Once again the Supreme Court has made a ruling that is half-baked, flawed and likely to create more problems than solve them. A five-judge Constitution Bench has held that the Supreme Court or a High Court can order a CBI probe against a government official without the government’s permission. The judgment held that ordering a CBI probe without the state’s consent would “neither impinge upon the federal structure nor violate the doctrine of separation of power and shall be valid in law.” This decision not only does violate the separation of power but could also create a dangerous vacuum in which no official would be held accountable. Consider the following.

Suppose the government refuses to order a probe into a glaring misdemeanor by authority. The court cannot suo moto take notice and order a probe. There will have to be first a complaint filed before it by a petitioner. Suppose the court thereafter orders a CBI probe. Further suppose that the complaint is against the Union government. In that case the government that administers the CBI will be opposed to the court that orders the probe. The CBI would be caught in the crossfire. So how will the court ensure that the government does not misuse its powers to impede or derail the investigation through transfers or indirect threats to officers? The court itself will monitor the investigation to ensure an impartial probe. Thereby the court will indirectly engage in executive responsibility which will violate the separation of power. Also, it will most likely bring negative results because judges are untrained and unfit to exercise executive responsibility.

A similar conflict of interest would occur even if the case is against a state government. The objection by state governments to CBI probes arises from suspicions quite legitimate that the Union government could misuse the CBI probe for partisan political ends. Experience of how successive central governments have dealt with the CBI in the past justifies such suspicions.

The court monitoring a CBI investigation in order to ensure impartiality has already been tried with spectacular failure. It may be recalled that after the government dragged its feet on the Jain Hawala case four petitioners approached the Supreme Court with a complaint. This scribe was one of the four. He had written a letter to President Shankar Dayal Sharma claiming official compliance in a terrorist-related crime and the grave threat to national security arising thereby. The President referred to the complaint in a communication to the Supreme Court. Thereafter the Supreme Court admitted the case. To ensure unhindered investigation the SC barred the government from undue interference and itself monitored the investigation.

The result was disastrous. The probe was thoroughly subverted. Instead of registering one case and lumping all the accused together, the CBI registered separate cases. Thus if the authenticity of evidence was recognized in one case it could be challenged in another.  Moreover extraneous information regarding financial dealing between Prime Minister Narasimha Rao and the main accused, which did not pertain to the actual case, was fraudulently introduced as evidence by the CBI.  This created severe inhibitions within the government to allow a fair probe. In the end the results were farcical that left a black spot on the reputation of the Supreme Court. The case that had overwhelming evidence to sustain it was admitted by the Supreme Court but was dismissed by the Delhi High Court for lack of sufficient evidence! Yet this dismissal did not deter the Supreme Court from invoking the Jain Hawala case in order to justify its ruling that the Central Vigilance Commission be insulated from interference by the government! Much later Chief Justice JS Verma who presided over the bench that heard the case admitted in a public seminar that justice was not done and the case should be reopened. Nevertheless Chief Justice Balakrishnan and the five-member Constitutional Bench have rushed in where predecessors had burnt their fingers. The caveat contained in the SC ruling that the extraordinary power to order a probe “must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary” does not improve matters. Our Lordships would know that laws that rely for application on discretionary restraint are bad laws. This latest SC ruling is an invitation to future disasters.

However, the prevailing system by which clearance from the government is required before the CBI may launch investigation or prosecution is grotesque. What then is the remedy? It is clear if only our learned judges could bring themselves to recognize the truth. For impartial and effective investigation the CBI cannot function under the very government that may be under investigation. Neither can it function under the Supreme Court as the Jain Hawala case experience painfully revealed. What then is the solution?

The solution is obvious. The CBI should be converted into a Constitutional body that is accountable to the President. That however would open the door to the exercise of powers explicitly conferred on the President by our written Constitution. These powers are never invoked. If that were done the President’s role would become more executive notwithstanding Article 74 of the Constitution which provides for a "... council of ministers to aid and advise the President who shall, in exercise of his functions, act in accordance with such advice". As Wikepedia in its commentary points out: “However, the Article 74(2) bars all courts completely from assuming even an existence of such an advice. Therefore from the courts' point of view, the real executive power lies with the President. As far as President's decision and action are concerned no one can challenge such decision or action on the ground that it is not in accordance with the advice tendered by the Ministers or that it is based on no advice.”

Thus the President, more legitimately than the Supreme Court, could exercise authority over the CBI without violating separation of power. With President Pratibha Patil kept busy distancing herself from the actions of her family such a possibility sounds presently quite remote.