These last few weeks have had a bizarre quality to them, almost a Kafkaesque experience, with doses of Lewis Carroll, Ian Fleming, John Le Carre and George Orwell thrown in. The two high profile cases with the Supreme Court—Rafale and CBI—are testing the patience of both the court and the citizens of a country waiting with bated breath for some Daniels to finally come to judgment. Rafale is clearly headed nowhere, and will soon be lost in the cumulonimbus clouds of defence secrecy, Official Secrets Act, technicalities over weaponry, and the residual blame game over Bofors. We will have no closure till the sonic boom heralding the arrival of the first of the 36 planes next year.
The CBI case, however, is much closer to our hearts because these are the guys who can walk into your house tomorrow and arrest you for having doodled on a file 15 years ago. And so we want to, and are fully entitled to, know exactly what is happening in that famous cage inhabited by sleuths owing allegiance to all kinds of political and dubious entities.
The CBI at the moment most resembles a Mafia organisation, with different groups reporting to their own capos, keeping surveillance over each other, accusing each other of criminal wrongdoing and promoting a new model of organisational bonding. India has not seen this kind of internecine bloodletting since the time of the Mughals, and so we want to know more of this synthesis of Mughal-e-Azam and Godfather. And we don’t want the courts to play spoilsport with our right to know.
On November 20, the court took umbrage at media reports revealing the gist of the charges made by Manish Sinha, DIG in the CBI, against a minister and many senior officers, alleging bribery and interference in sensitive cases. It was also livid at the leaking of Alok Verma’s reply to the CVC’s show-cause notice to him. So angry was the chief justice that he refused to allow any lawyer to speak and abruptly adjourned the case without assigning a reason. With all due respect and deference, one cannot agree with this line of action.
In the first place, it’s almost a month since Verma was removed unceremoniously in a midnight coup: he immediately filed a petition in the SC against this. Prima facie, this was clearly illegal; it violated the amended provision of the Delhi Special Police Establishment Act and an SC order. He could have been divested of his position only by the collegium of the PM, CJI and Leader of the Opposition.
A month later and there is still no decision on his petition, and one month of his remaining tenure of three months has already been lopped off. Instead, the court has busied itself with tangential matters such as the charges against him and his replies to them. The petitioner has been put in the dock! These could surely have been examined after settling the legality of his removal. The government appears to be slowly achieving through the back door what it should not have been allowed to do through the front.
The developments of November 20 culminating in the CJI’s outburst, “You don’t deserve a hearing”, are even more disappointing as they are further extending what SC advocate Gautam Bhatia in a brilliant article in another paper calls “the jurisprudence of the ‘sealed cover’.” His piece was penned in the context of the Rafale case but is equally pertinent here, because the court is insisting on the same confidentiality here. He points out that the “sealed cover” is being resorted to time and again by the court—Rafale, NRC case, Judge Loya case and now the CBI case. He is critical of this process because it is “a court-driven opaque and secret process”.
Why lower a curtain of secrecy over the CBI case? Here is a premier organisation investigating the most important economic and criminal cases, its seniormost officers are at war with each other, its politicisation nearly complete, its functionaries appearing to indulge in large-scale corruption. Why should the public not be told about this dangerous state of affairs, all being carried out on the taxpayers’ money? Surely we are entitled to be told what the charges against various CBI officers are, and what their responses are? Why should we not be informed of the names of bureaucrats and politicians named by Sinha in his petition?
The CBI’s reputation is more important than the reputations of a few individuals. This is not a matter that concerns the judiciary alone; the ordinary citizen is even more concerned because it is he who votes for that politician, pays the salaries of these bureaucrats, and has to deal with these policemen on a daily basis. Unlike the Rafale imbroglio, there are no questions of defence strategy, external relations or security of the nation involved here.
The jurisprudence of the sealed cover is a deviation from the settled principles of law. It imposes an opacity in what should be a transparent process; it confers a protection on the state and its minions which can only embolden them; it ‘infantilises’ the public (Bhatia’s apt phrase) because it assumes they are not mature or intelligent enough to make up their own minds.
It smacks of a big brother mindset premised on the belief that only an instrumentality of the state can be trusted with ‘sensitive information’. It also betrays a contradiction in the court’s own stand: once it admits a petition it acknowledges that some public interest is involved in it, how then can it deny relevant information on the case to the same public?The right of the citizen to know what the government and its agencies are doing has to be paramount in a democracy. The courts are an instrumentality to enforce this right, not to deny it.