Opinion A delicate balance

Each high-profile case — cash for votes,mining,2G,Gujarat riots — has to be examined on its merits. But the credibility of the justice system is delicately poised between four outcomes. Which one will prevail? The first outcome is the best: all major investigations and prosecutions are pursued meticulously and fairly. Some will be successful,others not. But not only is the outcome fair,it is seen to be fair. The second outcome is that the initial flurry of chargesheets flounders in the way so many prosecutions in the past have; for a variety of technical reasons nothing eventually happens. The crisis of the justice system deepens. The third scenario is a mixed bag: some prosecutions are successful,others are not. But unlike in the first scenario,each result is not convincing; so that confidence in the justice system remains mired in partisan politics.

The fourth scenario is in some ways the most disturbing: a lot of the current lot of politicians being chargesheeted do get fairly prosecuted. This satiates the public’s desire that someone must be held accountable. But the prosecutions are not taken to their logical conclusion; the real beneficiaries and masterminds go scot-free,while relatively more dispensable (or more disturbingly,politically convenient) characters are fed to the judiciary. In short,the seeming success of prosecution provides the cover for the real perpetrators to be let off. They sacrifice a few lambs and call it justice.

We should presume this. All the accused are innocent until proven guilty. This is the requirement of a fair justice system. And second,that the courts have no vested interest. But here is the challenge. Will well-intentioned courts be sufficient to ensure that we end up with outcome one? Are there institutional reasons to think the courts are now running the risk of ending up with outcome four?

The crucial questions for scenarios two to four still depend on the CBI. What does court monitoring of the CBI mean? It can mean,constructively,that the CBI is shielded from political pressure. It can mean that the court can ask tough questions of the CBI. And political responsibility needs to be fixed for the criticism courts have handed out to the CBI. Politicians cannot claim to be representatives of the people and shirk all political responsibility for investigative agencies. If Delhi Police were deliberately going slow,someone needs to be held responsible. But beyond that it is an illusion to think that the court can actually monitor the details of evidence-gathering. The very nature of the asymmetry between the CBI and the courts puts the courts at a disadvantage. Merely because you can ask truant agencies questions does not mean truant agencies cannot play tricks on you.

But here is the institutional danger. In a context where,by its own accounts,the CBI cannot be trusted,does court monitoring help or exacerbate the problem? It helps in so far as it compels the CBI to produce something to satiate the court. The court can also monitor meticulously whether there are any double standards in chargesheeting — an area of considerable public concern. But how can the court possibly “monitor” the full range of evidence? This is purely institutional challenge,not a question of motives. The risk is this: precisely because of court monitoring,the imprimatur of legitimacy can be given to an investigation that is not full,complete or fair. The risk of scenario four persists.

The court’s past record of monitoring the CBI has not yielded dividends. We have another institutional innovation that is instructive. The court has been using an SIT in cases related to Gujarat. While the SIT has raised enough questions about Narendra Modi’s political responsibility,it seems to have fallen short of making a legally prosecutable case. So the court then appoints a distinguished amicus curiae to assess its own SIT. The issue here is not guilt or innocence. But the process is instructive: we create an institution to bypass an untrustworthy process,and then that institution itself requires yet another layer of assessment. The dilemma is this: due process and formalism have become a fig leaf for avoiding justice. But tailoring process so that the outcome corresponds to our intuitions in a matter also runs risks. Since the court is “crafting” processes,it will have to avoid both dangers.

You have to sympathise with the court. What can it do when state failure is so abject? When politicians say,“let the law take its own course”,what they mean is,“we tried obstructing it,but something managed to elude our control.” But when the court seems to take “control” of investigations it must be under no illusion that it has the wherewithal to ensure that the facts presented reveal the truth.

Lawyer jokes are a good barometer of legitimacy challenges. One joke doing the rounds is this. “What is bail?” Answer: “It is that which is denied when the courts want to show they can act tough.” In short,the courts’ dealing with bail may have tried to send a signal that they are serious about justice. But,because it is not consistent with what is perceived as standard practice,it unwittingly has the opposite effect of leading people to wonder whether this is about demonstrating toughness or justice.

The courts run the risk of perpetuating the myth that because the executive has failed the judiciary can do better. Alas,there are no extra-political quick-fixes for executive failure. The courts are our most trusted institution. They will have to be artful in demonstrating that what we get in high-profile cases is justice,not populist retribution or,worse still,the mere appearance of justice.

The writer is president,Centre for Policy Research,Delhi
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