SINGLE DIRECTIVE SHOULD REMAIN BURIED

LET THE BUREAUCRATS HEAR THE SIGNATURE TUNE
       (A Rejoinder to Ms Shailaja Chandra’s article)

I read Ms Shailaja Chandra’s article “Day of the Sleuth” published in the Indian Express of May 9, 2014 with  interest as it dealt with an important subject.

The article is about the supreme court’s judgment quashing Section 6 (A) of the Delhi Special Police Establishment Act of 1946, which debarred the CBI from inquiring into any allegation of corruption involving an officer of the rank of Joint secretary and above, without the approval of  the central government.
The article has some factual errors and erroneous arguments.  It says the “judgment annuls the protective provisions that had been passed by Parliament, not once but twice —  not counting an ordinance which had lapsed mid-way.”  These provisions were incorporated in law only once- by the Central Vigilance Commission Act of 2003.   The Prevention of Corruption (Amendment) Bill of 2013, which tried to provide this protection to retired bureaucrats too, never went beyond the Rajya Sabha. 

Section 6 (A) embodied the executive directions popularly known as the Single Directive. After the Court declared the Directive null and void in the Havala case judgement, the government tried to bring it back by promulgating the Central Vigilance Commission Ordinance, 1998 on August 25, 1998.   This Ordinance did not lapse, but was amended by the Central Vigilance Commission (Amendment) Ordinance on Oct 27, 1998 because of the huge public outrage at the government’s attempt to subvert the Court’s judgment. The Amendment dropped the Single Directive clause.  The government then   introduced the Central Vigilance Commission Bill in the Lok Sabha on Dec 20, 1999. Though the original Bill did not have any clause about the Single Directive, it was included in the Act by the Joint Committee of the Parliament headed by Shri Sharad Pawar despite a strong dissenting note by a member of the Committee Shri Kuldip Nayar.

Ms Chandra says that under the Prevention of Corruption Act, a public servant can be prosecuted if a decision taken “results in pecuniary gain to private parties.”   There is no such provision in the Prevention of Corruption Act, 1988. 

Lets now come to the arguments.  The article makes an argument in the form of a question: “But how far can one expect corruption to diminish as the result of the removal of a discriminatory barrier..?” The barrier was removed by the Court not really to reduce corruption, but because it was discriminatory and also found to be “wholly subversive of independent investigation of culpable bureaucrats,” thereby striking “at the core of rule of law”.   Ms Chandra conveniently overlooks this important concern and frames the terms of debate wrongly.  She gives statistics from 2012 report of the Central Vigilance Commission to prove that one cannot expect much in terms of reducing corruption. According to these statistics,  the CVC received 37,000 complaints  in 2012, of which a fifth had to be closed because they were “anonymous”, “pseudonymous”, “vague” or “unverifiable”.  The conclusion drawn is that “a large number of complaints get generated but every complaint does not necessarily merit investigation.”  Correct, but the point is that the statistics cited in the article are not germane to the subject under discussion.  Its not the total number of complaints received by the CVC, but the number of complaints of corruption received by the CBI against senior officers of the rank of joint secretary and above and how they were dealt with, which are relevant.  Full statistics are not available, but para 1.9 of the CVC’s 2012 report does mention that CBI sought approval of the government to inquire into corruption allegations against officers of the rank of Joint Secretary and above in 27 cases.  Permission was granted in 20, while it was denied in 3 and was pending in 4 cases at the end of 2012.  The effects of seeking prior approval under Section 6 A were brought to court’s notice by the amicus curie in the case.  His contention that this provision of law “would mean leakages as well as breach of confidentiality and would be wholly destructive of an efficient investigation” was accepted by the court.

 Ms Chandra further argues that the fate of the Prevention of Corruption Act (Amendment) Bill, 2013 “has now become uncertain.” The fate of this Bill, which includes many other provisions besides Section 6 (A), remains what it was. Only the clause relating to this provision would become void if it is resurrected.

