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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
COVER STORY

CAGED BIRD's INDEPENDENCE

But It Must Not Go Frenzy

Hemant Kumar, Advocate
hemantkumar.mallb@gmail.com
This year, when the CBI is celebrating its golden jubilee, the recent jeering by an Apex Court Bench calling it a “caged parrot” with many masters and who speaks in their voice is indeed a severe judicial indictment of the credibility and neutrality of our country’s premier investigating agency. Sordid instances of alleged (mis)using and manoeuvring the working of CBI by the ruling elite for its vested interests apart, one does wonder why today’s most sought after agency still continues to be governed by an archaic Act of 1946.

On May 8, 2013 a Bench of the Supreme Court comprising Justices RM Lodha, Madan B Lokur and Kurian Joseph while hearing the much-hyped Coalgate scam issue minced no words in expressing its strong displeasure over alleged interference and intrusion in the working of the Central Bureau of Investigation (CBI) by members of the ruling establishment. The Court even asked the Attorney-General whether the Central Government intended to put in place appropriate law for the independence of the CBI and its functional autonomy and insulate it from extraneous influence(s) of any kind so that it is viewed as non-partisan investigating agency.

Barely a week later, the Government swung into action and constituted a Group of Ministers (GoM) on May 14 to prepare the draft law within three weeks so that the same can be filed in the Apex Court well before the next hearing which is slated for coming July 10.

Pertinent to mention that it is not the first time that the premier investigating agency has been pulled up by the Apex Court. In fact in recent years, it has received wrath of the Court on numerous occasions over the direction and pace of its investigation(s) notably against those enjoying higher positions in political circles. The Supreme Court has even highly deprecated the practice of CBI often adopting flip-flops/ U-turns amidst ongoing probe(s) perhaps owing to diktats of the ruling executive. Suffice to say that CBI has not been able to live up to its motto of "Industry, Impartiality and Integrity" in letter and spirit thanks to alleged interference by powers-that-be.

It may be recalled that the CBI was established vide a resolution of the Ministry of Home Affairs of the Government of India dated 1 st April, 1963. It is a successor organization to the erstwhile Delhi Special Police Establishment (DSPE) with an enlarged Charter of functions. Hence, the legal powers of investigation of CBI are derived from the DSPE Act, 1946. This Act confers concurrent and co-extensive powers, duties, privileges and liabilities on the members of DSPE (now CBI) with Police Officers of the Union Territories in relation to the investigation of offences notified by the Central Government under section 3 of the Act and arrest of persons concerned in such offences.

The superintendence of the DSPE/CBI vests in the Central Government as per section 4 of the Act except insofar as it relates to the investigation of offences alleged to have been committed under the Prevention of Corruption Act, 1988 for which the superintendence is by the Central Vigilance Commission (CVC). Even for the latter, the credit goes to the Supreme Court which in Vineet Narain v. Union of India (December, 1997) issued a number of directions so as to ensure independence and political insulation of the CBI. This landmark judgment was authored by former Chief Justice of India (CJI), Justice JS Verma who expired recently.

Although thereafter, CVC was granted a statutory status by enactment of CVC Act, 2003 but CBI still continues to be governed primarily by archaic DSPE Act . Even though the latter statute was amended incorporating therein due process for appointment of Director, CBI, the agency still continues to remain a subservient body under the Department of Personnel & Training of Central Government. Perhaps as the CBI is a powerful weapon in the armoury of ruling elite so as to intimidate its political foes or even blackmail its existing or potential allies as is being widely alleged now-a-days, successive political dispensations have been reluctant in granting it an independent and autonomous status.

Further, a vexed issue remains relating to controversial "Single Directive" i.e. mandatory requirement of seeking Central Government's sanction  before proceeding against a public servant of the rank of Joint Secretary and above. Although the Supreme Court struck down the same in Vineet Narain judgment, but the same was not complied in CVC Ordinance, 1998 which was promulgated after the verdict though after the Supreme Court reprimand, CVC (Amendment) Ordinance, 1998 did the needful. But five years later, perhaps owing to bureaucratic pressures, the same proviso was retained in the CVC Act, 2003.

The Supreme Court was again moved against the same, but in February, 2005 this issue was referred to the then CJI for consideration of the same by a larger Bench and since then its fate lies in limbo. It is highly hoped that the Apex Court while examining new draft law for CBI's independence would take due note of this important aspect.

Further, in recent years the CBI has attained the status of the most sought after agency for referring almost any type of inquiry or investigation ranging from murder, rape/sexual assualt, abduction especially alleging political rivalry from every nook and corner of the country. Not only the Supreme Court/High Courts are ordering CBI probes in numerous cases but also the concerned state governments are giving their mandatory consent for transferring a case to the CBI in a rather casual manner primarily when an issue is blown out of proportion. Despite state police/investigating agencies being fully competent to probe such type of cases, of late they have lost trust and faith of the people perhaps due to lack of their operational autonomy owing to excessive political interference. 

