The Supreme Court (SC) responding to the government’s interference in the CBI’s Coalgate investigation has demanded that the government must ensure by next July that structural changes in the administrative machinery enable the CBI to function independently. With all due respect to the SC is it any business of the Judges to direct the executive or the legislature about what the administrative structure ought to be? The business of the court is confined to judging whether the law of the land is being observed or not. No more, no less.

Judges are qualified to interpret the law. They are not necessarily qualified to assess the architecture of governance or the efficacy of policies related to public welfare. But the collapse of governance under a corrupt and inefficient executive has created a dangerous and unhealthy situation of frequent judicial overreach. Sadly, the public frustrated by executive incompetence, has started to look forward to such judicial overreach with approval. The long term damage to our democratic system arising from frequent judicial overreach can be incalculable.

Recall how the tendency for judicial overreach began.

The Jain Hawala Case decades ago was the game changer. Journalists Sanjay Kapur of Blitz weekly, and Ram Bahadur Rai and Vineet Narain of Jansatta daily published sensational information about contents of a diary seized by the police during investigation of a Hawala transaction involving illegal money transfers from abroad partly to fund terrorists in Kashmir. The diary contained names and amounts paid to over 40 national political leaders from the same illegal sources. Vineet Narain along with lawyers Prashant Bhushan and Kamani Jaiswal as co-petitioners petitioned the SC complaining about an inadequate official investigation. Chief Justice Venkatachalaiyah admitted the petition. He retired and Chief Justice JS Verma succeeded him to preside over the bench hearing the case.

The SC ordered the CBI to insulate itself from the government during the probe and decided itself to monitor the investigation at each step. The CBI would brief the SC on the probe progress at each stage of the prosecution while the court, including the petitioners, was cleared. Eventually under the SC supervision the CBI made its charge sheets against various accused including the 40 odd national political leaders. I expressed disapproval of that decision. I contended that the SC should have merely indicted the government for a flawed and mala-fide investigation and left the matter to parliament for disposal. The CBI was overlooked by the Prime Minister. By democratic norms it was up to parliament to take necessary steps to deal with the situation. Instead the SC decided to monitor the probe. The result was unmitigated disaster.

The Delhi High Court dismissed the case for insufficient evidence after the apex court had monitored the probe and approved prosecution. Much worse was to follow. Vineet Narain published a small journal in which he wrote an article leveling damaging allegations against the judges hearing the case. He accused them of being entertained at the residence of one of the main accused, of accepting pecuniary benefits and of indulging in acts of moral turpitude.

The SC Bar Council charged Narain with contempt of court. The lawyer of the petitioners, Anil Diwan, who had been appointed amicus curiae in the case, was furious over the publication of the article. Astonishingly the charges were neither proved nor disproved. The SC dismissed the contempt case after a mild warning to Vineet Narain.

During the hearing of the case one of the Judges admitted that he had indeed visited the residence of the accused but he never knew at that time that he was an accused. The obvious question why he did not recuse himself from the bench after becoming aware was never addressed. Thus, not only did the SC supervision of the investigtion end in abject failure, by the end of the case the Judges were as much under a cloud as discredited politicians.

The SC delivered a judgment that diverted attention from the failure. It quoted the Jain Hawala Case, for which the court had found insufficient evidence to prosecute, in order to justify its order to alter the functioning of the CBI. It ordered that the CBI in such cases should operate under the Central Vigilance Commission (CVC).

It is amusing that the latest order of the SC to the government to ensure that fresh legislation is enacted by mid-July to ensure independent functioning of the CBI is being hailed as a great step to liberate the CBI. Some have even recalled approvingly the Jain Hawala Case ruling as a benchmark to be followed. But for 15 years after that ruling the CBI has by common consent continued to function as the government’s puppet. The SC ruling did not work then. Why will it work now?

Already officials and lawyers are busy making suggestions about how the laws and procedures governing the CBI should be amended. They are missing the wood for the trees. Tinkering with procedure is not the requirement. A holistic view of the system which needs reform is required. Judges are not necessarily qualified to suggest such reform. Due to executive failure the public has started to repose a pathetic and ill-founded trust on the wisdom of judges. The judges have become emboldened to indulge in judicial overreach to the detriment of the judiciary’s reputation.

The SC during the Emergency ruled that a citizen did not have the fundamental right to life and liberty. After the Emergency the same SC somersaulted to rule that he did. The SC ruled that the President is a titular head like the British Sovereign with nothing in our written Constitution to justify this opinion that has severely damaged our democratic system. More recently the SC passed the laughable and absurd ruling that the Army Chief of Staff should operate simultaneously by the use of two different dates of birth.

Very recently giving its ruling on a petition challenging Foreign Direct Investment (FDI) in Retail the SC stated:

“This court does not interfere in the policy matter unless the policy is unconstitutional, contrary to statutory provisions or arbitrary or irrational or there is total abuse of power.”

That is how it should be. The SC should confine itself to interpreting and preserving the law. But in the same ruling the SC went on to praise FDI in Retail for being a good policy beneficial to consumers.

I have written in favour of FDI in Retail. But there are learned and seasoned politicians and analysts who have expressed serious reservations about the policy. Is it appropriate for the judges to enter the fray of a national policy debate to lend their weight…?

One can go on. The system needs reappraisal and reform, not tinkering with a few nuts and bolts. I have made known my own views about how the system may be reformed without substantial change in the Constitution. It does not bear repetition. The task of reforming the system had best be left to parliament and to experts designated for that task by parliament. Jurists and lawyers may be wonderful wordsmiths nitpicking on text. They may be too ignorant about the architecture of governance to dabble in administrative structural reform.

Centuries ago Emperor Napoleon of France dictated in a few hours the Criminal Procedure Code of France. It remains unaltered till today. Napoleon was not a jurist. He was a ruler who understood the architecture of governance.

Judges should understand their limitations. Judicial overreach is not part of the solution to our current crisis. It is part of the problem. Our system has collapsed. Judges dabble in governance, politicians run illegal business, and businessmen manage politics and media. Various judicial errors do not attract adequate criticism because there are laws of contempt which inhibit critics. Judges certainly deserve the highest respect. But that respect cannot be legislated. It has to be earned.