Judiciary – In the mix
In a significant remark on judiciary’s intervention in CBI investigations, a parliamentary committee stated that the Supreme Court and High Court have started performing the functions of the lowest rung of criminal justice system, taking over the role of a magistrate. This observation has come at a time when all the high profile cases like 2G scam , Sharda scam etc are big ticket CBI cases, being either regularly heard or monitored by the Supreme Court.
So the big question is the whether the judiciary is over stepping its basic function ?
The most important lineup is “What compelled the committee to make such observations and under what circumstances”?
A senior committee member says that in India on one hand there is a need for fair investigation against high and mighty; on the other hand this system of monitoring brings in certain problems as well. It tends to infringe on the right of trial of the accused. For e.g., if the apex courts starts monitoring a case under trial; then how can one expect the magistrate or other trial judge to maintain complete independence . Hence under the pressure of apex courts; the judiciary, somewhere down the line, fails to give the presumption of innocence to the accused to which he is entitled by the constitution. Hence rather than rectifying the same system there is a need to find an institutional answer to this issue.
Parliamentary committee after studying the pros and cons of the system have come up with an institutional solution to the issue. As per the committee LOKPAL seems to be the answer for all these issues in hand. Lokpal should monitor investigations without influencing the trials and in accordance with the fundamental principles of jurisprudence that you are presumed to be innocent till you are proven to be guilty.
The committee backs up their claim with a case study from USA. They have a different kind of approach to solve these issues i.e Independent Council Act. For eg when Bill Clinton was charged with certain kind of allegations, federal court appointed independent council; who became in-charge of the investigation as well as prosecution with requisite funds for the purpose of investigation. The case was resolved within 10 days as the council was allowed to use it’s own methods to prove it’s side of the story and without any monitoring. Hence; proving the need for the existence of an independent institution for the same in India for faster and accurate case trials.
A senior judge of High Court justifies Judicial System by saying that Indian constitutional arrangement as of now allows Supreme Court to monitor such probes because there is no other apex agency to do the same as per the constitution. He also mentions that how successful these probes have been after the Supreme Court intervention. (e.g. all the high profile cases like 2G scam, coal gate could only see light of the day because of Supreme Court intervening the cases) He further states that monitoring such cases is the statutory power given to the apex court by the constitution and it cannot be abridged away. The Judge suggested that daily monitoring should be checked so that the courts can devote time to other pending cases.
Though both the sides seems to be accurate from their own point of view; there is one more paradigm which needs immediate attention:
What makes a court intervene a probe, when this should be the core responsibility of the executive.
This situation has arisen because it has been found that investigations have been interfered by the political classes (the high and mighty of Indian executive system) either directly or indirectly by influencing the police system in the country. Thus arises the need of an independent agency like Lokpal to relinquish the role of all the unwanted actors in the system.
Committee also takes a stand for Lokpal by suggesting that high profile cases, partisan investigations are regular facets of criminal law. (Will SC start taking the role of police station as well?) If SC is police station; and the charge sheet is first approved by the SC; fate of those accused remains uncertain? Thereby solidifying their claim for Lokpal.
Lokpal should have its own investigation wing, then the need for monitoring by SC will not be so extensive. Also, since courts are overburdened these days they should delegate some of its non-core functions to an independent and reliable institution like the Lokpal.
Though Lokpal seems to be the savior in such a situation but is the authenticity of Lokpal guaranteed in every circumstance? It cannot be denied that appointment of Lokpal is controlled by the political class directly or indirectly by the Lokpal Act. Hence first of all there is a need to be more transparent in the appointment of Lokpal. Also, for the genuine functioning of the Lokpal it should be vested with certain important powers, e.g all the investigating agencies like CBI and CVC should come under their ambit to give the office more credibility and power.
Here lies the ultimate question that in a country like India which stands second in population graph of the world; do the agencies have enough resources to cater all the citizens individually and then again have overlapping functions creating more hassles in the judicial system.
The answer lies in the discussion there in; an independent and strong Lokpal should be the first step, and as it proceeds; with the analysis of its pros and cons we should come up with a stringent framework for monitoring all the probes.
But in a country like India where constitution is supreme, nothing can abridge the power of SC to monitor cases . All we need is the perfect balance between legislature, executive and judiciary; so that judiciary should only bird watch the cases and rest shall be done by appropriate agencies.
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