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Fog ahead | The Indian Express

If the army feels it requires continuation of the AFSPA to discharge its responsibilities, no other agency is qualified to credibly challenge that view. We need to ask why courts efforts to clean up are not bringing clarity,accountability. As Indias great churning continues,one question keeps jumping out. Is the new confusion of institutional morality the harbinger of a genuine cleansing process? Or is it simply more dramatic chaos? The combination of civil society mobilisation,media scrutiny and a new assertiveness among institutions like the Supreme Court held out hopes of the former: just the threat of scrutiny and answerability to the court would change incentives. Faced with a shameless executive and a collusively moribund legislature,some of the courts interventions seemed just the right nudge. But the way the process is playing out suggests that Indias institutional and decision-making crisis will only get worse before it gets better. Instead of bringing legal clarity and accountability,the courts may,unwittingly,create more fog than they shed light. In fact,two institutional crises are now conjointly coming to a head. The crisis in the credibility of truth-producing regimes has meant,ironically,that it is easier to target relatively more honest officials. Even sworn critics of the Indian bureaucracy must admit this fact. The pall of fear that hangs over upright and honest officials in our system is now becoming unbearable,and will slow down decision-making even more. This has deep sources. Fixing the accountability of the politically elected executive is still rare. Parliament and parliamentary committees,the only sensible and viable mechanisms for doing that,have failed. But bureaucrats are now being hounded like no ones business. Ironically,a general climate of distrust has actually given the bad guys even more leverage over the good. The threat of inquiries,which can be an arduous punishment in their own right,is such that the only rational recourse now is to defer the decision to someone else. In this climate of innuendo,the charge is the indictment. But this deepening of the crisis in the civil service is also induced by another,deeper,crisis. Let us put it this way: never has the relationship between an elected government and the judiciary been so hostile and framed not by points of law but a combination of jostling over institutional power,half-measures and sociological innuendo. It is not clear whether this relationship can be easily repaired. The result is an all-pervasive confusion,to which the Supreme Court has unintentionally contributed. Rewind to the 2G judgment. The confusions generated by that still haunt us. The court could have encouraged a policy dialogue. Instead,it usurped the policy space. The problem with confusing policy and law is a counterproductive juridification. Just listen to the absurd dialogues happening now. We have no option but to auction spectrum. Good thing. But will the court look suspiciously if the reserve price is lowered,because market conditions have changed? Will that itself be mala fide? Mala fide now becomes a species of deductive reasoning: if a court does not like a policy,there must have been something wrong. But the courts policy interventions are creating other problems. Take the Aadhaar order. There are some legislative issues connected with the UID which the court could have dealt with. But how onerous should verification requirements for Aadhaar recipients be? Should the UID be doing the home ministrys job? This is not the courts domain. Second,the court was internally inconsistent. It declared policy as a whole mala fide. On that basis,it penalised a large number of companies indiscriminately. But then it stopped short of asking the fundamental question: if the policy was mala fide,who was responsible? The prime minister? The cabinet? Instead,it prejudged A. Rajas case,and let the CBI loose on a bunch of bureaucrats and industry. The fear now is that this same inconsistent logic will pervade most adjudication. Coal secretaries will be hung out to dry while the political executive goes scot free. The argument is not that the political executive is necessarily guilty. It is to the PM and Naveen Patnaiks credit that they have defended their right to take decisions. But if the court is not going to have a clear definition of illegality,and deduce illegality merely from the fact that the policy was not right,it subverts the whole scheme of government. It is not a popular thing to say. But a government should worry about the constitutionality and legality of what it does. It will be a disaster if the bureaucracy has to worry about whether its policies are to the liking of the Supreme Court. The third institutional fog that has been generated is around the CBI. Even the late Justice Verma was beginning to have second thoughts about his judicial innovation on continuing mandamus. Under what law is the court doing what it is doing with the CBI? The court is peddling dangerous illusions about the investigating agency. In the Niira Radia tapes order there is a rather odd moment. The team going through the tapes recommended that while the CBI should look at some issues arising out of them,other issues should be looked into by the state police or other government agencies. The court,after observing a deep-rooted malaise in the system,went on to cite it as a ground for letting only the CBI handle all the issues. That might be sensible. On the other hand,think of the assumptions embedded in this claim. On what empirical basis do we trust the CBI more than any other agency? Why put the CBI on a pedestal and delegitimise every branch of government? Frankly,the CBIs track record of cover-up jobs may be far more impressive than its ability to get to the truth. Just its own flip flops provide enough evidence against it. Does the court really have the ability to monitor investigations? The court played a constructive role in strengthening the central vigilance commission. But what it is now doing with the CBI is only a tad short of constitutional subversion. The fear of an arbitrary CBI is becoming all pervasive under the courts imprimatur. The Supreme Court is the repository of hope in a broken system. But,with all due respect,it is letting the kind of sociological analysis that should be the preserve of two bit-columnists take the place of precise judgments on law. Its intentions are so good that it is failing to take into full consideration the larger institutional effects of what it is unleashing by going into policy or reposing its trust in the CBI: a pervasive fear of decision-making,uncertainty about the law and a general climate of distrust. It should stick to the law,and let the political process apply the jhadu. A country ruled by the courts and the CBI is a dismal prospect. The writer is president,Centre for Policy Research,Delhi,and a contributing editor for The Indian Express.
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