Thursday, May 09, 2013

What the Supreme Court said in its written order about the CBI probe into coal blocks allocations

It should be a matter of great juridical interest as to what is the legal status of the observations that Supreme Court judges in the course of hearings. The court's colourful description of the CBI as a caged parrot singing the song of its political masters rightly made it to media headlines, on the television and in the newspapers. But the court's considered view and directive is to be found in the written order that has become available on Wednesday evening. Merely cited as "ORDER", Justices R.M.Lodha, Madan B. Lokur and Kurian Joseph said: "On a careful consideration of the affidavit of the Director, CBI before this court on May 6, 2013 pursuant to the order dated April 30, 2013...we find that draft status reports...have been shared with the Law Minister, Law Officers and the two Joint Secretaries...and at their instance some changes have been made. Some of the changes made in these draft status reports are significant." So, law minister Ashwani Kumar's assertion that he did not make major changes does not stand scrutiny in the view of the court. On the general issue of the position of the CBI in the frame of things -- the CBI director thought that he was making a great statement that the CBI is part of the government -- the court makes the sensible distinction: "In Vineet Narain1, whilst 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. 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 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." Then comes the critical part: "In light of the position exposited in Vineet Narain 1 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. The Director, CBI and the investigating team ought to have acted as per the law laid down in Vineeet Narain1." The court also asked Attorney General Goolam E Vahnavati if the "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." The court noted that the Attorney general said that he would "seek instructions and report to the Court by way of an affidavit on behalf of the Central Government." In the last paragraph of the "ORDER", the judges said, "We clarify that we have not expressed any final opinion in the matter." Propriety demands that the joint secretaries should be suspended and an inquiry ordered as to why they overreached. Law minister Ashwani Kumar should gracefully resign.

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