Notion of justice must be redefined

A debate is raging among the country's intelligentsia: The question is whether the CBI or any police organisation should be independent of its administrative masters. The moot point is whether this premier agency for investigation and prosecution will have functional autonomy in pursuing what it is tasked with.

Obviously, this debate is triggered by the recent stinging observation by a bench of the Supreme Court that the CBI was, indeed, a 'caged parrot' repeating its master's bidding. The controversy was further compounded by the volte face of the CBI Director himself. Initially, he responded to the apex court's query by stating matter-of-factly that the CBI was under the Government of India and was, therefore, obliged to share its investigation report on the distribution of coal mines scam to the government's representatives, including the Law Minister. He was naïve enough to overlook the fact that the Bench had specifically directed the agency to submit the report in a sealed envelope to the court.

But stung by the unprecedented strictures of the court, the Director started singing a new tune. While admitting that the CBI, which had earned the sobriquet of 'Congress Bureau of Investigation' on the growing perception that it is getting increasingly influenced for upholding the interest of the ruling party, was, indeed, not independent.

Without specifically mentioning it, he accepted the 'caged parrot' description like a 'crown of thorn'. However, the controversy has not shown signs of subsiding after this unusual exhibition of candour. Spin masters of the government have raised the serious question of separation of powers between two principal organs of the nation-State. Their contention is that the CBI is very much under the exclusive prerogative of the Executive, and the judiciary has encroached on the legitimate constitutional territory earmarked for it. Some of these spin masters, notably senior Congress General Secretary Digvijay Singh, have gone so far as to say that the apex court has actually undermined the CBI.

Therefore, at this critical juncture when the nation is battling corruption, particularly in high places, a closer examination of the entire gamut of issues thrown up appears to be in order. While one can be upset over the Congress party's intransigence, one cannot be equally amused by the sense of outrage displayed by the principal Opposition party, the BJP, and its legal luminaries; because, at a time when the BJP-led NDA was in office, there were plenty of instances of abuse and manipulation of the CBI. Now, what is the moot question? This issue of independence of the CBI or any other police organisation is inseparably linked with the question of delivery of justice over alleged misdemeanor and wrong-doing.

Justice appears to be a fairly straightforward and simple notion. But a closer look would definitely reveal that it is actually not so. The amount of literature that civilization's enquiry into the notion of justice has produced is simply mind-boggling. From the Greek civilization, the debate appears to be unending with Aristotle and Plato sparring over the finer nuances of what seems to be a more or less universally accepted idea.

As and how our civilization progressed, the debate continued because justice was not merely about legality. It was about the way philosophy and society looked at the idea of justice. The growing intellectual convergence seem to point towards achieving some practical and functional thumb rule to address issues that needed urgent just solutions. It is from this standpoint that Schopenhauer observed that "injustice was the analytically primary term; injustice was merely the absence of justice".

It is not only that we find this discourse in the Western intellectual tradition but also in the Persian and Arabic schools of thought. While agreeing that neither linguistic strategy nor conceptual analysis can establish justice as a verb, its abundant use as adjective cannot be doubted. Therefore, justice essentially gets linked with ethics which tells when and in which context actions are just or, for that matter, justified. It is this line of argumentation that has come to inform the thinking of John Rawl, perhaps the most influential thinker on justice.

His classic 'A Theory of Justice' attempts to explain that certain inequalities are justified inequalities. It is here that justice assumes a political dimension; it becomes a link between politics and ethics. Justice ultimately becomes the concept that governs both politics and ethics. So, Montesquieu put it in context when he wrote famously in his Persian Letters that "justice is a relationship of suitability which actually exists between two things".

However, Amartya Sen has taken on John Rawl and observed in his very important work, 'Idea of Justice' which seems to be inspired by Schopenhauer � "Theory of justice that can serve as the basis of practical reason" and continues � "must include ways how to reduce injustice and advance justice, rather than aiming only at the characterization of perfectly just societies."

It is on these lines that Constitutions and practical law have evolved. And, it is in this framework that our Constitution-makers drew heavily from the Westminster system and transcreated in the specific environs of Indian civilization, culture and society. The constitutional scheme with its precise separation of powers of the three organs captures this thinking.

Therefore, to deliver justice the fundamental consideration of jurisprudence is Nemo judex in causa sua, the Latin original which in English would read as 'no man a judge in his own case'; no decision is valid if it is influenced by any financial consideration or other interests or bias of the decision-maker. These principles apply to decisions of all governmental agencies and tribunals and judgments of all courts which may be declared to be of having no effect (ultra vires) if found in contravention of natural justice.

It is in this light that the government cannot usurp the role of an investigator or a prosecutor. To that extent, it has to be left to the independence of the CBI subject to the independent monitoring by the judiciary. Any attempt to deviate from this principle will lead our democracy and, more importantly, our justice delivery system to peril.

Justice may appear to be simple and straightforward. A It is not merely about legality. It has a lot to do with the way philosophy and society look at the idea of justice. A At times, justice assumes a political dimension, becoming a link between politics and ethics. A Justice ultimately becomes the concept that governs both politics and ethics. In light of this, the government cannot usurp the role of an investigator or a prosecutor, says the writer