At the very inception , let me invite my readers attention to the fact that the CBI was established vide a resolution of the Ministry of Home Affairs of the Government of India . Let me also disclose here that this resolution was dated April 1 , 1963 . I must also reveal here for my readers benefit that CBI is a successor organization to the erstwhile Delhi Special Police Establishment ( DSPE ) but with few changes like an enlarged ‘Charter of Functions’ . CBI is the country’s premier investigating agency . Controlled by the ministry of personnel , its brief is three – fold : to investigate corruption cases and fraud by public servants ; to investigate cases of frauds of a financial nature , forex violations , smuggling of narcotics , antiques and contraband items ; special crimes like cases of terror , high profile homicides , kidnapping for ransom and organized crime .
I must also shed light here on the clinching fact that the legal powers of CBI in conducting its investigations is still governed by the archaic Delhi Special Police Establishment Act , 1946 which must be now amended forthwith without delay to suit the present circumstances . It also must be borne in mind that this DSPE Act equips the members of now CBI and erstwhile DSPE with wide ranging powers , privileges , duties , and liabilities pertaining to the investigation of offences which have been notified clearly by the Union Government under Section 3 of this DSPE Act . It is also pertinent to mention here that the superintendence of the DSPE / CBI is entirely in the hands of the Central Government which is clearly specified in Section 4 of this DSPE Act , 1946 which is one of the fundamental reason that makes it amenable to political pressures exerted by Centre . The exception is in so far as it relates to the investigation of offences alleged to have been perpetrated under the Prevention of Corruption Act , 1988 regarding which the superintendence is done by the Central Vigilance Commission ( CVC ) .
We all saw how a parliamentary panel on May 3 , 2013 mooted statutory backing for CBI . It suggested enactment of a separate law or an amendment in the existing “archaic” Delhi Special Police Establishment Act to give the CBI “statutory backing” . It said the Act was “grossly inadequate” . It needs to be borne in mind that this suggestion comes at a time when the government is being repeatedly accused of interfering grossly in the CBI’s affairs by virtue of its administrative control over the agency . The standing committee on ministry of personnel , public grievances and pensions said , “The committee reiterates its recommendation made in its 56th report that in the event of enacting a fresh statute for the CBI not found to be feasible , requisite amendments may be made in the DSPE Act .” Let me recall here for my readers benefit that the committee in its earlier report on demands for grants had recommended legislation on the lines of the National Investigative Agency Act , 2008 , so that the CBI can probe graft cases in India without states’ nod . The panel , in its report , expressed unhappiness over the large number of vacancies in the CBI and suggested the agency should have its cadre . As many as 831 posts were lying vacant , as per data updated till December 31 , 2012 . The CBI’s total sanctioned strength is 6,586 .
It is a matter of great national shame that the Supreme Court itself which is the highest court in our country had to express its strongest annoyance and unprecedented disapproval of the way in which the government entirely remote controls the functioning of the CBI in each and every step that the latter takes . For sure , government has to take note of it which it has now taken of late . But it is yet to take concrete steps to make the CBI independent in its functioning and in all other aspects .
As a first step , government had constituted a Group of Ministers ( GoM ) on this pertinent matter to gloss over it and suggest appropriate measures to check uninhibited interference of government in its day to day functioning . The GoM comprises of law minister Kapil Sibal , P Chidambaram , finance minister , external affairs minister Salman Khurshid , information and broadcasting minister Manish Tewari and minister of state for personnel V Narayanasamy . The GoM is likely to finalize a draft law to insulate the CBI from external influence and submit it to the Supreme Court by July 10 .
The Supreme Court on May 8 , 2013 expressed its strongest disapproval of the alterations made to the CBI’s draft status report into Coalgate by the law minister and senior bureaucrats . The Court also tore into the agency for accommodating the changes which it said had altered the “heart” of the report . “The heart of the report was changed on suggestions of government officials ,” said a three – judge bench headed by Justice RM Lodha , adding that the “whole direction” of the probe had got altered . “There are serious allegations against unknown ministry officials . How on earth can they see the report ? They have no business ,” the bench said . The bench , underlining that the prime task before it was now to ensure that the CBI was insulated and liberated from such “extraneous influences and interferences,” asked if such an intrusion into investigation was permissible under any statute , rules or guidelines of the CBI even after the Vineet Narain judgment in 1997 in which the Supreme Court made it clear that the executive could not interfere in investigations . “You move with the crutches of the government . This intrusion has shaken the entire investigation . If we know there are extraneous considerations and intrusions from all corners , how can the investigation progress fairly ? We want to know if this suppression was deliberate . Inertia with the CBI will have to be removed,” the bench said and asked the CBI to also conduct details of its officers concerned with the probe .
On the former law minister Ashwani Kumar , Supreme Court said that , “Does it not subvert the integrity of the probe if changes are brought in the status report on the suggestion of the law minister and the government officers ?” On Joint Secretaries in PMO and Coal Ministry , the Apex Court said that , “They have no business interacting with the CBI . How can a joint secretary go through the probe report ?” The then CBI Director Ranjit Sinha too was not spared and Supreme Court minced no words in pointing out that , “You are not a constable or a head constable . CBI must know how to stand up against all pulls and pressures by the government and its officials .” The bench of Supreme Court cautioned that , “If we find that the investigation is influenced by someone who had no business or authority to do that , the necessary inference is that the investigation is a farce and a new course will have to be adopted . Let us see what the draft report was and how was it changed . If it was changed to shield or protect some persons , the investigation will be rendered meaningless and reaction of the court will be very different .”
The Apex Court reserved its harshest words for the CBI by calling it “a caged parrot with many masters .” It categorically told the CBI that it should stand up to all kinds of “pulls and pressures”. Ranjit Singh who is presently the CBI Director had himself conceded that , “I am a part of the government . I am not an autonomous body .” A bench of Supreme Court Judges comprising of Justice RM Lodha , Justice Madan B Lokur and Justice Joseph Kurien said : “The Supreme Court has given you strength 15 years ago . You should make yourself solid as the rock but you are like the sand . We want a very professional , very qualitative , very thorough investigation .” This leaves no room for any doubt whatsoever that Supreme Court was particularly very miffed with the manner in which CBI always succumbed in front of pressure exerted by those in power .
The Supreme Court also referred to the landmark Vineet Narain verdict by which CBI’s functional autonomy was enhanced thus insulating it from political interference . While mincing no words in displaying its seething anger with the CBI for incorporating changes at the behest of the political executive , the bench said : “You ( CBI ) are not applying your mind in such an important case . There are pulls and pressures . You should have the capability to stand the pulls and pressures .” It also must be brought out here that reading out the CBI director’s affidavit , the bench said the agency should have “denied the invasion , intrusion and incursion .”
