Mr Digvijay Singh is known to speak out of turn. His latest comment on how judges of the Supreme Court should conduct themselves while hearing a case was an unwarranted advice to the judicial institution.
It is permissible to discuss on the correctness or otherwise of a Supreme Court judgement. Judgements and orders can be debated because courts can go wrong. Criticism or comment which is intended to improve the functioning the justice delivery system is always welcome. However, the motivation behind this criticism cannot be the frustration of a loser. This regrettably appears to be the impression that Digvijay Singh has conveyed.
Should Judges ever make oral observations?
The comment that Judges only speak through written orders and not orally can only come from a person unfamiliar with the functioning of a court. Detailed oral arguments are addressed in courts. Arguments, at times, convert themselves into a debate. Questions and comments emanating from judges indicate which way the judicial mind is functioning. Lawyers have always preferred judges who speak rather than those who never disclose their mind. It is always possible to correct an erroneous impression, either on facts or law, emanating from a judge.
The final view of the court is always more structured. When a government or an investigating agency is going wrong, oral observations nudge the agency into correction. The final order expresses the considered opinion of the court. In a case like the coal block allocation investigation, a combination of oral observations coupled with a detailed written order blends judicial activism with restraint and statesmanship. The two together contribute to the administration of justice. If judges ever heeded to Digvijay Singh’s ill-advised suggestion of not speaking in court, hearings would become dull and often lead to miscarriage of justice since an opportunity to correct erroneous impression would be lost.
Did the Supreme Court belittle the CBI?
Over the years the CBI has belittled itself. The Government has actively contributed to this process. The image of the CBI has touched a rock bottom. CBI directors are appointed by the government. The transfers and postings of officers in the CBI are controlled by the government. Sanctions for prosecution are granted by the government. The agency has been misused against political rivals. The agency has been used to pacify leaders of the Samajwadi Party and the BSP in order to contribute to the longevity of the government. The relationship between the CBI, the government and the ruling party has become too close for comfort. Once a person becomes a CBI director his ability to negotiate post retirement jobs has been conclusively established.
In the investigation relating to the allocation of coal blocks the judges got an impression that the agency was not being fair and honest. Its status report to the court had been doctored. The ‘heart’ of the report had been altered by the CBI. Sustained grilling and oral observations compelled the CBI to admit that the law minister and the officials of the PMO and coal ministry had made important deletions and changes in the report. The changes were significant. Here was a pliable CBI quite content with the Executive, including the possible suspects, altering the status report.
The Vineet Narayan case was the first judicial attempt by the Supreme Court to strengthen the CBI. Even though the Supreme Court laid down certain guidelines the government over the last 17 years found out methods of bypassing those guidelines. The entire movement for the enactment of a Lokpal and a liberated CBI has yet not succeeded. At every stage the government has been slow and reluctant. The CBI gets belittled when it bends before to political pressure and conducts a pliable investigation. On the contrary when the court discovered this pathetic plight of the CBI, its investigation had to be monitored.
The delinquent minister had to resign. The officials are still struggling for what reply to give. The government is nervous. The order of the court has indicated that either the government prepares a legislative plan to insulate the CBI or the court could issue specific guidelines. An independent investigation is the hallmark of our criminal justice system. If the CBI is made more independent, it does not get belittled; on the contrary, it is strengthened.
It is the duty of the court to ensure that investigations are independent. In the 2002 riots in Gujarat the investigation was under the state police. The court first ordered an investigation by an SIT comprising of police officers of the state. Not being satisfied with that investigation the Supreme Court appointed its own SIT comprising of officers from outside the state. It then appointed an amicus curiae to offer comments on that investigation. The likes of Digvijay Singh welcomed that monitoring. It is only when the corruption of the UPA government is being investigated by the CBI and monitored by the Supreme Court that monitoring of investigation is now being termed as constitutionally unacceptable. Such arguments of convenience have very little place in a meaningful public discourse.
BJP leader Arun Jaitely is Leader of Opposition (Rajya Sabha)