Challenge for CBI to tackle credibility crisis

Sankar Sen

Ex-Director, National Police Academy

The Central Bureau of Investigation (CBI) is drawing flak from various quarters. Opposition parties are accusing it of converting itself into a pliant tool of the government for harassing and intimidating their leaders and whitewashing cases where big guns of the ruling party are involved. After the arrest of some party leaders and a prominent minister belonging to the Trinamool Congress, West Bengal Chief Minister Mamata Banerjee announced that she would launch an agitation against the operations of the CBI and court arrest, if necessary. Some of the criticism may have substance in it but the majority is without foundation. For example, corruption charges against the Trinamool bigwigs in West Bengal are not trumped up. The Enforcement Directorate has recovered crores of rupees as well as a huge amount of gold jewellery from the house of a TMC minister and his girlfriend. Recently, the CBI unearthed enormous cash and jewellery from the house of another prominent leader in Birbhum district of West Bengal. Many other skeletons are tumbling out of the cupboards.

The CBI is not a statutory body. It was set up under the provisions of the Delhi Police Establishment Act, 1946. During the early years, under capable and upright leaders like DP Kohli and F Arul, the organisation enjoyed a good reputation and public confidence for its transparency and professional competence. The decline of the organisation started during the Emergency and gradually it became politicised. The Shah Commission of Inquiry, which probed the excesses perpetrated in that period, criticised its questionable role in a number of cases and hauled up some of its shining stars. It also observed that the efficiency and transparency of an organisation depend much on the extent to which the executives of the organisation are allowed to function “freely and objectively”. Section 4 of the Delhi Police Establishment Act provides that the CBI must function under the superintendence of the Central government. However, supervision does not mean interference and this was iterated clearly in the case of Vineet Narain, better known as the Hawala case, by the apex court. In the Hawala case, the Supreme Court evolved the doctrine of “continuing mandamus” allowing the court to issue interim orders from time to time.

The problem confronted by the CBI is that at present, it is functioning under multiple bosses. Administrative control is exercised by the government through the Department of Personnel and Training (DoPT), which enjoys the administrative power of transfer, promotion, posting and disciplinary control. The Ministry of Law gives the final opinion regarding the ultimate fate of cases and allegedly manipulates the opinion in respect of cases which are of interest to the government. The closure of Bofors cases is an example. Now the selection of the CBI chief is being done according to the procedure prescribed by the Lok Pal Act, 2013. He is to be appointed by a committee comprising the Prime Minister, Leader of Opposition in the Lok Sabha, and the Chief Justice of India or a judge of the Supreme Court nominated by the Chief Justice. It is hoped that the present procedure of selection of the CBI chief will result in transparent selection of officers with a spine. The chief has a two-year tenure, as laid down by the apex court in Vineet Narain’s case. But now a change in the tenure has been effected by amending the Delhi Police Establishment Act, 1946. The CBI chief will have a fixed two-year tenure but can be given three annual extensions. No further extension will be given on completion of five years in total. The tenure of the chief, if he is capable and upright, can be made five years instead of two. The FBI Director in the US has a tenure of 10 years. The provision of annual extension of tenure has been inserted now.

The Act enables the government to exercise undue pulls and pressures on the incumbent. There should also be clear stipulation that on retirement, the CBI director should be debarred from holding any office under the government. Appointment of a former director as Governor of a state or a member of the NHRC is totally wrong and helps the government to dangle carrots before the incumbents to secure their allegiance.

Notwithstanding controversies and criticism, the CBI remains a competent professional organisation. The conviction rate of cases investigated by it is about 67 per cent, comparable to that of other well-known investigative agencies of the world. In many sensitive and sensational cases, there is a public clamour for investigation by the CBI. The meticulousness of its painstaking investigation in cases like the Rajiv Gandhi murder case has won appreciation from all. But in many cases where the government is an interested party, there are seen and unseen pressures on the CBI to toe the line desired by the government. Most of the CBI directors, instead of standing their ground, follow the path of least resistance. The autonomy of the CBI, as one of its directors frankly conceded, has become a myth. In the coal block allocation case, the Supreme Court had to rap the CBI for showing the status report to the Law Minister and officials of the Coal Ministry and making additions and deletions which virtually changed the core of the status report and subverted the integrity of the investigation. It dubbed the CBI as a “caged parrot” which has to be liberated. But liberation of the caged parrot is not going to be an easy job. It will require a slew of well-conceived and well-planned corrective measures. First, a powerful body like the CBI must have an Act laying down comprehensively its duties and functions. At present, there is no such Act. The Second Administrative Reforms Commission strongly recommended such an Act to govern the working of the CBI. The law passed by Parliament must insulate the CBI from pulls and pressures and make it truly independent and apolitical. For this, there are models in other countries which with modifications can be suitably adopted. Also, there should be a comprehensive inquiry into the working of the CBI by an eminent professional of unimpeachable integrity or by a parliamentary committee — and the recommendations of such a committee have to be implemented both in letter and spirit. At present, the CBI has to take up investigations of various odd cases that have nothing to do with corruption. This dents the core competence of the organisation. In many cases, the CBI refuses to take up the investigation but ultimately has to do so because of the court’s orders or the pressure of public opinion.

The strength of its investigating staff requires substantial augmentation. Growing discord between the Centre and the states ruled by Opposition parties is also affecting the smooth operations of the CBI. At present, several Opposition-ruled states have withdrawn general consent to the CBI to take up investigation of cases within jurisdictions of those states. The state police and the CBI cannot function effectively without the support and co-ordination of each other. The fundamental impediment lies in the law that does not envisage the CBI as a federal police force.

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