It must be revealed here that the UPA government had then mired itself in controversy over law ministry and PMO officials vetting a CBI report on coal block scam . The CAG had accused government of causing presumptive loss of upto Rs 1.86 lakh crore by allocating coal blocks without auctions . From 1993 , the coal ministry began allocating blocks to private parties for mining on recommendations of a Screening Committee comprising top central and state officials . The idea of allocation of captive coal blocks through competitive bidding was first announced in 2004 to prevent windfall gains to companies due to free allocation . But 194 blocks were allocated to government and private parties up to March 31 , 2011 . The then PM Dr Manmohan Singh himself was the coal minister between 2006 and 2009 , when 134 blocks were allotted free . Since 1993 , 206 blocks have been allocated till 2011 .
The then CBI Director Ranjit Sinha’s candid admission that his officers had regular interactions with officials of coal ministry and Prime Minister’s Office , incurred the wrath of the Apex Court . A bench of Supreme Court headed by Justice RM Lodha posed some hard questions to CBI like “Is the job of the CBI to interact or interrogate ? Is this a collaborative action going on ?” The Apex Court also found it completely strange that even after receiving documents CBI continued its interaction instead of putting interrogatories . It pointed out clearly that , “Classification cannot be sought by word of mouth . One year has passed since preliminary inquiry was registered . Nothing substantial has happened except for interaction .”
Now I would like to draw my readers attention to the main changes in CBI status report that were made on instance of one ministry or other and which created a huge controversy . CBI’s tentative finding that there was no system in place to award weightage points to coal block applicants being deleted at the instance of PMO and coal ministry . CBI’s tentative finding that there were no documents detailing weightage points on the basis of which screening committee allocated coal blocks was deleted at instance of law minister . Then the sentence about scope of CBI inquiry while amendments in the relevant law were in process was also deleted at instance of law minister . Also , the suggestion to add a line about non – existence of approved guidelines for allocation of coal blocks was made at instance of PMO and coal ministry .
Let me also point out here that on the CBI showing the draft report to law minister as per his desire , the bench gave a huge dressing down to the CBI and said : “Maybe somebody desired something but as investigating agency you know your role . You are the master of investigation and while investigating a matter , you have no masters , be it for good or bad reasons .” “Does this not vitally erode the trust the court had reposed in the CBI ? Are you not guided by the criminal procedure code ? This ( sharing of the probe status report with political executive ) has shaken the very foundation of the investigation . This is a premier investigating agency and it has to do something that enhances its impartiality , credibility and independence,” the court said . When CBI’s new counsel , senior advocate UU Lalit wanted to hand over a note detailing the changes made in the draft report , the court said it would no longer take notes on this issue after being misled by the law officer during the earlier hearing . The bench asked the director to file an affidavit detailing the changes made in the draft report by the political executive .
These are all very serious things and have hugely undermined the credibility of CBI in the eyes of common man . What a crying pity that time and again we keep hearing what we never want to listen that , “CBI is Compromised Bureau of Investigation which only knows how to act as a puppet in the hands of the ruling party in Centre” . More specifically , as it is the Congress which has ruled maximum in Centre , many opposition parties lambast it as ‘Congress Bureau of Investigation’ . The biggest proof they say is that CBI acts tough against Opposition leaders when they are not on good terms with the Congress party . For instance , whenever Mayawati or Mulayam Singh Yadav takes a strong stand against Congress , CBI rakes up one case or the other against them but when they keep quiet , CBI also becomes quiet . What is all this ? CBI never took any action against Jagan Reddy , the son of former Andhra Pradesh Chief Minister YSR Reddy as long as he was in Congress but the moment he left Congress , CBI suddenly realized that Jagan was doing all the wrong things . This must end now if CBI’s image as a premier independent investigating agency is to be preserved . This again is possible only if CBI is freed from the cage like a parrot which the Centre is not at all keen to do because it knows that its vested interests will be dealt a body blow and it will be unable to use CBI as a potent weapon against its political rivals .
The Supreme Court ordered the CBI not to share its probe reports with anybody except the agency’s director and the probe team and said it will consider the plea at a later stage . It also strongly disapproved of the law minister making changes in the CBI draft status report but did not issue any direction on this point . It has to be taken with all seriousness that fed up with regular political interference in the CBI’s functioning , the Supreme Court on May 8 , 2013 said the government should bring in a law for ensuring the agency’s independence , else it would be forced to issue directions to insulate the CBI from extraneous influence . The Apex Court also made it very loud and clear that , “We would like the law to be in place before the next date of hearing on July 10 . We know that Parliament will not be in session , but there are ways to do it .” It is high time and now at least the government must have some shame to act decisively and comply with the directions given by the Apex Court even though on a personal note I feel that it will only take few cosmetic steps and do nothing else !
“The best thing would be that the law would be in place in between when we hear the matter again ,” the bench of Apex Court comprising of the then Justices Madan B Lokur and Kurian Joseph of Apex Court observed . The CBI has to be “non – partisan” by law and an impartial agency , it emphasized . The bench also observed that , “The golden day would be if the law is in place and we hope this to be before the next date of hearing .” The Apex Court also noted that a query was put in this regard to the then Attorney General Goolam E Vahanvati , who submitted that he will seek instructions from the government and will report to the court on the next date of hearing . It also said that , “We wanted to know from attorney general if the central government intends to bring a law to ensure independence of CBI , its functional autonomy and insulation from external influence with a view to make CBI a non – partisan agency .”
In the thought – provoking editorial titled “Coal tars UPA and CBI” in Hindustan Times dated May 9 , 2013 , it is rightly emphasized upon that , “As recommended by the Supreme Court , there is an urgent need to make the CBI a truly independent body . It really couldn’t get any worse for the government . On a day when the Congress should have been breaking out the champagne , the Supreme Court has dealt it a devastating blow with its observations on the CBI probe report into the coal scam . The CBI , the court has said , is nothing more than a “caged parrot” , a damning indictment of the premier investigative agency and the government . The court has not accepted the lame explanations by the law minister and other officials that they had only made superficial changes in the report . The court is unambiguous in saying that the very heart of the report has been tampered with . The court has articulated what many people are asking – why were officials from the coal ministry and the PMO shown a report which was supposed to be both confidential and independent ? This has proved once and for all that the CBI is nothing more than one more instrument that the government uses and misuses at will . With the court’s remarks , it is now clear that it was not just a comma here and a comma there that was changed . The report was changed substantially to protect the government . Even though he claims innocence , it is odd that the report was passed around to all and sundry without the attorney general knowing anything about it . Most alarming is the conduct of the law minister . He of all people cannot have been unaware of how unethical it was to not only see but also to suggest so many changes in a probe report . The court has spoken of the need for a mechanism to make the CBI independent . This must be addressed without delay . That the agency has become totally subservient to its political masters is clear from the fact that it freely allowed them access to this report . The CBI which is almost fatally damaged now must be restored to its position as the premier investigative agency . The first step in this direction is to free it from the clutches of politicians . While the political class may think that the CBI is handy weapon to conceal wrongdoing and attack opponents , having a compromised agency has done its image and that of politicians seeking to control it a great deal of damage . The court has been unusually harsh in its condemnation . Nothing augurs better for the polity that is so badly tarnished today with multiple scams and other allegations of impropriety and corruption than being forced to stay away from the CBI in future .”
