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The Big Picture – Court-monitored CBI probes: Is judiciary overstepping its brief?

The Big Picture – Court-monitored CBI probes: Is judiciary overstepping its brief?


In a significant remark on judiciary’s intervention in CBI investigations, a parliamentary committee has stated that the Supreme Court and High Courts have started performing the functions of the lowest rung of the criminal justice system taking over the role of a magistrate. The panel’s observations come at a time when most of the big-ticket CBI cases, including 2G spectrum allocation scam, coal block allocation scam, Vyapam scam, Virbhadra Singh corruption probe and ponzi schemes like Saradha, are being either monitored or regularly heard by the Supreme Court and several high courts. In fact, in 2G and coal scams, the Supreme Court has restricted all other courts to entertain any application against orders passed by the trial court.

This system of monitoring has some problems associated with it. It tends to impinge upon the right of fair trial of the accused. It also impinges upon the independence of the magistrate or other trial judges. Thus, there is an urgent need to find an institutional answer for this. According to experts, Lokpal is an answer for this. Lokpal will monitor the trials without influencing the fundamental principles of the criminal justice system. That is, one is presumed to be innocent till proven guilty.

Various high courts and Supreme Court are frequently issuing directions to CBI to handle cases relating to Prevention of Corruption Act, 1988 as also of ‘public order’. As a result, the jurisdiction and powers of CBI have widened and deepened and have far exceeded than what was contemplated under the Delhi Special Police Act, 1946. The parliamentary committee points to judicial activism of higher judiciary by taking pains of overseeing an investigation and passing interim directions to CBI and even pre-empting the rights and remedies available to affected persons under criminal justice system. It may, therefore, appear to affected persons as a pre-emptive and colourable exercise of power by the superior courts.

This in effect is leading to introduction of dual judicial system which is not contemplated under our Constitution. The committee is afraid that this trend, if allowed to persist, may lead to inversion of pyramidical structure of governance provided under the Constitution and it may crumble under the weight of over-burdened judiciary, executive and Parliament.

Such interventions are often motivated by the perception that the Supreme Court will render greater functional independence to the CBI than otherwise, considering the control over the agency by the political executive. Article 142 of the Constitution confers the Supreme Court with extraordinary powers to pass orders it sees necessary for doing complete justice in any cause or matter pending before it.

However, it should also be noted that, the Supreme Court, in most of the cases, has confined its intervention or monitoring to see that fair and impartial probe is done. Its intention has never been to usurp the statutory powers of the investigating agency or influence the trial court. In cases monitored by the Supreme Court, it is concerned with ensuring proper and honest performance of its duty by the investigating agency and not with the merits of the accusations in investigation, which are to be determined at the trial on the filing of the charge sheet in the competent court, according to the ordinary procedure prescribed by law.

What the Supreme Court aims for by monitoring investigations is explained in the age-old dictum that “Justice should not only be done, but must also be seen to be done”.