Important caveats


The politicisation of policing is rampant across Indian States. When the police come under political pressure, they are known to serve as the handmaiden of the ruling party, whether in covering up failures and misdeeds of the administration or in targeting political opponents. In many such instances, courts have intervened in the interest of an impartial probe and ordered investigation by the Central Bureau of Investigation. Therefore the ruling of a Constitution Bench of the Supreme Court that the highest court in the land and the High Courts have the power to order, without the consent of the State government concerned, an investigation by the CBI into cognisable offences committed within its territory comes as no surprise. But importantly, while upholding the constitutional validity of an existing judicial practice, the court entered certain crucial caveats. Calling for great caution on this issue, the Bench asked the courts to “bear in mind certain self-imposed limitations on the exercise of these constitutional powers.” While disagreeing with the contention that the ordering of a CBI probe without the State government’s consent would impinge on the federal structure of the Constitution and violate the doctrine of separation of powers, the Supreme Court ruled that such orders could not be passed as a matter of routine or on the basis of allegations against the local police by a party.

However, the judgment raises several other issues and concerns. For one thing, the CBI too is not insulated from political pressures. As was evident in the Bofors case, the CBI is susceptible to pressures from the central government just as the State police forces are to pressures from the party in power in the State. Preferring one agency at the expense of another is not the solution. Institutional mechanisms must be put in place to protect investigating agencies from the influence of their political masters. It is a sound principle of law that courts should not normally intervene at the stage of investigation; judicial intervention at this stage should come only in the face of overwhelming evidence of a possible miscarriage of justice. This is also because the primary responsibility for maintaining law and order rests with the State government, and ‘police’ is in the State list. Courts have shown a tendency to overreach, to encroach on the powers of the executive. Each encroachment is made in the name of protecting civil liberties and fundamental rights of the citizens. But every time the courts do so without sufficient reason, the foundations of the Constitution are shaken. Wrong use of extraordinary provisions is the surest way of undermining them.


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