The argument that Section 6 A was necessary to protect the decision making level officers from the threat and ignominy of malicious and vexatious inquires, so that they could take their decisions without fear of being victimized, was considered and rejected  by the Supreme Court  in the Havala case as well as the  petition of Dr Subramanian Swamy.  In its   judgement under discussion, the Court observed that there was no material on record “ to suggest even remotely that during the period when the Single Directive was not in operation…., CBI harassed any senior government officer or investigated frivolous and vexatious complaints.” There was however considerable material on record to show that that there was a “criminal-bureaucratic-political nexus” which could always “block inquiry and investigation by CBI” by using section 6A. Ms Chandra’s fears that the judgement could result in “unbridled sleuthing of the decision-making process” are not founded on facts. As pointed out by the Court, this “high-pitched argument in justification of Section 6-A,…does not hold water.”

The Court finally concluded: “The signature tune in Vineet Narain is, ‘However high you may be, the law is above you.’. We reiterate the same. Section 6-A offends this signature tune and … Article 14 of the constitution.”
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The above was written in response to Ms Shailaja Chandra’s article “Day of the Sleuth” published in the Indian Express of May 9, 2014, which is reproduced below:

Day of the sleuth
By Shailaja Chandra

The Supreme Court has quashed Section 6A of the Delhi Special Police Establishment Act, which required prior sanction of the government before investigating corruption cases involving senior officers working under the Central government. It would be foolhardy for a former civil servant to join issue with the judgment. While humbly accepting the court’s logic, it is also important to foresee what is likely to happen because of the verdict.

Mainly, the constitutional bench found the prior sanction provisions in the impugned enactment to be discriminatory. It divided the bureaucracy into two sets of officers — senior and working under the Central government’s control and relatively junior officers working both under the Central and state governments. It notes: “All government officials have to be treated equally and have to face the same process of inquiry in graft cases… The status or position of a public servant does not qualify such public servant to be exempt from equal treatment. The decision making power does not segregate corrupt officers into two classes as they are common crime doers and have to be tracked down by the same process of inquiry and investigation.”

With that, the judgment annuls the protective provisions that had been passed by Parliament, not once but twice —  not counting an ordinance which had lapsed mid-way. But how far can one expect corruption to diminish as the result of the removal of a discriminatory barrier, even if one accepts that it treated public servants unequally? For that, one has to consider the magnitude of the problem as highlighted by the Central Vigilance Commission (CVC), a top corruption watchdog to which the Supreme Court itself was instrumental in according statutory status. The latest annual report available on the CVC’s website refers to over 37,000 complaints received in 2012 (including “carry forward” cases from earlier years). Of these, a fifth needed to be closed because they were “anonymous”, “pseudonymous”, “vague” or “unverifiable”. This demonstrates how a large number of complaints get generated but every complaint does not necessarily merit investigation. Until now, the complaints were being scrutinised by the three-man commission. But now that the need for prosecution sanction has been removed, it would be possible for the CBI to start investigating any complaint considered serious. Past experience belies the hope that this police organisation would be as clinical in its approach as the CVC.

In the same report, the CVC refers to cases where criminal proceedings were recommended at the first stage of giving advice. The CVC supported investigation in less than a third of the cases where the CBI had submitted reports. Surprisingly, and contrary to popular perception, the CVC finally recommended criminal action in just 2.6 per cent of the cases received from the CBI and the chief vigilance officers. An overwhelmingly large proportion — as high as 50 per cent of the total cases — were advised to be closed, which only demonstrates that a preliminary examination undertaken by a statutory body did not point to corruption. In 30 per cent of the cases, departmental action was ordered, which is as different from criminal prosecution as chalk is from cheese. In only a fifth of the cases were routine administrative actions like the issuance of a warning advised. So, unless the CBI has eyes at the back of its head, the scourge of corruption is not going to be eliminated simply by giving it unbridled investigative authority against senior government personnel.

