WILL THE CENTRAL GOVERNMENT’S AFFIDAVIT ENSURE CBIs AUTONOMY?
The Government of India’s affidavit on CBI’s autonomy filed in the Supreme Court on July 3, 2013 has already come in for considerable criticism. It has been called a “farce” a “camouflage” and a “remedy worse than the existing problem.”
Even if some of this criticism is treated as part of the overblown rhetoric, the fact remains that the government is definitely unwilling to let its control over the CBI go or even be diluted. The organisation is too important for the party in power to be allowed autonomy in its functioning. In fact, what the affidavit conveniently neglects to say is much more important than what it says.
What it says can be briefly summed up under the following main heads:
Appointment and Removal of the Head of CBI
According to the affidavit, the CBI director will be appointed by a collegium comprising the Prime Minister, Leader of Opposition and the Chief Justice of the Supreme Court. Even if this collegium succeeds in selecting the best from amongst the available lot, how this provision makes him autonomous in functioning is not clear. The affidavit does not say that the head of the organisation will not be entitled to any post retirement job under the central or state government. The last few years’ experience shows that the prospect of a post retirement gubernatorial or other cushy assignment reduces the resistance, if any, of the head of the organisation to outside pressures. This makes the clause relating to security of tenure almost redundant, though Director, CBI under the existing rules does enjoy a tenure of two years.
Setting up of an Accountability Commission.
It has been suggested that a panel of three retired judges of the Supreme Court or the high courts will be appointed by the government to entertain and inquire into "allegations of misbehaviour, incapacity, impropriety or irregularities" of CBI officials. However, most allegations against CBI are not made against individual officers but against the organisation, particularly about its being misused to harass and intimidate political opponents or to favour those who are the ruling party members or supporters. The affidavit is silent on this point. In any case, whatever its charter may be, how it will make the CBI autonomous in its functioning is not clear. This, in fact, is likely to saddle the bird with another master to sing to, instead of freeing it.
Exercising superintendence over the CBI
This is at the heart of the problem of making the CBI autonomous. The CVC exercises superintendence over the CBI’s work relating to corruption cases and in respect of its other work, the central government does so. The affidavit not only maintains this system of dual control, but makes no attempt to define what superintendence means and this gap in the existing law having bearing on the autonomy of CBI continues to exist What the affidavit says is so inadequate and general that it really becomes farcical: "while exercising the power of superintendence the Central government shall not exercise powers in such a manner so as to require the Delhi Special Police Establishment(CBI) to investigate or dispose of any case in a particular manner." It does not say that the government shall not interfere in any manner to influence CBI’s investigation work. It does not even admit the government has no power under law to do so. Even the havala case judgement was more direct and to the point in this regard. It ruled that “…the process of investigation, including its initiation, is to be governed by the statutory provisions….. This is not an area which can be included within the meaning of “superintendence” in section 4(1)”
In addition, the administrative control over the CBI remains with the government and it is this which gives them an unwritten power to interfere and control. Despite the fact that Director CBI will now be chosen by a high powered body, even then he is not considered good enough to select officers of his choice or remove the dead wood from the organsiation. He has to go to the government for this purpose. "Director CBI shall, recommend officers for appointment to the posts of the level of superintendent of police and above and also recommend extension or curtailment of the tenure of such officers," the affidavit says. This is exactly what is done under the present arrangements.
Sanction to Investigate and Prosecute
Director CBI has no freedom either to investigate or to prosecute some cases without government’s sanction. The Single Directive, which debars CBI from undertaking any inquiry or investigation against officers of the rank of Joint Secretary and above without government’s permission, still remains, even though the Supreme Court in its Havala case judgement had declared it null and void.
The affidavit poses to be generous by declaring that the CBI can go ahead with prosecution, if the sanction does not come within three months. This is not a new idea. The Supreme Court in its various judgements, the latest being Subramanian Swami’s case decided in 2012, clearly maintained that sanction for prosecution should be deemed to be given, if it is not received within three months. The Parliamentary Standing Committee of the Ministry in its 37th report in March 2010 had clearly recommended that sanction must come within a period of 15 days, if Director of Prosecution concurred with the view that prosecution was necessary
The Government of India’s affidavit on CBI’s autonomy filed in the Supreme Court on July 3, 2013 has already come in for considerable criticism. It has been called a “farce” a “camouflage” and a “remedy worse than the existing problem.”
