Freeing the caged parrot
On CBI reform, the court stepped in where the government failed. But that cannot be the end of the story
Where does the Supreme Court get the power to oversee the Central Bureau of Investigation? Which other government will countenance the SC wanting it to bypass Parliament with an ordinance so that a "law [making India's premier anti-corruption agency independent] is put in place before the next date of hearing"? The lawyers amongst you will point to the 1997 Vineet Narain judgment and its successors, whereby the SC expanded its powers under Articles 21, 141 and 142, creatively interpreted the CBI manual and criminal procedure code, and sought to insulate sensitive investigations from political control. But that begs the same question: where did the courts get the power to make these judgments? It is not given in the Constitution, is mentioned in no statute. Yet the Congress blinked first, sacked its law minister, tasked senior ministers with drafting a law to appease their lordships, and upheld this power of the courts. What's more, the court move is popular with the public. How came we to this?
The obvious answer is the political failure to lead. Beginning in the 1980s, judicial activism has taken place in the context of Congress decline, the coalition-era and non-Congress politicians wanting a strong court to protect them. Yet, the courts have not always won. On issues where there is unanimity among them, politicians have stood up to unfavourable verdicts. Parliament, for example, has passed no fewer than six constitutional amendments nullifying judicial decisions that limited reservations. The problem is with this particular government's approach to corruption. The scale of the 2G and coal controversies have no precedent. Its unwillingness to take graft seriously has also allowed other institutions — the Comptroller and Auditor General, the army chief, the SC, even the Press Council chairman — to step in where the Centre has failed. Had the Congress passed a half-decent Lokpal bill last year, giving real autonomy to an anti-corruption body, none of this would have occurred. But the government version of the bill is weak, and has not made it past Parliament. The court stepped in where the government failed.