The second question to consider is the fate of the Prevention of Corruption Act (Amendment) Bill, 2013, which was introduced in the Rajya Sabha in August 2013. Since it was initiated in the Upper House of Parliament, the amendment bill cannot lapse even with the dissolution of the 15th Lok Sabha. This bill retains provisions for prior sanction for investigating serving officers and seeks to widen the ambit to protect retired public officials, too. Members of Parliament carry no brief for civil servants and when the amendment bill was introduced in the Rajya Sabha, it was referred to a parliamentary standing committee, which gave its recommendations. Ten members of the Upper House and 20 members of the Lower House gave their recommendations after interacting with a large pool of knowledgeable and experienced organisations. These included representatives from state governments, managements of banks, ports, petroleum and lignite corporations, select NGOs, chambers of commerce and industry, the central vigilance commissioner, the CBI and the director, enforcement, to name just some. The fate of this comprehensive bill has now become uncertain.

It is also important to look at how the bulk of the complaints are generated. Wherever large financial considerations are involved, public servants are required to list the risks and benefits of preferring certain strategies over others. There are two stated goals behind such decision-making: higher growth and improving overall development. Invariably, the private sector is a key partner in most endeavours. Whether it relates to tax rationalisation, revision of duties and fees, disinvestment or disposal of public assets, incentivising competitiveness, selecting a concessionaire or the build-operate-transfer route, someone has to gain but many necessarily have to lose. Under the Prevention of Corruption Act, a public servant can be prosecuted if she has taken a decision “that results in pecuniary gain to private parties”. In the process of economic decision-making, private parties are bound to benefit. Yet, it is normal for a string of complaints to be generated as soon as the decision is made public. Because of a spate of corruption cases, which are at various stages of prosecution, officers have already begun to shrink from decision-making. It has now to be seen how much the May 6 judgment will further hobble their approach.

This article is not intended to defend dishonest civil servants. While equality before law is fundamental, the need to build institutions is also vital. The biggest fallout of a correct and well-intentioned judgment could be unbridled sleuthing of the decision-making process that is the hallmark of governance.

The writer is a former secretary to the government of India and former chief secretary, Delhi
express@expressindia.com

APPOINTMENT OF ADDITIONAL DIRECTOR, CBI

APPOINTMENT OF ADDITIONAL DIRECTOR, CBI

The UPA II government has a penchant for creating unnecessary controversies regarding appointments to top posts in important institutions. Earlier, the government had to cut a very sorry figure in the Supreme Court when they appointed P. J. Thomas in the office of the Chief Vigilance Commissioner, despite strong opposition by the leader of the opposition. More recently, they again insisted on having their man P.P. Rao as the fifth member on the selection panel of the anti-graft body Lokpal, forcing Sushma Swaraj to take up the matter with the President of India. There is no similarity between the two cases, as P P Rao is an eminent jurist, with a well earned reputation. However, because of an extremely poor record of this government in dealing with corruption, public tend to look upon government’s appointments to such crucial posts with a suspicious eye. They think the government generally tries to plant its own pliable officers in important posts.

Following on the heels of the decision to appoint P. P. Rao comes the controversy surrounding the appointment to the post of Additional Director, CBI. This time, the government is at loggerheads not with the leader of the opposition but with the Central Vigilance Commission. The Commission recommended an officer for appointment to this post; the government chose a different person.

