Monday, 16 December 2019

Central Bureau of Investigation The War Within

Updated: November 15, 2018 12:05 pm

Always in the eye of storm, Central Bureau of Investigation (CBI) has been sitting atop an institutional-political volcano, with broiling lava within.  Described as a ‘caged parrot’ by the Supreme Court of India in 2013, which the controversial CBI chief Ranjit Sinha endorsed, it has been criticised by people and politicians (those in opposition!) alike for being a willing tool to the party in power.  It was severely criticised for sharing its report on coal scam to the then law minister Ashwani Kumar (2013), who eventually resigned.  Its investigation in the Isharat Jahan ‘fake’ encounter case (2010) has been questioned and recently the Bombay High Court set aside its plea accepted by the trial court to drop the charges against now BJP chief (then a minister of state for Home in Gujarat) and its move to question a senior IPS officer with the Intelligence Bureau for his involvement in the ‘encounter’ has drawn flak and invited sharp reactions from the IB Director, this too in 2013.

However, the feud erupting between Director CBI Alok Verma and his number two Rakesh Asthana is indeed of a volcanic scale, the overflowing lava, in whatever fashion the government deals with it, has the potential to tarnish not only the premier investigating agency but also the elite police leadership provided by the Indian Police Service (IPS).  It as much reflects the rot within the organisation that first come to full public view with Director Ranjit Sinha, as it reflects that political pressures, and one can say unequivocally that all political parties and leaders are responsible for it, and individual ambitions that have severely corroded the moral fiber of the IPS.

Prominent politicians and leaders of opposition parties have put forward in the public domain their own framework for making the CBI autonomous.  In 2013, the Government of India and the CBI, as directed by the Supreme Court of India, had filed affidavits regarding a framework of autonomy.  On 2 August 2013, the government reacted sharply against the framework proposed by the CBI affidavit.  The next day, the CBI expressed its resolve to persist with the affidavit submitted.  Clearly, there is a need to interrogate and demystify country’s premier federal investigating agency in the popular domain in order to understand the causes of loss of credibility and what autonomy means in the context of this premium agency of investigative policing and where the line should be drawn ensuring independence from political manipulation while keeping it accountable.  The significance of such an interrogation arises from the paradox of demands of a CBI inquiry in a myriad of cases that were not originally CBI mandate due to decline in police organisations and policing in the country, while the CBI is questioned both for its political afflictions as well as orgnisational and professional decline over the years.

 

Origin, Institutionalisation and Augmentation

The origin of the CBI is in the Delhi Special Police Establishment (DSPE) Act, 1946, which retained the DPSE set up in 1941 by the Government of India to investigate cases of bribery and corruption in transactions within the War & Supply Department during the World War II.  The agency proved useful and was retained to investigate cases of bribery and corruption by the Central Government employees after the war.  Khan Bahadur Qurban Ali Khan, IP, was the first chief of the DSPE, who after partition became instrumental in setting up Pakistan’s Internal Services Intelligence Agency!  CBI got the current name through a resolution of the Ministry of Home Affairs in April in 1963 and gradually its mandate was extended in 1965 to include Public Sector employees and in 1969 to include the Public Sector Banks.

Though an agency of special policing, unlike other Central Police Organisations, the CBI has been put under the Department of Personnel of Training (DoPT) along with the Central Vigilance Commission (CVC).  This is perhaps because its main mandate is not investigative policing per se, which it can be (and is) entrusted with in its extended mandate from time to time, but cases dealing with corruption referred to it or it can act against suo motu under the law.

At the eye of controversy today, as well as critical to the functioning of this crucial institution of special policing against corruption, is the person who heads it – the Director.  The Indian Police Service (IPS), the successor of the British Indian (Imperial) Police (IP), is the core organisational unit that keeps the wheels of the CBI going.  The Director of the CBI is currently appointed by the Government of India on the recommendation of a committee consisting of (i) the Central Vigilance Commissioner, who chairs the committee; (ii) Vigilance Commissioners; (iii) Union Home Secretary; (iv) Secretary (Coordination and Public Grievances) in the Cabinet Secretariat.  There are two levels of investigative cadres with the CBI.

