Will judiciary rescue the caged parrot?
The Supreme Court, in 2013 had come down heavily on the CBI in a case related to the coal block scam, calling it a caged parrot'.
There is great expectation that this crisis will be the inflection point for the SC to pass stringent directions to insulate the CBI from political interference.
The recent events at the Central Bureau of Investigation involving the director and deputy director and the allegations of corruption and political obstruction that they have levied against each other, have yet again demonstrated that the premier investigative agency continues to be a political tool of the Central government. This is contrary to the law declared by the apex court and legislation passed by Parliament. Now, a unique and rare opportunity has come about from this unfortunate saga.
Background on the law
The government of India set up an Independent Review Committee (IRC) way back in 1997 to monitor the functioning of the CBI, the ED, and related agencies and give recommendations to ensure that investigations against powerful persons happen freely and without any outside interference. The report submitted by the Committee prefaced with the following words: “In the past several years, there has been progressive increase in allegation of corruption involving public servants. Understandably, cases of this nature have attracted heightened media and public attention. A general impression appears to have gained ground that the concerned Central investigating agencies are subject to extraneous pressures and have been indulging in dilatory tactics in not bringing the guilty to book. The decisions of higher courts to directly monitor investigations in certain cases have added to the aforesaid belief.”Sadly, this has not changed till date.
The Supreme Court, in the case of Vineet Narain, while noting the above comment and the inaction of the government to act on the recommendations contained in the report, proceeded to pass a slew of directions aimed at better governance through fair and proper investigation of all accused, regardless of their stature and influence. The court gave supervisory status of the CBI to the Chief Vigilance Commission, provided for appointment of an independent Chief Vigilance Commissioner, and also created structure and fetters to the post, power and discretion of the CBI director. The court also provided for a minimum two-year term for the CBI director CBI, to ensure that he has security of tenure during service, in a bid to insulate him from pressure from the powers that be.
Subsequently, a standing committee of the Rajya Sabha, vide its report tabled in March 2008, found that the legal fabric underpinning the CBI was not robust and needed urgent intervention to enable the agency to have a stronger sanction of law, to enable it to investigate offences from the first instance, without fear or favour, in a time-bound manner. The report recommended better training, more manpower, greater powers of search and seizure, more insulation from political action, and more funding to enable better investigation. No action was taken on the said report.
The Supreme Court, in 2013 had come down heavily on the CBI in a case related to the coal block scam, calling it a ‘caged parrot’. Chief Justice Lodha, in his widely reported comment, had added that the “agency must know how to stand up against pulls and pressures” while discharging its duty. While no change came from those words, they did prove well reasoned. Several U-turns taken by the CBI in politically sensitive cases such as those relating to Mayawati, Mulayam Singh Yadav, Tulsiram Prajapati, Vijay Mallya, Bofors, and the like, are well documented.
Recent events
Though envisioned as an apolitical, independent, unbiased, premier investigative agency to take on the biggest and most contentious cases of the country, the CBI has been reduced to a poll issue and a contentious point of controversy with the potential to make or break governments. The recent public spat between the director and the deputy director is a sad ode to the fact that that the bureau continues to be completely political, thus, undermining its credibility.
Over the last few months, the director CBI and his deputy have been trading allegations of corruption against each other. The feud appears to have started when the director Alok Verma filed a complaint with the CVC opposing the appointment of Rakesh Asthana as special director CBI, a year ago in October 2017, on grounds of corruption and that Mr Asthana was himself under investigation. Despite the objections raised, Mr Asthana was brought in. The bad blood between the officers led to the Mr Asthana filing detailed complaints against the director with the CVC for interfering in probes and accepting bribes in several politically sensitive cases, in August 2018. Precipitating the matter, the director filed an FIR against Mr Asthana and another officer Devender Kumar, for bribery and corruption.
On the legal side, an agency certainly cannot investigate its own officer in this manner. The efficacy of such investigation shall remain suspect, and stymies the fundamental principles of having investigations done by an impartial, independent agency (which, ironically, is the whole objective of the CBI!). It does not help that bad blood has existed between the director and his deputy since the appointment of the latter, which shows the existence of a presupposition, which in itself is fatal to an impartial investigation. Senior IPS officers such as the CBI director should have the legal wherewithal to refer the charges to the CVC or to another unbiased and independent agency. If the CBI director himself does not appreciate the need for an impartial unbiased investigation in an internal case, there is nothing to suggest a more legally sound approach would prevail in the regular external cases of the CBI.
In a bid to contain the disaster, the government, on the recommendation of the CVC summarily sent these two seniormost officers of the CBI on indefinite leave, in clear violation of the two-year security of tenure for the director laid down in law. This hasty act, done at midnight, unwittingly destroyed any assumptions on who actually controls personnel and transfers in the CBI. The Act is a clear violation of the safeguards laid down in the Vineet Narain case and the CVC Act.
The appointment of the CBI director is done through a joint committee meeting, constituting the Prime Minister, the Chief Justice of India, and the leader of the Opposition. This procedure, laid down in the CVC Act, is to avoid political appointees to this sensitive post. If the government or the CVC wished to send the director on indefinite leave, it was this committee that had the ultimate jurisdiction to take a call and pass necessary orders. The matter was however, not referred to the committee.
On further recommendation of the CVC, the government appointed the number three person in the CBI, Nageshwar Rao, as an interim director. The CVC failed to appreciate that while there was no process for appointment of interim director in the Act, the appointment must bear the review of the same process, which is approval from the joint committee. Without the legal sanction of the committee, the order is suspect and would not bear the scrutiny of law.
Supreme Court’s rescue act
Aggrieved by his removal, the CBI director challenged the order of the CVC before the Supreme Court, on the very ground that his tenure could not be altered through such orders. The court, passing unprecedented orders to take control of the extraordinary situation, proceeded to bring in place an interim arrangement, whereby a retired judge of the Supreme Court would supervise the investigation to be conducted against the CBI director, and conclude the same within two weeks. The court further directed the interim director to not take any major policy decisions in the mean time and directed that all policy decisions made by him till then be placed before it in a sealed cover for review.
By monitoring the preliminary inquiry against the director, the Supreme Court has attempted to make the situation transparent, in a clear departure from the closed door midnight removals and appointments being undertaken by the executive and has brought the investigation into the judicial fold. The restriction on the powers of the interim director are a clear action on the point that his appointment itself has not gone through the procedure laid down in law and thus his power to take substantial policy decisions is still suspect. By passing these directions, the court has ensured that the procedure envisioned in the CVC Act and the Vineet Narain case does not become redundant, and that no precedent is created for a similar course of action in the future.
Conclusion
How the court and government proceed on the matter will certainly have great bearing on the future of the bureau. In the past, the Supreme Court has used cases like these to pass wide ranging directions to avoid future conflict, improve and rigidify existing systems, and create better processes for the future. There is great expectation from the court that this case, which has seriously dented and damaged the reputation of the CBI, would be the inflection point before the court to pass stringent directions to insulate the CBI from political interference, making a stronger and more robust investigative agency that is above reproach.
An anecdote seems to cover the situation succinctly: At the close of the Constitutional Convention of the United States, on September 17, 1787, as Benjamin Franklin left the hall in Philadelphia, he was asked, “What kind of government have you given us, Dr. Franklin?” He replied: “A republic, if you can keep it.”
That is the institution we, the people, have today — A premier, independent investigative agency, if we can keep it.
The authors are advocates at the Supreme Court of India