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Thursday, 29 November 2018

OUR RIGHT TO KNOW IS NOT NEGOTIABLE



      These last few weeks have had a bizarre quality to them, almost a Kafkaesque experience, with doses of Lewis Carol, Ian Fleming, Spy vs Spy, 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 Supreme Court and the citizens of a country waiting with bated breath for some Daniels to finally come to judgment. Rafale is clearly headed nowhere, notwithstanding the judicial sound and fury, and will soon be lost in the cumulonimbus clouds of defense secrecy, Official Secrets Act, technicalities over weaponry, government filibustering and the residual blame game over Bofors. We will hear no more of it 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 fifteen years ago. And so we want to, and are fully entitled to, know exactly what is happening in that famous cage carpeted with sleuths owing allegiance to all kinds of shady 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, planting and destroying evidence, plunging knives into each other's backs and doing the other things that promote organisational ethos and bonding. India has not seen this kind of internecine blood- letting since the time of the Mughals, and therefore we naturally want to know more of this synthesis of Mughale Azam II and Godfather III. And we certainly don't want the Supreme Court to play the spoil sport with our right to know.
   On the 20th of November 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 a whole host of senior officers, alleging bribery, coercion, interference etc. in sensitive cases. It was also livid at the leaking of Mr.Alok Verma's reply to the CVC's show cause notice to him. So outraged was the Chief Justice, in fact, that he carpet bombed everyone in the court, refused to allow any lawyer to speak, abruptly adjourned the case without assigning any reason, and retreated to his chambers. With all due respect and deference, one cannot agree with this line of action.
   In the first place, it's been almost a month since Mr. Verma was removed unceremoniously in a midnight coup by the central govt.: he immediately filed a petition in the SC against this. Even a kid in a Bihar nursery school could see that his sacking ( it was no less) was illegal, it violated the amended provision of the Delhi Special Police Establishment Act and a Supreme Court 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 investigating tangential matters such as the charges against him and his replies to them. The petitioner has been put in the dock! These issues 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 20th November, culminating in the CJI's angry outburst- " You don't deserve a hearing"- are even more disturbing and disappointing because they are legitimising what SC advocate Gautam Bhatia in a brilliant article in the 29th October issue of the Hindustan Times calls " the jurisprudence of the 'sealed cover.' " Mr. Bhatia's 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" and because it " involves the court in a secret dialogue with( in most cases) the state."
   One has to agree with Mr. Mr. Bhatia. Why should there be a kind of gag order in the CBI case? Here is a premier organisation investigating the most important economic and criminal cases in the country, its senior most officers are at war with each other, its politicisation is nearly complete, it is subverting justice on a regular basis, its functionaries appear to be indulging in large scale corruption, investigations are being fixed. Why should the public not be told about this fecal state of affairs, all being carried out on the tax payers' moneys? Why should we not be told what the charges against various officers of the CBI are, and what their responses are? Why should we not be informed of the names of corrupt bureaucrats and politicians named by Mr. Sinha in his petition? This is not a matter that concerns the judiciary alone, the ordinary citizen is even more concerned because it impacts his life more than it does the judges who still have a degree of defense against crooked and rampaging policemen, which the Joe in the street does not have. It is the same Joe who probably votes for that politician, pays the salaries of these bureaucrats, has to deal with these policemen on a daily basis.
   No, sir, 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 " infantalises" the public ( Mr. Bhatia's apt phrase) because it assumes that they are not mature or intelligent enough to make up their own minds. It smacks of a colonial mindset which is 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. 

2 comments:

  1. I should have realized this article would be in your blog, too. I'm so glad there's someone like you to raise these very valid concerns about needless and forced opacity, and that too by the highest court, and arguing articulately against this unfortunate practice. Sure,there can be reasons for some gag orders on court proceedings (protecting witnesses, defense secrets in public interest, etc.) but as you say they don't seem to apply to the CBI case. In any case such gag orders should be the exception rather than the rule, and should be accompanied by a reasoned opinion of the court as to why they are imposed, i.e., why the weight of factors justifying secrecy trumps the public's right to know.

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    1. It's sad that at yesterday's hearing the SC has again postponed the matter for the 5th of December.It is this kind of indecisiveness and delay which makes our justice system so ineffective. Half of Verma's remaining term has been consumed in this dithering and the CBI is in a state of complete paralysis. And we still wonder why countries reject our extradition requests?

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