Observation made by Parliamentary Committee —
- Parliamentary committee has raised a question on increasing number of court-monitored CBI probes. It states apex courts have started performing the functions of the lowest rung of criminal justice system, taking over the role of a magistrate.
- At present, many high-profile cases like 2G spectrum case, Vyapam Scam, Coal Block Allocation Scam, Virbhadra Singh corruption probe, Shardha Chit Fund Scam etc. are being monitored by SC and several other HC.
- Committee also slammed establishment of special CBI courts in states saying it is leading to dual judicial system which is not contemplated under Constitution.
Why do we need monitoring of Judiciary?
- Investigating agencies like CID, CBI and others are under constant pressure from political masters and this affects the investigation. If SC-led monitoring didn’t happened, cases like 2G, Coal Block Allocation Scam etc. would never have come to the surface. Credibility of investigation agencies is therefore always under doubt w/o monitoring of courts.
- Moreover, when a leader of opposition comes under scan of investigation, his party demands for independent monitoring of investigation under apex courts.
Why there must be no monitoring by Judiciary?
- Under Article 22 of Indian Constitution, right to free & impartial trial has been given to the accused and he is considered to be innocent until proved guilty, i.e., a presumption of innocence is given to him to constitutionally. For this judiciary must be totally neutral and must give fair chance to the accused to prove his innocence.
- But if investigation of a case is started under apex courts, this infringes the right of accused as under same judiciary whole investigation has happened and same judiciary will try him in the end.
- Parliamentary Committee observed if monitoring, ordering of investigation kept on happening under apex courts there is clear danger of inversion of pyramidical structure of governance provided under the constitution.
- Therefore, monitoring under apex courts cannot be the institutional answer to independent monitoring of investigation.
Way forward —
- Power given to courts for interfering, ordering and monitoring the investigation by CBI or other is institutional power and has been given by parliament. But daily-basis of monitoring must be checked as it not only infringes the right of accused but also over-burdens the judiciary. Judiciary can’t monitor every investigation.
- Therefore, we need a constitutional answer and Lokpal can be the answer for monitoring the investigation, free from political intervention.
- In US, a different kind of approach is being followed. After Watergate Scam, US broughtIndependent Counsel Act in which Federal Court establishes an Independent Counsel which will be responsible for investigation and prosecution. Funds for the independent Counsel are provided by Federal Court.
- For independent and impartial investigation we need independence of police from political masters. Police Reforms has been ordered by SC in 2006 but unfortunately nothing has been brought yet. Therefore, we need to correct our executive machinery.
‘Now-a-days judicial activism has become a common phenomenon. Increasing number of Court-monitored investigation has raised few questions’. Do you think judicial activism of this kind is acceptable? Suggest measures for free and fair investigation.