Killing justice in India is easy: just botch the police investigation. Citizens know that very well and hence the constant demands for “independent” probes in all manner of cases. The Central Bureau of Investigation (CBI) is one such independent agency. There are severe limitations to CBI’s ambit in India. By law, the agency cannot take up an investigation unless a state government orders it to do so. That was one big barrier, until now.
On Wednesday, a five-judge bench of the Supreme Court (SC) ruled that constitutional courts (that is, the SC and the high courts) could order a probe in any state without the consent of the local government. It said this power, which the court termed as an extraordinary one, is to be used sparingly. Nothing stands in the way of protecting the fundamental rights of citizens, which can be enforced by courts by using Articles 32 and 226 of the Constitution.
The court’s order is a welcome one, but is only the first step on a long road. The fact is that the Union government controls CBI in ways that often subvert justice. Pretensions of its independence are only what they are—pretensions. The problem is how to make the agency independent, especially in cases that involve politicians. There is no easy way out. The apex court and the high courts have many demands on their time and day-to-day monitoring of investigation by them is physically difficult, if not self-defeating. The government can’t be trusted on this count. There is simply too much evidence that proves that governments interfere blatantly with its functioning. That is the challenge before the courts.
Independence requires that there be no political interference during the investigative and prosecution phases of a case. This requires two conditions. First, officers involved in a matter not be transferred or harassed and, second, there be monitoring by the courts during the prosecution phase. The first condition can be secured by the courts banning the transfers of officers once they start an investigation. The second issue may prove to be tricky: It has the potential to greatly enhance the powers of courts during a trial. That is not a good idea.
The first step, however, ought to be the depoliticization of investigation and prosecution. Despite various commissions, committees and other experts recommending this for decades, this elementary step has not been taken so far.
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