The Crisis Is Not About CBI, It's About the Rule of Law

An arrogant ruling establishment has lost its moorings and is out to test the resilience of all our institutional arrangements.

It is perhaps futile to lament that the politicisation of the Central Bureau of Investigation (CBI) has been a work in progress for years and that the midnight coup was only its latest manifestation; just as it would be of little help to belabour the point that notwithstanding his presumed professional record, Rakesh Asthana is too deeply immersed in a culture of compromises, calculations and collusions that go way back to the 2002 Gujarat riots; and, it would be no use to remind ourselves that that culture has made the rogues in uniform feel empowered, protected and patronised. It would be a cliché to observe that Asthana has the advantage of knowing where the bodies are and who buried them.

But this is not about two IPS officers; it is not even about the CBI or its presumed image or its subverted autonomy; and, it is certainly not about the Bharatiya Janata Party and its opponents. It is about the future of the rule of law.

Rule of law is much more than a set of interlocking procedures and principles; it is a sense of shared confidence among citizens and other constitutional stakeholders that values of justness and fairness are not subject to the whims and fancies of the rulers of the day. There is a certain hallowed sanctity about that confidence and it was that notion of sacredness which was so badly shaken when policemen were sent out at midnight to the CBI headquarters.

Whatever be the colour of the political party in power, the executive has at its disposal all the accoutrements of a police state – the Enforcement Directorate, income tax department, intelligence agencies and, of course, the much-touted and much-used CBI. The executive also has available to it the entire paraphernalia of national security; and no establishment is above using the ‘national security’ cover to corner its political rivals. All these tools of coercion are operated by policemen who, by definition and by temperament and training, get easily and eagerly sucked into the ruling politicians’ world of conspiracy and intrigue; in turn, the ‘favourite’ policemen feed – and sometime even create – the sense of insecurity atop Raisina Hill.

Also read: Why the Modi Government’s Ouster of Alok Verma Is Likely to Face Legal Challenge

In recent years, we have allowed ourselves to be moved by a demagogic invocation of ‘anti-corruption’ mantras; ‘the investigative agencies’ have been given a renewed licence to ‘raid’ anyone and everyone – and a gullible media is always around to report that “incriminating documents” were seized from this or that political leader’s house/office. In this culture, the proverbial “CBI inspector” syndrome has acquired a momentum of its own. Even before the Asthana bombshell exploded, the ED had produced its own wayward officer, who had earned the dubious distinction of being the “most powerful man” in Delhi.

In recent years we have become rather sophisticated at staging this charade of the “law taking its own course” – all the procedures are followed and all the protocols observed, yet there can be no mistaking the scaffolding of a police state being put in place. And the knowledgeable bazaar talk has it that the “agencies” were being micro-directed by the newly empowered Chankayas and commissars. In the absence of good governance and good governors, a police state with its culture of immunity and indulgence invariably produces bent policemen. This perversion takes place and is tolerated because our politicians have cunningly seized upon civil society’s aspiration of a clean polity.

In our quest to eliminate corruption from public life, we have experimented in recent decades with various anti-graft mechanisms; sound judicial impulses and judgments, parliamentary enactments, and civil society ‘movements’ have periodically helped to build a kind of Lokpal regime. Yet venal, expedient, self-serving elements among the political parties – ruling or opposing – have defeated the spirit of such reforms, mocking our civic yearnings. The new politician of the “new India” has mastered the art of scrupulously observing procedural rules and regulations, articulating correct arguments, making clever formulations, and yet remaining intent on suborning the law, apparently reducing even the CVC to the status of a convenient collaborator.

Also read: Rakesh Asthana Obstructed Crucial Cases, Ousted CBI Director Alok Verma Tells SC

The painful dilemma we face – as a democracy – in the aftermath of the midnight coup at the CBI is a familiar one. In their masterly book, How Democracies Die, professors Steven Levistsky and Daniel Ziblatt of Harvard University ask:

“Are constitutional safeguards, by themselves, enough to secure a democracy? We believe the answer is no. Even well-designed constitutions sometimes fail. Germany’s 1919 Weimar constitution was designed by some of the greatest legal minds. Its long-standing and highly regarded Rechtsstaat (“rule of law”) was considered by many as sufficient to prevent government abuse. But both the constitution and the Rechtsstaat collapsed rapidly in the face of Adolf Hitler’s usurpation of power in 1933.”

We find ourselves at a familiar crossroad. Beyond the politicians’ toxic feuds and their growling pets in the media, the republic desperately needs a reassurance that our existing constitutional arrangements can prevent wilful use of law(s) to subvert the spirit of rule of law. This our visceral anxiety today. 

Also read: With CBI Chief Alok Verma Gone, Fate of Recordings Incriminating Top Officials Unclear

The Rakesh Asthana-Alok Verma stand-off at the CBI is, admittedly, a sub-set of a larger problem: does a Lok Sabha majority absolve a political regime of its obligations of responsibility and accountability as it proceeds to use its incumbency to entrench itself? There is an easy answer to this grave question but it cannot be easily found, particularly given our polarised – and polarising – discourse. It can only be found in the detachment and distance of judicial rectitude. 

Harish Khare is a journalist who lives and works in Delhi. He was, until recently, editor-in-chief of The Tribune.