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Tuesday, November 27, 2018


Italo Calvino’s memorable fable, Numbers in the Dark, contains some timeless observation on the folly of the wise. A conscientious accountant comes across an error – a small error long committed time back –by the legendry Annibale De Canis, “the master of book keeping,” in a giant Italian conglomerate. “This infallible man” made “a mistake, a stupid mistake of four hundred ten lire in an addition........Over all these years, you know that mistake of four hundred and ten lire has become . Billions! Billions! The calculating machines and electronic brains and what not can grind out numbers they like. The mistake is right at the core, beneath and bigger than all their numbers, and it’s growing bigger and bigger. The company has grown big , huge , with thousands of shareholders , hundreds of subsidiaries , endless overseas agencies , and all of them grinding out nothing but wrong figures, there’s not a grain of truth in any of their accounts. Half the city is built on these mistakes. No not half the city, what am I saying? Half the country. And the exports and imports ? All wrong? All wrong, the whole world is distorted by this mistake in the life of Annabale De Cunis , the master of book keeping , the giant of accountancy , the genius.”
That’s the point, if genius, great leaders, founding fathers, statesmen err their errors also are commensurate with their stature. The Congress has ruled the nation for the best part of seventy years and has indeed given us some wonderful institutions and memorable moments of governance but they ruled just long enough to fritter away not only the inheritance of their forbears but have also gone on to commit such a vast compendium of illegalities, immoralities, malgovernance and other evils that their non Congress successors can always cite instances of worse immorality for every immoral deed of their own, for a long, long time to come. To quote just one trenchant example: when the Modi government was being pilloried for pestering the RBI someone cited the case of the harried south Indian governor of RBI who was forced to resign because of Nehru’s intransigence.
Congress also created some organisations which threaten to rock the very foundation of our democratic polity. I am thinking of CBI, spawned in 1963 , for some noble purpose no doubt , but it has proved to be by far the greatest disruptor of our political process in the last several decades , and its activities – antics –are constitutive of the political history of our time. It has destabilised governments, helped oust popular leaders, shored up the sagging fortunes of those who should have been condemned to jail, destroyed dynasties and consigned many highly regarded public figures to the moral twilight between guilt and innocence, forever. The remark of Supreme Court about the CBI being a caged parrot was not in the nature of a judicial pronouncement nor even an obiter dicta but it has acquired the finality of an axiom . The observation of the court is only half true. The CBI is an aberration, a bio mythological monster. It is not one bird but a combination of two: a parrot, a popular domestic pet and a vicious bird of prey, a hunting falcon that can be set upon those required to be hunted by those who exercise control over it. It can be recalled mid way from flight . For those who control its career prospect, it chirps sweet nothings, but ask those whom it is set upon, how vicious can it be!
The division bench on Guwahati and Meghalaya High Court has in a matter WA No. 119 of 2008 in WP (C) No 6877 of 2005 challenging CBI investigation a couple of years back declared the CBI to be an un constitutional entity. The judgement has been stayed by the Supreme Court the matter is pending there. But the facts regarding the creation of theFrankenstein monster which threatens to gobble up our federal polity are revealing. Let us give a careful reading of the deliberations on the original file, the foundational document:
“Whether it is necessary to have a new comprehensive Act to define the functions and the powers of the Central Bureau of Investigation and to give it the legal authority for conducting enquiries and investigations all over India?
If States are to be consulted and if a new comprehensive Act has to be passed by Parliament before the setting up of the Central Bureau of Investigation, this proposal is likely to be unduly held up. Objections might be raised or doubts might be expressed by some States and the process of resolving them will necessarily take time. Some difficulties might also arise from the standpoint of the spheres of responsibility of the Centre and the States.”