In another similar thought – provoking editorial titled “Set The CBI Free” published in ‘The Times of India’ newspaper dated May 14 , 2013 , it is very well brought out that , “Probity in governance demands an end to conflict of interest . On the back foot over allegations of serious impropriety against Ashwani Kumar and Pawan Kumar Bansal , the Congress has clarified that the decision to sack the two Union ministers was taken jointly by the prime minister and the party president . Both the Railway Board appointment scandal and the controversy over the CBI Coalgate report represent conflict of interest . This is one issue that has continuously haunted the UPA dispensation throughout its current tenure . Whether it is the 2G spectrum scam , the dodgy Aircel – Maxis deal or the Adarsh housing society mess , conflict of interest has been the government’s undoing in each of these cases . Nothing exemplifies this better than the former law minister’s access to a CBI report on the government’s own alleged bungling in allocation of coal blocks . That the country’s premier investigative agency is malleable to the pressures of the government of the day is indeed a cause for serious concern . The subversion of the CBI’s independence and its manipulation by the ruling regime to hound the opposition are charges that cannot be taken lightly . It does the government no good to let this perception sustain . For the sake of restoring the CBI’s integrity , it would do well to make the agency independent , with perhaps broad accountability to a parliamentary committee . This would be in line with the Supreme Court’s direction to insulate the agency from external influences , besides insulating the government of the day from continual charges of partisanship .”
In the coal block allocation scam probe , the CBI has registered 11 FIRs so far under three preliminary enquiries . All FIRs pertain to the allocations between 2006 and 2009 when PM Dr Manmohan Singh was handling the coal ministry . First FIR was filed on September 12 last year and the 11thFIR was registered on April 28 . The agency has not managed to complete probe not even in one FIR , no chargesheet has been filed . It was alleged that between 2006 and 2009 especially , many blocks arbitrarily allocated to mining , power or steel companies that didn’t fulfil eligibility criteria .
CBI was directed to immediately repatriate DIG Ravikant to probe team by Supreme Court . It was also directed that Ravikant , 33 other officers not to be changed without court’s permission . Supreme Court also made it clear that CBI director to ensure no probe access , henceforth given to any person including ministers , law minister , officials of any department , law officers , its own counsel , CBI director ( prosecution ) or anybody outside probe team except himself . Also , it was directed that Special CBI court , where agency has filed 11 FIRs , not entitled to copies of status reports filed in Supreme Court without latter’s permission . In addition , the Apex Court directed that if CBI director or probe team feels need for expert assistance , they may make application before Supreme Court . Lastly , it was directed that director to file next status report by July 8 and next hearing fixed on July 10 and government to file affidavit by July 3 stating legislative measures contemplated to make CBI independent .
The Central Vigilance Commission ( CVC ) , which exercises superintendence over the corruption probes of the CBI , has sought from the agency a detailed report on how and why it shared the coal scam draft report with the government . A CBI source said : “The sharing of the draft probe report with the government , which implied interference in the CBI’s scam investigations , has not gone down well with the CVC .”
Vineet Narain who had moved the Supreme Court to compel the CBI to probe the Jain hawala diary case in October 1993 said the earlier Supreme Court directive had not resulted in a qualitative change in the CBI’s functioning . A shoddy probe by the CBI let over 100 politicians and bureaucrats off the hook . Narain said it was time to revamp the 1997 directives to make a real difference . He said : “One way to make the CBI autonomous is to appoint a retired judge to head the Central Vigilance Commission to oversee CBI probes . Such a CVC should also have administrative and financial control over the CBI .”
Let me hasten to add here that it is imperative to understand what the Supreme Court held in the landmark Vineet Narain’s case pertaining to CBI . In this landmark case of Vineet Narain v Union of India AIR 1998 SC 889 , it was held by the Supreme Court in para 59 that , “As a result of the aforesaid discussion , we hereby direct as under : –
I CENTRAL BUREAU OF INVESTIGATION ( CBI ) AND CENTRAL VIGILANCE COMMISSION ( CVC )
1. The Central Vigilance Commission ( CVC ) shall be given statutory status .
2. Selection for the post of Central Vigilance Commissioner shall be made by a Committee comprising the Prime Minister , Home Minister and the Leader of the Opposition from a panel of outstanding civil servants and others with impeccable integrity , to be furnished by the Cabinet Secretary . The appointment shall be made by the President on the basis of the recommendations made by the Committee . This shall be done immediately .
3. The CVC shall be responsible for the efficient functioning of the CBI . While Government shall remain answerable for the CBI’s functioning , to introduce visible objectivity in the mechanism to be established for overviewing the CBI’s working , the CVC shall be entrusted with the responsibility of superintendence over the CBI’s functioning . The CBI shall report to the CVC about cases taken up by it for investigation ; progress of investigations ; cases in which chargesheets are filed and their progress . The CVC shall review the progress of all cases moved by the CBI for sanction of prosecution of public servants which are pending with the competent authorities , specially those in which sanction has been delayed or refused .
4. The Central Government shall take all measures necessary to ensure that the CBI functions effectively and efficiently and is viewed as a non – partisan agency .
5. The CVC shall have a separate section in the Annual Report on the CBI’s functioning after the supervisory function is transferred to it .
6. Recommendations for appointment of the Director , CBI shall be made by a Committee headed by the Central Vigilance Commissioner with the Home Secretary and Secretary ( Personnel ) as members . The views of the incumbent Director shall be considered by the Committee for making the best choice . The Committee shall draw up a panel of IPS Officers on the basis of their seniority , integrity , experience in investigation and anti – corruption work . The final selection shall be made by the Appointments Committee of the Cabinet ( ACC ) from the panel recommended by the Selection Committee . If none among the panel is found suitable , the reasons thereof shall be recorded and the Committee asked to draw up a fresh panel .
7. The Director , CBI shall have a minimum tenure of two years , regardless of the date of his superannuation . This would ensure that an officer suitable in all respects is not ignored , merely because he has less than two years to superannuate from the date of his appointment .
8. The transfer of an incumbent Director , CBI in an extraordinary situation , including the need for him to take up a more important assignment , should have the approval of the Selection Committee .
9. The Director , CBI shall have full freedom for allocation of work within the agency as also for constituting teams for investigations . Any change made by the Director , CBI in the Head of an investigative team should be for cogent reasons and for improvement in investigation , the reasons being recorded .
10. Selection / extension of tenure of officers up to the level of Joint Director ( JD ) shall be decided by a Board comprising the Central Vigilance Commissioner , Home Secretary and Secretary ( Personnel ) with the Director , CBI providing the necessary inputs . The extension of tenure or premature repatriation of officers up to the level of Joint Director shall be with final approval of this Board . Only cases pertaining to the appointment or extension of tenure of officers of the rank of Joint Director or above shall be referred to the Appointments Committee of the Cabinet ( ACC ) for decision .
