Elusive autonomy

Following swingeing indictment by the Supreme Court of the way the CBI functions which called it ‘a caged parrot’ of its political masters, the Union government has set up a group of ministers headed by Union finance minister P Chidambaram to draft legislation that will protect the investigating agency from external and political influence.

The government has to reply by July 10 when the case is scheduled to be heard next. The apex court has made it clear in unequivocal words that it wants to insulate the prime investigating agency from any sort of influence. The question needs to be asked why the directions given in Vineet Narain vs Union of India, also known as the Jain hawala case, in December 1997 by the Supreme Court failed to bring about the required changes.

In that case, it took the role of monitoring the investigation by the CBI into corruption charges against the high and mighty and asked the CBI to report to itself the progress made in the investigation instead of the concerned minister, thus breaking the chain of command. This amounted to rewriting the Constitution as it was a direct interference in the working of the police. The Court did not stop there. It went on to give guidelines as to how the CBI and the Central Vigilance Commission should be restructured so that it is impervious to any extraneous influence, and how the Chief Vigilance Commissioner (CVC) should be selected.

 It gave the following directions: The CVC shall be given statutory status, selection for the CVC shall be done by a committee comprising the PM, the Home Minister and the Leader of the Opposition and this shall be done immediately, the CVC shall be responsible for the efficient functioning of the CBI and shall be entrusted with the responsibility of superintendence over it while the government shall remain answerable to Parliament for its functioning, the director of the CBI shall be selected by a committee and shall have a minimum tenure of two years, etc.

  However, these directions were not complied with, but the court, in Union vs Prakash P Hinduja’s (2003) case did not take it to be contempt of court: “In A K Roy vs Union of India (1982), it was held that no mandamus can be issued to enforce an Act which has been passed by the legislature. Therefore, the direction issued regarding conferment of statutory status on CVC cannot be treated to be of such a nature, the non-compliance whereof may not amount to contempt of the order passed by this court.” Thus, the court realised it was overstepping, but it makes a mockery of the directions given by the court. Moreover, it creates scope for non-compliance of any orders which the executive decides is beyond the jurisdiction of the judiciary. However, some of the directions were implemented later on.

Meaningless committee

So, after the clarificatory judgment in Hinduja, can the Supreme Court still issue mandamus to enforce or enact a law? Moreover, the SC failed to liberate the CBI from the clutches of the government by laying down that a committee comprising CVC, home secretary and personnel secretary would select the director, CBI as the home and personnel secretaries are representatives of the government. This committee is meaningless and has selected only those candidates informally handpicked by the government.

The question is: Will the new legislation make the CBI impervious to external influence. Section 36 of the CrPC confers complete autonomy on the investigation but the fact is known to everyone how it is compromised. It is because the law and order and investigation are not separate. So, the same person who is under superintendence of someone in matters of law and order cannot afford to defy them in matters of investigation. Recommendations have been made since 1902 to separate the two but it has never happened.

The concept of superintendence over the police came with the Police Act, 1860 which was a direct offshoot of the 1857 war of independence which the British love to call Sepoy Mutiny, and so the power of superintendence over the police was given to the district magistrate as he/she is overall responsible for the law and order. But the police do enjoy full autonomy for investigation under the CrPC. In the Jain hawala case, the SC gave the power of superintendence over the CBI to the CVC which is not the ideal position. The police are answerable only to the court for the investigation. Deterioration in law and order is a direct fall out of the shoddy investigation. If crimes are not investigated properly, it will not lead to conviction and will embolden criminals.

If the CBI is to be made really independent, then it must be restructured thoroughly. Granting full independence will mean creating another Frankenstein. In the US, J Edgar Hoover had become so powerful as the head of the Federal Bureau of Investigation (FBI) that he even spied on John F Kennedy and Robert Kennedy, his own President and attorney-general.

Agencies like CBI, IB, RAW, etc. should not be the sole fiefdoms of police officers. In the USA, bankers, lawyers and other professionals head the CIA. Former president George W Bush Sr was the CIA chief earlier. The CBI can also be an organisation of experts from different fields like lawyers, bankers, cyber experts, stock exchange experts, etc. and the post of director should be open to all.