Non-implementation of the 1997 judgment in the money laundering case shows that freeing the CBI from political interference is a challenge even for the apex court

“Our first exercise will be to liberate CBI from political interference.” This is what the Supreme Court said while deliberating the coal scam status report. It is not the first time that the court will be embarking on such a project. A similar exercise was undertaken after the hawala case judgment on December 17, 1997. It is important to revisit that judgment in this context.

The gist of the allegations made in the hawala case petition was that financial support was given to terrorists by clandestine means using tainted funds from “hawala” transactions. The CBI had failed to investigate this properly and prosecute those involved. This was done to protect people who were influential and powerful.

The court adopted the procedure of “continuing mandamus” that allowed it to issue interim orders from time to time. One order was similar to what was done in the coal scam. It asked the CBI not to report the progress of investigations to the person occupying the highest office in the executive.

Four points

The final judgment of the court comprised various directions to establish institutional and other arrangements aimed at insulating the CBI from “extraneous influences.” Four of these were important. One, the judgment transferred the superintendence over the CBI from the government to the Central Vigilance Commission (CVC). Two, it said that selection for the post of CBI Director should be made by a committee headed by the CVC, with the Union Home Secretary and Secretary (Personnel) as members. Three, the CBI Director should have a minimum tenure of two years, regardless of the date of his superannuation. Four, the CBI would no longer be required to obtain permission from the government before investigating allegations against officers of the rank of joint secretary as the Single Directive was declared null and void.

None of these directives was implemented honestly. Control over the CBI was not fully transferred. The CVC Act of 2003 allowed the CVC to exercise superintendence only over corruption cases registered by the Delhi Special Police Establishment (DSPE). The CVC Act resulted in introducing a system of dual control over the CBI — one exercised by the CVC in respect of corruption cases and the other by the Central government in respect of other cases. The court agreed that since the Minister concerned was answerable to Parliament for the efficient functioning of the premier investigation agency, he must have the power to (i) review the working of the agency (ii) give it broad policy directions regarding investigation and prosecution of cases (iii) appraise the quality of work of its officers, and (iv) call for information about the progress of cases. It is this part of the hawala case judgment which the present court may review. However, the hawala case judgment did mention that none of these powers “would extend to permit the Minster to interfere with the course of investigation and prosecution in any individual case.”

Single Directive

The government has always succeeded in selecting its own man to head the organisation because all the three officers who constitute the committee to select the CBI chief are bureaucrats who are generally willing to toe the government’s line. Besides constituting this committee, the CVC Act did not lay down the procedure for selection of the head of the organisation.

The security of tenure, which was guaranteed by the judgment, did not work because the government succeeded in dangling the carrot of post-retirement benefits before the CBI chief. The last person was recently made the Governor of Nagaland — bringing the number of IPS officers occupying gubernatorial posts to eight. The judgment did not say, as was done by the National Police Commission, that the head of a police organisation should not be eligible for any government post after retirement.

Lastly, the hawala case judgment declared the Single Directive null and void. The court found it bad in law. It required a police agency to seek permission from the executive to initiate investigation into a criminal offence, which is contrary to law. It also violated the canon of equality in the application of laws. The CVC Act of 2003 infracted these basic principles of legal jurisprudence by resurrecting the Single Directive.

That the judgment and the measures it prescribed failed to free the CBI from political interference is obvious from recent developments — the present CBI Director showing the coal scam investigation report to the Law Minister and other functionaries of the government. In fact, even before this case occurred, Justice J.S. Verma, the author of the hawala case judgment, had realised that the CBI continued to be influenced by political considerations in its work. This is what he wrote in an article titled “The Incredible CBI” published in a leading daily on April 11, 2009: “The blame cannot be laid elsewhere. It is too much of a coincidence that in sensitive matters, the outcome of the CBI’s investigation invariably depends on the political equation of the accused with the ruling power, and it changes without compunction with the change in that equation.”

The hawala case judgment is not the only one, which has not been implemented fully, either in letter and in spirit. The Supreme Court’s judgment in Prakash Singh delivered on September 22, 2006, also remains unimplemented in most States.

The Supreme Court has to think out of the box not merely to make recommendations to “liberate” the CBI but also to ensure their implementation.

(G.P Joshi was director, Bureau of Police Research and Development, Ministry of Home Affairs, Government of India.)

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