When the Supreme Court adopted the government's motto and forgot its own: The baffling verdict in the Rhea Chakraborty case

“I got up today and looked at myself through your eyes, and then looked back at you with everything I understood I was…”

- Sushant Singh Rajput, self described as “Photon in a double-slit”

No lawyer forgets his first appearance. Mine was too anti-climactic to forget. Nina Pillai, the Mumbai socialite whose husband, biscuit baron Rajan Pillai, had died in Tihar Prison under mysterious circumstances, was seeking an investigation into his death and that too by the Central Bureau of Investigation (CBI).

Nina’s case had passed through many hands and finally I was the junior lawyer on the team. It was then that I had propounded the doctrine that every visit to the Tis Hazari Court from leafy South Delhi Jangpura would take a day out of my life, notwithstanding the awesome chaat at the canteen.

I had just finished acting like a waiter for a year wearing a black tie. Tragically, the year I decided to enroll, the Bar Council had introduced the “apprenticeship rule” which sentenced all lawyers to shadow seniors for a year before they could wear a band and a gown - yes, even I was so excited at the idea of wearing these colonial appendages.

Finally, I was to appear before Prem Kumar, the Chief Metropolitan Magistrate, and press an application for inspection of some documents. When I arrived all pumped up, I found the chair vacant. Was his Honour on leave? No he is inside his chamber, assured the ahlmad. Give me your application. He returned in minutes with news he thought would cheer me.

The judge had allowed it in chambers. My disappointed look must have puzzled him. I was not going to be robbed of my first court appearance. I waited until the judge returned to his dais after an hour. I do not remember what mumbo jumbo I may have said to Judge Kumar, but he must have excused my folly as I looked the bumbling Supreme Court type at sea in the world of the trial court!

I could go on for another 108 pages and then abruptly share my final conclusion. However, I shall be kind and spare you further torture and tell you right away what this is about.

This is about Rhea Chakraborty v State of Bihar - the decision of the Apex Court where, in a transfer petition filed by the friend of Bollywood star Sushant Singh Rajput seeking transfer of the actor’s father’s complaint to Mumbai, it has transferred the entire investigation to the CBI.

It reminded me about Nina Pillai’s case as Judge Kumar had, in fact, boldly directed a CBI investigation into Rajan Pillai’s custodial death and CBI had challenged that order all the way to the Supreme Court.

The CBI had a point. When it had been set up as an exclusive and elite agency under the Delhi Special Police Establishment Act, 1946, no one could have imagined that a situation would come to pass when people would have more faith in this agency than the local police, which is inevitably compromised in sensitive cases. This was years before the CBI would have to swallow the epithet of “caged parrot” from the very court which had transferred to and entrusted this key agency with several sensitive cases of national importance.

CBI contended that it had manpower constraints and if every magistrate started to direct CBI investigations, it would simply have to fold up. The Supreme Court, in a batch of petitions, which included Nina’s, upheld CBI’s plea. However, it ruled that constitutional courts, namely the Supreme Court and the High Courts, could continue to direct the CBI to investigate.

Reams have been written about the SSR suicide that shook one and all. I shall assume all are aware of the nitty gritty which the media doesn’t tire sensationalizing with daily leaks. The controversy arose when the actor’s father accused Rhea of defalcating SSR’s funds and being involved, in some manner, in his unnatural death. He filed a criminal complaint in his home town Patna which spurred Rhea to move the Apex Court to seek its transfer to Mumbai, as the Mumbai Police was already investigating into the death of the actor.

Before Court, Team Rhea contended that the incidents alleged in the father’s complaints had happened entirely in Mumbai, and therefore, the Bandra cops were best suited to investigate into the complaint along with the existing inquiry it had initiated into the unnatural and untimely demise of the star.

Team Senior Rajput argued that, as evident from the way in which the Bihar Police team was quarantined in Mumbai, the “Mumbai police was trying to suppress the real facts and were not conducting a fair and professional inquiry”.

While this saga was unfolding publically, and I may say, politically, the Bihar government made a request for the matter to be entrusted to the CBI and the Central government was only too happy to oblige.

Maharashtra argued before the Court that its police was already in an advanced stage of investigation and statements of 56 persons had already been recorded. It argued that if registration of complaint in another state was permitted, it would enable a person to chose the investigating authority and “obstruct exercise of lawful jurisdiction by the local police”

The Central government, through the Solicitor General, submitted that while Bihar had registered an FIR, Maharashtra was only conducting an inquiry. He also pointed out that the serious allegations of external influence were sufficient to warrant a CBI investigation. He indicated that other Central agencies, such as the Directorate of Enforcement, were examining the issue, and therefore, the Centre had acceded to Bihar’s request to transfer the case to the CBI.

