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Economic & Political Weekly EPW december 20, 2014 vol xlIX no 51 13

Central Bureau of Investigation Crisis of Legitimacy, Credibility and Accountability

K S Subramanian

Throughout its history the Central Bureau of Investigation has been compromised by its own actions and occasionally by the acts of its directors and political masters. One cannot be optimistic that the CBI can ever function in an independent manner.

The order of the Supreme Court asking the Director of the Central Bureau of Investigation (CBI),

Ranjit Sinha, to recuse himself on the eve of his retirement from the investiga-tion of the 2G spectrum allocation scam cases involving top politicians and bure-aucrats, calls for a review of the success or otherwise of the role of the CBI in discharging its basic anti-corruption responsibilities.

Sinha is only one of the many former CBI/Intelligence Bureau (IB) directors who have committed various misdemeanours in the course of their offi cial duties. A former IB director was accused of sur-rendering to the National Democratic Alliance (NDA) government of 1998-2004 a secret video-graphed report exposing the proceedings of a top-level party meeting which decided to demolish the Babri Masjid in December 1992 in return for the post of governor in one of the north-eastern states. A CBI director was alleged to have obtained a major post-retirement position as reward for letting off a top Bharatiya Janata Party (BJP) leader from a CBI criminal case he was faced with. C G Somiah, a former union home secretary has revealed in his autobiography that in the mid-1980s, the then CBI director, Mohan Khatre, obtained post-retirement extension in service after helping former Prime Minister Rajiv Gandhi in the CBI’s Bofors case against him. Somiah had earlier reje cted Khatre’s request for extension

of service. Khatre, in order to wreak vengeance, attempted unsuccessfully to implicate Somiah in a corruption case relating to the purchase of fi rearms for a central armed police force.

Directors’ Misdeeds

The credibility of the CBI has thus been steadily eroded by the actions of its own successive directors. The lack of account-ability, transparency and credibility on the part of the CBI has thus become an endemic problem aggravated by the murky politicking of ruling politicians of all shades. Corrupt politicians seem to have effectively destroyed the effi cacy of the well intentioned move in 1963 to set up the CBI as an instrument in the fi ght against the increasingly massive problem of corruption in Indian politics and governance. Structural reforms in the agency appear increasingly impossible despite the recent positive intervention by selected civil society forces.

The CBI is the premier agency for criminal investigation in India. It fi gures in the Union List of the Seventh Schedule of the Constitution. Given its importance, it is a mystery why the CBI was set up in 1963 only on the basis of a govern-ment resolution in the Ministry of Home Affairs (MHA) as against the more obvious need to set it up on the basis of an Act of Parliament; and why the agency was obliged to work under an antiquated, all too brief piece of legisla-tion called the Delhi Special Police Establishment (DSPE) Act of 1946. Though the DSPE had been set up during the 1940s to deal mainly with corruption in military procurements during the second world war, it was retained after Independence to deal more generally with corruption in government depart-ments. In 2013, however, the Guwahati High Court questioned the legal legiti-macy of the CBI as a central government

K S Subramanian (mani20026@gmail.com) is a former offi cer of the Indian Police Service and director of the Research and Policy Division of the Ministry of Home Affairs.

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institution. The matter is now before the Supreme Court.

The DSPE was made applicable to all the state governments, if they needed it. The CBI’s offi cials are equipped with the powers, duties, privileges and liabilities of policemen across the country. The Supreme Court and the state high courts too can direct the CBI to investigate cases affecting the fundamental rights of citi-zens specifi ed in the Constitution. The CBI investigates crimes with interstate ramifi cations; collects criminal intelli-gence; liaises with international police organisations; maintains crime statistics; disseminates criminal intelligence; con-ducts police research; and coordinates implementation of criminal laws.

Expanding Divisions

It has set up separate divisions to deal with different categories of crime. In recent times, it has expanded on a large scale. Additionally, new agencies such as the Bureau of Police Research and Deve lopment (BPR&D) and the National Crime Records Bureau (NCRB) have come up. Since 1987 the CBI’s anti-corruption division has taken up major corruption cases; its special crimes division has taken up major conventional crimes. In 1994, the economic offences division came up. Thus, though it started as an anti-corruption agency, the CBI today has become a specialised agency: its divi sions deal with corruption, economic offences, special crimes, legal and tech-nical work, coordination of policy and administration. It has a Central Forensic Science Laboratory based in Delhi and has branches across the country.

The CBI was originally accountable to the central government’s Ministry of Per-sonnel, Public Grievances and Pensions. In 1997, the Supreme Court directed that the Central Vigilance Commission (CVC) would be its supervisory authority. Its director was to be selected by a commit-tee headed by the central vigilance com-missioner with the home secretary and secretary, personnel as members. More recently, it has been stipulated that based on the Lok Pal Act of 2011, the CBI chief would be selected by a committee consisting of the prime minister, the union home minister and the chief justice

of India. Remarkably, the Supreme Court direction that an independent legislative framework should be given to the CBI has been ignored by the Government of India for unknown reasons. The failure to address the issue is all the more aston-ishing given the numerical increase in the strength of the agency to deal with the expanded magnitudes of crime; the changes in the political environment; the improved norms and standards of criminal justice adminis tration accepted globally. Further, the organisation needs to be insulated from external infl uences and subjected to convincing measures of accountability. Autonomy is needed too but not more than accountability.

