UP Impunity Checked & Doubts Over CBI: Takeaways From Lakhimpur Kheri Case in SC

The court's scrutiny of the investigation has been careful and far more rigorous than in the past.

CJI NV Ramana has played a key role in holding the UP Police accountable.

(Photo: Altered by The Quint)

With the appointment of Justice (retd) Rakesh Kumar Jain to supervise the Lakhimpur Kheri investigation, "to ensure transparency, fairness and absolute impartiality," the Supreme Court brought to an end its active intervention in the case for now.

Over the course of six weeks and as many hearings, the apex court, led by Chief Justice of India NV Ramana, has played a role not seen in the tenures of his recent predecessors, asking uncomfortable questions of the police and political executive, and actually taking steps to ensure accountability.

Not only did CJI Ramana and Justices Surya Kant and Hima Kohli point out the absurdity of the chief accused in the case – Ashish Misra (son of a BJP Union minister) – not being summoned or arrested for nearly a week after the incident, the court has continued to scrutinise the investigation even after the Uttar Pradesh (UP) Police belatedly took the necessary action.

Here are the key takeaways from the court's hearings since 6 October, and its eventual order.

1. UP Police Not Given a Free Pass – Despite Salve Gambit

In recent times, the UP Police have been involved in numerous questionable actions, from increased number of encounter killings to First Information Reports (FIRs) against those who criticise the state and central government.

Despite facing reverses, including the granting of bail to many of the journalists slapped with cases, the stay of notices for compensation sent to protesters, and the quashing of the National Security Act (NSA) detention order against Dr Kafeel Khan, there have been no real consequences for them, or any genuine scrutiny and oversight of their actions.

Even when the Supreme Court appointed a commission led by former apex court judge Justice BS Chauhan to probe the farcical encounter killing of gangster Vikas Dubey, the commission found no evidence of wrongdoing.

There were question marks over how one of the members of the commission was related to the senior-most police officer in the region and the strange failure of the commission to consider how the police stopped the media from following the car in which Dubey was travelling.

The latter was a particularly Kafkaesque failing because the commission eventually concluded that there was nobody from the media who came forward to contradict the police version.

This seeming impunity suffered a rude shock in the court over the course of the Lakhimpur Kheri hearings. First, there was the court's consternation over the failure to arrest or even summon Misra, the son of BJP leader Ajay Misra Teni, for which they criticised the police and the UP government.

"This is the view of the bench. We expect there to be a responsible action by the government and the police. When there is a 302 case, in the rest of the country, when there is a case like this, will the accused be asked like this: please come?"

CJI NV Ramana at hearing on 8 October

From the start, the judges also raised questions about the officers involved in investigating the case, noting that they included junior officers from the region who had shown an inability to take standard action against a politically powerful accused (regardless of his eventual innocence or guilt).

In subsequent hearings, the court asked pointed questions about the investigation, including why Section 164 statements hadn't been collected from witnesses (important as these statements made to magistrates are what have proper evidential value at trial), why phones recovered from accused persons hadn't been submitted for forensic analysis.

The police's attempts to say that they were examining witnesses or make excuses for failure to take relevant action were not brushed off, and instead investigated and interrogated, with the judges openly saying the "investigation isn't going the way they had expected."

This showed the court wasn't just going through the motions, but really scrutinising the police's investigation at a granular level, which is exactly what we want to see from the judiciary when examining the actions of the executive.

When it became clear from this that the investigation wasn't going to get any better despite the UP government's assurances, the court decided to appoint a retired judge to supervise the investigation. It also reconstituted the Special Investigation Team (SIT), showing once again that it was carefully considering how to ensure the case didn't end in a damp squib.

What is particularly interesting about all this was that the UP government decided to appoint senior advocate Harish Salve to represent them in the hearings before the court.

While Salve has been a mainstay at the court for years, whether representing clients or as an amicus curiae, this was a curious decision as such matters where there was no adversarial question would normally be handled by the standing counsel for the state.

In this case, senior advocate Garima Prashad was available throughout and yet Salve, who lives in the United Kingdom (UK) where he has a practice, was being brought in to represent the state government for every hearing on video conferencing.