Nearly two-thirds of its cadre is drawn from the IPS through a two track process; the CBI requisitions certain officers for deputation (with their consent) and an officer too may seek to go to the CBI.  Only following a rigorous organisational scrutiny that the CBI reportedly gives its nod.  In the process, recommendations made on political grounds in the past have been turned down.  Indeed, some such persons still get in, understandably causing controversy.  Nearly one-third of the cadre at the apex comes through promotions from within.  There is a proposal to offer half of these positions to the CBI recruits with a rigorous process of promotion.  The CBI recruits directly upto the level of Sub Inspector and trains the cadre.  The best among them have avenues of promotion upto the level of Deputy Inspector General.

The controversy surrounding the tenure of CBI Director Ranjit Sinha led to a parliamentary panel suggesting that the CBI Director be appointed for a fixed tenure of two years by a collegium comprising the Prime Minister, the Leader of the Opposition and in the Lok Sabha and the Chief Justice of India.  So far two appointments have been made by such a panel – the first was of Anil Sinha in December 2014 and the second of Alok Verma on 1 February 2017.  Between the two, Rakesh Asthana held the charge of the interim Director for two months and became number two when Verma took charge.  Obviously, the non-partisan process devised to select the chief of the premium investigating agency has been overtaken by professional rivalry and, perhaps contemporary contentious politics.

 

Functioning

CBI’s powers to investigate cases of corruption are derived from the DPSE Act, 1946, as amended from time to time.  Gradually, its mandate has enlarged to investigate criminal cases beyond corruption, but it continues to remain the premium agency to investigate cases of corruption. Section 5 of the Act gives the officers of the CBI powers of Officer-in-Charge of a police station in the area (state and city) they work.  Similarly, section 6 of the DPSE Act further reinforces these powers – officers of the CBI do not need permission of a state (Union Territory) government to carry out investigative work within their territory.  Section 6 of the Act also gives the CBI powers to act suo motu in cases of graft against all employees of the central government, Public Sector Undertaking and Public Sector Banks under Prevention of Corruption Act, 1988.  However, permission of the government is needed to initiate a case against officers above the rank of Joint Secretary, unless caught red handed.

Central Vigilance Commission recommends entrusting investigations of the following type of cases as a general rule to the Central Bureau of Investigation.

allegations involving offences punishable under the law which the Delhi Special Police Establishment are authorised to investigate, such as offences involving bribery, corruption, forgery, cheating, criminal breach of trust, falsification of records, etc.;  possession of assets disproportionate to known sources of income; cases in which the allegations are such that their truth cannot be ascertained without making inquiries from non-official persons or those involving examinations of non-Government records, books of accounts etc.; and other cases of a complicated nature requiring expert police investigation.

Cases for investigation may also be referred to it by a constitutional court and a state governments relating to issues mentioned above.  However, we witness more heat and controversy on cases of corruption, scams and disproportionate assets involving political leaders.  There have been complaints of manipulation in some such cases at the top, bringing charges of political manipulation against the CBI.

The processes of investigation followed by the CBI are like any other police organisation.  Obviously, judicial processes too are the same.  Once a case is registered and investigation begins, its proceedings could legally be shared only in the internal hierarchy and on completion with the court where the case is sub judice, not with any other executive or political authority.  We must not also discount possibilities of CBI officers acting like ordinary police persons in other cases too, for once the institutional fabric of an organisation is disturbed, anomalies crop up at different levels even under normal circumstances influenced by personal biases.  Thus, if the government controls, or influences appointment of lawyers and prosecutors for the CBI, the chances of manipulation in courts too become strong, if not by the CBI, by the political executive, though the flak invariably is faced by the CBI.

The Autonomy Discourse

There are four key issues in the autonomy discourse of the CBI.  First, appointment of the Director.  Second, allocation of its budget.  Third, appointment of panel of lawyers and prosecutors.  Finally, oversight mechanism for ensuring accountability in CBI’s functioning.  The apex court as well as other political and subject analysts have made suggestions to change the current selection process of the CBI Director.  In the meantime, both the Government of India and the CBI have submitted their affidavits with their proposals for change and, as reported, the latter’s proposals have invited ire of the government.

