LIBERATING THE CBI It is high time that the CBI was torn out of the governmentâ€™s sphere of influence, writes Sankar Sen The director of the Central Bureau of Investigation spilled the beans when he frankly admitted that the autonomy of the CBI is a myth and the organization functions constantly under extraneous pulls and pressures. In important and politically sensitive cases there is tremendous pressure on the CBI to toe the line indicated by the government. It has often been found that in sensitive cases the outcome of the CBIâ€™s investigation invariably depends upon the political equation of the accused with the ruling power and it changes with the change in that equation. As the jurist, Fali Nariman, has put it, the CBI has been functioning under successive Central governments, â€œnot by notes on files but on nods and winksâ€ of the minister or senior officers in charge of the administrative ministry. So although unfortunate, it is not surprising that the CBI director has shown the status report on the investigation in the coal block allocation scandal to the law minister and officials of the coal ministry and the prime ministerâ€™s office. The court has justifiably admonished the law minister and senior law officers for making deletions and additions which virtually changed the heart of the status report. It dubbed the CBI â€œcaged parrotâ€ and held that showing the status report in a case involving the people of the ministries and the PMO subverted the integrity of the investigation. It was improper on the part of the law minister to call the CBI director to discuss the status report. The director also should have refused to show the report to the minister. The CBI is a â€œcaged parrotâ€ that has to be liberated. The court has directed the government to bring laws within two months to restore the functional autonomy of the CBI. Some critics have viewed this direction of the court as â€˜judicial overreachâ€™. But liberating the CBI from the thraldom of the government is the prime need of the hour. With an emasculated and politicized CBI, the fight against corruption will never be successful. The CBI has lost credibility as an independent investigating agency and this unfortunate development is impeding all meaningful endeavours to combat corruption. The CBI was set up under the Delhi Special Police Establishment Act in 1946. During its early years under able directors like D.P. Kohli or F. Arul, the organization enjoyed an enviable reputation for transparency and technical competence. Its decline started during the emergency and it became gradually politicized. The Shah commission of inquiry, which looked into Emergency excesses, severely indicted the role of the CBI in a number of cases and perceptively observed that the fairness and objectivity with which an organization functions depends much on the extent to â€œwhich the higher executives of the organization are allowed to function freely and objectively and at the same time ensuring its accountability to the statutorily constituted bodiesâ€. Section 4 of the Delhi Police Act provides that the CBI must function under the superintendence of the central government. Superintendence does not mean interference or control in the cases investigated by the CBI. In the case of Vineet Narain, better known as the hawala case, the apex court clearly said that superintendence cannot be construed as interference in the investigation of an offence by the CBI and the Central government is precluded from issuing any â€œdirections to the CBI to curtail or inhibit its jurisdiction to investigate an offenceâ€. In the hawala case, the apex court adopted the procedure of â€œcontinuing mandamusâ€ that allowed it to issue interim orders from time to time. In his judgment, J.S. Verma put the Central Vigilance Commission in superintendence over the CBI. But, the CVC Act 2003, provided that the CVC will exercise superintendence over the CBI only regarding cases registered under the Prevention of Corruption Act. Thus the control of the CVC over the CBI is partial and shared. The recording of the ACRs is with the government and the superintendence of the CBI in all other cases is with the government. Some of the vigilance commissioners have conceded that the maximum the CVC can do is to ask the CBI to register a first information report. In the 2G case the CVC asked the CBI to register an FIR and the CBI did nothing after that for two years until the Supreme Court started monitoring the case. The CBI has indeed multiple bosses. The government exercises administrative control over the CBI through the department of personnel and training. Control is exercised by the government through the administrative power of transfer, promotion, posting and disciplinary control. But the opinion of the law ministry determines the fate of the CBI cases. It is that which manipulates the final decision in any case of interest to the government through the director of prosecution of the CBI who works under its control. The closure of the Bofors case is an example. Under fire from the Supreme Court, the government is now planning to resurrect the Central Bureau of Investigation Act, 2010, which has been gathering dust. But it has to be drastically revised. A purposeful legislation must lay down a transparent procedure for the selection of the director, CBI as against the existing practice of the director being selected by a panel comprising the Central vigilance commissioner as chairperson, vigilance commissioners, the home secretary and the personnel secretary as members. The selection should be done by a panel comprising the prime minister, the Opposition leader, the chief justice of India, or a judge nominated by him. The CBI should be led by competent self-respecting officers known for their concern for the interest of the citizens and the country. Lesser men as heads of the organization, as emphasized in the report of the Shah commission, will be a disaster. At present, the director of the CBI as per the directives of the courts in the Vineet Narain case, has a fixed tenure of two years from the date on which he assumes office. This can be made into three or five years. The director of the Federal Bureau of Investigation in the United States of America has a tenure of 10 years. But there will be clear stipulation that on retirement he will be debarred from holding any office under the government. The appointment of the CBI director as a governor of a state or a member of the national human rights commission is a very wrong and undesirable precedent. This enables the government to dangle carrots before the incumbents to win their allegiance. The law enacted by Parliament should insulate the CBI from extraneous pressures and make it functionally independent. There are models in other countries which can be suitably adopted. It has been suggested that the CBI director be given an independent constitutional status. He should function independently like the comptroller and auditor general and his report will be laid before Parliament so it is kept informed of the activities of the chief investigating authority of the country. Another alternative is to keep the CBI under parliamentary control and Parliament should oversee the functioning of the CBI through a committee. The CBI on the pattern of the Australian model could be made accountable and answerable to the committee as adapted to Indian conditions. Parliamentary control will give the CBI certain advantages. The committee will represent all or at least all the major parties both from the treasury and Opposition benches so that it will be difficult for the committee to give illegal or irregular orders to the CBI. It will also make the functioning of the CBI more transparent. Without extraneous interference the CBI has done laudable investigation in cases relating to the assassination of Rajiv Gandhi in 1991, the Mumbai blasts of 1993, and many other cases. The time has come to restore the credibility of the CBI and make it an effective instrument for combating corruption. The caged parrot must start singing again. However, for combating corruption the thorough investigation of cases by an independent and competent agency is an important requirement but not the only one. It has to be followed by a quick trial and realistic punishment of the venal public servants. Cases of many corrupt politicians are meandering along for decades in the courts of law with a consequent erosion of public confidence in the criminal justice system. Liberating the CBI ************************************* A thought provoking article. But how can the beautiful and obedient parrot be left uncaged?