What Should the Functional Independence of CBI Mean?
(The new law must define CBI 'autonomy' and government 'superintendence')
Exasperated with the "sordid saga" of the handling of the CBI's coal scam status report by all concerned, the Supreme Court asked the Central government to frame a law that would ensure the CBI enjoyed functional independence. The government accepted the need and appointed a group of ministers to frame such a law.
Luckily for the government, the apex court prescribed two basic principles that should govern the formulation of such a law. The CBI should become neither a "caged parrot", nor an "unruly horse".
The "caged parrot" part of the apex court's observations received much wider publicity than the "unruly horse" portion. This is unfortunate, as these ideas are closely linked. Indeed, they flow from each other. The CBI, like any other police agency, enjoys enormous power, which must be controlled to prevent misuse. But then, controlling the agency itself becomes a source of power that can be misused to serve partisan interests. The new law for the CBI must, therefore, respect and balance these two ideas.
The present law vests the superintendence of the CBI in the Central government, though a part of the control has also been transferred to the CVC. However, the word "superintendence" has not been defined in any law, making it easier for the government to misuse the organisation to serve partisan interests.
The court tried to interpret the word "superintendence" in the Hawala judgment. According to the judgment, superintendence over the functioning of the department "would not include within it the control of the initiation and actual process of investigation". The judgment did not succeed in insulating the CBI from the illegitimate control of the Central government. The statutory laws governing the CBI remained silent on what the term meant, and no mechanism was put in place to ensure there was a shield between the CBI's functioning and political expediency.
The new law must focus on defining the term and fine tune it by prescribing the areas that should strictly be the preserve of the CBI chief, and where the government should have the power to intervene. It should specify what the word "superintendence" will include and exclude.
Just as the idea of superintendence has remained undefined, so has the doctrine of operational independence of police. Even in a country like the UK, where operational independence is a fundamental principle of policing, it has no statutory basis. It was articulated in judicial pronouncements, the most famous being the judgment of Lord Denning in the Blackburn case in 1968. Even though the Royal Commission on Police had endorsed it in 1962, till date, it has no constitutional or statutory basis. It has evolved over a period of time as a convention, which is fully recognised and respected by the government, the community and the police.
Being independent in functioning, however, should not mean that the investigating agency becomes unaccountable for its performance and behaviour. To ensure that lack of control does not mean lack of accountability, the Patten Commission on Policing in Northern Ireland substituted the concept of operational independence with that of operational responsibility: "Operational responsibility means that it is the chief constable's right and duty to take operational decisions, and that neither the government nor the Policing Board should have the right to direct the chief constable as to how to conduct an operation. It does not mean, however, that the chief constable's conduct of an operational matter should be exempted from inquiry or review after the event by anyone. That should never be the case." The group of ministers must take cognisance of this principle of operational responsibility and give it a statutory wrap.
Selection for the post of director of the CBI is of great importance for the doctrine of operational independence to succeed. The present arrangements allow the government to select a person of their choice. Even if the selection is done by a collegium, it should not be done on the basis of majority opinion. Leaders of opposition must be included in the collegium to balance the weight of different views. While providing security of tenure, the new law must have a provision debarring the incumbent of the post from holding a government job after retirement.
Operational independence means that the CBI should have full authority to inquire or investigate an offence, irrespective of the status of the person accused of having committed that offence. The Single Directive, which requires the CBI to obtain permission from the government to make an inquiry if the alleged offender is of the rank of joint secretary and above, should be discarded by the new law.
The new law must also do away with provisions of existing law that require obtaining of sanction to prosecute, particularly if the CBI is equipped with a separate directorate of prosecution, as was suggested by the apex court in its Hawala judgment. The directorate of prosecution will decide if the case is fit for prosecution.
In short, the new law must guarantee that the Central government's control over the CBI is so exercised as to ensure that the agency's performance is in strict accordance with law. The government's role is to formulate policies, provide sufficient budget, set standards and monitor performance, but it cannot give any operational direction to the CBI chief. The new law must delineate the CBI's powers as well as functions, specify that investigation will be its exclusive preserve and not allow any provision that can provide impunity. It must prescribe mechanisms to ensure the CBI's accountability for its performance and conduct.
(This article was published in the Indian Express dated May 25, 2013)
