Friday, 15 November 2019

Towards  a credible CBI

Updated: November 6, 2018 11:52 am

The Central Bureau of Investigation (CBI) has been in news for all the wrong reasons. It is perhaps the first time in its history of 55 years(it was founded on April 1, 1963) when the two topmost officials of the organisation – Director  Alok Varma and Special Director Rakesh Asthana  – have accused one another of indulging in corruption, forcing the government to send them on  leave and the Supreme Court asking the Central Vigilance Commission(CVC), which supervises the functions of the CBI, to conduct a time-bound probe of the charges under the supervision of a retired justice of the Apex Court.

I will not go into the subject who is right and who is wrong, particularly when a highly partisan atmosphere prevails. But one cannot ignore the buzz that is getting louder in Delhi’s power corridors that the two officers have their respective supporters in the Prime Minister’s Office (PMO) and thus the bizarre situation in the CBI is nothing but a sad reflection of the shenanigans within the PMO, particularly by the two trusted advisors of Narendra Modi.

Of course, this is not the first time that a CBI Director is under cloud. There have been criminal charges against two former CBI Directors appointed during the Manmohan Singh-regime. So I do not take seriously the charges of the Congress today that all the problems within the premier investigating agency are due to the questionable decisions by the Modi government. The Congress logic is all the more flawed as it has given a clean certificate to Alok Verma, despite the fact that its leader Mallikarjun Kharge had opposed, as a member of the appointment committee, the candidature of Verma!

The CBI’s decline has been intrinsically linked with every government misusing the agency for political purposes – protecting the party-persons and allies and harassing the opponents. During the UPA-regime, the CBI went slow against prominent politicians like Lalu Prasad, Mayawati and Mulayam Yadav in cases relating to the disproportionate assets, corruption and Taj Corridor. In 2009, the CBI had hit an all-time low with regard to its credibility when it got the Red Corner Notice withdrawn against Ottavio Quattrochi, the principal accused in the Bofors scandal but the personal friend of Sonia Gandhi, and allowed him to move freely. Worse, it facilitated also in de-freezing the London bank account of the Italian businessman having Rs. 21 crore “kickbacks”. On the other hand, the same UPA regime went all out by using the CBI against Modi, then Gujarat Chief Minister, in the case of the Police-encounter against notorious gangster Sohrabuddin. Modi was also the then central government’s real target in the CBI-investigation into the killing of Ishrat Jahan.

On its part, the CBI has always tried to please the bosses of the day. It has always fabricated evidence against the political rivals of the government. And it has blatantly disregarded evidence against the politicians (or for that matter businessmen) belonging to the ruling party or coalition.   We all know how in the Bhopal Gas Tragedy case,  it did not charge the accused for offence under Section 304 Indian Penal Code, i.e. culpable homicide not amounting to murder and that no action was taken to get the Union Carbide CEO Warren Anderson extradited. In the 2G Spectrum scam, its probe was extremely poor, as commented by the Comptroller and Auditor General. Under the pressure of the then Telecom Minister A Raja and Finance Minister P Chidambaram, it exonerated many dubious telecom companies. In the Coal Allocation Scam, the CBI did not raise an eyebrow when the Minister-in-Charge (Prime Minister Manmohan Singh himself) said that he did not know how maximum coal allotments were made blindly to private companies causing loss about Rs. 10673.03 billion; 25 of these companies were unduly benefitted from arbitrary allocation of 57 coal blocks.

Viewed thus, the CBI’s credibility, or for that matter competence, has been compromised because of two principal reasons. One, of course, is the poor leadership; there have not been many CBI directors who have had the backbone to resist the illegal pressure from the government of the day. We have not seen a single director who has said that he would rather quit his post rather than doing wrong things under the dictates of the government.  And this despite the fact that the Supreme Court has guaranteed a fixed two year-term to the CBI director and he or she is now chosen through a more transparent process involving the Prime Minister, the Chief Justice of the Supreme Court and the leader of the largest opposition party in the Lok Sabha. Perhaps it is time to consider a provision that will ensure that a CBI director will not be given any government job (as a political appointee) after retirement.

However, the bigger problem lies in the working-system of the CBI. And the question here is whether the CBI has the autonomy to function effectively and impartially. All told, we do not have a proper CBI Act; the agency is guided by the Delhi Special Police Establishment Act of 1946 for its powers of investigation and jurisdiction. True, situation improved a bit with the passing of CVC Act of 2003 under the Supreme Court directive and the subsequent Lokpal Act. Now, CBI’s investigations come under the “superintendence” of the CVC, but in all other areas of its work, the agency remains under the government of the day. This diarchic arrangement, however,  does not do CBI any good.  It does not solve the bizarre situation where the CBI investigates but when it comes to the prosecution, it does not exactly have the power to appoint its own lawyers, a role that remains with the government. As a result, we have a situation of CBI arguing a case against a government official or department by a government-appointed lawyer!

If my memory serves me right, finance minister Arun Jaitley, then as the opposition leader in the Rajya Sabha, had made the following suggestions amongst others towards the autonomy of the CBI:

  • 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”.

The UPA government accepted only some of the above suggestions. One wonders, therefore, what has prevented Jaitley from rectifying the lacunae under his own government. Of course, the CBI cannot be a sovereign body. It must perforce function under a superior authority. But that authority cannot be the government because not only are the careers of CBI officers (most of whom at the top level are serving IPS officers belonging to different cadres) under the government’s jurisdiction but also because very often it is the government itself that has to be investigated by the agency.

By Prakash Nanda

(prakash.nanda@hotmail.com)

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