Elite consensus may often degenerate into a ganging up of the powerful, but its absence results in chaos Te ehe year 2018 witnessed the mergence of two interrelat d threats to India’s federal polity. But the political class remains oblivious to the potential of
these threats, if not tackled in time, to inflict systemwide damage. The first threat is that the national investigative and regulatory agencies, such as the Central Bureau of Investigation (CBI), are increasingly seen to be unmoored of the wellestablished bureaucratic professionalism and neutrality. The Statelevel agencies may be far worse, but that is a different matter. The political impact of this sentiment, whether it is it true or false, is the refusal of some State governments to permit the CBI to conduct its operations in their States. Strong signals Giving credence to the doubtsabout the CBI’s integrity, the families of Govind Pansare and Gauri Lankesh, who were killed in 2015 and in 2017, respectively, have determined to oppose a combined CBI investigation into their killings as well as that of Narendra Dabholkar and M.M. Kalburgi. Gone are the days when people would demand a CBI probe into any crime or scam involving influential persons. One may dismiss the State governments’ blocking the CBI probes within their jurisdictions as politically motivated, but one cannot ignore civil society’s lack of confidence in the agency’s competence and neutrality. The second threat to our political system is the increasing tendency, especially among the two national parties, to not only implicate each other’s leaders in litigation but relish the spectre of the other having to spend time in courts or in jail. Our political space is turning into the moral universe of Buck Grangerford in Mark Twain’s Huckleberry Finn wherein one is only certain of the other being one’s mortal enemy but one’s not sure of what’s the feud about, or who started it or when. This moral relativism is corrosive and dangerous. Though the kind of institutional collapse for which the CBI has become the posterboy, and the political adversity turning into personal enmity are not new but they, like a disease, have entered a critical phase. Centre-State implications In November, the governments of Andhra Pradesh and West Bengal withdrew ‘general consent’ to the CBI to register fresh cases under its purview. One implication of the decision is that the CBI will have to obtain the State’s consent case by case; this will give a State government the opportunity to both ensure that the CBI is not acting at the behest of the ruling party at the Centre, or insert its own politics into investigations. The agency may technically go ahead with cases it already registered in these States, but that logic holds only on paper. Without a State government’s active cooperation, the CBI or any Central agency cannot carry out its operations in that State. This is a truly tragic moment for the CBI, which has had its roots as an anticorruption wing of the British Indian government known as the Delhi Special Police Establishment, a lacklustre name till 1963, when it became the CBI. That from such humble origins it rose to national eminence was a tribute to its competence and professionalism. As mentioned, in the past some States occasionally blocked the CBI probe in specific cases but what is new, as exemplified by the decisions of Andhra Pradesh and West Bengal governments, is that hereafter a State’s refusal to allow the CBI probe in its territory is likely to be based not so much on the merits of a case but on political equations between that State and the ruling party at the Centre. It is not the CBI alone that will be caught in the cross hairs of CentreState feuds in future. Other agencies such as the Enforcement Directorate, the National Investigation Agency (NIA), etc. may find it hard to smoothly carry out their operations in States that are not politically aligned with the ruling party at the Centre. There was a time in the 1980s when a special income tax team sought to conduct search and seizure operations against persons close to the ruling party in Jammu and Kashmir without informing the local police for obvious reasons, the team faced unpleasant backlash. Under the Constitution, the State governments have exclusive jurisdiction in matters related to law and order. The Centre can claim its jurisdiction over its departments located in States, such as railway property, and on matters like terrorism, sedition, counterfeit currency, etc. Even in these cases the Central agencies cannot discharge their duties without active cooperation from the State government concerned. Consider this, for example: unlike the CBI act (the Delhi Special Police Establishment Act) which mandates States’ consent, the NIA Act does not place such a restraint on the NIA. However, the NIA would be no more effective than the CBI when a State refuses to cooperate, whether that refusal is de jure or de facto. Dialogue required Our federal system, insofar as it is concerned with the national investigative and regulatory agencies, worked well due to two reasons. One, as long as a single party remained in power at the Centre and in most States, the issue of political interference did not arise. Two, these agencies’ reputation for professionalism and impartiality also ensured their success. It is clear now that no single party will be so dominant at the national as well as State levels into the foreseeable future, and regrettably these agencies are not in pink of their health. But herein lies an opportunity. The absence of a singleparty dominant polity means that India will witness a revolvingdoor politics where the ruling party and the Opposition will exchange places fairly regularly. And their propensity to lock up each other will abate.
The present context also highlights the urgent need to define and delineate ‘federal crimes’ as recommended by the Malimath Committee in 2003. The exercise should not be about compiling a list of crimes and prefacing each crime with the ‘federal’ adjective. Instead, the task should be to bring in States as partners in solving a national problem: how best to calibrate different tiers of government and bring about political consensus so as to ensure India’s constitutional scheme delivers on its promise. A first step in this direction has to be the willingness of political parties, especially the Bharatiya Janata Party (BJP) and the Congress, to recognise the danger they pose to each other as well as to the entire polity. And then arrive at a modus vivendi which must contain the need for the elected executive to refrain from ‘monitoring’ investigations; a provision for more effective judicial oversight at all stages of criminal investigations; and he resolve to ensure bureaucratic neutrality. Restoring credibility The task of restoring the credibility of investigative agencies cannot be rocket science. Moreover, it is now in the selfinterest of all political parties. As the nation approaches the national elections in a few months, the time is ripe for ideas to strengthen our federalism. Ideas for reforms will spring up and fructify only if elite consensus creates a conducive environment.