Appointments to posts above the rank of Superintendent of Police in the CBI have to be governed by the provisions of law as laid down in the CVC Act of 2003, which amended relevant sections of the the Delhi Special Police Establishment Act of 1946. The Act sets up a Committee, with the Central Vigilance Commissioner as the head, Vigilance Commissioners and Secretary, MHA and Secretary (Coordination and Public Grievances) in the Cabinet Secretariat as members to recommend appointments to senior posts in the CBI. The person recommended by this Committee for appointment to the senior post in the CBI was not acceptable to the government. The PMO has defended the government’s decision on two grounds:

1. The Committee’s decisions are not binding on the government, as they are merely recommendatory in nature. The government was within its rights to reject the person recommended by the CVC. The government seems to be right in this regard as Section 4 C (2) of the Delhi Special Police Establishment Act, 1946 clearly authorises the government to “pass such orders as it thinks fit” on the recommendation made by the Committee. The matter, however, is not as simple as it appears. There are other points that are equally important. One, it is not the government but the CVC that exercises superintendence over anti corruption work of the CBI. The Additional Director in CBI deals mainly with that type of work. The Commission is therefore expected to have a better understanding of the requirements of the post and the person who would be more suitable for the assignment. Two, very senior representatives of the central government in the form of Secretary, MHA and a Secretary of the Cabinet Secretariat are members of the selection committee. They are also a party to the recommendation made by the selection committee headed by the CVC. It more or less amounts to saying that one part of the government is willing to suggest one person for the post while the other part of the government in the form of PMO is anxious to appoint some other person. Three, the legal provision that sets up a committee to select names for a senior post in the CBI is an important statutory step to cut down the government’s discretion in such cases. The government should not give an impression that it can circumvent such provisions by sticking to a highly legal interpretation of their powers.

2. The other ground on which the government has justified its selection is that of seniority. The person appointed by them is senior to the name recommended by the CVC. Seniority is an important but not a necessary condition to make such decisions. There are innumerable examples where seniority was given a go by when appointments to important posts were made by the government. To give only one example relating to police, the government appointed Y.S Dadwal a couple of years ago as Delhi Police Commissioner, disregarding his senior colleague Smt Kiran Bedi.

All types of interpretations are being discussed in the media about the rejection of CVC’s recommendation. When such views are aired in the public, it embitters not only personal relationships but also sends a wrong signal down the line in the police department. The police being a hierarchical organization, it is important that the image of the top leadership in the service is not impaired. When an impression, rightly or wrongly, gains ground that a particular appointment is due more to lobbying than to merit and the government does nothing to remove that idea, the rank and file as well as the public may not repose full confidence in the senior officers’ability to come up to their expectations.

Reluctance on the part of the government to explain their decision is due to the feeling that it is their prerogative to make appointments to the top posts. This may be true, but then simultaneously, it is the citizens’ right in a democratic set up to know why the government has taken a particular decision. Appointment to a senior post in CBI is as important for the public as it is for the government. If a senior officer, who has been selected by a high powered committee set up by law for such purpose, has been disregarded for the post, the aggrieved person as well as the public must know the reasons for rejection.

POLICE REFORM- THE NEED OF THE HOUR

 POLICE REFORM- THE NEED OF THE HOUR 

For police officers in the country, September 22 is a day to remember.  It was on this day in 2006 that the Supreme Court delivered its long pending judgment in Prakash Singh’s case.  The judgement directed the state governments to comply with a set of six directives to kick-start police reform.  These directives included constituting a state security commission in every state   to act as a watchdog over the functioning of the police; prescribing a procedure for selection of the head of police; giving him and some other police officers a fixed secure tenure to reduce their vulnerability to outside pressures; setting up  police establishment boards to deal with transfers, postings and other service-related matters of police officers; constituting police complaints authorities at the state and district levels to look into complaints against police officers; and separating investigation from law and order work.  

Most state governments have not shown any inclination to implement the judgement. Some have given affidavits of compliance, even though there has been no change at the ground level. Majority of states have come up with some difficulty or other in implementing the directions of the Supreme Court. Fifteen states have enacted new Police Acts, more with a view to legitimising the status quo rather than complying with the Court’s directions. This is what Justice K.T. Thomas, who was appointed by the court to monitor the implementation of the judgement, had to say in 2010: “practically no State has fully complied with those Directives …. in letter and spirit, despite the lapse of almost four years since the date of the original judgment.”  