11. Proposals for improvement of infrastructure , methods of investigation , etc. should be decided urgently . In order to strengthen CBI’s in – house expertise , professionals from the revenue , banking and security sectors should be inducted into the CBI .
12. The CBI Manual based on statutory provisions of the Cr.P.C. provides essential guidelines for the CBI’s functioning . It is imperative that the CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions , like raids , seizure and arrests . Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the concerned officials .
13. The Director , CBI shall be responsible for ensuring the filing of chargesheets in Courts within the stipulated time limits , and the matter should be kept under constant review by the Director , CBI .
14. A document on CBI’s functioning should be published within three months to provide the general public with a feedback on investigations and information for redress of genuine grievances in a manner which does not compromise with the operational requirements of the CBI .
15. Time limit of three months for grant of sanction for prosecution must be strictly adhered to . However , additional time of one month may be allowed where consultation is required with the Attorney General ( AG ) or any other law officer in the AG’s office .
16. The Director , CBI should conduct regular appraisal of personnel to prevent corruption and / or inefficiency in the agency .
While craving the exclusive indulgence of my esteemed readers , I would also like to bring out here that the three – Judge bench of Supreme Court comprising of Justices RM Lodha , Madan B Lokur and Kurian Joseph who just recently castigated the CBI for kowtowing before the government said that in the Vineet Narain case the court had laid down that though the minister concerned had the general power to review the working of the CBI to give policy directions , this would not give the law minister or any other minister right to interfere with investigation . The bench recorded the questions raised by counsel Prashant Bhushan while appearing for ‘Common Cause’, viz “Can the Law Minister ask the CBI to show him the details of any investigation being done by them and seek changes in the status report to be filed in court , particularly when the investigation involves other ministers and the PMO ? Can the CBI Director disclose the details of investigations to the Law Minister and counsel for the government and allow them to make changes in the report to be filed with the court ? Does this not subvert the integrity of the investigation ? Can the CBI officials disclose the details of the investigation to officials of the Ministries , which are being investigated and allow them to make changes in the report to be submitted to the court about the investigation ?” No doubt , the serious questions raised by eminent learned counsel Prashant Bhushan cannot be simply brushed aside by the government ! He also wanted constitution of a special investigation team to conduct the probe in the coal blocks allocation case .
It is pertinent to mention here that the Prime Minister’s Office ( PMO ) faced its sharpest indictment in the Supreme Court on May 8 , 2013 with a senior official’s visit to the CBI office to scan and suggest changes to an investigation report on Coalgate attracting the court’s ire . It is rightly pointed out in the ‘The Times Of India’ newspaper dated May 9 , 2013 with the heading “PMO official’s visit to CBI office leaves PM exposed” that , “The court’s scathing comments on Shatrughna Singh , a joint secretary in the PMO , and Ashok Bhalla , a joint secretary in the coal ministry , seeking changes in a draft report pertaining to the PM when he held the coal portfolio will leave those who authorized the visit squirming .The draft did not suit the PMO at all as the CBI account was at cross purposes with the defence being prepared by officials arguing that coal allocations during UPA-1 – despite a few aberrations – were not without method . The PMO’s problem lay in putting forward a plausible explanation for the absence of a comparative analysis of competing bids for coal blocks to show why a particular bidder won while another lost . This is at the heart of the charge that allocations were arbitrary and politically influenced . The temptation to water down the CBI’s conclusions led the officials to knock out the very basis on which the agency had built its case – that there was no justification for the coal block allocations . The PMO and the coal ministry were also bothered that illegalities suggested by the CBI seemed to justify the CAG’s conclusion – vehemently rejected by the government – that the allocations cost Rs 1.86 lakh crore in revenue losses . The bid to tweak the drafts annoyed the SC as a report meant for the court’s scrutiny was shared by CBI with the “affected parties” – the PMO and the coal ministry – whose officials suggested amendments diluting the agency’s case .”
It is also pointed out in this same newspaper cited above that , “After delivering a three – hour tongue lashing to the government and the CBI , the Supreme Court on Wednesday announced a slew of special measures to restore the sanctity of the coal scam investigation and set a two – month deadline for initiating systemic reforms to insulate the agency from extraneous pressures . On the role played by the two joint secretaries , the court said , “They could have gone to the CBI at the instance of somebody or might have gone there by themselves . There are some people who are more pious than the Pope .”If the government do not show any improvement in their conduct , the court indicated that it might consider the suggestion of the petitioner’s counsel , Prashant Bhushan , to set up an SIT . The cause for judicial umbrage was Sinha’s admission that in the status report on an ongoing preliminary enquiry , “the tentative finding about non – existence of a system regarding allocation of specific weightage / points was deleted at the instance of the officials of PMO and Ministry of Coal” . Though Sinha claimed in his affidavit that this deletion was “acceptable” , the bench said that the paragraph concerned “was the heart of the report and yet that was amended” . It wondered : “How on earth could the CBI allow this ?” The court said the CBI must ensure there will be no interaction with any person without permission of the court and no one will be allowed to peruse the status report . It also demanded an undertaking from the agency that no one will get access to the periodical reports . Indicating it will step in if the government dithers on giving “statutory shape and sanction to shield CBI” , the bench said , “If Parliament does it we welcome that but if something is lacking , the Supreme Court has to fill the gap . The legal face of the government of India must tell us what can be done,” Justice Lodha said , addressing attorney general GE Vahanvati and solicitor general Mohan Parasaran . As Vahanvati promised to seek instructions from the government , the court made a sardonic remark on the neglect of its landmark verdict in the Jain Hawala case . “We gave the CBI a structure of bricks but it appears that 15 years all that remains is sand,” it said .”
The then Central Government on July 3 , 2013 , filed its affidavit in the Supreme Court , saying that it is bringing changes in the law to free the CBI from any kind of external pressure and political interference in its functions . It also disclosed that the present provision – Delhi Special Police Establishment Act – under which the CBI functions will be amended . I must also reveal here that prominent among the changes is the appointment of the director of the agency through a collegium consisting of the Prime Minister as chairperson , the Leader of Opposition in the House of the People as member and the Chief Justice of India or judge of the Supreme Court nominated by him as the member . The affidavit says that the said committee shall recommend an officer on the basis of seniority , integrity and experience in the investigation of anti – corruption and criminal cases from amongst officers belonging to the Indian Police Service for being considered for appointment as the director of the CBI .
It is also imperative to disclose here that earlier the director was appointed on the recommendation of a committee comprising the CVC , vigilance commissioners , secretary in charge of the ministry of home affairs , and secretary , coordination and public grievances . This committee was also required to take into consideration the views of the outgoing director and then recommend a panel of eligible IAS officers for appointment . What needs to be noted here is that as per the suggested amendments to the Delhi Special Police Establishment Act , the Centre now wants to do away with the requirement to seek the outgoing director’s views , and also wants the selection committee to recommend the name of only one officer . The affidavit , however , indicates that the concession on the director’s appointment may be tethered by the Centre’s proposal to set up an “Accountability Commission”, which will comprise three retired Supreme Court or High Court judges and will have all the powers of a civil court . The commission will be mandated to inquire into allegations of misbehaviour , impropriety etc against CBI officers , and may also include its director .
