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Respect Supreme Court's wisdom, Mr Digvijaya!

May 15, 2013 18:39 IST

Troubled with a variety of mind-boggling scams and executive overreach, the last thing a shaken United Progressive Alliance-II government needed was a dressing down from the Supreme Court.

The  apex court also virtually cut its wings by passing a detailed order asserting that the government’s right arm, the Central Bureau of Investigation can’t be allowed to be caged but should free fly without any hindrance after the blatant interference by the Prime Minister’s Office, the law minister and the attorney general in the multi-billion coal blocks scandal was exposed.

Though the overzealousness shown by Law Minister Ashwani Kumar, who  was sacked along with by Railway Minister Pawan Kumar Bansal, involved in another corruption case which is also being handled by the CBI, is understandable as the coal scam related to the period when Prime Minister Manmohan Singh was controlling the coal portfolio, one baffles at the UPA government’s experienced firefighter Digvijaya Singh’s half-baked criticism of the top court for its hard-hitting strictures on the ruling party and its political and legal executives.

A hard-boiled politician who knows well the rules of cricket and soccer in particular, Singh sought to hit a six on the googly bowled by the SC on May 8 last order. He tried again to salvage what’s remaining with his party’s government and attempted to ridicule the apex court on various points.

“The law minister has the right to advice the CBI and this is specified in the agency's manual. Ashwani Kumar is a lawyer and he knows his job," the Twitter-loving Singh told a TV channel.

Then he continued with his full-throttle attack at the top court reminding it that “It has its own jurisdiction. The pillars of democracy cannot encroach upon each other. Can the Supreme Court conduct an investigation? Is the executive liable to answer to the people or the court?”

“We are chosen by the people and we are answerable to the people," Singh said, ignoring the facts that the written order passed by the court is well-worded, guarded and an indictment of the Union of India that has, for decades, meticulously disregarded its undertaking (the Jain Hawala case judgment) that the CBI and other investigating agencies would be insulated from political interference and pressure.

But Singh was solely guided by the media blitzkrieg propelled by an anguished SC bench dealing with the coal scam case: whether its probe should be handed over to a special investigating team (like in Gujarat riots) or a retired SC judge made the supervisor the CBI investigation.

Either he ignored all  what the court’s written order says or as a matter of strategy restricted the bitter attack solely on the oft-debated and criticised “judicial overreach”, “judicial activism”, “separation of power”,  “public interest litigation” et al.

Talking with the news channel he said, "The SC has its own jurisdiction. The pillars of democracy cannot encroach upon each other. Can the SC conduct an investigation? Is the executive liable to answer to the people or the court? We are chosen by the people and were answerable to the people’’.

Nowhere does the top court talk of the resignation of law minister or what the 7-RCR where Prime Minister Manmohan Singh lives ought to have behaved in a matter that’s seized by the top and being investigated by the so-called premier investigating agency.

It reminds all those who matter in politics an governance that the judgment in Jain Hawala case in which several top raking political leaders (L K Advani among others) had faced allegations of accepting money from an operator Jain and their names figured in a diary kept by him.

Late Justice J Verma, who headed the hawala bench, had made it clear that “Be you ever so high, the law is above you.” The investigating agencies got a shot in the arm as the vibrant judge told the Centre controlled agencies to catch the “big fishes” also.

Ignorance may be bliss and short-shelf life of memory may be good for the politics. However, every game has its own rules. Court proceedings and judgments are a matter of record set precedent.

But Singh preferred to play every ball with the same punch of politics. "The Supreme Court has its own jurisdiction. The pillars of democracy cannot encroach upon each other. Can the Supreme Court conduct an investigation? Is the executive liable to answer to the people or the court? We are chosen by the people and we are answerable to the people," he Singh told people through the TV channel.

What he forgot was the December 18,1997 verdict (Vineet Narain and Others Vs Union of India and Another). On the other hand, the top court dealing with the coal scam case on May 8 last recalled it and explained it “emphasised the need for insulation of CBI from any extraneous influences to enable it to discharge its duties in the manner required for proper implementation of the rule of law’’.

Referring to paragraph 48 of the independent review committee set up by the court then, the judges said, “It was observed that in view of the common perception shared by everyone including the government of India and the IRC  of such need, it was imperative that some action was urgently taken’’.

“Accordingly, certain directions were issued in this regard. It was, inter alia, directed that the Central Government shall take all measures necessary to ensure that the CBI functions effectively and efficiently and is viewed as a non-partisan agency,” the 1997 judgment that’s the base for the current order which is quite troublesome for the UPA government said.

