Why Vyapam scam needs a Supreme Court monitored probe

Close to 40 deaths have occurred in the last few years in Madhya Pradesh. What links them is a massive admission and recruitment racket involving politicians and bureaucrats that has come to be known as the "Vyapam Scam". Since law and order is a state subject, it is the state agencies that are responsible for criminal investigation and prosecution. The Jabalpur high court has taken cognizance of the matter but is still depending on the special task force (STF) of the state for investigation. And the special investigation team (SIT) remains dependant on the STF for information. As deaths occur with regular frequency of journalists, witnesses and accused persons, the state inspires little confidence. Such a state of affairs is prima facie unacceptable in a democracy governed by the rule of law. Public interest litigation (PIL) petitions have already been filed before the Supreme Court. The question is, what can the apex court do in the case of presumptive failure of the state machinery?

Public interest, CBI and court monitored investigation

The Supreme Court has the power to order a central agency such as the Central Bureau of Investigation (CBI) to probe into criminal activities taking place in any of the states in India. But when can the Supreme Court also monitor such an investigation?

In 1997 the Supreme Court gave a landmark judgment in the Vineet Narain case. A PIL was filed under Article 32 of the Constitution (remedy for violation of fundamental rights) of the Constitution. The case originated from what was widely known as the "Jain Diaries". The diaries were discovered during investigation of the terrorist outfit Hizbul Mujahideen. Being an issue concerning national security the CBI was put in charge of the investigation. During the probe a certain Surinder Kumar Jain was arrested. And a diary was recovered which yielded names of several politicians and high-ranking officers.

The then chief justice JS Verma on an examination of this case and the progress made felt there was a failure on account of the CBI and other government agencies to carry out public duty. In this backdrop the Supreme Court raised the legal proposition on "whether judicial review could exist and could be an effective instrument for activating investigative process".

The court answered in the affirmative through its interpretation of Article 32 and Article 142 (power to make order as necessary to do "complete justice") of the Constitution. It was concluded that where there is a "void" in the legislation or a failure of state institutions the judiciary could step in so as to preserve public faith in the justice system. The court then proceeded to monitor the investigation and examined every status report of the CBI.

The judgment resulted in the creation of the Central Vigilance Act, 2002, which holds the CBI accountable for its criminal investigation. The judgment also had wide repercussions on inquiries into issues of corruption and emphasised the Supreme Court's constitutional responsibility in ensuring public accountability.

In 1999 the Haryana government advertised 4,000 vacancies for junior teachers in the department of primary education. The official in charge of keeping the list of selected candidates was asked by state officials to substitute the original list with another list. He and his family were threatened with dire consequences if he did not obey. However, the concerned official did not succumb and was soon transferred.

The official then moved the Supreme Court. Taking cognizance the court ordered an investigation by the CBI. The state had pleaded that investigation be permitted under the Commission of Inquiry Act 1952. But the court made it clear that no authority which might require state support or assistance could realistically investigate into such acts of corruption.

In 2014 in the now famous case of Manohar Lal Sharma vs Union of India, popularly known as the 'Coal Matter', the Supreme Court monitored the CBI investigation into allocation of coal blocks. Then Chief Justice RM Lodha stated that even though it is not advisable for constitutional courts to monitor investigation by the state police or CBI this must be done in cases involving public interest.

Can the Supreme Court set up a Special Investigation Team (SIT)?

The Supreme Court has in exercise of its powers set up a court monitored SIT only twice earlier. First in 2009 to insure fair investigation into the post-Godhra riots, the court had held the incident an attack on the Constitutional principle of secularism, and also concluded that a fair criminal prosecution by state agencies did not seem possible.

The second in 2012 in the black money case the court concluded that in spite of the scrutiny by both the Enforcement Directorate and the central government appointed high level committee the investigation was ineffective and possibly compromised. As a result the Supreme Court set up a SIT to look into the investigation of illegal activities of tax evasion and money laundering.

The Vyapam scam certainly fulfils the previously defined parameters, which would require the court to exercise its jurisdiction to form a SIT. There has been a failure of the state machinery to conduct a fair investigation according to due process of law, the accused include those currently holding constitutional posts in the state, there seems no protection of the fundamental right of life of investigating journalists or others associated with the case, and there exists a suspicion of a nexus between powerful politicians and bureaucrats in the state.

There has been no transparency in the investigation process and almost no progress has been demonstrated. Most importantly this nefarious scam has affected thousands, from those who were unlawfully denied jobs to the families who suffered the loss of life, as also the damage to public institutions who are being burdened with the incompetent and corrupt.

In view of Madhya Pradesh chief minister Shivraj Singh Chouhan's statement, the high court will order the CBI to investigate. Irrespective of the subsequent orders of the high court, the apex court should fulfil its duty of doing complete justice. It must uphold the vital principle of administration of justice that "justice should not only be done but seen to be done".