Government on the backfoot in the CBI affair

It cannot but be politically embarrassing for the Narendra Modi government that the decision to send two squabbling Central Bureau of Investigation (CBI) officials on leave by the Central Vigilance Commission (CVC), presumably at the government’s behest, has barely passed muster in the Supreme Court.

The court may not have reinstated the director, Alok Verma, and the special director, Rakesh Asthana, but it has requested a retired Supreme Court judge, A.K. Patnaik, to monitor the CVC’s probe into the allegations against Verma which led to his removal. The centre and the CVC have also been asked to file their response to Verma’s petition on the steps taken against him.

Any presumption on the government’s part, therefore, that its intervention in the CBI in what has been called by its critics as a midnight coup will mean that it will be back to business in the organisation under a new director, M. Nageswara Rao, has been belied.

Far from being defused, the controversy has only been put on the back burner with the court virtually assuming the role of governing the premier investigative agency with Rao being told not to take any policy decisions.

For any government, the loss of control over a major institution is tantamount to a loss of face. It is also a godsend to the opposition. Till now, the latter had been groping for an issue with which to attack the government in the run-up to the assembly elections in five states.

But, now, even more than the Rafael aircraft deal which is being used by the Congress to accuse the government of crony capitalism, l’affaire CBI will give the party a handy stick with which to beat the ruling dispensation.

The latter, too, and also the Bharatiya Janata Party (BJP), will be worried about the impact of the court case on the middle class. If it transpires that there is a grain of truth in the charge that the root of the infighting at the top of the organisation was the foisting of what has been called the ruling party’s blue-eyed boy, Asthana, in the CBI, then the reaction of the volatile middle class cannot be favourable.

This influential group may be willing to bide its time before the promises of vikas are fulfilled. But any suggestion that the government was undermining the autonomy of a generally well-regarded institution by playing favourites with the officials can have politically damaging consequences.

As it is, the CBI had been called a “caged parrot” by the Supreme Court when it was described as the “Congress Bureau of Investigation” when Manmohan Singh was the prime minister. The expectation was that the outfit would be put back on its feet by the new dispensation so that it would be able to retain its reputation for integrity and efficiency. But the latest turn of events suggests that the more things change, the more they remain the same.

One reason why the CBI had become the last resort for all controversial cases was the steady deterioration in the impartiality and competence of the police, which had long become a plaything in the hands of politicians where bending the rules were concerned.

If the CBI is also seen to be going down the same path, the government will have to share a great deal of the blame. The chances of this happening are high considering that the Supreme Court will deal with a petition by a non-government organisation on a probe into the allegations of corruption against Asthana and other CBI officials.

It cannot be a matter of solace to the government that the Supreme Court is increasingly assuming the role of an arbiter in areas where the government and the legislature should have had the final say such as determining the rights of homosexuals or the entry of women into temples.

If the government is in retreat in these matters, the reason apparently is that it is unable to evolve a consensus among all the parties about the right step not only because of the varying opinions among them, but also because it is unwilling to adopt a bold approach of the kind which the judiciary is doing.

Since the government seems to prefer to opt for the soft option of leaving a controversial matter to the judges, it cannot afford to carp against judicial activism, as it occasionally does, or advise the judiciary not to be guided by “five-star” activists, as the prime minister once did.

The CBI affair is a reaffirmation, therefore, of the need for the judiciary to set things right because of the inadequacies of the first two “estates” – the government and the legislature.

In the CBI’s case, the Supreme Court had no option but to step in because the aggrieved officials approached it for redressal. But, in general, the gradual widening of the judiciary’s ambit will be welcomed because of its growing reputation for taking sensible decisions as nearly all the recent instances have shown.

In contrast, the government has been seen to be either hesitant, as on decriminalising homosexuality and upholding the right to privacy, or obscurantist as in the case of women entering a temple which bars those who are between 10 and 50 years old.