The creation of CBI, it appears, was absolutely necessary and it could brook no delay so here is what they came up with. “Even with all the care in drafting and preparing the Act it is likely to be questioned in courts and it is difficult to anticipate what the decision of the courts would be on the validity of the new Act or on legal points arising from it. On the other hand, it might be mentioned that the Delhi Special Police Establishment Act has already gone through this process. Its provisions have been debated in courts from all possible angles and it has withstood onslaughts from all directions. Even the highest courts have upheld the validity of the provisions of this Act. It is a matter for consideration whether it would be worthwhile framing a new Act just at present with all the delay and difficulty that this involves and with the risk that it is likely to entail.” (The above quotes have been cited in the judgement declaring CBI unconstitutional)
Under the Government of the time headed by Sri Jawaharlal Nehru and comprising of the top icons of the Congress pantheon a resolution was issued under the signature of the then Secretary to government of India S . Vishwanathan bringing into being the CBI from Ist of April ( Ist of April?) 1963.
CBI was thus born, ridding piggy back on the Delhi Special Police Establishment Act. But once launched it has been on a roller coaster ride, gathering destructive potential along the way until its perilous adventure has brought the polity on the brink of an abyss fifty five years later.
Those who are really keen to educate themselves must refer to the judgement itself, for its sheer architectonics, if for nothing else. It is built like an impregnable castle, designed to withstand every assault. The court has appointed an amicus curie to obtain non partisan advice apart from the contestations of the rival party’s .Then it goes on to make sure that there was no previous judgment on the issue before them for the consideration, that is, ‘whether the CBI is an entity created by due process of law.?There was none. The many Apex Court judgements delivered from time to time, explicating the role, power, and jurisdiction of the CBI are gone through with a fine tooth comb, and like a trained surgeon wielding a scalpel the ratio decidendi is separated from the obiter dictum. The matter in its extant formulation has never been heard.
The division bench begins at the beginning and asks the union of India as well as the parties to the writ to produce all the relevant papers as to its creation . The original file concerning the creation of CBI is missing and the Union Of India produces an attested copy of the file procured from the National Archives. Having exhausted this search for papers the Court puts them to diligent scrutiny. The stark fact of the matter is that there is no paper to suggest that the CBI as a police organization was ever created. In fact the CBI in official parlance and an icon in popular culture can be connected to the Delhi Special Police Establishment Act only through inference, obliquities and indirect references. There have been half a dozen amendments since independence and yet the word CBI does not occur anywhere in the Delhi Special Police establishment Act. DSPE is like Hamlet without the prince of Denmark .
The resolution which creates this organization has not been vetted by the union cabinet nor does it have the Presidential assent even to qualify as an executive order. “..... that CBI has been investigating offences and prosecuting alleged offenders in the garb of being an organization under the DSPE Act, 1946. In fact, we have already indicated above that the impugned Resolution, dated 01.04.1963, is not, strictly speaking, an executive action of the Union within the meaning of Article 73 inasmuch as the executive instructions, embodied in the impugned Resolution, were not the decision of the Union Cabinet nor were these executive instructions assented to by the President. Therefore, the impugned Resolution, dated 01.04.1963, can, at best, be regarded as departmental instructions, which cannot be termed as ‘law’ within the meaning of Article 13(3) (a) nor can the executive instructions, embodied in the impugned Resolution, dated 58 01.04.1963, be regarded to fall within the expression, "procedure established by law", as envisaged by Article 21 of the Constitution”. The Court went on to quash the resolution “ In the result and for the reasons discussed above, this appeal partly succeeds. We hereby set aside the impugned judgment and order, dated 30.11.2007, passed, in WP(C) No. 6877/2005, and while we decline to hold and declare that the DSPE Act, 1946, is not a valid piece of legislation, we do hold that the CBI is neither an organ nor a part of the DSPE and the CBI cannot be treated as a ‘police force’ constituted under the DSPE Act, 1946.