The Government of India has proposed that the CBI Director be selected by a committee chaired by the Prime Minister and consisting of the Leader of the Opposition in the Lok Sabha as well as the Chief Justice of India, or a Supreme Court judge nominated by him and be appointed for two years.  The CBI has agreed with the selection process, but added caveats: i) ‘the view of the outgoing Director should be taken’ (this is there in the DPSE Act too); ii) ‘chosen for his experience, primarily in the investigation of anti-corruption cases’ and iii) ‘experience and working in CBI at supervisory level, should be an essential criterion’.  The CBI has proposed three-year tenure for the Director, which the government has vehemently opposed.  The approach to suspension on administrative ground too is different.  The government proposes that on the recommendation of the CVC the President of India may take the action, the CBI would like it to go back to the committee of appointment.  The CBI also proposes to vest the Director with powers to recruit Superintendents of Police (SP); currently (s)he is empowered to recruit only up to Inspectors.

The autonomy discourse gets intense between the government and the CBI on financial powers.  Currently, the CBI’s budget comes from DoPT, which approves and sanctions its financial requirements and mostly applies cuts on proposals, making the CBI grumble.  The CBI proposes that the Director be elevated to the rank of Secretary to the Government of India, reporting to the Minister without going through the DoPT and budget for the organisation be separately put up through the Minister to the Department of Expenditure.  This also shifts the accountability of the Director directly to the Minister, making him independent of the Ministry as far as investigation is concerned.  The affidavit reiterates, ‘A Director, CBI who is dependent on Ministry for routine administrative and financial approvals is not best placed to take independent and objective decisions in crunch situations.’  Obviously, the government does not agree with this.

The government has proposed a new Accountability Commission consisting of retired judges of the Supreme Court or High Court and the CVC to look into complaints against the CBI, which thinks it would disturb the established chain of command.  It has stressed the established process in which the CVC has a prominent role and its own established mechanisms with a Joint Director as CVO is a robust mechanism, which should not be disturbed.

The contentious affidavits of the government and the CBI indicate differences of perception and approach that would not be easy to resolve.  Interestingly, even before the two affidavits were submitted, on the invitation of a Rajya Sabha Select Committee, a BJP team consisting of Arun Jaitley, Rajiv Pratap Rudy and Bhupender Yadav suggested that the CBI should have independent investigating and prosecution wings under the Director, who should be appointed by a collegium comprising of the Prime Minister, Leader of the Opposition in Lok Sabha and Chairman of Lokpal for a fixed term.  The Lokpal should also have the power of oversight, who should be consulted in case an investigating officer has to be transferred.  The panel of advocates appearing for the CBI should be independent of the government.


Lethal internal warfare of CBI


Caged parrots are fighting a terminal battle of ‘holier than thou’, inside the cage. By now people know who the caged parrots are. First it was the observation of Supreme court about central Bureau of Investigation being a caged parrot. The intention of the court seemed to underline the denial of freedom or independence to the institution by the government. It is true that all governments control the investigation agency and there is no freedom. The causality in this process is the truth. The investigating agencies are highly political and corrupt which makes them useful for state craft but not serving the cause of fair justice.

The Director of CBI who has protection of service for two years to ensure that he retains independence and is not susceptible to pressures. Nevertheless the Director accused the Special Director, his next in position, of corruption for influencing case on receiving 5 crores and at the same time he blamed his junior special director of receiving 3-5 crore to do the job. It is like a proverbial dilemma of King Suleiman, who was made to decide the truth between two contradictory claims. Unfortunately Modi was not a king to have facility of a sword which was threatened to cut child claimed by two women and he followed what any other fair leader in his place would have done i.e. to remove both of the officers and entrust third to adjudicate the issue. Central Vigilance commission is the natural choice since it supervises the working of CBI.In the mantime the Director CBI Verma has gone to Supreme Cour

seeking relief from illegal orders to remove him. The court, as expected, was too happy to take over the case and grant urgent hearing. It ordered that the enquiry against the Director CBI should be completed in a fortnight and offered supervision of a retired Supreme Court Judge. Now virtually the Supreme Court has taken over the case. This case is going to be historic as such a fight has never happened and Court did not have opportunity to make epoch making decisions. Whatever the decisions comes it is important to understand what happened and why situation came to such a pass.

