Wrong to invoke constitutionality
This is indeed unprecedented. The curious case of the Gauhati high court judgment which has deemed the Central Bureau of Investigation unconstitutional is a rather intriguing case of judicial overreach. The court, without any heed to the potential consequences of its ruling, has labeled the CBI groundless and has rendered all its actions invalid by pointing towards a loophole in the resolution through which the CBI was set up in the first place. The judgement by the division bench, comprising justices I A Ansari and Indira Shah, came on a writ petition that challenged the 2007 high court order on the 1963 resolution through which the Bureau was set up. This indeed perplexing because quashing the very order upon which the apex probing body is founded would mean giving a free rein to the umpteen number of criminal cases that the Bureau has opened so far and which are pending in various local and high courts of the country. While the Gauhati HC is technically right in underlining the legislative lacuna within the resolution, that under no circumstances can suffice to strike down a fundamental institution of our state apparatus, which is to ensure impartial examination of crimes and criminal cases. Although the CBI has been thoroughly castigated on previous occasions, especially by the Supreme Court, which called it a ‘caged parrot’, it does not merit absolute dissolution of grounds as flimsy as a legislative loophole for which it is not even directly responsible. Evidently, in the light of these obvious connections, the Gauhati HC’s order – that the home ministry resolution was not the decision of the union cabinet and that they were not executive instructions assented to by the president of India, they stand null and void – is not only shortsighted but also might adversely impact the CBI’s position vis-à-vis the government, the ministries and the civil society as a whole.
Naturally, the government as well as the Bureau have been put in the dock over this unusual and rather laughable ruling, which, instead of bolstering the CBI’s role and power in the system, such as giving it autonomy or more authority, thereby aiding it to carry out investigations without undue external influence, has in fact caused a massive embarrassment to all and sundry. Already, the accused in several corruption cases, such as the 2G scam-accused A Raja, are trying to mobilise the queer ruling to their own advantage. Not only is this unwarranted, but also this is exactly the kind of judicial and legal interpretation that acts as a setback to the entire society. The crux of the problem lies in isolating the legal nitty-gritty at the expense all other factors, including the sociological, political, economic and cultural. Did the Gauhati HC not realize that deeming the CBI unconstitutional would kick the proverbial hornet’s nest and unleash unimaginable woes on the already beleaguered national psyche? Instead of completing the probes, the ruling would in fact help those whose interests lie in clipping the wings of the Bureau, including figures from the political and corporate fraternity who have a stake in raking up the mud to malign the CBI. In any case, while judicial activism has earlier been hailed in these very pages of this newspaper, this is one instance which cannot be condoned under any circumstances.