The Government of India challenged the verdict in the Supreme Court and the judgement has been stayed. Matters sub judice are to be approached with utmost care and respect , therefore, I have studiedly avoided making any comment and have stated only quoted facts and observations from the judgement .My simple submission is this: why did Mr. Manmohan Singh’s government not make a special plea to the Supreme Court to decide this matter on an utmost priority. What stops the present government, political parties activists, jurists, civil society spokesmen to make a common cause before the Supreme Court now to take up the matter straight away instead of PILs about peripheral issues. But that is not going to be. Every politician, every political party worth the name aspires to the Sultanate of Delhi. All of them would like to use this versatile tool when their turn comes to discipline their rivals.CBI is happy to be used and has found innovative ways to be ever more useful.
The judgment needs to be more widely known and read in the original by whoever cares about constitution and constitutional proprieties.Shravan Kumar

Sunday, November 25, 2018


DISCLAIMER: My faith in democracy is resolute and unshakable and I am prepared to go with it down the drain with my democratic faith undiminished. I am not a fascist, I do not believe in violence, I abhor the idea of people’s heads being chopped off, even of their own accord. This fantasy was not woven by me; Blame it on Italo Calvino, and I am presenting this as piece of fiction - not as utopian draft for future.
If you are too close to the thing, you don’t notice the tree for the woods. Like living in the most debauched version of democracy, we have not even noticed that elections have become merely a state procedure and getting elected nothing but a plebicitarian manipulation of the base sectarian loyalties of people. In my version of the Modest Proposal I had suggested that the aspirants run a race to infinity, the one who stays till the last automatically inherits power. But I found this proposal by Italo Calvino - “Beheading the Heads” - much more acceptable, and it comes with its philosophical explanation. I have abridged and summarised the story to the purpose stated above.
In Italo Calvino’s fable, “Beheading the Heads”, they have devised a very effective system for transfer of power. Anyone who offers to be the head of the state must voluntarily submit to his head being chopped off at the end of his term, in a massive public ceremony attended by the citizens. The scaffolds are made to exact specifications, so that the citizens get the best possible view of the neatly cut head jumping into the basket.
The citizens remembered with surprise that during barbarian interregnums, “Someone rules, commands, then, as if nothing had happened, stops and goes back home.' And dies in bed.
The arrangement proved to be a very effective way of stopping non-serious and undeserving candidates running for office. The logic is very simple. “Authority over others is indivisible from the right of those others to have you climb the scaffold and do away with you, one day in the not too distant future ... What authority would a leader have without the aura of this destiny around him, if you couldn't read it in his eyes, his sense of his end, for every second of his mandate? Civil institutions depend on this dual aspect of authority; no civilization has ever used any other system.”
A citizen explains, “The head commands so long as it's attached to the neck.”
“What do you mean?”, the others asked. “Do you mean that if for example a leader went beyond his term and, just for the sake of argument, didn't get his head cut off, he'd stay there ruling, his whole life long?”
"That's how things used to be”, the old man agreed, “in the times before it was clear that whoever chose to be leader chose to be beheaded in the not too distant future. Those who had power hung on to it...” .....
“So? What did people do?”, they asked the old man.
“They had to cut their heads off willy-nilly, with brute force, against their wishes! That's what used to happen before things were organized, before the leaders accepted... “
“It's not true that the leaders are forced to undergo execution. Say that and you miss the real meaning of our statutes, the real relationship that binds our leaders to the rest of the people. Only heads of state can be beheaded, hence you can't wish to be a head without also wishing for the chop. Only those who feel they have this vocation can become heads of state, only those who already feel themselves beheaded the moment they take up a position of authority.” ......
"That's what power is,” he went on, “this waiting for the end. All the authority one has is no more than advance notice of the blade hissing through the air, crashing down in a clean cut, all the applause you get is no more than the beginning of that last applause that greets your head as it rolls down the waxed surface of the scaffold.”
The visitor was told that the man making this small little speech was the man likely to succeed: “Tomorrow he'll be watching the executions as if they were already his own. They're all like that, the first days; they get upset, excited, they make a big deal of it.”
"Vocation: what pompous words they come out with!”
“And afterwards?”
“He'll get used to it, like everybody else. They have so much to do, they don't think about it anymore, until their day comes around. But then: who can see into a leader's mind? They give the impression they're not thinking about it.