Let me also divulge here some few more changes . The other points in the affidavit are that the chosen CBI director will hold office for a period not less than two years and that the director shall not be transferred except with the previous consent of the committee that appointed the director . It also says that the director shall be removed from his office only by order of the President on the ground of proved misbehaviour or incapacity after the Central Vigilance Commissioner , on a reference made to him by the President , has , on inquiry , reported that the director is guilty of the charged misbehaviour or incapacity .
I must also reveal here that the government has filed this affidavit following the direction of the Supreme Court , which had earlier on May 8 , 2013 expressed its strong displeasure on the way CBI functions as I had stated earlier . To be sure , the court had asked the government to put in place a law for ensuring independence and functional autonomy of the CBI and insulate it from extraneous influences of any kind so that CBI gains more credibility in eyes of common man and is viewed as a non – partisan investigating agency .
May I also invite my esteemed readers attention to the fact that the then UPA government in its 41 – page affidavit , had given details of various steps it was contemplating to insulate CBI from political and other influences . It says that the CVC will have the power of superintendence and administration over CBI for all cases to be probed under the Prevention of Corruption Act but such power would vest in the central government for rest of the cases . Also , the affidavit placed on record the recommendations of the Group of Ministers and Cabinet decision on this issue . It said that , “In accordance with Cabinet’s approval the Central Government shall introduce a Bill containing the necessary amendments in Parliament and the same shall be moved in accordance with Parliamentary procedure .”
According to the affidavit , the CBI’s Director of Prosecution ( DoP ) , who is responsible for prosecution of cases led by the CBI in courts across the country , will be appointed by the Centre on the recommendation of a selection committee headed by the CVC . The other members of the committee will be the DoPT secretary , home secretary and secretary of the department of legal affairs in the law ministry . The CBI director will be the member – convener of the committee . The DoP will prepare a panel of CBI counsels , in consultation with the CBI director and with the approval of the law ministry . The DoP’s annual confidential report now be written by the CBI director . The affidavit added that in case of difference of opinion between the CBI director and DoP regarding prosecution in certain cases , the matter will be referred to the Attorney General ( AG ) . The director will then take the final decision keeping in view the AG’s opinion .
Let me also shed some ray here on the fact that the Supreme Court , while asking the government to take steps for CBI’s autonomy , had said it did not want the agency to be under too many masters . Let me again recall here that the Supreme Court had itself said that , “It’s a sordid saga that there are many masters and one parrot .” It had also called the CBI a caged parrot . What must not be ignored here is that , most tellingly , the government’s response to its directive may leave the CBI agency saddled with yet another supervisory authority in the form of a panel of three judges with which most in the CBI are not happy . CBI’s top brass were hugely dismayed by the Cabinet’s decision to have a panel of three judges as an external oversight body ‘to supervise its functioning’ .
A CBI officer said on all this that , “It will be like making us report to two sets of judges and having to share with them our investigations .” But CBI officials are mostly happy with other recommendations of the GoM as they aim to mitigate relentless interference by bureaucrats in their functioning which adversely hampers their efficiency , working and overall output . I too personally feel that bureaucrats should have no role in appointing CBI director because that affects the neutrality as he feels bound to reciprocate by not raking up any case of corruption against them . Not only this , I feel that no politician or bureaucrat especially those who are serving should have any role in appointing CBI director and only those eminent persons who are either retired or have outstanding , impeccable corruption free record should be made to play a decisive role in appointing CBI director . This will enable CBI director to function freely without feeling any obligation against any politician or bureaucrat and taking strict action against any one of them who is found to indulge in anyway in corrupt practices while in office . One humble suggestion : Why can’t all serving Supreme Court judges decide by consent or where consent not possible by majority as to the person fit to be appointed CBI director after taking into account all the relevant circumstances ? If this is not found suitable , then why can’t those retired Supreme Court judges who are not employed under government and who refuse to accept any office and who have impeccable reputation be made responsible for appointing CBI director ?
Attention of my readers is also invited towards the satisfaction among CBI officials regarding the recommendation that the CBI’s director of prosecution be appointed by a panel headed by a Chief Vigilance Commissioner . In the present framework , the appointment of the director of prosecution is handled by the law ministry which also wields administrative control over the key mechanism . It also merits attention that the Cabinet has now vested administrative control of the agency’s prosecution wing in the CBI director . The agency will have more liberty in completing its foreign investigations or taking speedy decisions pertaining to foreign visits for investigation purposes , with special director rank officers being authorized to clear them . Earlier , foreign travels for CBI were cleared by department of personnel and training ( DoPT ) and no prizes for guessing that red tapism was very much rampant . Another welcome feature is to give the CBI chief financial powers at par with director general of central paramilitary forces like BSF , CRPF and ITBP . What a crying pity that in the present situation , the CBI director can’t buy mobile phones for the agency nor does he have financial powers for upgrading agency offices and laboratory or travelling abroad . A CBI officer on condition of anonymity bemoaned that , “For every financial need , we ( CBI ) need to go to DoPT . Once CBI director has those powers , we will have our funds and then we can take quick decisions instead of files moving in ministries with the babus .” What sense does it make to deny even the basic financial needs to the CBI and vest all the powers in the bureaucracy who man the DoPT department and other key posts ? This grave malady must be remedied at the earliest .
I would go further to the extent of saying that CBI must be totally freed from government’s interference of any kind and should be accorded statutory status like that of Election Commission . This is exactly what the government is not prepared to relent on under any circumstances . No prizes for guessing the reason : Too many skeletons will start falling from every cupboard that is opened . Also , it will deprive the government of a very powerful and convenient tool to be used at the drop of a hat against its political rivals . Not surprising that the Supreme Court’s attempt to insulate the CBI from political interference ran into rough weather as the Union government refused to let go of supervision of the central agency’s investigations into politically sensitive cases like fake encounter killings .
While it is welcome that the. then UPA government in its affidavit said that the probe into corruption cases would continue to be supervised by the CVC even though I personally feel that the Chief Justice of India and three seniormost judges of Supreme Court should also be included to generate more transparency and restore confidence of people that corrupt people would not escape unscathed . But what I find troubling is that the government here has wrongly tried to insert an exception which states that , “The superintendence of the said police establishment in so far as it relates to investigation of offences alleged to have been committed under all other statues and in relation to all other matters related to the functioning of Delhi Police Special Establishment shall vest in the central government .” This clearly signifies that while the Centre is prepared to cede its perceived hold over CBI’s investigations into corruption cases against politicians like Mulayam Singh Yadav and Mayawati to the CVC but would still retain supervision of CBI probe into all other cases , including fake encounter cases as in the case of Ishrat Jahan in which role of top BJP leaders of Gujarat has come under a scanner . But the Centre has clarified that , “While exercising the powers of superintendence , the central government shall not exercise powers in such a manner so as to require the Delhi Police Special Establishment ( or the CBI ) to investigate or dispose of any case in a particular manner”. The Centre also informed the court that it has decided to attach a fixed time frame for the sanctioning authority in deciding CBI’s request for grant of sanction for prosecution of government’s servants .
