Banish bogus bureau of investigation

UnleashingCentral institutions on the opposition in states like hounds has defined our federal democracy for far too long. On the contrary, it should have been the complete understanding of all the segments of the federal structure, between states and the Centre. That is crucial. The action of withdrawing the 'general consent' for CBI to operate in their states from Andhra Pradesh and West Bengal governments simply demonstrates the absence of such an understanding. While the present mess in CBI is the ostensible reason for this action, it is the gross abuse of CBI by the Central government that has triggered the withdrawal. It has deprived the people of these two states from the services of this institution.

There is an impression that withdrawal of the consent does not affect the powers of CBI to investigate cases against Central government employees. No. Once the general consent is withdrawn, CBI can only investigate cases that are ongoing. It needs to approach the state government for permission in each new case. High Court of the State and Supreme Court can also direct investigations. However, neither is an easy alternative.

How did this mess reach such a level? This merits an appraisal with reference to its proximate causes.

Compelled to go on a leave, Alok Verma was expecting the closure of his case in the Supreme Court on November 19. Instead, it was a tongue lashing followed by the boot for ten days. Where did he go wrong? He became Director of CBI on February 1, 2017, queering the dreams of Rakesh Ashthana who was saddled and fitted with Jackboots on the horse riding to corral CBI. But that was not to be, with Alok Verma ousting him after Rupak Dutta (incumbent no 2 in CBI then) was banished to Karnataka via the Home Ministry.

The rot within the system of governance is now out in the open. The CBI Vs CBI drama is played out without intermission on the public stage. Question marks on our institutions' independence and hurdles put in the way of their fair and impartial functioning have been in the air for some time now. It came out in the open when four senior-most Supreme Court judges spoke to the media on the lack of inner democracy within the Apex Court. Many people believe that the Election Commission is no longer independent. RBI's independence is under a cloud. CAG has been faulted by its peers, 120 of them, led by Jawahar Sarkar. Enforcement Directorate, too, is a suspect. But their slippages were well guarded and their suspicious actions were not satisfactorily confirmed as one done on the bidding of the present dispensation. Now with CBI officers blazing away at each other, and despite the Supreme Court's endeavour to hide the fire, the fact that this organisation has been unfrocked is patent. Andhra Pradesh and West Bengal have struck while the iron is hot. They have thrown CBI out. It will be no surprise if the other non-BJP states also follow the discretion.

Delhi Special Police Establishment has been there from 1941. It came as an ordinance to "fight corruption in war supplies and to investigate corruption among Central government employees, and in Central government departments." On April 1, 1963, it was named CBI (Central Bureau of Investigation). Its work was expanded to include "crime by gangs and those having interstate and international ramifications". That it served the country holding onto these precepts, and rarely faulted, is unquestionably the truth from 1950 to 1994. It slipped in the Emergency and 1980 briefly, but CBI was outstanding under Directors who held the fort from 1982 to 1994. The entire period 1950 to 1994 for SPE and CBI, notwithstanding the aberration of 1976 and 1980-82, is the golden period. A high court judge, in an informal chat even equated CBI findings with the Supreme Court findings!

To manipulate CBI, a Director of a certain flair was needed. That, Narasimha Rao, found in his home state in 1994. He was the one whom Veer Sanghvi, then Editor-in-Chief of Hindustan Times, called "poodle of Narasimha Rao" and his leadership "maligned". He ensured that politicians mentioned in Jain Hawala Diary did not come to do any harm. He did so after pulling the wool over Justice Verma's (CJI) eyes. He appeared to be prosecuting them when in the process of prosecution of L K Advani (who should have never been prosecuted on the diary entries as they constituted flimsy evidence against him) the Diary was dismissed as evidence. With the diary gone in the first case automatically, others escaped the diary dragnet. He also ensured protection to those close to PM in the Urea Scam. Since then, two directors are facing corruption charges. Many Directors secured retirement sinecures virtually unheard earlier. Two insiders (Special Director M. L. Sharma and Special Director Rupak Dutta) were denied positions. Alok Verma came in without ever holding any position in CBI.

The strength and quality of CBI's performances earlier have been right up there. To a very large extent, it was due to its core of detectives who are insiders of CBI. They were there from the beginning i.e. 1941. In April 1963, then Home Minister Lal Bahadur Shastri and its first Director D P Kohli decided to institutionalise this system. They understood that without a superior cadre of its own, CBI will not produce detectives of high calibre. Police officers would join on deputation and will form a substantial strength, but their ultimate target was a Police force of highly rated detectives. Recruitment in the subordinate and superior ranks of young direct intakes was decided; in superior ranks through Union Public Service Commission and subordinate ranks through Staff Selection Commission. All the visionary directors who knew the culture of CBI had respected it, worked for promoting this asset. But this hope and dream eroded after 2000.

The calibrated move to turn CBI into another pure police organisation, depleting its own cadre, began with induction of Directors who had no past in CBI in any rank. From the year 2000, no demand has been placed before UPSC to select probationers for CBI. With all the superior ranks in the hands of police officers and their nominations from State Police politicised, the words of Anand Swaroop Gupta I.P. (Imperial Police) and founding Director of Bureau of Police Research haunts CBI. He writes that the British "left us a legacy of the vicious circle of police officers unworthy of trust and law (which destructed its own enforcement agent completely which has been a serious, almost insurmountable obstacle to the effectiveness of the police". He continues, "A point of incidental interest is that many of the procedures and practices in force in the routine of police work in India to this day are devised for particular conditions and compulsions of 1793 and 1817." He wrote this in 1974, and this is true about the police organisations even today as all reforms including Prakash Singh N K Singh initiative through the SC have been ineffective. CBI, after 2000, is a police organisation with all its attendant evils.

The Solution is the CBI Act. That Act can only come if at least 2/3rd of the States agree with the Central government. They will agree only if they are satisfied that CBI will not be manipulated by the Central government for political reasons as it has been consistently done by all the governments after 2000. CBI should have its own cadre. Deputation intake should be of officers of proven integrity and mettle. There should be an agreed list of federal offences which CBI can investigate in the states. This apart, Supreme Court and High Court of the particular state, and the state government itself can always call for a CBI investigation in any particular case. With these safeguards to protect CBI from being used or manipulated, all states will agree to CBI's continued function in their states. It was CBI's record of dealing with terrorism in Punjab and elsewhere in India through its Punjab Cell from 1984 onwards, and through its Special Task Force against ISI-led Pakistani operations from 1993 onwards, that allowed the Central government to readily get all states to accede to the creation of NIA (National Investigation Agency). They agreed to cede their primary Constitution-vested right to investigate all terrorist-related crimes in their state to NIA. They trusted NIA based on CBI's performance in these two areas of work.

For this solution to work effectively, CBI along with CVC should come under the absolute control of a completely autonomous institution such as Lok Pal. This arrangement along with the proposed provisions in the CBI Act will be publicly trusted. And, people have a right to demand this change to prevent any political party from meddling with this national institution. Once it is done, states will follow the change in their domains by creating Lok Pal like bodies to control their ACBs and vigilance. The initiative now rests with the Prime Minister. The country expects him to act as a visionary statesman like Lal Bahadur Shastri and Atal Bihari Vajpayee, and lay the foundation for the CBI Act.

(Shantonu Sen is a former Joint Director of CBI and Dr. N Dilip Kumar is a former SP and DIG in CBI. The views expressed are strictly personal)