The Supreme Court is currently seized with allegations against the Director of Central Bureau of Investigation (CBI) Ranjit Sinha for meeting persons linked with the 2G scam and coal scam at his residence. The court, which is currently monitoring investigation into these corruption cases, has evidence reflected in the entries in the visitors register maintained by his security staff. On Monday, September 8, 2014, the court described the allegations as “serious” and asked the Director to file his version through an affidavit within a week.
For those of us who have worked in the CBI for a long time, it is a matter of grave concern that the agency is facing such a crisis of credibility. However, this development should not be usurped by a section of people keen to continue the stranglehold of political and bureaucratic authority over the professional work of the CBI or any other agency.
About a week earlier, the Supreme Court had called the CBI “a caged parrot” which “speaks in its master’s voice” after the investigating agency admitted in an affidavit that Ashwani Kumar, who quit as the Law Minister earlier, and senior officials of the Prime Minister’s Office and the Coal Ministry had made certain changes in the ‘status report,’ on the allocation of coal blocks.
During the hearing, the Supreme Court had asked the Centre whether it was contemplating a law to make the working of the CBI independent and insulate it from extraneous intrusion and interferences. The Group of Ministers (GoM), set up by the Central government in May 2013, was entrusted with the task to bring a Cabinet proposal on the law to safeguard the CBI’s autonomy. The report of the GoM was duly submitted to the court. Some others including the CBI also submitted their views. The court’s orders in this regard are awaited.
The meaning of autonomy Some views in this matter have been rather misleading and it needs to be reiterated that autonomy does not mean complete freedom or unbridled independence. Autonomy for the CBI or for that matter any investigating agency means the freedom to investigate crime, while it remains under the administrative control of the government of the day. Much was made of Section 4(2) of the Delhi Special Police Establishment Act, which vests superintendence of the establishment in the Central government. This Act provides legal power to the CBI and under it, the Special Police Establishment (SPE) division conducts its investigative work. The agency does not function in isolation. It should be part of governance machinery. In its work, it needs the cooperation of other agencies of the government, such as the Income Tax department and the Enforcement Directorate. For investigation abroad, it needs the cooperation of foreign governments, for which it needs support of the Ministry of External Affairs here.
“A new CBI Act must substitute the archaic Delhi Special Police Establishment Act and the role, jurisdiction and legal powers of the agency need to be clearly laid down”
The line between superintendence and interference in its investigation work is no doubt thin but by no means is it vague. Under our legal system, the political executive cannot cross that line. Be it the CBI or the police, they do investigation under the Criminal Procedure Code, and for this work, they are accountable to law and to law alone. The English judge Lord Denning had put it succinctly in the case Regina versus Metropolitan Police Commissioner in 1988, demarcating the duties of the Commissioner of Police and Secretary of the State (Home Minister), thus:
“I have no hesitation, however, in holding that, like every constable in the land, he should be, and is, independent of the executive. He is not subject to the orders of the Secretary of State... I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not prosecute this man or that one. Nor can any police authority (which in the U.K. means local executive authority overseeing police work) tell him so. The responsibility for law enforcement lies on him.”
The above judgment has been quoted by the Supreme Court with approval in scores of cases, including in the 1997 Vineet Narain case. The Central Vigilance Commission Act of 2003 was a result of this order of the apex court. But it was an apology of an act. For instance, it brought back the ‘Single Directive’ requiring the CBI to obtain prior permission of the government before initiating enquiries into allegations of corruption against government officers in the rank of Joint Secretaries and above, which had been quashed by the Supreme Court earlier.
The Supreme Court on May 6, 2014, again quashed Section 6 (A) of the Delhi Special Police Establishment Act (DSPEA) of 1946 in reiteration of its earlier order dated 18.12.97.
Centrality of Lokpal The Lokpal Act goes further and provides for the appointment of the Director of CBI by a collegium comprising the Prime Minister, Leader of the Opposition, and Chief Justice of India. This should meet the requirement of proper selection. Now let us come to the main concern of the Supreme Court on how to “liberate the CBI from any extraneous consideration and interference so that the investigation is not maligned.” One ought not to mix up this issue with the conduct of an individual officer, however high. The answer to the court’s concerns perhaps lies in recognising the centrality of the institution of Lokpal. Under this Act, the services of the CBI would be placed at the disposal of the Lokpal for investigation of cases, which the latter decides to take up. The CBI will report not to the government of the day, but to the Lokpal for investigation into such cases, over which the Lokpal will have the power to oversee and supervise, in the manner the Supreme Court has done in some cases of controversial nature.
Finally, a new CBI Act must substitute the archaic DSPE Act. The role, jurisdiction and legal powers of the CBI need to be clearly laid down.
(N.K. Singh is a former Joint Director, CBI, and Janata Dal (United) State executive member.)