It
has moved very little so far since a Bench led by the late Justice J. S. Verma
drew in the 1990’s a roadmap to keep CBI insulated from political interference.
The CBI directors get two years fixed tenure; report to CVC for overseeing and
certain cosmetic changes. But since then, corruption in public life has
acquired gigantic proportions. From highway, it has spilled into every
alleyway. But CBI, which flaunts the motto of “Industry, Impartiality,
Integrity”, has shown huge deficit on all the three counts.
Prime
Minister Manmohan Singh had often promised that his government would help
unclog CBI and it seems he is willing to walk the talk. However, the very first
meeting of the GoM for reforming CBI, presided over by Finance Minister P.
Chidambaram, seems stuck on a critical issue. It is the ‘Single Directive’
policy that requires the agency to obtain clearance from higher authorities
before even launching a preliminary inquiry into allegations against joint
secretaries and above. Single Directive originates from Sec 6A of the Delhi
Special Police Establishment Act of the early 1940’s and is obviously a sequel
to the imperial concern for protecting its colonial high officials from
possible police harassment in the midst of a war. It has now become a
protecting shield for entrenched corruption in bureaucracy and government
departments.
Single
Directive is not the only roadblock to fair investigation. Sec 19 of the
Prevention of Corruption Act stipulates that no court should take cognizance of
a plea to remove a public servant from service unless it is sanctioned by the
competent authority. It implies that the corruption accused, if vertically
well-connected, can continue his misdeeds in office as long as he wishes, and
meanwhile destroy all evidence of his corruption. The Lokpal Bill, amended
after its passage through the Lok Sabha by the Select Committee of the Rajya
Sabha, might empower the Lokpal to bypass Single Directive. The selection process
of CBI director, appointment of other officers and other thorny issues have by
and large been resolved. The government even agreed that CBI need not share
information to the government about conducting raid on the corrupt or laying a trap.
But
the CBI is hamstrung by the very Criminal Procedure Code, of which Sec 24
ensures that the power of appeal and appointing lawyers remain firmly with the
government. To get an idea of CBI’s helplessness in the face of political
compulsions, one only has to take a look at the record of its shifting of
lawyers in various courts in the disproportionate asset cases against Lalu
Yadav, Mayawati or Mulayam Singh Yadav. Last year, a group of six former
Directors of CBI recommended that the power of appeal and of selecting lawyers
be handed over to CBI. Expectedly, it fell on deaf ears. Since 2008, as many as
five parliamentary committees have expressed the opinion that CBI should be
made a statutory body on the line of Election Commission or CAG. There were no
takers for that too.
Having
said that, it is also necessary to enquire why the government is fearful of
losing control over CBI. It appears that members of the GoM, particularly those
who are mindful of developments in the advanced countries, are watching the
increasing frictions in the US
between FBI, its premier investigative agency, and the lawmakers. FBI is a
creature of the US
Justice Department. It has tentacles spread across the length and breadth of
the country. In the past, under Edgar Hoover’s leadership, FBI became a state
within the state and was keeping an eye even on the US President. Significantly, the
agency’s headquarters in Washington DC is named after Hoover.
Since enacted of the Patriot Act in 2006, FBI is empowered to gatecrash into
any household purely on suspicion. There are many allegations of even
dignitaries, including senators, getting “entrapped” by FBI.
However,
FBI’s excesses are more than compensated by its enormous contribution to the
national well-being—in matters ranging from corruption control and homeland
security to keeping a check on drug-related offences and racial violence. To
get a similar positive balance of result from CBI, it is not necessary to keep
it subject to ancient colonial laws, or to make the CBI Director salute the
Home Secretary for a mere permission to appeal against the unsatisfactory order
of a lower court. Nor should the government press the financial levers to
manipulate the agency, as it now does by cornering the CBI budget to itself. An
investigative agency must work in a world of secrecy, requiring trips abroad or
engaging expensive specialists. Such information ought not to be shared with
the government barring a few designated leaders. But CBI’s budget is shown
under that of the Ministry for Personnel and Training, to whom the agency’s
operational plans are an open book. The new CBI director Ranjit Sinha has asked
for the financial autonomy of the agency. With regard to investigations, the
CBI has considerable independence if it so desires.
An
effective CBI is a blessing, particularly for a country whose progress has been
stalled by an avalanche of corruption. But the empowered GoM, under the
guidance of the Prime Minister, must find a via media that prevents CBI from
becoming a rogue organization, a legal monster. Nor should it become a forum
for passing arbitrary, and politically meaningful, judgments like CAG. Rather
than making CBI autonomous, or independent, it should be made, to put it in the
words of the late Chinese leader Deng Hsiaobing, “the cat that can catch mice.”
(Harish
Gupta is the National Editor, Lokmat group of newspapers)
