Accountability In Times When Perception Is Made to Override Fact

NEW DELHI: At a time when the NDA Alliance is about to complete four years of its tenure, it is time to look back and review the accountability of our public institutions. This question acquires urgency in the context of the impeachment motion against the Chief Justice- an act seen as one more instance of the Congress led opposition’s track record of undermining institutions. In current climes where ‘perception’ overrides ‘facts’, it may be worth looking back at the functioning of institutions during the UPA.

The RTI Legislation and Accountability

The legal right to mandate information from the Government via the Right to Information Act, 2005 allowed the common person to access the state in fundamentally new ways. This was of great import in a society where the hierarchical and cumulative power of caste, class, gender and bureaucracy impinged upon the State citizen relationship.

It strengthened free press by allowing journalists to access documents that recorded decision making of the Government. The RTI legislation also enabled activists to obtain documents related to the allocation of Spectrum, papers that finally led to the arrest of the then DMK Telecom minister. The RTI Legislation thereby made information a source of power creating accountability in the Bureaucracy and further making the Indian State accessible in an unprecedented fashion to every citizen of the country.

Judiciary and CAG –Checks and Balances

The Indian Constitution, foundation of our democracy has created a sophisticated system of checks and balances by providing (i) a separation of powers between the Legislature, Executive and Judiciary and (ii) ensuring strong and independent institutions of which Writ Courts, Comptroller Auditor General, Free Press and the Election Commission are integral parts. With time, we also saw how through Judgments of the Court the Central Bureau of Investigation has been strengthened e.g. Vineet Narain and Dr Subramanium vs Union of India (2014) which allowed more power to the agency by letting the CBI directly investigate senior bureaucrats without an internal probe.

The nexus between politicians and big money has justifiably led to a deep mistrust of politicians. Between 2010-2013 accusations of corruption flew thick and fast against the UPA-2 regime. What is important to realize is that even in those scam torn times, institutions did ensure that those holding state power were made accountable. This was seen in Judgments ranging from Spectrum allocation to Coal allocation and to the appointment of CVC Mr. P. J. Thomas. Independent investigating agencies, the press and the judiciary ensured that wrongdoings of those in public offices in UPA were made accountable. In fact we curiously saw the CAG hold a press conferences on plausible losses to the exchequer. The recent order of the Trial court in the 2G case has acquitted many of the persons involved but the appeal lies pending in the High Court.. However it did put to rest the inflated figures taken by Vinod Rai, What is most significant is that the Government as envisaged in law could be held accountable through the institutions such as the CAG and Courts to the people.

Opposition and the UPA

This criticism by the Judiciary and the Press helped both social movements and political parties gain credibility. The extraordinary support and faith in political bodies between 2012-2014 such as the AAP led by Arvind Kejriwal and the BJP led by Narendra Modi showed that people had faith in political processes and parties to bring about change. This faith however stems from an unstated acknowledgement that governments can be exposed and brought down. The role of institutions in bolstering this belief needs emphasis. (i) political rulers were openly questioned by institutions like the CAG and CBI; (ii) the media was free and scathing in its criticism; and (iii) policy debates within the government between the National Advisory Council and the Planning Commission allowed a healthy discussion on the various models of development.

We saw under the watch of the CBSE Chief thousands of students being affected by corrupt practices. However the Chief remains glued to her seat of power. This sets a bad precedent to other Governments who have earlier often insisted that ministers and bureaucrats resign as propriety.

Allegations of favoring a few by those holding public positions is indefensible and something that deeply disturbs the citizenry. But the system, which corrects such acts must be protected at all costs. What needs to be asked today is: Are these same institutions free enough today to conduct such acts against those who hold public office?

Free Speech, Press and the State

Today the media is busy toeing the Government line and completely collapsing in face of power. The media instead will quickly and vehemently dismiss the opposition’s raising of issues such as jobs and farmer distress as ‘politics’. In an amazing deft of ‘perception play’ tragic events in states such as Kashmir.,M.P. and UP the media finds creative ways of blaming the opposition for all misgovernance and social strife .

There exists a serious threat to free debate in the media. Can one imagine the situation if all those who did not support salwa judum or Operation Green Hunt program were dismissed as being anti-national by the State? Or a situation where such states view was unquestionably promoted by media rhetoric? In such circumstance could the Supreme Court have struck down Salwa Judum, without being looked at as an institution taking a stand view contrary to national interest?

Several media channels now unapologetically tow the philosophy of the Government and belligerently attack those with an opposing view. A media channel was openly funded by a member of the NDA and who now is a BJP MP! Every opposition leader has been raided and investigated. But those in the ruling party remain unquestioned. We are told that to question the Government's policy makes us anti national and to seek to protect institutions is only an act of political gimmick.

Impeachment and the Opposition

As a junior member of the Bar I am not equipped to have an opinion on a matter of such magnitude. But I do understand it’s not an issue for jurists to decide viewing the constitution as a legal text. But is an issue regarding protecting the constitution as a social political text , one which safeguards our political democracy . And today the Lawyers seem ill equipped to determine such issues and their repercussions.

What we all know is that the collegium consists of 5 Judges of which 4 were forced to address the media. This was a media that had been dramatically transformed since the days they walked the corridors of courts as lawyers. They looked awkward and anguished facing the aggression that is the hallmark of contemporary media questioning.

I also understand that these judges were not one homogenous entity. Each of them have come from different parts of the country, perhaps also holding separate political, legal and moral philosophies. I understand they are proud and would never want to be seen confessing helplessness in fulfilling their constitutional duty of protecting important procedures of the Court. Procedures remember have a substantive impact on justice delivered. I also understand that this Government consistently has kept the collegium recommendations pending and this is been happening since 2016, with Justice Joseph’s elevation being the latest act of impropriety by the Executive. That this practice of the executive shows deep disregard for the judiciary. This is also contrary to the NJAC judgment and undermines the independence of the courts.

The VP has rejected the motion of impeachment. We now hear that the opposition want to go back to the Supreme Court. Millions of peoples accept the word of this Court. The Judiciary provides justice by giving legal finality and emotional closure to litigants and citizens. The peoples accept their verdict as final because they have come to believe that there will always be a fair and thought out determination by the institution. I do not know what the fate of the impeachment hearing will be and whether we should be at this juncture in the first place.

However I am convinced that one: the Court will provide a fair hearing; two, whatever the judgment, the opposition must respect the order of the Court.; and three, that history would will not judge us kindly if the entire Bar and opposition remained mute spectators to the happenings of the court.

(Abhik Chimni is a Supreme Court lawyer)