Political oversight

Speaking on CBI Founders Day and delivering the 18th D P Kohli Memorial Lecture, the CJI made some telling observations on CBI. The most hard-hitting first. He charged the CBI with being influenced by "political oversight" when investigating politically sensitive cases. His concerns were legal ambiguity, weak human resource, lack of adequate investment, accountability and political and administrative interference. To quote him, "the CBI should be given statutory status through legislation equivalent to that provided to the Comptroller and Auditor General. The legal mandate of the CBI must be strengthened by having comprehensive legislation addressing deficiencies relating to organisational structure, the charter of functions, limits of power, superintendence and oversight." The CJI bluntly pinpointed what ails the CBI.

When the Special Police Establishment (SPE), the forerunner of today's CBI was created there was a legislation – the SPE Act. When CBI was notified on April 1, 1963, there was no CBI Act and that is how it remains today. While the name is CBI everywhere, it is legally only SPE which is authorised to investigate. Till the early 60s, it was a very small unit investigating only corruption. At the start, it only investigated that corruption which impeded the Allies War efforts in India. Much later, after 1947, it took up the investigation of corruption elsewhere in public services. With CBI as its new name on April 1, 1963, administratively formed and created, it plunged first into corruption investigations in all departments of the government of India. Soon after came grave economic crimes, Haridas Mundhra, LIC scandal, Dalmia Airways. This was followed by murder investigations, beginning with Deen Dayal Uppadhya murdered on a train. By the late '60s, an understaffed CBI, without CBI Act, was pulling its weight way beyond its original weight. With enormous goodwill of courts, abiding faith of the people and integrity of its pool of officers, CBI pulled off successes one after another in its assignments. The Emergency was the first rude jolt to it. CBI began to be misused slightly at first and then in a big way. The Shah Commission Report is replete with instances of misuse of CBI. In 1980 Indira Gandhi was back. The cases in progress against her, Sanjay, V C Shukla, Om Mehta, R K Dhawan and other goons of the Emergency, all initiated through CBI and then CBI Director, R D Singh had to be closed. So R D Singh was sacked and his successor J S Bawa and a coterie of CBI officers, who were assured rewards, joined hand in manipulating to ensure courts will find no merit in CBI's own investigations. That is the 'political oversight' which the CJI has found fault with. However, it must be admitted that political oversight was selective; few and far in between initially. It did not affect the personal integrity of senior officers of the CBI as far as any financial quid pro quo deals were concerned. But it was only waiting around the corner. Now it has come to pass. Three former Directors of CBI are facing corruption charges. Two Special Directors have been moved out of CBI for corruption. Some reports suggest that 1,200 CBI officers will be removed or retired from CBI as they are "deadwood", a euphemistic phrase for the corrupt and inefficient. Was CBI always totally corrupt-free or were there no corrupt officers in the department? To both, the answer is no. There was corruption and many CBI officers were cashiered for corruption. Till the early '60s, CBI/ SPE was manned by a small number and supervision of crime was meticulous and at several levels. The corruption that existed did not damage the result of CBI investigations. But there was corruption of sorts. For instance, in some branches, there was a system of extracting/extorting by naming the method 'Goodwill Money'. The investigating officer would assure the accused of no harassment during the investigation. No calling and making him wait. No

mistreatment either of him or his family and friends. No arrest or recommendation of suspension or detention for long hours, etc. For this good gesture, a payment would be mutually agreed. However, the investigation which in any case was closely supervised would be without blemish.

SPE/CBI, till the '60s, seldom initiated suo moto investigations. It waited for complaints. These would be sent by Department Heads or on their authorisation. Then SPE/ CBI would determine if it was an act of corruption. If it so decided it would register an FIR naming the public servant(s) as accused in serial number along with names of conspirators. Arrest or search of premises by the investigating officer without the authority of his SP and above was barred. Long before the National Police Commission in its 3rd Report found the power of arrest as one of the sources of corruption, SPE/ CBI had curbed this power in its officers. Arresting even a corrupt public servant except when he was caught red-handed accepting bribe money was rare. CBI officers, at least till the '80s, investigated honestly. It is possible they did so as their investigation was very closely supervised and political oversight was largely invisible and limited.

Be that as it may, today's CBI is worsted by the CJI's accusing finger. He laments that political and administrative interference has continued despite the Supreme Court having expressed concern over the state of affairs and laid down explicit guidelines for protecting the integrity of the force (Vineet Narain V. Union of India). His quote "However, given that superintendence and control of the agency continues to, in large measure, lie with the executive by virtue of Section 4 of the Delhi Special Establishment Act 1946, the possibility of it being used as a political instrument remains ever-present" cannot be brushed away.

However, in a face-saver, he also said (hope?) "I have no doubt there is enough strength within the organisation to deal with any such situation". Most of us on the sidelines do not see that silver lining but it could if the CJI exercising his constitutional authority incorporates into law and compels implementation of Section 25A of CrPc. It is included in the Code of Criminal Procedure (Amendment) Bill 2005 which has Presidential assent. Thus, the Directorate of Prosecution will come into being and all investigations including CBI's will be vetted under a High Court approved by an advocate of considerable seniority. Finally, the CJI has to enforce the Supreme Court orders of meaningful separation of the investigation and Law and order wings. The same has also been the view of Justice V S Malimuth Committee made in 2002. A separate DGP (Investigation) and DGP (Law and Order) in every state and "political oversight" on the investigation will be a casualty in states and, by implication, in CBI too. After all, political leaders in states–used to getting their way there–will do it when at the Centre as well. If it is blocked in the states, it will cease at the Centre too.

(Shantonu Sen is a former Joint Director of CBI. The views expressed are strictly personal)