CBI Director's affidavit in Apex court stating he shared Coal Scam Status report with Law Minister, PMO and Joint Secretaries
This problem we have because the Doctrine of Separation of Powers between Legislature and Executive is not properly demarcated and the Legislators are vested with too many powers. Historically the reason behind this is, the Executive hierarchy was under British rule and following the diktats of British rulers and the people's representatives were our freedom fighters and they were pitched against the Executive (Civil servants under British rule) during the freedom struggle. Keeping that in view, later on, reposing faith in the Legislators too much of power is vested with legislators and because of amendments to Constitution where Presidents and Governors were compelled to follow the advise of Union Cabinet (it was not there in Original Constitution), the balance tilted too heavily in favor of legislators and they assumed powers beyond necessity. The CBI is expected to report to the Ministers on day to day basis. How can it function as a prosecuting agency for the same Ministers that it has to report on day to day basis?
He will ask the report in the capacity of Head of Executive or Minister. He might have been vested with executive power to verify such reports unless the CBI is directed specifically by the Court not to submit those reports for verification because the bosses themselves are defendants or accused. Whatever be the case it is not proper that when the monitoring authority of prosecuting agency and the accused are same the parliament has an onerous and unavoidable responsibility to codify the methodolgy to bring to justice the Executive authorities superior to prosecuting agency itself without their executive interference in the functioning of prosecuting agency.
The argument that the Ministers have only seen draft report, not final report holds no water because the final report may be based on the suggestions which are incorporated in draft report. It is not a sensible argument to make. The government cannot convince even a layman with this logic.
The executive under British rule was working under Governor generals. The freedom fighters were against Executive at that time because it was directly under British rulers. To quote from https://en.wikipedia.org/wiki/Jawaharlal_Nehru : Nehru emerged from the war years as a leader whose political views were considered radical. Although the political discourse had been dominated at this time by Gopal Krishna Gokhale,[23] a moderate who said that it was "madness to think of independence",[21] Nehru had spoken "openly of the politics of non-cooperation, of the need of resigning from honorary positions under the government and of not continuing the futile politics of representation."[27] Nehru ridiculed the Indian Civil Service (ICS) for its support of British policies. He noted that someone had once defined the Indian Civil Service, "with which we are unfortunately still afflicted in this country, as neither Indian, nor civil, nor a service."[
The same sentiments were also echoed by Jawaharlal Nehru in his famous work The Discovery of India. That is why, in the Constitution of India we find that the Legislators apart from holding responsibility to legislate also hold the responsibility to head the Ministries which are the helm of Executive. In other words along with legislative functions the Constitution also given to them the authority to lead the IAS (earlier ICS).
Article 74 in its original form:
Article 74 Council of Ministers to aid and advise President
(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice:
Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.
(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.
Later through 42nd Amendment Act, “act in accordance with such advice” has been added.
13. Amendment of article 74.-In article 74 of the Constitution, for
clause (1), the following clause shall be substituted, namely:-
"(1) There shall be a Council of Ministers with the Prime Minister at
the head to aid and advise the President who shall, in the exercise of
his functions, act in accordance with such advice.
Later through some other Amendment they have inserted the sentence:
Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.
This unfettered assumption of powers by legislators have helped them to become monarchs of Administration and now the position is such that the politician like Arun Jaitley who once worked as Law Minister did not even now that there is an Attorney General or Solicitor-general of India to give legal advice to CBI, it is not the job of Law Minister to give legal advise to CBI. (Barkha Dutt's interview with Arun Jaitley). It is amazing to know that Law Ministers in Central government do not know even their job descripttion. Law Minister's job is to facilitate administration of justice and management of judiciary, not lending legal advise to the prosecuting agency.
He will ask the report in the capacity of Head of Executive or Minister. He might have been vested with executive power to verify such reports unless the CBI is directed specifically by the Court not to submit those reports for verification because the bosses themselves are defendants or accused. Whatever be the case it is not proper that when the monitoring authority of prosecuting agency and the accused are same the parliament has an onerous and unavoidable responsibility to codify the methodolgy to bring to justice the Executive authorities superior to prosecuting agency itself without their executive interference in the functioning of prosecuting agency.
The argument that the Ministers have only seen draft report, not final report holds no water because the final report may be based on the suggestions which are incorporated in draft report. It is not a sensible argument to make. The government cannot convince even a layman with this logic.
The executive under British rule was working under Governor generals. The freedom fighters were against Executive at that time because it was directly under British rulers. To quote from https://en.wikipedia.org/wiki/Jawaharlal_Nehru : Nehru emerged from the war years as a leader whose political views were considered radical. Although the political discourse had been dominated at this time by Gopal Krishna Gokhale,[23] a moderate who said that it was "madness to think of independence",[21] Nehru had spoken "openly of the politics of non-cooperation, of the need of resigning from honorary positions under the government and of not continuing the futile politics of representation."[27] Nehru ridiculed the Indian Civil Service (ICS) for its support of British policies. He noted that someone had once defined the Indian Civil Service, "with which we are unfortunately still afflicted in this country, as neither Indian, nor civil, nor a service."[
The same sentiments were also echoed by Jawaharlal Nehru in his famous work The Discovery of India. That is why, in the Constitution of India we find that the Legislators apart from holding responsibility to legislate also hold the responsibility to head the Ministries which are the helm of Executive. In other words along with legislative functions the Constitution also given to them the authority to lead the IAS (earlier ICS).
Article 74 in its original form:
74. (1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions.
(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.
Later it was amended by 42nd Amendment Act and after it was amended, it looks like this:
(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice:
Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.
(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.
Later through 42nd Amendment Act, “act in accordance with such advice” has been added.
13. Amendment of article 74.-In article 74 of the Constitution, for
clause (1), the following clause shall be substituted, namely:-
"(1) There shall be a Council of Ministers with the Prime Minister at
the head to aid and advise the President who shall, in the exercise of
his functions, act in accordance with such advice.
Later through some other Amendment they have inserted the sentence:
Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.
This unfettered assumption of powers by legislators have helped them to become monarchs of Administration and now the position is such that the politician like Arun Jaitley who once worked as Law Minister did not even now that there is an Attorney General or Solicitor-general of India to give legal advice to CBI, it is not the job of Law Minister to give legal advise to CBI. (Barkha Dutt's interview with Arun Jaitley). It is amazing to know that Law Ministers in Central government do not know even their job descripttion. Law Minister's job is to facilitate administration of justice and management of judiciary, not lending legal advise to the prosecuting agency.