Even if some of this criticism is treated as part of the overblown rhetoric, the fact remains that the government is definitely unwilling to let its control over the CBI go or even be diluted. The organisation is too important for the party in power to be allowed autonomy in its functioning. In fact, what the affidavit conveniently neglects to say is much more important than what it says.
What it says can be briefly summed up under the following main heads:
Appointment and Removal of the Head of CBI
According to the affidavit, the CBI director will be appointed by a collegium comprising the Prime Minister, Leader of Opposition and the Chief Justice of the Supreme Court. Even if this collegium succeeds in selecting the best from amongst the available lot, how this provision makes him autonomous in functioning is not clear. The affidavit does not say that the head of the organisation will not be entitled to any post retirement job under the central or state government. The last few years’ experience shows that the prospect of a post retirement gubernatorial or other cushy assignment reduces the resistance, if any, of the head of the organisation to outside pressures. This makes the clause relating to security of tenure almost redundant, though Director, CBI under the existing rules does enjoy a tenure of two years.
Setting up of an Accountability Commission.
It has been suggested that a panel of three retired judges of the Supreme Court or the high courts will be appointed by the government to entertain and inquire into "allegations of misbehaviour, incapacity, impropriety or irregularities" of CBI officials. However, most allegations against CBI are not made against individual officers but against the organisation, particularly about its being misused to harass and intimidate political opponents or to favour those who are the ruling party members or supporters. The affidavit is silent on this point. In any case, whatever its charter may be, how it will make the CBI autonomous in its functioning is not clear. This, in fact, is likely to saddle the bird with another master to sing to, instead of freeing it.
Exercising superintendence over the CBI
This is at the heart of the problem of making the CBI autonomous. The CVC exercises superintendence over the CBI’s work relating to corruption cases and in respect of its other work, the central government does so. The affidavit not only maintains this system of dual control, but makes no attempt to define what superintendence means and this gap in the existing law having bearing on the autonomy of CBI continues to exist What the affidavit says is so inadequate and general that it really becomes farcical: "while exercising the power of superintendence the Central government shall not exercise powers in such a manner so as to require the Delhi Special Police Establishment(CBI) to investigate or dispose of any case in a particular manner." It does not say that the government shall not interfere in any manner to influence CBI’s investigation work. It does not even admit the government has no power under law to do so. Even the havala case judgement was more direct and to the point in this regard. It ruled that “…the process of investigation, including its initiation, is to be governed by the statutory provisions….. This is not an area which can be included within the meaning of “superintendence” in section 4(1)”
In addition, the administrative control over the CBI remains with the government and it is this which gives them an unwritten power to interfere and control. Despite the fact that Director CBI will now be chosen by a high powered body, even then he is not considered good enough to select officers of his choice or remove the dead wood from the organsiation. He has to go to the government for this purpose. "Director CBI shall, recommend officers for appointment to the posts of the level of superintendent of police and above and also recommend extension or curtailment of the tenure of such officers," the affidavit says. This is exactly what is done under the present arrangements.
Sanction to Investigate and Prosecute
Director CBI has no freedom either to investigate or to prosecute some cases without government’s sanction. The Single Directive, which debars CBI from undertaking any inquiry or investigation against officers of the rank of Joint Secretary and above without government’s permission, still remains, even though the Supreme Court in its Havala case judgement had declared it null and void.
The affidavit poses to be generous by declaring that the CBI can go ahead with prosecution, if the sanction does not come within three months. This is not a new idea. The Supreme Court in its various judgements, the latest being Subramanian Swami’s case decided in 2012, clearly maintained that sanction for prosecution should be deemed to be given, if it is not received within three months. The Parliamentary Standing Committee of the Ministry in its 37th report in March 2010 had clearly recommended that sanction must come within a period of 15 days, if Director of Prosecution concurred with the view that prosecution was necessary
