THE GIST of Editorial for UPSC Exams : 29 October 2018 (In the court of last resort)

In the court of last resort

Mains Paper: 2 | Governance
Prelims level: CBI
Mains level: CBI institutional crisis
 

Introduction

•  The Supreme Court, on Friday, stepped into the institutional crisis engineered by the “forcible transfer” of the Director of the Central Bureau of Investigation (CBI) earlier in the week.

•  The patent illegality of the “forcible leave” of CBI Director Alok Verma, and the need to maintain the Bureau’s legal independence guaranteed by law.

•  The Supreme Court has chosen to attempt to sort out this mess.

Legal consequences

•  The straightforward thing to do would have been for the Supreme Court to act according to the black and white law, and reinstate Mr. Verma, the CBI Director, and leave it there.
•  Section 4B of the Delhi Special Police Establishment Act doesn’t allow the government to transfer the CBI Director during the two-year fixed tenure without the previous consent of the high powered committee consisting of the Chief Justice of India, the Prime Minister, and the Leader of the Opposition (or a member of the largest Opposition party in the Lok Sabha).
•  This was introduced in 2013 by the Act constituting the Lokpal. Till then, the Central Vigilance Commission (CVC) was a part of the committee mentioned in Section 4B.
•  It isn’t any longer, and thus has no role in asking the government to divest the CBI Director of his powers.

The court’s administration

•  The CBI is now under the Supreme Court’s administration.

•  The investigations being undertaken by the Director, Special Director, and all the transferred officers will likely stand frozen.
•  Important decisions by investigating officers or decisions to be taken in critical cases will not be taken.
•  It is unclear what the ‘routine’ decisions essential to the CBI functioning are, but the “interim” Director should be loathe to act with the alacrity and brutality he deployed in the first hours when he took office.
•  His authority stands severely diminished, and were he to take any major action, one can expect a challenge to it in court.

All about the CVC

•  The CVC’s past history is also revealing.

•  It usually acts as a postbox for forwarding complaints to the requisite government departments, without even bothering to ask for a reply from the department concerned.
•  In this case, it hadn’t even received the CBI’s report on Mr. Asthana, which it had requested, when it voted in favour of the selection committee recommending him as CBI Special Director.
•  Its explanation that Mr. Verma thumbed his nose at its supervisory role, leading to his removal, doesn’t hold water.
•  The extent of the problem, far less was an egregious measures, consistent with its powers it were possible including actually summoning the CBI Director instead of the records, and registering a case against him, which has still not been done.
•  The sanction to investigate, required under Section 17A of the Prevention of Corruption Act, as amended in 2018 by the government, was designed to protect officials from perceived investigative harassment.
•  It is hardly the CVC’s job to tell the CBI that its investigation is without the sanction of the law.

Under the circumstances

•  The Supreme Court has chosen to act according to its ideas of fairness, or equity, rather than the strict confines of the law.

•  It has waded into the administrative crises trying to fashion a solution, but as an interim measure it has indicated that it will have to consider each decision of the “interim” CBI Director, and thus each decision of the officer transferred in every investigation.

•  Justice Patnaik will have to supervise an investigation, within two weeks, into the vague and secret allegations against Mr. Verma.

•  Both are woefully under-equipped for a task that requires fact-finding of such magnitude. However, as an interim measure, it is hard to think what else would have sufficed.

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Prelims Questions:

Q.1) With regard to Central Bureau of Investigation (CBI), consider the following
1. It is a non-statutory body
2. The high courts and supreme courts also have the jurisdiction to order a CBI investigation
3. The Parliament has powers to extend the powers and jurisdiction of CBI
Choose the appropriate code
a) 1 and 2 only
b) 3 only
c) 1 only
d) 1, 2 and 3
Answer: A

Mains Questions:
Q.1) When the executive and independent institutions act with such brazenness against the constitutional ethos, can the Supreme Court bear the entire burden of course correction?