India has prominent lawyers in private practice, including at the Union level as attorney general and solicitor general.
Fracas over #MeToo allegations against Union minister of state M.J. Akbar was hardly gone when a simmering turf war in the Central Bureau of Investigation (CBI) exploded between director Alok Verma and his deputy Rakesh Asthana. In a post-midnight swoop, the government sent both on leave, handing the CBI to someone with own probity issues and mainly displacing Mr Verma’s aides. The matter is now before the Supreme Court.
The court will examine why the agency repeatedly runs into controversy despite court-devised transparency with appointment of director and security of tenure. Two immediate predecessors of Mr Verma are facing serious charges. The problem is both systemic and political.
First, the responsibilities of the CBI are today too wide, ranging from drastic crimes, particularly white-collar and cyber crimes as the economy has grown, terrorism, corruption by politicians and civil servants, extradition requests, international cooperation via Interpol, etc. Complicating matters are salient other agencies conducting parallel investigations into fiscal crimes, etc. Does the CBI have the wherewithal to handle these? Second, is the secondary role of prosecutors in the Indian legal system. Director prosecution in the CBI gets swallowed in the shadow of director or other smart Charlies like Mr Asthana with suspected access to powerful politicians. In the United States and most Western nations, particularly those with French civil law tradition, the prosecuting attorney balances the investigative power of the police force.
India has prominent lawyers in private practice, including at the Union level as attorney general and solicitor general. At the state level there is a paucity of junior attorneys like Preet Bharara or his predecessors at southern district of New York who closely watch the global financial centre and prosecute infractions. The New York Times called that office “one of New York City’s most powerful clubs”, with dozens of former assistant US attorneys rising in legal practice and politics. With prosecutors kowtowing to investigators, the system of checks and balances disappears. The present crisis has political roots too as the government, after failing to keep Mr Asthana as acting director and forced to appoint a senior full-time chief, allowed Mr Asthana to linger, believing he was de facto boss. Mr Verma resisted this as any self-respecting officer would.
Complicating the scenario further are the approaching state and Lok Sabha elections. There is a clutch of cases that the government wants or does not want the agency to pursue. Controlling the CBI via a favourite officer could only work if he could carry the director along or if the director accepted, despite his de jure superior position, a subservient role. That obviously did not happen. The Supreme Court needs to confront that procedural fixing will not work unless some constant oversight of a Lokpal is available in both appointing officers to the CBI and assessing their performance.
The experience of US’ Federal Bureau of Investigation is instructive. It was set up by President Theodore Roosevelt in 1908 at a time of global uncertainty, inequities created by industrial revolution, unfettered capitalism and urbanisation and immigration leading to increased crime in cities, etc. The new agency, called the Bureau of Investigation, was to be within the department of justice and report only to attorney general and was to fight plutocrats and anarchists. Plunder of oil, coal, minerals and timbre on federal land appalled President Roosevelt, and he wanted it all checked. Over the last century, the agency has had ups and downs. At times its role expanded exponentially, to fight the Bolshevik danger to the US as the Russian revolution unfolded, then to fight suspected German subversion during World War I, followed in 1920s and 1930s by the danger of communism and trade unionism as indeed criminal gangs led by powerful gangsters.
But the agency overreached depending on the proclivities of US President. It episodically made mass arrests to fight real and imagined enemies of the US. Chief Federal Prosecutor in Philadelphia resigned in 1919 saying, “I am strongly opposed to the wholesale raiding of aliens… (The policy) is generally unwise and very apt to result in injustice.” The Trump administration has reverted to it. Next year in Boston, Federal Judge George W. Anderson opined, familiar to Indian ears today, that “As an aftermath of our ‘war to make the world safe for democracy’ real democracy now seems unsafe in America”. He added later, “A mob is a mob whether made up of government officials acting under instructions from the department of justice or of criminals, loafers and the vicious classes”.
President Warren G. Harding entering White House in March 1921 ignored this warning. He brought to Washington crooked supporters from his time as small-town newspaper publisher. The FBI loved the new freedom to pursue “enemies”, backing barons against unions. By 1923, political espionage was rampant against US senators and congressmen. Harding died in 1923 and his upright successor, Calvin Coolidge, began fixing the FBI decay.
Today Robert Mueller, who headed the FBI from 2001-13 (two years beyond the mandated 10-year term), is special prosecutor looking into Russian interference in US presidential election. That President Donald Trump is unable to fire him, despite his unhappiness, indicates Mr Mueller’s stature earned as assistant US attorney in San Francisco before heading the FBI. Compare that to the travails of last three directors of the CBI. Another former director, having exonerated then chief minister Narendra Modi in Godhra riots inquiry, is today a high commissioner abroad.
Thus, in conclusion, the CBI director should be selected from a pool that goes beyond senior policemen; chief vigilance officer cannot overlook the CBI’s functioning as he is invariably a former bureaucrat handpicked by the government and subjected to pressure. Any agency will degrade if the government is led by Harding-like provincial minds with IOUs to undesirable characters.