Strangely at the centre of intrigue and corruption involved in the case pertains two a fish trader of Hyderabad. He was facing a case of Income Tax, which raided him 17 times for amount involving  around 200 crores.  This  trader Moen Quureshi is quite ill reputed and is in close contact with high and mighty of Delhi. I had the bad luck of once throeing him out from security zone which he was unauthorizedli using  accompanying a Cabinet Secretary. No one expected that being so powerful he would be shown the door. But I know he happens to be so powerful due to his many resources in gulf countries and money

The question is not whether Verma or Asthana are corrupt but whole system which throws honest officers out and is functioning in most degraded way. It  was not so bad those days  and I knew most of the Heads of CBI , other agencies as I too worked in Delhi with Government. We knew who was corrupt and it was rare that any such person last long . Corruption was in low scale and we had plenty of honest officers. The system got afflicted with greed of money, right after Indira Gandhi. Wealth became the prime motive of people in power. This made corruption or money laundering very attractive and the agencies responsible to check this deteriorated in integrity. Supreme Court had in the past insisted and asked the Government to bring a law to ensure accountable and independent agency but nothing was done by any party. When Right to Information was passed in 2005 CBI was excluded from its purview. When caged parrot fancy comments were passed SC got popularity but it did not ensure CBI’s independence despite its ripple making comments. Now virtually the court has taken over as it has taken over religious cases too.There is nothing possible if executive does not propose an independent and accountable body and law is brought out to ensuere it or alternatively vast change in the constitution of India should make accountable separation of power as is in US constitution.  Collegiums system of court as followed in India too is flawed. It has been remedied in the new proposed legislation of accountability which court has blocked. Who wants transparency and justice?

By Prof. NK Singh

(Prof NK Singh former Chairman International Airports Authority of India)


The Current Controversy

The recent squabble between the Director and Special Director of the organisation, both of whom have levelled serious allegations of corruption against one another; even to the extent of the Director registering an FIR against the number two reflects abysmally low level of institutional culture and integrity.  Surprisingly, the government and the CVC exercising superintendence over the organisation in their respective fields has been silent spectators, not taking any desired action to stem the rot.

The registration of an FIR on a complaint of an accused that money was demanded and taken by the Special Director for certain favours and the plans of the Director to arrest him led to what has been described as a mid-night coup – sending both of them on an indefinite leave.  A CVC inquiry was also ordered against the Director.  In the meantime, both have gone to the court.  The Supreme Court has ordered the CVC inquiry to be conducted under the supervision of retired Supreme Court Justice A.K. Patnaik and the process must be completed in two weeks.  The apex court also stayed transfer of several officers from Delhi to Port Blair (strangely, the government of India still believes in Kala Pani).  In the meantime, Special Director Rakesh Asthana moved Delhi High Court against his removal, which the court did not immediately stay.  Other officers in the ambit also moved courts against their transfers and possible prosecution.

Some of the officers I spoke to about it pointed fingers at both political interference and internal squabbling for the rot.  An ex-IPS having served in the CBI for a long period, admitted to corruption within.  He also informed about prosecution and arrest of some officers at the middle and lower levels for bribe by him.  He lamented that neither the seniors in the organisation nor the government took sufficient steps to stem the rot.  Induction of the IPS officers from states, which has norms laid out for it, have been violated with impunity.

Indeed, political interference from the government for nearly two decades has intensified rather than ebbing.  The parties leading a government keep swearing by honesty and promising eradication of corruption, but all without exception have interfered with appointments and investigations.  That a non-partisan selection process for the Director has crumbled within four years and after one Director, Anil Sinha, whose tenure remained out of any controversy.

Looking Ahead

Corruption is a touchy political issue anywhere, more particularly in India.  Naturally, any anti-corruption agency in India would be equally, if not more, contentious.  Let us look at the debate on Lokayukta and Lokpal, more particularly in recent years.  The use of police powers of the state in the country by the political executive too has been becoming both brazen and covetous.  An institution of special investigating policing tasked with anti-corruption powers such as CBI is more prone to be used avariciously and no party is beyond the pale of doubt in this.

Autonomy for the CBI thus has to be pitched at the level of constitutional responsibility being assigned to the institution with safeguards for encroachment and misuse.  The appointment of the Director appeared sound when implemented, but  has crumbled soon.  The nitty gritty of administrative issues mentioned in the two affidavits submitted in 2013 are matters of detail that must be sorted out with an expert committee.  Financial independence with inbuilt accountability structures of existing institutions would go a long way in ensuring autonomy of the  CBI.  Creating an Accountability Commission over and above existing oversight mechanism would only overburden the system.  CVC should indeed be made more robust and be part of the oversight mechanism in this case too.  Indeed, as and  when India is able to sort out the structure of its ombudsman, the Lokpal, it must also become part of the accountability structure.

 (The writer is Principal, Shaheed Bhgat Singh College, University of Delhi)

 

By Ajay K. Mehra

 

 

 

 

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