The consequence is that the CBI is reeling under a huge backlog of cases coupled with severe manpower crunch notably  investigating officers and public prosecutors. There is an urgent need to check the mounting workload of the CBI lest it loses its repute and status. It needs to be explicitly provided in the draft law that the CBI would take up only those cases which have inter-state ramifications, cases of trans-national nature and those cases which affect the sovereignty and integrity of the country although in appropriate cases, higher courts can recommend other cases but sparingly.

Finally, it can be concluded that a fresh and comprehensive statute specifying constitution, powers and regulation of the CBI brooks no delay. Needless to say that the new law ought to incorporate necessary safeguards so as to ensure complete functional and operational autonomy for the agency in its day-to-day working. Although a Parliamentary Committee in May this year reiterated that in case a fresh legislation for CBI is not feasible, even requisite amendments may be made in DSPE, 1946 but it would be imperative if the new law is enacted /promulgated as the ibid pre-Constitution and pre-Independence statute has outlived its utility. Moreover, Entry 8 of Union List in the Seventh Schedule of our Constitution pertains to " Central Bureau of Intelligence and Investigation" but till date no law on this subject has ever been enacted by the Central Government.

Though there cannot be any second opinion that law-making is the sole prerogative of the Parliament, under the prevailing state-of-affairs, one hardly believes that the GoM so constituted would draft a statute which would loosen the grip of ruling executive over the CBI. Undoubtedly, grant of functional/operational autonomy for the CBI must come along with suitable checks and balances and adequate accountability. In other words, though the caged parrot (CBI) ought to be freed, it must also be ensured that it does not go frenzy. Be that as it may, if finally a desired statutory mechanism is put in place which can make the CBI emulate United States' Federal Bureau of Investigation (FBI), it would be a glorious tribute in the ongoing golden jubilee year of the CBI.

INTERVIEWS BY OUR ASSOCIATE EDITOR HANSAN KHURSHID

E.N. Rammohan, IPS, Former Director General, Border Security Force. Lawyers Update asked a high profile straightforward rather blunt, senior most IPS officer, E N Rammohan, former Director General of Police(DGP) of Border Security Force (BSF), as to what he feels about giving autonomy to the CBI. Reacting to the question asked, the former DGP countered, " What more autonomy is required when the same already exists in the form of sections 172, 173 of the Criminal Procedure Code (Cr PC). According to section 172 Cr PC every police officer making an investigation day by day is liable to enter his proceedings of investigation in a case diary. The Station House Officer (SHO), who registers the case sends the original copy of the case diary to the Magistrate, Sessions Judge in the case of the CBI Court; second copy goes to the Superintendent of Police (SP) and the third copy is retained by the SHO. The investigation can be supervised by the officer superior to the IO. This way, the Investigating Officer (IO) and his superior are accountable only to the Court and not to any other person, be he a minister or senior bureaucrat, whosoever. However, despite all the autonomy bestowed on the IOs, most of the times, these police officers exhibit their weakness and fearing their assumed job insecurity succumb to the pressure of political bosses, thereby leaking and amending the report of investigation."

Rammohan further pointed out, "According to section 173 of CrPC every investigation on completion is submitted to the Court by the IO and the SHO, in the form prescribed by the government without any outside interference. Legally, the IO should straightaway say 'No' to an outsider for showing and amending the report but for refusing, one requires guts and moral courage, which is largely missing. As such, the Supreme Court in Vineet Narain case had further strengthened the CBI by giving its supervisory role under the ambit of the Central Vigilance Commission."

" I have worked with CBI as SP (CBI), Shillong and DIG (CBI), Hyderabad. I investigated several cases of corruption and in certain cases I recommended prosecution, my superiors recommended prosecution, the legal branch recommended prosecution, but finally the Director under political pressure said that ' no case is made out ' and he ordered the closure of the report. However, contrary to this, if an honest Director dares to refuse to oblige the political authority, he will meet the fate of the former Director, CBI, Dr. Trinath Mishra who was removed from the prestigious post unceremoniously within 24 hours by the then National Security Adviser and Secretary to Prime Minister in the year 1999 ,"   revealed the former DGP.

 

D.R. Kaarthikeyan, IPS, Former Director CBI, who cracked the Rajiv Gandhi murder case, in response to Lawyers Update's question about structural changes in the functioning of CBI said, " Drastic changes are required for more efficient, credible, objective and independent functioning of the CBI, which is the only premier investigation agency of the Nation. Changes are required in many areas including the mode of appointment of the Director and other senior officers; financial autonomy; administrative powers, etc."

