The CBI has become controversial not merely because of its "failure" in recent high-profile cases like the Aarushi murder case, 2G spectrum allotment case or the Adarsh Housing scam case. Several earlier developments had affected its status and functioning.
On November 7, 2013 the division bench of the Gauhati High Court struck down the Union Home Ministry's April 1, 1963 resolution that established the CBI, replacing the Delhi Special Police Establishment (DSPE). It said that the resolution was not a Cabinet decision but only an executive order. The Supreme Court stayed this decision on November 9. Yet, there is nothing in the public domain whether a final decision was pronounced by the Supreme Court on the CBI's legal status.
Several former CBI officers, including its chiefs, have published their experiences in resisting unwarranted interference during investigations. In 2013, the Supreme Court described the CBI as a "caged parrot" while discussing the allocation of coalfield licences to private companies. Another embarrassing moment was in February 2001 when the Central Administrative Tribunal (CAT) quashed the appointment of the incumbent Director when he had almost completed his term.
The yardsticks to judge CBI's efficacy should be independence in decision making, clean reputation, expertise in investigation and results in courts. The CBI's investigation track record has been well above that of state police forces. Its conviction rate was 67-70% during 2007-2011 although it dipped to 65-69% in later years (2014-2016).
This is much better than that of the state police forces, which in 2014 wildly fluctuated between 77% (Kerala) and 10% (Bihar). Its credibility as an impartial high-level investigator is proved by the fact that even diehard political opponents recommend CBI to take over politically controversial criminal cases for impartial investigation. That level of confidence in them is exhibited by the higher courts, too.
If so, why should its reputation be so fluctuating and contentious? Is it because of occasional political interference or their inability to satisfy higher expectations as the foremost investigating agency? Is it because of their senior staffing practice of selecting police officials who during their state service might have earned some odium of being too close to political circles?
Are they unable to produce results in complicated graft investigations due to loopholes in law? Or is it because they are unable to meet public expectations as the effective evil eradicator in all highly visible "scams" which are beamed to them every day by our media?
A close examination would reveal that it is a combination of all these that is responsible for its oscillating reputation. The Prevention of Corruption Act (1988), drafted by the UPA government in 2013 and as amended by the NDA-II government, has placed both bribe-giver and bribe-taker on the same pedestal, forcing anti-corruption activist Yogendra Yadav to call it the "Protection of Corrupt Act". It has also failed to specify criminal misconduct "without public interest". How then could anyone expect the CBI to root out corruption?
Former CBI officers say that the main reasons for failure of complicated "media-driven" cases on financial losses to the exchequer is their inability to prove the "Mens rea" (guilty mind) for all accused persons.
They try to overcome this difficulty by adding Section 120A (conspiracy) even in cases where there is no personal pecuniary advantage to some accused persons. However, Supreme Court rulings specify a host of factors to be proved for this charge to prevail, like exceeding jurisdiction, irrelevant consideration, colourable exercise of power, etc.
Next is the concept of "autonomy". Although our criminal laws give the CBI enough "autonomy" to investigate impartially, some ambitious officers want the CBI to be elevated to a constitutional status like the Election Commission. They quote the American FBI, which is totally autonomous.
This is a facile argument. The FBI works under the supervision of Attorney General (like our Law Minister). This post was created under the Judiciary Act, 1789, codified two years after the US Constitution was passed. In 1870, the Justice Department was created with US Attorneys and US Marshals. The FBI's website clearly says that the Bureau does not have even the power to decide whether a chargesheet is to be presented. That power is with the federal prosecutors or US attorneys.
Further, FBI is not a constitutional authority to take their own decisions. It has to obtain court orders for electronic surveillance of suspects.
The court has the power of monitoring the wire tap to prevent misuse. Its budget and operations are tightly supervised by Congressional committees. FBI's intelligence activities are supervised by the Director of National Intelligence. It has to obtain the concerned state's concurrence for investigating state crimes. Its anti-terror investigations are carried out by joint teams comprising even non-police officials. Finally, it has an "Inspector General" under the 1978 Act, independent of that organisation, who works as "whistle blower and auditor" to keep a tight check on their activities. Contrary to what our security analysts might think, even the FBI does not enjoy that type of "autonomy" which CBI wants.
The Supreme Court, during the course of the coalfield licences hearing asked the government whether they would codify a law insulating the CBI from outside interference. Unfortunately, no law can successfully insulate the organisation from such interference, especially when the superior levels in CBI are drawn from the state police. Both FBI and the British National Crime Agency (NCA) recruit their own cadre and do not depend on deputation for their senior cadre. In our case, the best way to achieve this is by not taking on "deputation" such police officers who are known to be brownnosing political leaders.
(The writer is a former Special Secretary, Cabinet Secretariat)