CBI VS CBI: Nothing Less than Surgery Is Called For

While putting forth the say of M.K. Sinha, Deputy Inspector General of CBI, before the Supreme Court, his advocate prefaced it by saying that what he had to submit was shocking. The Chief Justice is reported to have said that nothing would shock the court any more.

This may be so for the court but millions of ordinary citizens like me are shell-shocked with the revelations!

The question, in this most unsavoury chapter, is not just of the CBI’s survival as an institution but of the survival of the rule of law itself, which is part of the basic structure of the Constitution. The Supreme Court has adjourned the hearing of the case to November 29. In the meanwhile it will be appropriate to set out what and how much is at stake in the outcome of this case.

At the outset, it must be stated that the extent and nature of political interference which has been noticed in this case is not the first instance of its kind. But, we, as a society, have deliberately pushed it under the carpet and have turned a blind eye to it. Efforts made to invite the attention of even the higher judiciary to it by way of public interest litigation (PIL) have not succeeded.

My own PIL filed in the Supreme Court (writ petition (c) No. 69 of 2004) is a case in point. The court dismissed it at the admission stage itself! I am happy that with this high profile case, at last national attention has been drawn and rivetted on the underlying issues. I hope that the Supreme Court will go into the basics of the issues and will not confine itself merely to resolving the in-fighting in the CBI.

A close scrutiny needs to be made of the way the higher civil services, charged by the Constitution with the running of the administration, have been enslaved by whichever political party has been in power. The protection given to them under the Constitution at the behest of far-sighted Sardar Vallabhbhai Patel, has been completely eroded. What has happened in the CBI is only the tip of the iceberg.

It was the first Administrative Reforms Commission which recommended that the CBI should be transferred from the Ministry of Home Affairs (MHA) to the Department of Personnel and Training (DoPT) under the Prime Minister. I have never been able to understand the logic of it. But, Indira Gandhi, then prime minister, who was keen on concentrating all power in her office, took full advantage of it and transferred the CBI to the DoPT.

External intelligence too was taken out of the Intelligence Bureau (IB), which was under the MHA, and shifted to the Cabinet Secretariat which is directly under the Prime Minister. The politically manoeuvred control of both these organizations by the Prime Minister’s Office has repeatedly come to adverse notice over the years. It therefore needs to be examined whether these organisations should be shifted back to MHA, where they legitimately belong.

The selection of Director CBI has now been entrusted to a high level committee comprising the PM. the Chief Justice of India and the Leader of the Opposition.

Right from beginning, I have argued that it is wrong to involve the CJI in the selection process. Such selections done entirely on the basis of confidential records of officers do not necessarily lead to selection of the most deserving officers, whether it is for the post of Central Vigilance Commissioner, Chief Election Commissioner or the Director, CBI.

This procedure undermines the important principle of separation of powers between the judiciary and the executive.

As seen in recent years, the selections made by this committee have been challenged in the Supreme Court, making it untenable for related PILs to be decided by that court. It is for the same reason that I have been contesting the point made in the present case by some people that Director CBI should not have been asked to go on leave without the approval of the selection committee as above.

As for the leader of opposition, while he should be on the committee for selection of incumbents for the above posts, he should not be involved in other administrative decisions such as of sending an officer on leave. These fine distinctions must be maintained.

Reference must also be asked to the direction of the court to entrust the enquiry against the director, CBI, to the CVC. Looking to the background of the case, it was unlikely that CVC’s findings would be perceived as unbiased. I had therefore argued that the enquiry should be overseen by the Supreme Court. Fortunately, in spite of the opposition of the government, the apex court had asked a retired judge of the Supreme Court to be associated with the enquiry. According to one news report, the judge has submitted his separate findings to the Supreme Court. If true, this is a welcome development.

It is a matter of concern that practically anyone associated with the government, including those holding constitutional and statutory positions, is being viewed with suspicion.

The credibility of the government is as low as during the regime of Indira Gandhi, particularly in the emergency in 1975-77. This is a major challenge facing the country. It has been alleged that several functionaries in the government such as the national security advisor have interfered in this case.

At the same time, the Cabinet Secretary, who is the head of the civil service has been side-lined. This has serious long-term implications for the integrity and cohesion of the apparatus of governance. Urgent remedial steps need to be taken before things go out of hand.

Another worrisome factor is the state governments withdrawing their approvals given to the CBI to operate in their states. This again is not new. Partly, it may be due to the impending Lok Sabha elections in 2019. Partly, it could also be to protect the interests of supporters of the political parties in power in these states. But, answers must be found to the fears and suspicions of states if a central legislation for the CBI is to come into being.

I have been advocating for some time that a governing board should be appointed for the CBI on which, apart from the Union Home Minister (after the CBI is transferred to MHA) and three central ministers, three chief ministers of states should also be appointed by rotation to create a sense of confidence in the apolitical, unbiased working of the CBI. The subject of enacting a central legislation for the CBI must be brought up before the inter-state council for very early approval.

Experience so far has fully brought out the importance of having an independent and competent prosecution agency. Unfortunately, in the Hawala case, the Supreme Court did not accept the suggestion of the amicus curiae for the appointment of an authority akin to the special or independent counsel in the United States for the investigation of charges in politically sensitive matters and for prosecution of these cases.

The court had felt: “We are of the view that the time for these drastic steps has not come. It is our hope that it never will, for we entertain the belief that the investigative agencies shall function far better now, having regard to…the directions which are contained in this judgment. The personnel of the enforcement agencies should not now lack the courage and independence to go about their task as they should, even where those to be investigated are prominent and powerful persons.”

As I had brought out in my book, Good Governance Never On India’s Radar (2014), these fond hopes were belied even before the ink on the judgment was dry. The present controversy shows the depth to which the CBI has fallen.

I have also been advocating that the new legislation for the CBI should provide for an annual social audit of the working of the CBI by a committee of eminent legal experts, retired judges, persons knowledgeable in administration, and representatives of the media and non-governmental organizations. This report must be placed before Parliament each year. A beginning needs to be made even before the passing of a new law for CBI. There will be no better way to restore the credibility and image of the CBI.

Finally, and most importantly, the CBI should be brought under the control of the Lokpal, when he is appointed. The appointment of Lokpal has been unduly delayed by this government for no justifiable reason. Similarly, the anti-corruption outfits in the states should also be brought under the Lokayuktas.

I hope the Supreme Court will consider giving unambiguous, time-bound directions on all these issues.

However, a word of caution is necessary. The experience of implementation of the directions of the Supreme Court in regard to police reforms given in 2006 has been far from reassuring and they have largely remained on paper though over a decade has elapsed since then. The apex court has been far too accommodating and has not hauled up the defaulting states.

Let us hope the position in this case will be different and the apex court would ensure expeditious steps by the centre and the states. The Court’s time is too precious and must not be permitted to be frittered away.

The writer is former Union Home Secretary and Secretary, Justice, Government of India.