I also very strongly feel that CBI Director and other senior CBI officers must not be allowed under any circumstances to derive benefits from government like becoming Governor or any other high post retirement job as it is bound to affect the independence of CBI and lure them from taking strict action against corrupt ministers . The trend of appointing CBI Directors as Governors have started just recently and Ashwani Kumar who retired just a short time back and was the head of CBI when a plethora of scams were being investigated has become the first former CBI Director to be appointed Governor . This certainly I disapprove as it is not a healthy trend and must be stopped forthwith as it adversely affects the credibility of CBI in eyes of people which is already at its lowest ebb . I also feel that there should be no need for sanction to prosecute corrupt bureaucrats , public officials and ministers because it hampers speedy trial , helps accused to destroy all evidence against him/her with impunity and creates the impression that nothing is going to happen to them which can never be a healthy trend for our vibrant democracy .
The affidavit document which is a 41 page proposal on how to free the CBI of political control keeps administrative control of India’s top law enforcement agency firmly with the government , leading CBI officials to comment that the agency “is still a caged parrot” . It also stipulates that investigating officers will be transferred from cases only if ordered by a panel of the CBI . But the CBI has been denied the right to hire its own lawyers , which would have given it greater autonomy in investigations , especially if the government is being probed . It will have to use the government’s legal officers to express it in court . And though its budget has been enhanced , expenses , even minor ones like an officer travelling abroad , still requires the government’s sanction .
In the editorial titled “Flawed Diagnosis” published in ‘The Times Of India’ newspaper dated June 27 , 2013 , it is very elegantly and rightly pointed out that , “The central government’s commitment to make the CBI autonomous continues to be suspect . A Group of Ministers ( GoM ) , tasked with the job of suggesting ways to free the agency from external influence , has not fully addressed concerns on a vital issue that is a potential roadblock to fair investigation . This relates to obtaining prior sanction from higher authorities before proceeding against officers of the rank of joint secretary and above , who are found to be involved in corruption or abetting any wrongdoing . According to reports , the GoM has recommended that a committee of secretaries ( CoS ) rather than a minister will authorize questioning / examining senior officers . The CoS will essentially comprise senior bureaucrats of a few ministries , who may continue to provide a protective shield to their subordinates faced with allegations of corruption . The CoS could be swayed to act otherwise either by influence or might be constrained to take action because of fellow feelings in an entrenched bureaucracy . One member of the CoS will be the Central Vigilance commissioner . But that office has so far supervised the functioning of the CBI without any spectacular achievement in nailing corruption in the higher echelons of the bureaucracy . The GoM is also said to have suggested appointing a three member committee of retired Supreme Court judges who will be responsible for examining complaints against the CBI , including ensuring that no executive office or powerful individual influences investigations . While institutionalising this arrangement will be a step in the right direction , true independence for the CBI will be achieved if the fetters that bind it to the executive are removed . That objective can be accomplished if , and only if , the CBI is accorded statutory status like the CAG or the Election Commission or made accountable to Parliament .”
Having dwelt on various aspects , I now feel it makes imminent sense to disclose what those who have served in some capacity or other in CBI or other police organizations have to say in this regard . VM Pandit who is former Superintendent of Police , CBI with 25 years of rich experience as high profile ace investigator says that , “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 .” He also suggested , “CBI is the name of 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” .”
EN Rammohan who is former Director General , BSF candidly said that , “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 .”
C Pal Singh who is former Inspector General of Police , Punjab and who played a stellar role in eliminating militancy in Punjab very strongly feels that , “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 .” Last but not the least , he also strongly felt that , “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 .”
Also , here I would like to point out that the former CBI Director Joginder Singh too had 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 was also at pains to point out that , “The government of the day finds ways . It will delay sanction of a probe , avoid appointing good legal counsels . It puts hurdles if the probe involves cooperation of foreign governments . Bring in a law or amend the Constitution . The CBI must be made to function like the CAG ; get constitutional status to work autonomous of the executive .” Another former CBI Director RK Raghavan bemoans that , “No government has shown interest in making CBI autonomous . The plea is an autonomous CBI will be an unaccountable . CBI can be given operational autonomy . CBI independence is a myth . It depends on government for a prelim enquiry , to register a case , getting sanction to prosecute . Unless this pathetic subjugation changes , CBI will be vulnerable to intimidation .”
Let me now for my readers benefit disclose what the former CBI Director DR Kaarthikeyan who cracked the Rajiv Gandhi murder case said about giving more autonomy to CBI . He said quite upfront that , “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 .” He 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 , he said , “It can be done . However , the functioning of the organization 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 .”
Maneesh Chhibber writes in ‘The Indian Express’ newspaper dated April 30 , 2013 in the editorial titled “A CBI with agency” that , “There are certain questions that the government and the CBI must answer before claiming the benefit of doubt . Since the CBI director had already shown the report to the law minister and senior officers “as desired by them” , why did the probe agency go through the charade of submitting the report in a sealed cover in court ? Also , if Additional Solicitor General Harin Raval was present when the law minister went through the report , why did he assert that the report had not been shared with anyone in the political executive ? As for the definition of “political executive” , if Ashwani Kumar really feels that the “law minister is not the political executive in terms of administrative control of CBI” , the prime minister must remove him for incompetence . The CBI director’s affidavit , however , does clearly indicate that he understands that the law minister is part of the “political executive” . Sinha must now clarify in what manner and form the law minister and others “desired” when they asked him to share the status report . Did he or his colleagues do the bidding after receiving phone calls or did they get emails or more formal written communications ? More importantly , did these orders come from mere joint secretaries or their seniors ? Or may be the court will ask these questions of him at the next hearing . Also , who asked the joint secretaries in the PMO and the coal ministry to see the report ? Were they acting on orders from superiors ? Did the prime minister know about the desire ? Did they also make or suggest changes to the status report ? In defending Kumar , the Congress and the UPA , particularly Prime Minister Manmohan Singh , leaves themselves open to charges of breaching institutional integrity . How can something that is improper be the correct thing to do ? The government’s and the law minister’s assertion that only the “draft” status report , and not the final report , was shown is a ridiculous explanation . In light of this logic , one only hopes the government isn’t sharing draft policy guidelines , particularly those affecting our sovereign functions , with those with access to the corridors of power or deep pockets . Also , let’s not forget that among the offices that are accused of wrongdoing in the coal blocks allocation scam are the PMO – Manmohan Singh was also coal minister for over three years – and the coal ministry . Why then did the CBI agree to share the status report with senior functionaries of these two offices ? Kumar’s protests that he had not committed any wrong , since the “law ministry is the statutory mandated legal advisor of CBI / department of personnel and the law minister is not the political executive in terms of administrative control of CBI” is just another example of how the UPA treats a supposedly independent agency like the CBI . Justice Verma’s judgment had intended to bring the CBI out of government control by giving the CVC power of superintendence over the investigating agency . However , some time back , Justice Verma talked of the need to make it mandatory for the CBI to report only to courts as far as investigations were concerned . He was only reinforcing the general feeling that the CBI was the handmaiden of the government . A law minister whose behaviour has left the government open to charges of manipulating the CBI , and a government that still swears by such law minister , provide an opportunity for the apex court to finally do what Justice Verma wanted to achieve through the Jain hawala judgment : make the CBI truly independent and autonomous . So that future CBI directors don’t go running to their political masters whenever they so desire .”