The judgement is noteworthy as the apex court for the first time attempted to insulate the state police forces from the illegitimate control of political executive; the Havala case judgement of 1998 had tried to do the same, but in case of CBI only.  However, like the Havala, this case too failed to make a significant impact.  The case was filed in 1996; it took the Court ten years to deliver the judgement and seven years later we remain more or less where we were before the judgement was delivered. 

A history of policing in this country shows that the police have often worked to serve the interests of the regime in power rather than to protect the rule of law.  There have been innumerable examples of police not doing their job professionally to please their political masters.

It is in this context that the resignation letter of Mr. Vanzara should be seen.  Till the other day, Vanzara was a rogue police officer, but now he is being projected by some politicians as a victim, who needs sympathy because his ‘God’ failed him in time of need.  Even if one accepts what Vanzara has said as the gospel truth, more than the God, it is the disciple “who could not rise to the occasion.”  Enforcement of orders given by a senior cannot be invoked to justify any departure from law. National as well as international instruments prohibit law enforcement officials from doing so. What Vanzara’s letter unwittingly advocates is the urgent need for police reform in the country.

What has happened recently in Muzafarnagar highlights the same need.   From all accounts received so far, it is obvious that there was an enormous failure of law enforcement machinery during the recent communal riots in Muzafarnagar.  This is not the first time that such failure has occurred.    A number of judicial enquiry commissions set up to enquire into communal riots have commented adversely on the handling of such disturbances by the police. The National Police Commission referred to the stringent criticism received by it that the police often did not act impartially and objectively.   Considering the fact that the communal violence has continued to rear its ugly head repeatedly in this country since Independence, if there is any area of law and order management where the police should have acquired mastery by now, it is in dealing with communal riots.  But this has not happened.  Why? It is because the police have been so badly politicised that their will to act impartially and courageously in conformity with law has been thoroughly weakened.  As the Parliamentary Standing Committee of Home Affairs in its Eighty Eight Report (April 2002) said: “Today we have a police, which is politicised and politically polarised.  For it has become a pawn in the hands of its masters.  In return, the policemen get political patronage, which has become essential for their survival.”  The worst victim of this system of politicised policing is the common man, who really wants efficient and reliable policing but is not being heard.  This also has serious practical implications for such basic issues as democracy, freedom, rights and dissent.

Thus police reform is the need of the hour, but it is being fiercely resisted. Non implementation of Supreme Court’s judgement shows how deep seated and strong has been the resistance to police reforms.  It is obvious that insulating the police from politicisation and criminalisation and accountability of police are at the heart of reform and in need of urgent and vital attention from the point of view of addressing public needs and sustaining the constitutional system and rule of law. But it is exactly this type of reform that the political executive is not willing to effect. As long as this reform does not occur, officers like Vanzara will keep on worshiping a false God and Muzaffarnagar will continue to be repeated elsewhere.

TACKLING THE RAPE MENACE

 THE REAL DETERRENT

The Delhi gang rape incident of December 16, 2012 led to such widespread public outrage as to force the central government to enact tougher anti rape laws. The incident appeared to have shaken the conscience of the nation to such an extent as to trigger a sense of hope that we would see a reduction, if not the end, of such incidents in future. The hope has been belied. Since then, the country has continued to witness a number of high profile rape incidents, where victims were not only Indians, including minor children, but even foreign tourists. The Mumbai gang rape incident of the 22 year old girl is the latest in this sequence of ugly events, which continue to take place unhindered and uninterrupted.