The government has a statutory res-ponsibility to ensure a professionally competent and impartial system of investigation; establish objectives and standards of performance together with sustained monitoring procedures; clarify the philosophy, nature and organisational practices of the set up; and remove impunity. The Parliamentary Standing Committee of the Ministry of Personnel, Public Grievances and Pensions has repeatedly recommended a new law to govern the working of the CBI. So has the CVC, its supervisory agency. But the government is obdurately indifferent.

Staffi ng of the CBI

The CBI depends on offi cers drawn from state police cadres and can function relatively independently if its directors do not feel the need to oblige politicians in different ways or from selfi sh motives. State governments often ask for CBI investigations since they are removed from state politics and are carried out by higher ranking offi cers than in the states, which impart some credibility. It has experts from the forensic sciences, fi nance and other areas. Public pres-sures play a less important role in its investigations. Des pite the existence of many objective adv antages, the CBI remains defi cient in the subjective limitations in the realms of impartiality and objectivity, which affects its credi-bility. It has a tendency to succumb to political pressures from the ruling for-mation in important cases. It has often displayed a reluctance to investigate

ruling politicians and has adopted dilatory tactics.

The CBI is thus not an exception to the pervasive political manipulation of criminal cases across the country. The Supreme Court in its 1993 judgment in the celebrated Vineet Narain (or “Jain Havala”) case pulled up the CBI for its “inertia” in investigating top politicians involved in criminal cases. In a glaring instance, L K Advani, the then home minister and deputy prime minister, who was an accused in the criminal case over the demolition of Babri Masjid in 1992, was discharged by a special court. The CBI, under political pressure, desist-ed from submitting a criminal revision petition (CRP) in the Allahabad High Court challenging the discharge. When a new government came in 2004, the CBI reopened the case! In 2010, the Supreme Court had to pull up the CBI for dilly dallying on the prosecution of the chief minister of Uttar Pradesh in a dispropor-tionate assets’ case. Similar delays have occurred in other corruption cases involving top politicians.

Central Vigilance Commission

The CVC was set up on the basis of the Santhanam Committee recommenda-tions in 1964 on dealing with corrup-tion. Very much like the CBI, it was set up on the basis of a government resolu-tion rather than an Act of Parliament. Its demand for legal powers to undertake enquiries was ignored. It remained largely somnolent from 1964 to the mid-1990s. The Supreme Court in the Vineet Narain case (1997) on the so-called “Jain Havala” transactions directed that (i) the CVC be given a statutory status; (ii) it be entr usted with responsibility to supervise the work of the CBI ensuring its effi ciency and impartiality; (iii) its head be selected by a team of the prime minister, home minister and leader of the opposition in Parliament from a panel of eminent persons; (iv) the CBI director be appointed for a minimum tenure of two years by a committee headed by the CVC including the union home secretary and the secretary, personnel; (v) a report on the acti vities of the CBI be submitted in three months; (vi) a nodal agency be set up for dealing with the emerging

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political-criminal-bureaucratic nexus; and (vii) a directorate of prosecution be set up.

Following these directions, lackadaisi-cal efforts were initiated to give legal status to the CVC. After considerable bure aucratic-political manipulations last-ing several years (Joshi 2013: 142-56), the CVC Act was enacted in Parliament. However, it defi ed the directions of the Supreme Court in the following respects: (i) the government’s “Single Directive” of 1988 prohibiting prosecu-tion of senior offi cials without prior gov-ernment app roval, which had been declared null and void by the Supreme Court was resurrected; (ii) the CVC’s

powers of superintendence over the CBI, called for by the apex court, was diluted to maintain “dual control” by govern-ment and the CVC; (iii) the integrity requirements laid down by the Court for the selection of the central vigilance commissioner were diluted in such a way as to enable less qualifi ed candi-dates to be appointed as seen in the case of the appointment of the tainted offi cial P J Thomas as CVC in 2010 (later quashed by the Supreme Court), showed; (iv) no steps were taken to follow the apex court’s directions to ensure effi ciency and impartiality on the part of the CBI; (v) the Supreme Court recommendation that a document on the CBI’s functioning

be submitted in three months was ignored; (vi) its direction to set up a nodal agency to deal with politico-bureaucratic-criminal nexus was ignored; and (vii) its direction to set up an independent directorate of prosecution was ignored.

This review of the historical expe ri-ence during the post-Independence era with regard to government efforts to fi ght political and administrative cor-ruption through the agency of the CBI and the CVC cannot but induce a deep sense of gloom.

Reference

G P, Joshi (2013): Policing in India: Some Unpleas-ant Essays (New Delhi: Atlantic Publishers).