will feel sorry for the CBI even if the Narendra Modi government seems bent on flushing it down the chute. Trouble is, the CBI is now threatening to also 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 P.V. 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. The CBI, thriving on the mostly evil politician-police nexus, is just an old-fashioned hatchet, ever willing to be buried in the back of the rulers’ enemies. 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 J.S. Verma as CJI (1997-1998) intervened in the Jain hawala case, at least 10 CJIs (there have been 19 since, given the short tenure of Indian CJIs) and many other honourable judges have given the CBI more powers and autonomy and their direct supervision and protection. A new cosmic mantra has been invented too, called the SIT, or Special Investigative Team. This has been a blunder, except for those CBI dadas heading these. One, notably, is our high commissioner to a country of such great strategic significance as Cyprus. He headed the SIT on many Gujarat crimes that gave Narendra Modi and his state government a “fair” deal.


Also read: How the lack of ‘dharma’ caused the CBI crisis


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 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, a chintan-baithak, 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 CBI investigations. This isn’t to say the CBI was right and the judge/s were probably corrupt, 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 – where one Supreme Court bench gave the CBI powers unprecedented and so sweeping they bordered on rewriting the constitutional scheme of things – the result has been pure failure and embarrassment.

From Bofors to 2G, the CBI’s record on high-level corruption is consistent like, say, cricketer Jasprit Bumrah’s – while batting, not bowling. 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.


Also read: In Supreme Court’s Alok Verma judgment, a resounding call for CBI’s freedom


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 to inveigle itself in the process of selecting the CBI director? If it did, should it have let the government get away with firing a man in a midnight raid selected with its endorsement just 23 months ago?

Should it have then given such a wishy-washy order reinstating Alok Verma, pickling him in what our much-loved Bollywood villain Ajit would have described as “liquid oxygen?” Or, since the judges so love to quote English literature, “willing to wound but afraid to strike”, as Alexander Pope put it? And if so, why did they take 77 days doing it? This order could have been given in an hour. Meanwhile, the government got full control of the agency for use and misuse. Ask Akhilesh Yadav.

Pitchforking Justice A.K 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. It is in the nature of their business that politicians look for your weaknesses and addictions, and play to them. 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, and is happy to feed the greed.

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 senior-most 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 and fill under his watch, or is oozing more pus and slime. 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.

* 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 former CJI Y.K. Sabharwal.

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


Also read: In siding with govt, Supreme Court has lot to answer on Alok Verma’s ouster as CBI chief


 

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8 COMMENTS

  1. It is always good to have many viewpoints in a democracy. I have only one question. In Jayalalitha case, Judge Kunha said she is guilty and Judge in the next court said she is not guilty and finally Supreme court said she is guilty. If Kunha was right, Supreme court was also right but the in between judge was not correct. By the same argument, if the judge in between was right then both Kunha and Supreme court were not right. In any case when a judge gives a judgement which is found not right, can we say it is subjective views when facts and figures are there in numerals. Do the judges have immunity in such matters. The very foundations of Judicial system are drawn into this situation. Just a thought from myself. Nothing beyond

  2. Sinecure may not be an appropriate word to describe Justice Sikri’s London assignment. It hardly involved any monetary benefits, except paid trips to London. Since the consent was given orally, perhaps the CJI was not aware of it. Barring this, I broadly agree with the views stated in the article.

  3. Your implication that Justice Sikri sided With Modi blindly is absurd. Sikri, the man who put paid BJP’s attempt to form a government in Karnataka, is today a baddie in your eyes because you don’t like his decision. To aver that Modi got Verma out fearing Rafale is stupider. Verma’s reinstatement by SC was on the condition that he could not take big decisions. He could not have gone after Modi even if he had wanted to.
    The Print is decaying.

  4. I agree with the general context. But what were liberals doing when Supreme Court crept through the crack, violated the Separation of Power theory and started appointing the CBI Director – a completely executive domain? Now they have to taste their own medicine ! I doubt if these reactions would have been the same had Justice Sikri voted in favor of Verma.

  5. I was thrilled when the apex court struck down the NJAC Act. That was not jurisprudence, it was sheer physics and power play at work. Had there been no Collegium – itself a response to Mrs Gandhi’s supersessions – the apex court would not have been the last man standing amidst falling nine pins. What adds to its majesty is the fact that the Constitution allows it to sit in judgment over both the executive and the legislature, have the last word. 2. Some moves have been made to open up the deliberations and decisions of the Collegium. Perhaps more are required and will come in due course. Given how little our political system has reformed itself – in some ways, it seems to be moving in the other direction, we need this final frontier. 2. On post retirement assignments, either a voluntary code or curtailing the discretion of the executive by bringing the Court itself into the picture, either initiating or endorsing each appointment, 3. If I had been Dr R K Raghavan, would have asked for Paris, settled for Singapore. Cyprus mein kya rakha hai …

  6. L’affaire Justice Sikri was a Machiavellian creation by the Print and you succeeded in staining the good name of the judge. ‘Sinecure’ is a euphemistic term but considering the explanation given later, the least you could have done is tender an apology.

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