The UP government may have been hoping that Salve's courtcraft (which has been increasingly relied on in politically sensitive matters) would soften the blows from the court, but despite the judges' acknowledgements of his efforts and their respect for him, this failed to happen.

Salve for his part did not try to deflect responsibility for the failures of the UP Police, and ensured cooperation and responses from the state government to the court's questions.

The court's actions have hopefully ensured that the multiple failures of the UP Police thus far do not result in a shoddy prosecution case which would have been likely to fail, and offer an example for how it can ensure its involvement in future cases like this aren't just lip service.

2. CBI Still a Caged Parrot – Partisanship Starting To Backfire?

Back in 2013, former CJI RM Lodha famously called the Central Bureau of Investigation (CBI) a "caged parrot" that "speaks in its master's voice" during a hearing on the coal allocation scam inquiry, which the central agency was conducting.

Eight years on, the continuing question marks over the CBI's independence from the Union government of the day have led to a growing lack of faith in the once-respected federal investigation agency.

This increasing perception of partisanship of central agencies like the CBI and the Enforcement Directorate (ED) is no longer just an accusation being bandied about by opposition parties now.

On 8 October, in surprisingly stark comments, CJI Ramana suggested there would be no point to transferring the Lakhimpur Kheri investigation to the CBI, as was being suggested by some petitioners and even tentatively floated by the UP government.

"The CBI is also not a solution, for reasons you know. We do not want to say anything, but you know," the CJI said during the hearing.

As a central investigating agency, the CBI falls under the Ministry of Home Affairs, in which the father of the main accused Ashish Misra, Ajay Misra Teni, whose car plowed through several farmers (though he was not present), is a minister of state.

Whether the judges were referring to this specific potential conflict of interest or the general perception of the CBI's partisanship, it is an important thing for the court to have done.

It drives home just how dangerous this bias – perceived or genuine (or both) – can be for those who are meant to ensure the truth comes out. With state police being generally subservient to the interests of their local government (whichever party is in power at the time), the CBI is meant to be an important arrow in the quiver of justice in India.

While the Supreme Court has spent years delivering judgments to bring about reforms in the agency and give it a measure of independence, it might be time to look at how it is fundamentally a partisan institution as long as the central government is its master.

One potential step to realising more lasting reforms might be for the court to finally take up the appeal relating to a Gauhati High Court judgment which actually found that the CBI and how it operates is unconstitutional.

The high court judgment was stayed immediately after an appeal was filed in the apex court, but the matter has been in cold storage since.

Reviving this case and the issues it involves – instead of looking into whether state governments should be allowed to revoke general consent for the CBI to operate in their territory (which they are clearly allowed to do under the law) – might be a good way to ensure the court doesn't have to make observations like this in the future.

3. Do We Need To Be Concerned About Difficulty in Finding Judicial Monitors/Experts?

While the Supreme Court had been carefully scrutinising the investigation as discussed, it had not initially said it would appoint a retired judge to monitor the probe. This was something the court came to consider as a month went by and no improvement was forthcoming.

It was on 8 November that the bench openly said they were looking to appoint a retired judge from a high court outside UP to monitor things, specifically mentioning Justice Jain's name at the time itself. Despite this, it took until 17 November for the court to actually confirm the appointment.

On 15 November, when the court had been expected to announce this, CJI Ramana had said, "We need to find out some judge who is willing to take up the task."

While this should in itself not necessarily be a cause for concern, it is interesting that this happened so soon after the Supreme Court struggled to put together a committee to examine the allegations about use of the Pegasus spyware against Indian citizens.

The court had reserved its order in that matter on 13 September, saying it would announce its decision in the next two to three days. It would eventually only manage to announce the formation of a technical committee overseen by retired judge Justice RV Raveendran on 27 October, six weeks later.

The reason for the delay was a difficulty in finding experts – not just those who were suitable and had no conflict of interest, but also those willing to take up the task.

On 24 September, CJI Ramana said in response to a query from one of the lawyers on the case that they had thought to pass orders that week itself but potential members had declined citing 'personal reasons'. In the eventual order one month later, the court has again recognised this difficulty.

In the past, such committees and court-monitored probes have been announced with far less time and effort. While it is perhaps too soon to say that experts are becoming wary of coming on board in capacities which might put them at odds with the government, this is certainly something to track going forward.