In contrast, when judges examined the affidavit filed by CBI in the coal scam case on May 6,2013, judges observed “we find that draft status reports pertaining to PE 2 and PE 4 (relating to copal scam case investigations) have been shared with the law minister, law officers and the two joint secretaries -- one from the ministry of coal and the other from the PMO and at their instance some changes have been made.”

“Some of the changes made in these draft status reports are significant. PE 2 relates to allocation of coal blocks for the period 2006-2009. In the course of inquiry into PE 2, 11 FIRs alleging corruption and conspiracy against unknown public officials of the Ministry of Coal have already been registered by the CBI,” the judges noted.

Then they recalled the Vineet Narain case judgment acknowledging that overall control of the CBI and responsibility for its functioning has to be in the executive, this court was of the view that in the matter of investigation, a scheme giving the needed insulation from extraneous influences of the controlling executive was imperative’’.

It may be pointed out that Singh’s defense for ousted law minister isn’t based on hard facts as the apex court observed “this Court noted that though the minister who has been given responsibility for the functioning of the CBI has general power to review its working and give broad policy directions and he has also power to call for information regarding progress of the cases being handled by the agency, but none of these powers would extend to permit the concerned Minister to interfere with the course of investigation and prosecution in any individual case’’.

That’ the catch point which Singh seems to have forgotten while protecting Ashwini Kumar, himself a senior lawyer and as the Congress protector felt “he knows he law”.

“As noted above, allegations of corruption and conspiracy against unknown public officials of the ministry of coal are the subject matter of PE 2. 11 First information reports have already been registered. In light of the position exposited in 1997 judgment there was no justifiable reason for the two Joint Secretaries to peruse the draft status reports and recommend changes therein nor there was any justification for the CBI to allow these officers access to the draft status reports and allow the changes in the draft status reports as suggested by them.”

While holding the microphone close to his chest, Singh also forgot another part of the written order that, “The director, CBI and the investigating team ought to have acted as per the law laid down in Vineet Narain judgment’’.

In other words, a grave charge has been made against the CBI.

“Whether the Central government intended to put in place appropriate law for the independence of the CBI and its functional autonomy and insulate it from extraneous influence(s) of any kind so that CBI is viewed as a non-partisan investigating agency. This query was put to the learned attorney general as we thought that if the statutory framework was in place, there would not be any necessity for us to undertake exercise in this regard.”

But, the Union government has conveniently forgotten the mandate and its undertaking that it would put in place an effective mechanism to ensure that not only the CBI, but all other centrally controlled investigating agencies were able to act fearlessly and without intimidation either by the PMO, South Block, North Block or Shastri Bhawan.

However, Singh’s outburst at the top court was limited to the judge’s indictment of the pathetic governance. He forgot that there is another restriction on the legal pundits that are found sitting in the front and middle of the treasury benches.

Henceforth, the special court which is seized of the coal scam cases can’t entertain any plea by any party raising issues on the CBI’s status report. Nor the special court can, till further order, seek from CBI status report regarding the coal scam cases investigation.

“If any request is received from the special judge, CBI for filing the status reports concerning the FIRs relating to allocation of coal blocks, we direct that until further order(s), no such status reports need be filed before that court,” it said. Thus, proceedings before the special judge (coal scam) would remain of  remain stayed.

Then it not be prudent to term this coal scam order as something unprecedented and that it encroached on the executive functioning. Justifying cancellation of 122 spectrum licenses, the top court on February 3, 2012 observed that “It was duty-bound to strike down policies that violate constitutional principles or were contrary to public interest.”

Having seen the stance of the government in that Rs 1.76 lakh crore spectrum allocation scam, a bench of Justices G S Singhvi and A K Ganguli said its intervention was, “needed to ensure that the institutional integrity is not compromised by those in whom the people have reposed trust and who have taken oath to discharge duties in accordance with the Constitution and the law without fear or favour, affection or ill will and who, as any other citizen, enjoy fundamental rights but is bound to perform duties.”

Digvijaya Singh ought to know the exact purpose of accountability as he says the government is accountable to the people. With the inception of public interest litigation in 1979 there’s been increasing burden on the court for passing direction to the government to act and wake up form slumber.

It may be pointed out that there can’t be any quarrel with the proposition that the court cannot substitute its opinion for the one formed by the experts in the particular field and due respect should be given to the wisdom of those who are entrusted with the task of framing the policies.

But executive inaction or inertia in cases where larger public interest is involved can’t be allowed to be ignored on the pretext of separation of power by the judiciary. The back bone of our Constitution is its fundamental rights and right to a corruption free governance and equality are vital parts of this sacred Magna Carta.

None else but the Supreme Court or the high court are constitutionally empowered to direct the government and its agencies to enforce the fundamental rights.

Seeing this background, Singh ought to have played safe as political leadership is also expected to respect the institutions set up under the Constitution.

Rakesh Bhatnagar