Not much will change under the new Lokpal for the Central Bureau of Investigation except that it will have one more master

An empowered and high-profile ombudsman for India, a dream for long, is finally a reality. The millions of sceptics, including this writer, who believed that our lawmakers would never get down to vote for it have been proved wrong. This was an exercise that began 46 years ago. It took an eternity because of an obvious lack of political will and a fear of the unknown. Some of those who are powerful in our political firmament have a lot to hide. And they could not take a chance by creating what could perhaps prove to be a monster. Those who are now claiming credit for this heart-warming denouement of a heroic campaign are making a virtue out of necessity. The prospect of facing a knowledgeable and angry electorate in the next few months is what persuaded the two main political parties to sink their differences and ensure the smooth passage of the Lokpal Bill in both Houses of Parliament.

Here, one cannot but acknowledge the stellar role played by Anna Hazare in keeping up the pressure on the executive. You cannot fault him if he sounded unreasonable and stubborn at times. This was not a case of exhibiting ego, but one of conviction that a corruption-ridden nation needed an ombudsman with singular focus on restoring the credibility of a much-abused public service.

However, this is not the time to lose track of the realities and gloat. There is a need to educate the common man on what he can and cannot expect from this new experiment. The chairman and eight members of the essentially anti-graft body will be selected by a collegium comprising the Prime Minister, the Speaker of the Lok Sabha and the Leader of the Opposition in the Lok Sabha, the Chief Justice of India or a sitting Supreme Court judge nominated by the CJI, and an eminent jurist. It will have jurisdiction over all public servants under the Union government, including the Prime Minister. In the case of the Prime Minister, a probe can be initiated only with the approval of two-thirds of the Lokpal’s members. This stipulation is because of the apprehension of frivolous complaints being made mainly to unsettle a government in position.

While it will have its own investigative wing, which will conduct a preliminary inquiry into a complaint received by it, the Lokpal can entrust such an inquiry to the Central Bureau of Investigation (CBI) or to any other agency. Significantly, the Lokpal can initiate prosecution through its own team.

On autonomy

Perhaps, the most welcome feature of the legislation is the empowerment of the Lokpal to provisionally attach any property suspected to have been acquired by an accused through illegal means. Such action will not have to wait until the prosecution successfully establishes the charge in a court of law. Strict exercise of this authority will certainly be lauded by the honest citizen, currently dismayed by the sight of corrupt public servants continuing to enjoy the fruits of their misdeeds even after being taken to task.

But the Lokpal Bill comes as a disappointment to many of us who have been asking for greater CBI autonomy. Under the new dispensation, not much will change for the highest investigative agency, except that, with the arrival of the Lokpal, the CBI will have one more master to be bullied by, taking the count to three. The director will no doubt be appointed by a larger collegium. (Now, he or she is chosen by the Appointments Committee of the Cabinet comprising the Prime Minister and the Home Minister, after the Central Vigilance Commission (CVC) forwards a panel, usually of three names.) Under the CVC Act and the Delhi Special Police Establishment Act, the CVC has the authority of superintendence over the CBI in respect of anti-corruption matters. Inductions to the CBI of and above the rank of joint director will still need the CVC’s nod. These are generally free of blame. But in the past, there have been a few questionable inductions and rejections of names suggested by the director, CBI (DCBI). It is strange that the latter has no untrammelled authority over what should be an internal matter. How can a director command respect if a few officers not of his choice are imposed on him and against his will by a CVC acting in concert with the government? There is now the added restraint on him in the form of requiring the Lokpal’s approval for effecting transfers of officers investigating cases entrusted to the CBI by the Lokpal. There could be a conflict here and also the growth of divided loyalties.

The ‘single directive’

An officer whom the director wants to ease out of an investigation or from the organisation itself — of course for valid reasons — can short-circuit the director and seek refuge under a Lokpal. This happens often with the executive (Department of Personnel and the Ministry of Home Affairs) sometimes interfering in matters that involve transfers. In the new order of things, a third player, namely the Lokpal, can indulge in mischief for a variety of reasons.

A matter of anguish is the continued tyranny of the infamous “single directive,” whereby no officer of the Union government can be subjected even to a Preliminary Enquiry (PE) by the CBI without the nod of the Ministry concerned, except in “trap cases,” where an officer is caught red-handed accepting a bribe. There have been instances of injustice being committed to officers of unsullied reputation by the CBI. This is no reason why the CBI should continue to be weighed down by this harsh stipulation, which, incidentally, discriminates between classes of officers. (Those below the rank of joint secretary do not enjoy the benefit of the “single directive.”) The “single directive” has the potential to compromise the confidentiality of information collected by the CBI against an officer. When the officer had engaged in dubious transactions in collusion with or to favour a minister, how can we expect the latter to give the green signal to the CBI to go ahead with a PE? This is the most persuasive argument against the “single directive,” which has been incorporated into the Delhi Special Police Establishment (DSPE) Act and is therefore inviolable. This is why the arrival of a Lokpal may not materially alter the situation in respect of corruption in high places.

A silver lining is the placing of the CBI’s Director of Prosecution wholly under the control of the DCBI. At present, he is an officer from the Law Ministry, who owes his loyalties to the Law Minister rather than to the DCBI. The controversy over a Law Minister’s alleged amendment of a CBI Progress Report to the Supreme Court in the coal block allocations case cannot possibly happen after the new law comes into place. This strengthens an incumbent DCBI who can rightly ignore the overtures of a meddling Law Minister wanting to bail out his government from a difficult situation.

There are far too many grey areas in the new law for us to be able to predict whether the Lokpal will play an effective role. For instance, what will the relationship between the CVC and the Lokpal be like? There is scope for conflict between the two authorities when a CVC and the Lokpal refer the same matter to the CBI for inquiry. Both are statutory authorities, and may not always be expected to shed their egos. Where there is overzealousness on the part of either, the DCBI will be hard-pressed to please two authorities. The picture becomes muddier when you add an intruding Department of Personnel.

I had long pleaded for a Lokpal which would look after personnel matters of the CBI (such as inductions and transfers) and a Department of Personnel which merely took care of budgetary allocations to the CBI. In my view, the CVC is a needless appendage — especially after the creation of the Lokpal — that only stifles the CBI without adding value to the quality of its investigations.

On the whole, the Lokpal cannot be viewed as anything but a cosmetic imposition on a CBI that is craving for autonomy — without any great success. The commendable support to its cause by the Supreme Court is still in the realm of theory, with the Union government uninhibitedly rejecting all suggestions that the CBI be allowed to function unhampered by the executive. Against this backdrop, I am of the view that the Lokpal will have only a marginal impact on corruption in high places.

(R.K. Raghavan is a former CBI director.)

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