Chetan Bhagat , the well known author of several famous books in his illuminating article on “Time to empower the slave” in the newspaper “Sunday Times Of India”dated May 5 , 2013 writes : “Once upon a time , a king committed a grave crime . He stole the state’s money and destroyed national wealth . Angry citizens clamored for justice . The king agreed . He appointed his pet slave to investigate the matter . The pet slave felt the king had done nothing wrong . The case was closed . Life went back to normal . The above story isn’t funny . It is downright ridiculous . Even a six – year – old will tell you it makes no sense . And yet this is the Indian system of investigation and justice . Replace the king and the slave with the government and CBI respectively . The CBI reports to the government . Its senior officers’ appointments , promotions , transfers and post – retirement career options are in the hands of politicians . This same CBI is asked to investigate the government when scams emerge . It is like asking a maid to probe her master . No surprise , nothing much comes out of it . Are we not a nation of idiots then to accept this system ? The current Coalgate investigations , where a cornered CBI had to admit it had the findings report edited from government before submitting it in court , is a blatant example of a system gone horribly , horribly wrong . How can you expect the government to have accountability , when they can subvert investigations on them ? What use is the CBI if accused politicians are able to influence it ? The need for changing this is obvious , more so now . But how do we make this happen ? And will the powerful political class ever accept an independent CBI ? The urgency of CBI reforms cannot be overstated . Of course , politicians abusing power is hardly novel . In limited amounts , Indian citizens don’t even seem to mind the corruption or nepotism . We almost see it as an entitlement of those in power .It is only when it reaches monumental proportions that our morality kicks in .Well , it has reached gigantic levels . With the bigger size of the economy , the magnitude , scope and number of scams have grown . The coal allocation scam alone is about transferring value worth billions of dollars in the hands of a few private individuals , based on no clear objective criteria . A clear option for such transfers should have been auctions ( where the asset can be priced ) or a revenue share ( where the future revenues are uncertain ) . None of this was done . Coal was a prize , given to friends , families and cronies of the government . In return , the coal receiver returned favours such as cash , relationships or any other political benefits . If the state earned proper revenues from coal , the earned amounts could have transformed either of India’s infrastructure , education , healthcare or irrigation sectors . Hence , justice must be done in such a massive level of wrongdoing . Unfortunately , the only meek slave we have to enable this justice is CBI . And as recent events have shown , the CBI is almost a private arm of the government . Until we fix this nothing much will change about corruption . The street protests , fasts , and news debates are all useless until this structural change is made . In fact , an autonomous CBI could just be the surrogate Lokpal we all seem to need but can’t get .” It needs no Albert Einstein to realize that whenever CBI is desperate to share its report with the government , there is more to it than meets the eye .
Anti – corruption campaigner and senior , eminent lawyer of Supreme Court Prashant Bhushan dismissed the then UPA government’s proposals as “hogwash” . He said quite bluntly but clearly that , “The Government’s affidavit on CBI’s autonomy today is a elaborate attempt to pull wool over the eyes of the people and over the eyes of the court in order to make them believe as if something real is being done , something substantial is being done to give autonomy or free the CBI from Government’s control . The main instrument of government’s control over the CBI is because of its administrative powers of postings , promotions , transfers , disciplinary actions , confidential reports , etc . Essentially all these powers even after all this elaborate amendments suggested by the government will continue to remain with the government . We had suggested that an independent Lokpal which is completely independent of the government should be constituted which should have complete administrative control over the CBI . Unless that is done , this whole business of CBI autonomy or freeing it from government control will remain a farce .”
Anil Divan who was not only a Constitutional expert and a very eminent and senior lawyer of Supreme court but also was the President of Bar Association of India expressed his enlightened views on this subject in an article published in “The Economic Times Of India” newspaper dated March 20 , 2013 with the heading “Poke Me : CBI will never net the big offenders” . He wrote : “In a Public Interest Litigation concerning manipulations in allocations of coal blocks , the Supreme Court ( Justices RM Lodha , Madan Lokur and Pinaki Ghose ) reading out portion of a confidential status report submitted by the CBI observed : “That an affidavit be filed by the Director of CBI that the status report submitted before this Court dated 08.03.2013 was vetted by him and nothing contained therein has been shared with the political executive … and that the same procedure will be followed in respect of subsequent reports….” The Attorney General reacted – “CBI is not the last word” , indicating displeasure of the government . The interchange highlights the conflict of duties faced by CBI . In the past , the Supreme Court ( Justice Santosh Hegde ) observed that CBI had resorted to “suggestion falsi” and “suppresio veri” and noted that files were destroyed unauthorizedly with an ulterior motive by its officers . In the Taj Corridor scam Justice SH Kapadia observed : “We reject the status report dated 31.12.2004 as it is a charade of the performance of duty by CBI” . The public perception about the CBI is that it is the handmaiden of the Ruling administration . The order of the Lodha Bench has merely followed precedents to ensure integrity , independence and fairness of the investigation . In the Jain Hawala case when an allegation was made by the Petitioners that the then Prime Minister Narasimha Rao was implicated , an unprecedented historic order was passed on 01.03.1996 ( Justices JS Verma , SP Bharucha and SC Sen ) : “…it is directed that CBI would not take any instructions from , report to , or furnish any particulars thereof to any authority personally interested in or likely to be affected by the outcome of the investigations into any accusation . This direction applies even in relation to any authority which exercises administrative control over the CBI by virtue of the office he holds , without any exception .” In the 2G scam case , Justices GS Singhvi and AK Ganguly directed : “CBI shall conduct the investigation without being influenced by any functionary , agency or instrumentality of the State and irrespective of the position , rank or status of the person to be investigated / probed .” The CBI has been constituted under the Delhi Special Police Establishment Act , 1946 . It functions as a department of the Central Government under the Ministry of Personnel which is part of the PMO . CBI works under major constraints . The first being a department of the Central government its officers are wholly subservient and dependent on the political executive for their career prospects including transfers and promotions . Secondly , there is a bar under Section 6A inserted by the CVC Act , 2003 from commencing even a preliminary enquiry or an investigation except with the previous approval of the Central government in case of officials of the level of Joint Secretary and above and those appointed by the Central government in the PSUs . The CBI is bound hand and foot , shackled and emasculated . Prime Minister Manmohan Singh addressing the Biennial Conference of the CBI on August 26 , 2009 said : “This year’s biennial conference will deliberate upon a very important issue that of corruption in our public life … There is a pervasive feeling today in our country that while petty case get tackled quickly , the big fish often escape punishment . This has to change .” How to insulate the CBI from baneful interference ? The best way forward is to give constitutional status to the CBI or to fashion an elite anti – corruption agency with similar constitutional protection enjoyed by the higher judiciary , the CAG and the CEC , completely independent of the Executive . In the meanwhile , CBI should be liberated from its constraints by ordinary legislation . The US Courts , in exercise of their inherent powers , have routinely displaced elected District Attorneys , who have investigating powers but are amenable to political influences and have appointed special prosecutors with investigative powers to ensure an independent and fair investigation . Under the Civil Law system , in France , important cases are monitored by an investigating Judge who prepares a dossier and later a different Trial Judge is appointed . As long as CBI works under the present architecture there is no chance of any significant progress in catching the “big fish” or enforcing the Rule of Law against powerful persons . How can the fisherman ( CBI ) catch the “big fish” if , it cannot use its fishing net without the prior approval of the “big fish” ?”
