Rule of law fails, politics gains

Independence of the investigating agencies has been a case of judicial romanticism in India. In Prakash Singh case (2006), the Supreme Court said that such apparatus should “secure professional independence” and “function truly and efficiently as an impartial agent of the law of the land.” Though the Court was dealing with the police system in the country in general, the jurisprudence reflected in the judgement should apply to the agencies under the Centre as well.

In Vineet Narain Case (1997), popularly known as the Hawala case, the Supreme Court pleaded for functional autonomy for the Central Bureau of Investigation (CBI). But in 2013, the same court had to say that the CBI acted like a “caged parrot speaking in its master’s voice.” These remarks came out while considering the Coal allocation case. The criticism was that those who were closer to the power centers enjoyed impunity in corruption cases. At present, the primary role of the agency seems to be to subserve the political interest of its master. Thus, the CBI appears to be an unkind weapon in the hands of an aggrandising state. It is a device to suppress criticism and oppress the opponents.

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The Enforcement Directorate (ED) is an agency empowered to enforce the Foreign Exchange Management Act (FEMA),1999 and the Prevention of Money Laundering Act (PMLA),2002. The agency is also given the task of dealing with cases under certain other laws like Fugitive Economic Offenders Act,2018. Clearly the agency has an important duty to maintain the economic security.

National Investigation Agency is the major anti-terrorist task force in India. Paradoxically, in recent times, not only the political opponents, but even the independent intellectuals, activists and journalists were targeted by the agency invoking draconian laws like the Unlawful Activities Prevention Act (UAPA). Jail became the rule and bail, not even an exception.

Going by the Seventh Schedule of the Constitution, the public order and the police are under the State List, but criminal law and criminal procedure generally, come under the Concurrent List. Regarding the subjects falling under the Concurrent List, the Centre enjoys a supremacy in as much as the Centre laws on a given subject can prevail over the state laws. As a result, the states are relatively helpless to resist the excesses of the Centre agencies. The only way out at the state level is to avail a timely judicial intervention in the matter which however, seldom happens.

Ideally, these agencies and other agencies like the Income Tax Department are to act fairly, legally and in service of the people at large.

The Enforcement Directorate, in their Website claims to “be fair and reasonable” in their investigations. They purportedly “take decisions without fear or favour” and will “act without malice, prejudice or bias and not allow the abuse of power”. This, however, is contrary to the ground reality.

Laws could be dangerous if their invocation is not fair. The misuse of laws is often not mere legal aberration but the result of conscious political decisions. When politics in its rudimentary form replaces governance and administration, laws, along with their instrumentalities could very well turn mere weapons to execute the agenda of those holding power.

But it is erroneous to think that the misuse of the agencies only shows an adherence to the immediate seats of power. It also reflects an ideology that disregards the institutions of governance-both constitutional and statutory. In the process, the Centre shows scant regard to the tenets of rule of law. Governance in India is now replaced by crummy politics. In the process, merit or scientific temperament or legal expertise has no place. Votes alone matter, and not even lives, as demonstrated in the ‘dance of democracy’ that occurred in the present election to the five assemblies. The Election Commission also failed to act as a strong and impartial umpire of the system, though its duty under Article 324 of the Constitution is pivotal.

A muted EC

Take the case of West Bengal. The raids conducted at the premises of opposition leaders were ostensibly political in nature. The Election Commission was practically muted. It was followed by an unprecedented excesses unleashed by the Central Industrial Security Force in Bengal that resulted in killing of four workers of Trinamool Congress (TMC). Raids in Bengal were only a repetition of the theatrics that happened elsewhere- in Karnataka, Rajasthan and Tamil Nadu.

In an unprecedented legal development, the Kerala High Court, last Friday, quashed the FIRs registered by Kerala Police against the officers of the ED. The allegation was that the officers of ED fabricated the evidence. According to the FIR, the ED coerced the accused in the sensational gold smuggling case to implicate the Chief Minister Pinarayi Vijayan and a few other top officers in the state. Justice V G Arun quashed the FIR by relying on the conditions and prohibitions against such prosecution in the Criminal Procedure Code. But the very fact that there was a glaring conflict between the Centre agencies and the state police goes antithetical to the idea of rule of law in a federal set up.

As the Supreme Court held in Manoj Narula case (2014), good governance is a constitutional imperative. But the Centre has long forgotten the fundamentals of constitutional governance in its march towards a regime of far-right ideology blended with Hindutva objectives. The priorities are deplorable especially given the hard economic and health realities in the country.

Many of the basic features of the Constitution are interlinked. The absolutism and centrist approach of the present regime is a composite attack on all these features which include rule of law, federalism, republicanism, institutional justice and fair elections.

The ultimate solution is to regain the values of the Constitution. It is much more than a design for governance. It is a viable safeguard against anarchy as well as autocracy. Therefore, unless we realise that the Constitution of the country is also a means to politically educate ourselves and to demonstrate the resulting wisdom in the every day public life, we are not entitled to dream for the better.

(The writer is a lawyer at the Supreme Court)