Why is this happening and why are we not able to control it? When the rape incident of Delhi girl was followed by the gang rape of a Swiss tourist woman in Madhya Pradesh, the Chinese Communist Party-run Global Times newspaper felt that “the frequent rape cases cast a shadow on the quality of Indian democracy.” They called it an indicator of the “failure” of India’s democracy to ensure good governance” and “the weakness and incompetence of India's democratic system.” The quality of governance at present may not be of the required standard, but to ascribe the increasing incidence of rapes in the country to the failure of democracy is somewhat far-fetched and fanciful. The reasons for continued assaults on women’s dignity that keep on happening in this country lie elsewhere. There are many reasons, but two are prominent. One is weak law enforcement and the other is conservative mindset.

Whenever such incidents occur, people blame the laws. The anti rape law in the country presently is quite harsh, as 20 year sentence is a fairly severe punishment. But people want stricter penalties, like chemical castration, death penalty, hanging the accused in public, flogging them etc. Despite all the evidence, we are not willing to accept that the effectiveness of laws in dealing with crimes lies not in how harsh they are or how stringent is the punishment they prescribe, but in how successfully they are enforced. Research done in the field of criminology has clearly established that it is the certainty of punishment and not its severity that deters people from committing crime.

This element of certainty is missing from the scene because law is not being enforced effectively. Enforcement of law has to be interpreted not merely in terms of police action but as the effective completion of the process of criminal justice, from the registration of FIR to final judgement in the case. The way the criminal justice system is functioning in this country, it holds no great terror to even the first timers, what to talk of the hardened criminals. While crime is increasing, conviction rate is declining. In 1971, conviction rate of total IPC crime was 62%, but by 2010, it had declined to 40.7% and in respect of rape it was as low as 26.6 %. Thus about 73.4% of those accused of committing rape get away after committing crime. This figure would be much higher if you include the number of cases in which FIRs are not registered or police do not succeed in charge sheeting the accused. Add to this the fact that the number of cases pending in courts is becoming alarmingly large and it takes years to settle them and you have the full picture about the ineffectiveness of the law enforcement machinery. According to data compiled by the Parliamentary Research Services (PRS), on 30th September, 2010, 2.8 crore cases were pending in subordinate courts, 42 lakhs in High Courts and 55 thousands in the Supreme Court. Justice is being delayed and denied. It is this ineffective enforcement that has reduced the deterrent effect of law.

Another reason why such crimes continue to occur in our society is our mindset, the way we look at women in our day to day lives. The cultural norms and traditions that flourish in our patriarchal society lower the dignity of women. Inside or outside the family, we do not treat them with respect. Violence against women gets its support from this type of environment.

A French tourist woman who came to India complained that even though she did not face any molestation, she was always afraid of the violence she saw in the eyes of some Indian males. Similar experiences were encountered by an American student Michaela Cross, from the University of Chicago, who came to India on a study trip for three months last year. During her stay, she experienced such relentless sexual harassment that she returned to her country with post-traumatic stress disorder. In her write up on the visit “India: the Story You Never Wanted to Hear,” she says that though she had prepared for the visit, “there was no way to prepare for the eyes, the eyes that every day stared with such entitlement at my body, with no change of expression whether I met their gaze or not. Walking to the fruit seller's or the tailor's I got stares so sharp that they sliced away bits of me piece by piece.”

Societal attitudes will take time to change. What the police and others like parents and teachers need to do is to draw lessons from the “Broken Windows” theory of criminology. According to this theory, small acts of deviance, if ignored, escalate into more serious and major crimes. Do not therefore ignore incidents of eve teasing or molestation on the basis that youngsters are entitled to some indulgence or of domestic violence on the ground that they are a family matter. In addition, the whole criminal justice system must work so that crime against women no longer remains a “low risk” proposition. Resources must be devoted to making the functioning of the entire criminal justice system more effective than it presently is.

 This is the original version of the  article published in the India Express dated August 27, 2013

WILL THE CENTRAL GOVERNMENT’S AFFIDAVIT ENSURE CBIs AUTONOMY?

 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

NEITHER A CAGED PARROT, NOR AN UNRULY HORSE

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)