Can the CBI be made independent?
The recent debate on the Lok Pal Bill has thrown up three propositions. One, retain the status quo; two, transfer the control to the Lok Pal; and three, make the CBI an independent organisation.
Presently, the CBI is governed by an outdated Act of Second World War vintage, called the Delhi Police Establishment Act, which was enacted in 1946 to regulate the functioning of the Special Police Establishment. Section 4(1) of this Act vests the superintendence of the CBI in the central government, just as Section 3 of the Police act of 1861 vests the control of the state police force in the state government.
Since the word ‘superintendence’ has not been defined in any law, both the central and the state governments have misused the police forces to serve their partisan interests. There is a general public perception that the CBI, like other police forces in the country, is influenced in its work by political considerations. The fact that every government at the centre has misused the CBI to serve its political interests can hardly be denied
Can any government ever think of making the CBI an independent organisation? If one plays the devil’s advocate, one can think of two arguments that the central government can cite in favour of retaining its control over the CBI. One, any police force, including the CBI, is a part of the executive and in the Westminster model of governance that we have adopted, the Minister concerned is responsible to the parliament for the efficient and honest functioning of his departments. Two, the police, including the CBI, enjoys tremendous powers and it is important for the government to ensure these powers are used judiciously.
While the first argument can be considered valid, the second can be contested. It is true that in a democratic system, the police powers need to be controlled to prevent their misuse, but then it has to be realised that controlling the police itself becomes a source of tremendous powers that can be misused to serve partisan interests, as has happened so frequently in this country. What is needed is to set up institutions and mechanisms to balance these two requirements.
In the Havala case judgement, the Supreme Court tried to make one such attempt. While the Court transferred the responsibility of exercising superintendence over the CBI’s functioning from the government to the Central Vigilance Commission (CVC), it simultaneously held that the concerned minister should be ultimately responsible for its efficient functioning to Parliament. The Court maintained that none of the minister’s powers could extend to interfering with the course of investigation and prosecution in any individual case. Investigation is to be governed strictly by the provisions of law.
Unfortunately, the government did not implement the judgement of the Supreme Court either in letter or in spirit. The Central Vigilance Commission Act of 2003 derailed the judgement in three important ways. One, it resurrected the Single Directive despite the fact the Court had held it null and void, being bad in law. Two, It did not transfer superintendence to the CVC fully. The CVC Act, 2003 prescribed that the CVC shall exercise superintendence not over the CBI but over the Delhi Special Police Establishment (DSPE) only, regarding cases registered under the Prevention of Corruption Act, 1988. Three, in exercising superintendence over the organisation, the government did not keep itself within the boundaries as defined in the judgement. It continued to influence decisions regarding the initiation as well as the process of CBI’s investigations.
The manner in which the central government thwarted the implementation of the Supreme Court’s judgement in the Havala case is similar to the manner in which the state governments have continued till now to defy the apex court’s directives in the judgement delivered on September 22, 2006 in Prakash Singh’s case.
The possibility of misuse of police by the government of the day has caused concern in other countries too. They have found solutions by developing traditions of good governance and setting up new institutions. In the United Kingdom, they appear to have successfully implemented a very subtle distinction between the police as an organisation and policing as a set of activities. While the police as an organisation is the responsibility of the government, the policing as a set of functions is the responsibility of the head of the police force. Government’s role is to formulate policies, provide budget, set standards and monitor performance, but it cannot give any operational direction to the police chief. The Police Acts in some other countries have dealt with this problem by clearly defining the role and responsibilities of the government and the police department.
Keeping our system and environment in view, the team Anna should advocate for mechanisms and institutions that will ensure the CBI’s functional autonomy, as no government will ever agree to relinquish its control over an organisation like the CBI. It should of course insist on the Lokpal to have its own independent investigating agency, which need not necessarily be CBI.
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This article was published in the Indian Express dated December 28, 2011
Some ideas that figured in the above article formed a part of the proceedings of the Rajya Sabha on Lokayukta Bill. Relevant extracts from the speech of Shri D Raja, CPI (M) member delivered in the Rajya Sabha on December 29, 2010 are given below;
"Finally, Sir, about CBI, I would like to say that CBI as an
investigative agency should have independence. It should be freed
from political interference. At the same time, we should be
cautious; we cannot give absolute autonomy to an organization like CBI and CBI must be made accountable and answerable to some
authority.
SHRI D. RAJA (CONTD.): Sir, I am finishing after one point. In an
Article "Freeing the CBI" by G.P. Joshi, former Director of Bureau of Police Research and Development, it is pointed out, Sir, "The United Kingdom has successfully implemented a very subtle distinction between the Police as an organization and policing as a set of activities. While the Police as an organization is the responsibility of the Government, policing as a set of functions is the responsibility of the police force. Government's role is to formulate policies, provide Budget, set standards and monitor performance, but it cannot give any operational direction to any Police Chief." (Time bell)
In Queensland, Australia, communication between the Minister and the Commissioner of Police is guided by clear provisions in the Police Act. Directions from the Minister have to be given in writing and the Commissioner of Police is bound to comply with directions but keep a record of all correspondence which is later placed on the floor of the Assembly.
This is the experience. Now, I am asking the Minister and the
Government. ...(Interruptions)... Are they going to treat CBI like this?
MR. CHAIRMAN: Your time is over. ...(Interruptions)... There is
no time left. ...(Interruptions)...
SHRI D. RAJA: The Government will have to consider these points
with all seriousness. Otherwise, this Bill will remain a weak Bill. We want a strong and effective Bill for which we have given
amendments. Our amendments need to be considered with all
seriousness by the Government, by the House."
