The controversy whipped up over the Law Minister, Ashwani Kumar, sending for the Director of the Central Bureau of Investigation (CBI), Ranjit Sinha, and discussing the status report to be submitted to the Supreme Court Bench going into the alleged irregularities in the allotment of coal mines is a sure instance of overkill.

Let us first look at the functions assigned to the Union Law Minister under the Allocation of Business Rules that have been in vogue from 1961. Of the three Departments – Legislative, Justice and Legal Affairs – under his charge, it is the last that is relevant for this column.

The functions of the Minister holding charge of the Legal Affairs Department include in explicit terms conducting litigation before the Supreme Court and the High Courts on behalf of all Ministries/Departments of the Central Government.

This casts on him the responsibility to make sure that everything that needs to be done by way of investigation, marshalling of evidence, documentation and effective presentation is done in a flawless and thorough manner. The Law Minister is right in saying that his Ministry is the statutorily mandated legal advisor to Ministries and all official agencies, including the CBI.

Where higher judiciary is seized of particular cases, everything has to be done right the first time, since even a small mistake can have serious consequences.

I can draw on my own experience in this respect as a former functionary in the Political, Security and Administrative Vigilance Directorates of the Ministry of Home Affairs looking after matters connected with the Preventive Detention Act and the Defence of India Rules, as also cases under the Prevention of Corruption Act.

IMMENSE VALUE

I had to deal almost on a daily basis with the Attorney General, and my counterparts in the Law Ministry, besides attending inter-Ministerial and inter-Departmental meetings with the Law Minister on important issues thrown up during investigation and conduct of cases.

I can unhesitatingly vouch for the immense value of these consultations in plugging loopholes, guarding against the Government and the investigative agencies being taken unawares during trials and appeals, and generally making the cases pass the test of the strictest judicial scrutiny.

Putting heads together has become all the more important these days with even senior functionaries of official agencies being prone to be slip-shod and careless in use of expressions, documentation and communication.

There is no formal written directive by the Supreme Court (SC) that the CBI should have no contact with the Law Ministry or Law Minister; on the contrary, the SC has clearly laid down in Vineet Narain’s case that the Minister’s general power to review the working of the agency and appraise the quality of its work “is in no way to be diluted” and that his power to call for information generally regarding the cases handled by the agencies “is not to be taken away”.

All that the SC had imposed as a safeguard is that the Minister should not interfere with any investigation or prosecution in respect of which the agencies are to be guided entirely by the provisions of the law.

UNCHARTED TERRITORY

It will be unfair to construe the official discussion by Ashwani Kumar with the CBI Director as interference or as anything other than discharging his duties according to the Allocation of Business Rules.

Even assuming that the status report underwent modifications during this meeting, there was no impropriety involved so long as it was an open discussion at which all present had the right to participate and offer their views. The fact that the Attorney General, the chief law adviser entitled under the Constitution to address Parliament itself, was also reportedly present, gives some sanctity to the discussion.

In any case, the Government has the right to place on record before the judiciary the best justification for any of its decisions or courses of action, just as the courts have the right to pronounce upon them after due hearing.

The taking up of cases under investigation by the SC is a new and uncharted territory, being largely the result of the prevailing distrust of existing institutions and the Executive Branch as a whole.

This gives rise to the larger question whether the judiciary should at all be taking over the monitoring of the day-to-day working of any existing institution, especially when it involves handling administrative minutiae.

Much the greater danger this poses is that of Government agencies feeling compelled to disobey the dictates of discipline, hierarchical loyalty, and the command and control system.

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