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Today's Paper » OPINION

The wellspring of judicial activism

So cynical has the public become about the impartiality and seriousness with which corruption cases against the
rich and the powerful are probed, that hardly an eyebrow is raised when the judiciary starts actively monitoring the
investigation in such cases. Over the last couple of months, the Supreme Court has assumed a supervisory role in
the CBI's investigation of the 2G scam, asking the agency to act against “persons who think themselves to be the law”
and demanding to see the charge sheet before it is filed. Earlier this week, in the case relating to black money
stashed abroad, another bench of the Supreme Court asked the government to consider invoking terror laws against
Hasan Ali Khan. The provocation for such judicial activism lies in the suspicion — most often well grounded —
about the lack of good faith in the manner these cases are being probed. An FIR in the 2G scam (against unknown
persons and firms) was registered as early as October 2009, but it wasn't until the Supreme Court reprimanded the
CBI for dragging its feet that the investigation really moved forward. Similarly, the Centre's persistent stonewalling
in the black money case led an exasperated Supreme Court to ask: “What the hell is going on in this country?”
Some of the Court's prodding has been in the form of sharp questions and cutting observations on the
investigations. It is hardly a surprise that its display of annoyance has led agencies such as the CBI to interpret oral
observations made in the course of the hearing as if they were judicial diktat. Since the mid-90s, the judiciary has
tried to strengthen the independence of investigating agencies, a process that both began with, and is highlighted by,
the Supreme Court's judgment in the Jain hawala case, which centred on a diary that allegedly recorded the sums of
money paid by a money-laundering agent to the country's leading politicians. The Court took the extraordinary step
of barring the CBI from furnishing any information on the case to the then Prime Minister P.V. Narasimha Rao.
Eventually, it ruled that the superintendence of the CBI in relation to investigations will vest with the Central
Vigilance Commission, and not with the Prime Minister's Office which, deplorably, continues to influence
investigations informally apart from exercising formal administrative control. In an ideal world, the judiciary would
stick to interpreting the law and refrain from treading on the domain of the legislature or the executive. But in an
environment where justice is constantly being subverted, it is arguable that the courts are left with no choice but to
step beyond their traditional domain and prod the executive into discharging its constitutional responsibilities.

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