CBI, Govt & The Law Officers
Recent events relating to the interference by the Law Minister and the officials of the PMO in the preparation of the status report submitted to the Supreme Court on the Coal Block allocation scam have reaffirmed the often repeated charge of the government interfering in the functioning of the CBI. In the last few years, the CBI control has gradually moved from the government to even the functionaries of the ruling party.
The CBI was an agency constituted under the Delhi Special Police (Establishment) Act, 1946 as an investigative arm of the Central government. Its primary job was to investigate cases of corruption against officials of the Central government and other state instrumentalities. By controlling the process of appointment, transfers and holding out temptations for the future, the government has frustrated all attempts to make the CBI independent and autonomous. Following the anti-corruption movement, where the demand for creation of the Lokpal was raised, along with two of my colleagues Shri Rajiv Pratap Rudy and Shri Bhupendra Yadav, I had submitted a note to the Select Committee of the Rajya Sabha on the issue of autonomy and independence to the CBI. In the note, we had stated as under:
“On the basis of above we are of the categorical opinion that considering the enormous amount of misuse of political clout the CBI has lost its credibility. The control of CBI thus requires to be transferred from Deptt of Personnel, GOI to the Lokpal in relation to all corruption cases which are referred to Lokpal. Alternatively, in order to maintain independence of CBI and enable it to get immunity from political interference, we make the following suggestions amongst others:
■ The CBI will have two wings. Director CBI will head the entire organization. Under him a separate Directorate of Prosecution should function.
■ The investigative Wing and Prosecution Wing of the CBI should act independently.
■ The Director of CBI and Director of Prosecution should be appointed by a collegiums comprising the Prime Minister, Leader of Opposition, Lok Sabha and Chairman of Lokpal.
■ Both the Director CBI and Director of Prosecution must have a fixed term.
■ Both Director CBI and Director of Prosecution shall not be considered for re-employment in government after retirement.
■ The power of superintendence and direction of the CBI in relation to Lokpal referred cases must vest with the Lokpal.
■ If an officer investigating a case is sought to be transferred for any reason whatsoever, the prior approval of Lokpal should be required.
■ The panel of Advocates who appear for and advise the CBI should be independent of the government. They can be appointed by the Director of Prosecution after obtaining approval of the Lokpal”.
However, the Select Committee diluted our suggestions and only the following suggestions were accepted.
“Accordingly, keeping in view the various suggestions that arose during the course the deliberations, the Committee recommends as follows-
- The CBI shall have a Separate Directorate of Prosecution under a Director, who shall function under the Director of CBI. The Director of CBI shall be the head of the entire Organisation.
- Director of CBI will be appointed by a collegiums comprising of the Prime Minister, Leader of Opposition in Lok Sabha and Chief Justice of India.
iii. Director of Prosecution will be appointed by CVC.
- Director of Prosecution and Director of CBI shall have fixed term, as specified by the government.
- The power of superintendence and direction of CBI in relation to Lokpal referred cases must vest in Lokpal.
- Officers of CBI investigating cases referred by Lokpal will be transferred with the approval of Lokpal.
vii. For Lokpal referred cases, CBI may appoint a panel of Advocates, other than the government Advocates, with the consent of Lokpal”.
The Cabinet further diluted the recommendations of the Select Committee and three significant changes have now been made. They are-
- A notice is now required to be given to be delinquent public servant by the Lokpal before considering the complaint against him.
- Investigative officers can be changed by the government without the approval of the Lokpal.
- CBI Directors can be reemployed in government thus holding out a future favour to manipulate the Director.
The government is not serious about the Lokpal legislation. The suggestions made by me along with two BJP members are inherently reasonable and will add to the autonomy and independence of the institution.
In our recommendation, we had suggested that the panel of lawyers who appear and advise the government must be independent. They must be appointed by the Director of Prosecution in consultation with the Lokpal. At that stage, we had not visualized this ugly battle between the Attorney General and Additional Solicitor General. Yet, we were aware of the fact a lot of government’s political management in sensitive cases is being done through the offices of the Law Officers. The stature and dignity of the Law Officers has been gradually eroded. It has been compromised. Far from being constitutional advisors to the government or the court, they have become instruments of lego-political management on behalf of the government. Several Law Officers, appointed under the UPA government, have seriously compromised the dignity of their offices. The upright ones preferred to quit than to continue. The present controversy flags the issue in relation to the independence and autonomy of the offices of the Law Officers as much as it does of the CBI. Since we live in an age where institutions are being gradually eroded, it is necessary that unless we are able to reconstruct and rebuild these institutions, there should be a panel of lawyers independent of the government which must advise and appear for the CBI. These lawyers must be appointed by the Director of Prosecution with the prior approval of the LokPal.
In most cases where government or public servants are accused, the government cannot choose the prosecutors. The UPA government has denigrated the institution of the law officers. It is this failing institution that has today embarrassed the UPA government. The rap that the government received from the Apex Court on this issue was well deserved. The delinquent must be held accountable. This is an occasion where the government must display some sense of responsibility and accept the suggestions which we made to the Select Committee on the Lok Pal Legislation.
By Arun Jaitley
(The author is Leader of Opposition, Rajya Sabha)