‘Gauhati HC ruling is a wake-up call for those unwilling to change the structure of the organisation’
The former CBI Director, R.K. Raghavan, has suggested that separate legislation be enacted for the constitution of the CBI to nullify the effect of the Gauhati High Court’s judgment that quashed the resolution, by which the investigating agency was created in 1963.
Speaking to The Hindu on Monday, he said that though the Supreme Court stayed the judgment, a separate law similar to the Central Vigilance Commission Act, must be put in place to give the CBI functional autonomy.
As to the accused in high-profile cases moving trial courts for staying proceedings citing the High Court ruling, he said: “In view of the stay granted by the Supreme Court, the CBI may continue to discharge its functions… I am confident that the Supreme Court will make things clearer if it has an occasion to do so on any reference by the CBI.”
“However surprising the verdict could be, in view of the growing assaults on the CBI’s neutrality, the fundamental issues raised by the petitioner before the High Court, and the court’s ruling thereon, is the most welcome. This is a wake-up call for those unwilling to change the structure of the organisation,” he said.
The CBI was formed on the basis of a resolution and there was no independent law for its formation. “Only the Special Police Establishment, one of the Divisions of the CBI, derives its powers from the Delhi Special Police Establishment Act, 1946. This is why, there has been a demand from the CBI for decades for an exhaustive CBI Act which will confer on the executive divisions — the Anti-Corruption Wing, the Economic Offences Wing and the Special Crime Wing — powers of criminal investigation as set out in the Criminal Procedure Code.” Though the Supreme Court was yet to consider the Centre’s view on the resolution, “suffice it to say that doubts have been cast on the government stand, and it is for the Supreme Court to pronounce its views.”
He said the other CBI divisions “…do not investigate but give assistance in the form of legal and forensic expert opinion, and in the investigation of inter-State and international crimes. A draft Bill had been prepared several times by successive CBI Directors and sent to the government. But they were never acted upon. Such legislation would confer investigative powers on CBI personnel without referring to them as ‘police officers.’ Only this would remove the present infirmity in the form of a constitutional provision, according to which only the States are entitled to raise police forces.”
He said the arrangement proposed for the CBI was similar to the exclusive legislation defining the powers of the Customs and Income Tax Departments and other law enforcement agencies of the Central government. “Otherwise, CBI officers will continue to be at the mercy of the States for consent to operate… There are many instances in which some States have refused to give general consent to the CBI and a few others had withdrawn the consent given earlier. Because of this, the CBI has had to approach the State governments on a case-to-case basis, a method that compromises secrecy and entails enormous delay.”
On the need for autonomy for the CBI, Mr. Raghavan said: “There is a not unjustified impression that the CBI is an appendage of the government and that it will never act against those in power. This is why the Supreme Court has had to intervene on many occasions to take over monitoring of investigations. This is a hardly satisfying situation at a time when scam after scam unravels. The necessity of enlarging the autonomy of the organisation cannot be overemphasised, especially in respect of conducting Preliminary Enquiries, registering a regular case, and filing of charge sheet without government sanction. We are far from this. More autonomy for the CBI would involve amendments to the Prevention of Corruption Act, 1988, and the Cr. PC. For this to happen, there needs to be a huge political will.”