Why can’t CBI be freed from government control ? Why can’t CBI be allowed to function freely ? Why can’t CBI be accorded statutory , independent status like the Election commission ? Why can’t CBI have full financial autonomy ? Why can’t CBI be made at least fully autonomous in its investigation functions ? Why can’t CBI Director and other senior officers of CBI be barred from availing of lucrative post – retirement government jobs like Governor or member of UPSC or member of a Tribunal etc ? Why can’t CBI be allowed to prosecute anyone including bureaucrats and ministers without taking any prior sanction so that no evidence can be tampered with and no one can escape scot free ? Why can’t CBI be made accountable to an independent Lokpal instead of government ? Why can’t CBI Director and other officers holding key posts in CBI be given a fixed term of at least two years ? Why can’t the role of bureaucrats and politicians whether in ruling coalition or in opposition in appointing CBI Director and other CBI officers in key posts be totally eliminated ? Why should those CBI officers who are probing high profile cases not be transferred by government under any circumstances unless and until they complete their probe and submit report in this regard ? Why can’t CBI have the right to hire its own lawyers , which would have given it greater autonomy in investigations , especially if the government is being probed ? Why can’t CBI Director be overruled if he tries to protect a corrupt minister or bureaucrat and if majority of officers in CBI concerned with the case and the legal branch recommends prosecution ? These are some key questions which keep troubling my mind every now and then and which I very strongly feel that the government must address honestly without any more further delay .
Before parting and on a concluding note , I feel it worthwhile to enlighten my readers with what Arun Jaitley who was not only a very senior and eminent lawyer of Supreme Court but was also the leader of Opposition , Rajya Sabha before coming to power felt on this entire issue . He wrote in “The Economic Times” dated 10 May , 2013 with the heading “How to Rescue CBI from UPA’s Fear And Favour Tactic” that , “The Supreme Court in the Jain Hawala case made an attempt to liberate the CBI from political clutches . Its judgment in the Vineet Narain case laid judicial guidelines that could ensure some element of autonomy for the CBI . However , the CBI in the last few years started enjoying more than a comfortable relationship with the UPA government . This relationship was based on the premise that the directors were appointed from amongst a panel prepared by the CVC and secretaries of the government . It was the Prime Minister who had the last word . Government preferred friendly CBI directors . The last three directors who retired from the CBI were all given post – retirement jobs in the government . One was appointed a member of the commission to review the Centre – State relations . The next one was appointed as governor , and the last one was appointed a member of the UPSC . Both fear and favour were used to control the CBI . An officer of the law ministry is posted as director of prosecution . Convenient legal opinions were given by him . Even the director of prosecution , after retirement , was made a member of a tribunal . Law officers now have become a law unto themselves . They advise and appear for the CBI . The CBI under the UPA has a history of controlled and politically friendly investigations . A large number of investigations had a political complexion . When it came to implicating BJP ministers or police officers of Gujarat , the CBI , in some cases , acted even without evidence . In a Rajasthan case where a former BJP minister was falsely implicated , the CBI’s own opinion was that there was no evidence against him . However , a law officer ( who recently resigned ) literally intimidated the CBI through a letter citing judicial consequences , and the former minister was wrongly charge – sheeted . If the Gujarat riot cases had been referred to the CBI rather than a Supreme Court – constituted SIT , I have no doubt that the final reports would have been politically coloured . This comforting relationship between the political executive , CBI and the law officers has resulted in a travesty of justice . When YSR Reddy was a tall Congress leader , the CBI looked the other way despite the enormity of his corruption . When Jagan Mohan Reddy parted company with the Congress , the CBI was let loose on him . The pace of investigation in the cases of the Samajwadi Party and the Bahujan Samaj Party chiefs is in tune with UPA’s attitude towards allies . It is this very practice that the CBI followed in the investigation relating to the coal block allocations . The CBI , the law officers and the political executive did not think that there was anything wrong in conspiring to alter the facts contained in a CBI status report . The law minister thought that he represents the political sovereign and is , therefore , entitled to direct the CBI to alter the basic substance of its report . The “suspects” , namely , the officials of the PMO and the coal ministry , were granted the privilege of correcting the investigator’s report . But truth has an inconvenient habit of leaking out . This is precisely what happened . The Supreme Court bench hearing the coal allocation case did not provide the government with a friendly wicket . So , we now have an opportunity to liberate the CBI from the political clutches . The court has asked the government to communicate how it plans to make the CBI independent . I had suggested the following steps to the Select Committee that discussed the Lokpal Bill .
1. The CBI should have two wings . Director , CBI , will head the organisation . Under him , a separate directorate of prosecution should function .
2. The investigative and prosecution wings should act independently .
3. Director , CBI , and directorate of prosecution should have fixed terms and should be appointed by a collegium comprising the Prime Minister , leader of Opposition , Lok Sabha , and chairman of Lokpal .
4. Neither director should get re – employed in government post – retirement .
5. Superintendence and direction of the CBI in relation to Lokpal – referred cases should be with the Lokpal .
6. Lokpal must approve the transfer of any officer investigating a case .
7. The panel of advocates who appear for and advise the CBI should be independent of the government . They can be appointed by the director of prosecution after Lokpal approval .
I hope accepting these suggestions will go a long way in ensuring independence of the CBI .”
There is no reason why all these invaluable suggestions be not debated, discussed and deliberated upon by our law makers before implementing them. CBI must be made truly independent so that it can function fully, freely and fairly for the benefit of the common person and not any particular politician or party in power. This is the pressing need also in our country.
Sanjeev Sirohi