In its judgment, the Court concedes that under the “federal design”, the police was a state subject and “normally” investigation of a crime should be left to the state police. It also concedes that the records did not “prima facie” suggest any “wrong doing” by the Mumbai Police.However, it does note that the obstruction of the Bihar Police team in Mumbai “could have been avoided”. It concedes that a CBI investigation cannot be a “routine exercise”.

The Court notes that in the instant case, there were allegations of political interference against both the states. The Court then proceeds to conclude that:

• Only cases and appeals can be transferred under Section 406 of the Criminal Procedure Code (CrPC), and not investigations.

• The Mumbai Police was only conducting an ‘inquiry’ into an unnatural death under Section 174, Cr PC and it was not an ‘investigation’ within the meaning of Section 157, CrPC.

• Patna Police committed no illegality in registering the complaint.

• While CBI cannot independently investigate into a compliant without the consent of the concerned state government under Section 6, DSPE Act, the Constitutional Court was fettered with no such limitation.

• CBI had already registered a case and commenced investigation on the basis of the Patna complaint, there would be “uncertainty and confusion” if Mumbai Police were to now register a case.

• There was a conflict between two state governments on who amongst the two is competent to investigate the case.

• As “stakeholders” had voiced “apprehensions “, the Court “must strive to ensure that search for the truth is undertaken by an independent agency, not controlled by either of the two state governments”.

• The CBI investigation is lawful. If in future, Mumbai Police decides to register a case, that too should be transferred to the CBI.

• As both states have made “acrimonious allegations of political interference against each other, the legitimacy of the investigation had come under a cloud.”

• SSR was a talented actor and his family and friends were “keenly waiting” for an outcome. “Therefore a fair, competent and impartial investigation is the need of the hour”.

• “The expected outcome then would be, a measure of justice for the Complainant, who lost his only son.” Rhea too had demanded a CBI investigation.

The Court parted with the mantra “Satyameva Jayate”. Interestingly, while that is the motto of the Government of India, the Court should have recalled its own motto which is “Yato Dharmastato Jayah” - where there is righteousness, there is victory.

The fundamental flaw with the simplistic logic of this decision is that it ignores the elephant in the room. It assumes that there are two combatants - Bihar and Maharashtra, and the maternally neutral Central government. It also assists the CBI to shed the “caged parrot” tag by repeatedly emphasizing the impartiality and neutrality of this agency.

In recent times, Centre-state relations have taken such a nose dive that several opposition-ruled states such as West Bengal and Maharashtra have withdrawn the general consent given earlier to the CBI to take up and investigate cases. The selective manner in which the agency has proceeded against politicians facing scam investigation by CBI and who have changed ships to embrace the ruling dispensation is also something that has been flagged by opposition parties. Yet the Court’s discourse is sanitized and it compromises federal autonomy by whitewashing the same with inane sentimentality such as the unfulfilled wish of a father to be cremated by his son.

The logic of the Court would permit the right of a state to investigate an offence occurring in its territory to be usurped by another state by simply rushing in and registering an FIR and transferring the investigation to the CBI with the blessings of a Central government presided over by a political ally.

The Court’s heart should grieve for the father of a famous actor as much as it should for the mother of an unknown fruit seller who loses her child in a riot. Compassion for the grieving, however famous and public, cannot be a criterion to throw the cherished principle of federalism and autonomy of states under the bus.

The Court, having concluded that there was nothing untoward about the Mumbai investigation, and having noted that the Bihar investigation was transferred to the CBI, invokes its inherent powers under Article 142 to justify a CBI investigation. The ground to sustain this admittedly out of normal action is the “acrimonious” allegations of the two states and the unsubstantiated “apprehension” of the complainant of external influence. Won’t any state be acrimonious if her federal right is infringed? Won’t any complainant have apprehensions when a complaint is lodged hundreds of kilometers from where the wrong is alleged to have been perpetrated?

It has no word to say about the post-haste efficiency demonstrated by the Central government in acceding to Bihar’s request without examining that as the entire offence pertained to Maharashtra, Bihar ought to have itself transferred the investigation to Maharashtra. Assuming a CBI investigation was warranted, the consent of Maharashtra ought to have been officially sought. Even if Maharashtra was recalcitrant, no doubt the Court itself had the power to direct CBI investigation as it has done earlier in cases:

• involving a scam involving powerful ministers or politicians

• offence having inter-state and inter-national dimensions

• where flawed or partisan investigation has shaken the conscience of the public

None of these grounds are met. The Court itself has concluded that there is no material to conclude that the Mumbai Police has been partisan.

Sadly, when the historian of the future will chronicle this era of the Court, this decision will also find its pride of place alongside the ones on restoration of internet services in Kashmir, provision of relief to migrant workers and finding Bhushan guilty of contempt!

The author is a Delhi-based advocate.