Kaarthikeyan suggested that there should be total autonomy in conducting of investigations and prosecution. Moreso, public perception is very important to establish credibility of the agency. He said that it is not necessary for the investigators to seek advise of the law ministry or the law officers pertaining to a case and that the investigators must say 'No' to the interfering political bosses or the bureaucrats, as investigation is the job of the professional investigators, which should not be interfered with or polluted by external influences.

When asked whether the CBI can be restructured on the lines of CAG, Kaarthikeyan said, " It can be done. However, the functioning of the organisation and in particular the fair and objective investigation can be ensured by an oversight authority by way of Lokpal or an expanded Central Vigilance Commission (CVC), headed by a former Chief Justice or Judge of the Supreme Court, well reputed for fairness, impartiality, integrity, efficiency and courage."

Joginder Singh, Former Director CBI, pointed out that the ministers have taken an oath of loyalty to the Constitution, hence they are bound to obey the orders of the constitutional courts. Whereas, in practice this does not happen. Citing one case he said that irrespective of the party in power, all the politicians have been dodging to carry out the Supreme Court orders of 22 nd September, 2006, pertaining to police reforms on one pretext or the other.

Joginder Singh stressed upon the need for a new charter of independence for the CBI, where it should get its independent constitutional status, its own budget and the plethora of sanctions and permissions to prosecute the corrupt and the dishonest should be removed. However, he said that the government is moving one step forward and eight steps backward.

He further said that ours is the 87th Most Corrupt country in the world with an integrity score of 34 marks out of 100. In such a critical scenario, we need to strike hard with firmness of purpose. It is possible only by strengthening the investigation agency.

C Pal Singh, Former Inspector General of Police-Punjab, who had played a leading role in eliminating  militancy in Punjab, while talking to Lawyers Update on restructuring the CBI said, "The argument of giving legal independence to the CBI or its officers is basically faulty. The legal independence for every IO already exists as per prevailing statutes. The IOs are responsible to work as instrument of law and give reports to the concerned courts. However, this legal independence gets compromised due to interference by the executive and political bosses, who have the powers to influence the investigations - by offering rewards in the form of plum postings or promotions or inflict punishment by frequent transfers or initiating punitive action against these police officers.   The requirement is to work out norms and legal parameters to ensure the functional independence of the CBI to enable it to discharge its duties objectively and impartially without restrictions, restraints, and impediments by the executive and political class."

He further said, " The CBI does not have a cadre of supervisory officers of its own and relies on the tedious and uncertain system of induction of officers through deputation from the state police forces and central police organisations. This needs to be rectified.  There is considerable loss of precious time by the time the investigation is transferred from the district/state police to the CBI. Often, the crucial forensic evidence is lost and the CBI sleuths are hard put to build the case. There should be clear demarcation of cases which should be investigated by CBI."

According to C Pal Singh , "  Unless the CBI is granted constitutional status like Election Commission, CAG etc, the functioning of the CBI has to be supervised and monitored by some agency/ so that the independence if given to the CBI does not turn the CBI into a big monster with unparalleled powers and discretion. The Central Vigilance Commission, which was meant to provide the oversight and support to the CBI, has also failed to give it the desired direction, or insulate it from governmental interference so far."

Speaking to Lawyers Update,
VM Pandit, Former Superintendent of Police (SP), CBI,
with 25 years of experience as high profile ace investigator, shared his views, “Change is the absolute need for progression. CBI is an organization, created to meet the requirements of changing times in India.  So the fact to ponder is whether a change in structural design of the agency would necessarily bring about a change in its functional efficiency if the command originating from mind does not change? The Supreme Court of India has rightly spoken in terms of making CBI an independent entity. The Government has to abide by trying to give CBI an autonomous structure. There is a need to change the structure of CBI, but how to give the CBI both administrative and functional autonomy at the same time? The functional independence is not achievable without administrative independence. If appointment of the head of the CBI (Director) is totally in the hands of the Government alone, the mindset of the functional head can never be independent. Legislature, Executive and Judiciary are the three organs of the Government and none can claim superiority over the other as they have separate duties allocated to them. Thus, in my view, all the three organs must have a decisive role to play in appointing the “Head”-Director CBI who can act independently for the specified tenure of his appointment.”
VM Pandit suggested, “CBI is the name of the organization. The name must identify a person or a body. Unfortunately, CBI is only an administrative name given to an organization and it is not a legal nomenclature. All powers of the CBI executives are drawn from DSPE Act (Delhi Special Police Establishment Act) which was originally an ordinance and survived its life through extensions. The autonomy has to be in terms of “empowerment” and not “regulatory” by legislative nomenclature of the Act to be promulgated. A legal nomenclature is, therefore, a must. The DSPE Act has to give way to the CBI Act, 2013 wherein  the salient features should be incorporated in addition to new provisions. This would also need amendments in Criminal Major Acts. The autonomy would flow from such an enactment to be called “The Central Bureau of Investigation (Empowerment) Act, 2013”.”
 
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