At the height of the recent CBI vs Kolkata Police, Mamata Banerjee vs Narendra Modi confrontation in Kolkata, Odisha Chief Minister Naveen Patnaik was constrained to observe that the CBI must do professional, non-political job, and in a constitutional manner. Wise words from a long-serving chief minister neither aligned to UPA nor to NDA.

The occasion was a CBI team landing at the residence of Kolkata police commissioner Rajiv Kumar on a Sunday evening for the avowed purpose of questioning him in the Saradha chit fund cases, being investigated by the agency under orders of the Supreme Court. It was, no doubt, unbecoming of the police commissioner not to have cooperated with the CBI for questioning. As on today, he is a witness and supposed to be “acquainted with the facts and circumstances” of the case as he was the head of the Special Investigation Team (SIT) into the scam till the case was taken over by the CBI. He made things worse by being seen all along sitting by the side of the Chief Minister of West Bengal Mamata Banerjee, who was on dharna in protest against the ‘unedifying’ action of the CBI team gatecrashing at the residence of the police commissioner. There were better and more subtle ways available to discharge his duties to provide protection to the chief minister and maintain law and order.

On the other hand, a proper legal course was available to the CBI to secure the presence of a defying police commissioner for questioning -- by launching a prosecution under Section 174 IPC. Instead, the CBI chose to gatecrash at his residence, also thereby putting the safety of its team at jeopardy. The timing of the CBI action could not be worse. The ‘Interim Director’, M Nageshwar Rao, had been specifically restrained by the Supreme Court from taking any major decision. Sending a team to the residence of a top law-enforcement officer of the city in a four-year-old case was certainly a major decision. There was neither an emergency nor urgency. And a regular Director, CBI, was scheduled to assume charge the very next day.  

The problem was compounded by the trust-deficit pervading the body politic today. The CBI derives its legal powers from the Delhi Special Police Establishment Act of 1946 and is structured to function in conformity with the principle of ‘cooperative federalism’, as, under Section 6 of the act, its jurisdiction into a state extends only with the consent of that state. Also, ideally, there should neither be a ‘CBI vs CBI’ situation, as the media kept describing the earlier crisis in the CBI in October nor the far worse ‘CBI vs State Police’ as it happened in Kolkata.

In fact, in Kolkata, the CBI had plunged into its crisis of credibility for the second time within three months. The first time was on October 23, 2018, when its two top officers were given marching orders by central government functionaries and the Chief Vigilance Commissioner (CVC) in the middle of the night. The turmoil had its origin two years earlier on September 30, 2016 when, two days prior to the retirement of a former director, then Special Director R K Dutta, a tried and trusted officer, on the verge of promotion to the top office in the CBI, was suddenly transferred away to the Ministry of Home Affairs as Special Secretary. Instead, Additional Director Rakesh Asthana (Gujarat cadre) was appointed ‘Interim Director’. Almost two months thereafter, Alok Verma was appointed as the new Director. Though new to CBI work, with no prior experience, Alok Verma started asserting himself soon and on Oct 21, 2017, reportedly opposed the promotion of Asthana as Special Director on the grounds that there were charges of corruption against him. His views, however, were ignored by the CVC committee. Thereafter, CVC and its committee allegedly continued to ignore the views of the CBI Director, while recommendations emanating from Asthana were cleared. Verma would have none of it.

The government, which was all along silently watching the situation, suddenly woke up on October 15, 2018, when the CBI registered a regular case against Asthana on charges of accepting a bribe. And when ultimately the government  intervened, it went about dealing with the situation in what appeared to be a panicked reaction and in the crudest possible manner. In the midnight action of October 23-24, the prestigious headquarters of the agency was seized and the Director and the Special Director were sent on leave, divesting them of all their powers. Had the government intervened in time and taken the matter in its hand, things would not have taken such an ugly turn. But it was hamstrung by two reasons. One, the crisis was largely of its own making, and second, it was tied down by something of its own creation, which is the role given to the CVC over CBI under the CVC Act of 2003. Something which was never envisaged by its founder, Lal Bahadur Shastri.

The CVC Act, no doubt, provided for some valuable safeguards to the agency. Now, the CBI Director, with a fixed term of two years, could be appointed or removed only on the basis of recommendation of a high-power committee comprising the Prime Minister, the Chief Justice of India and the leader of the largest opposition party in the Lok Sabha. But it also created some impediments, by vesting in the CVC the ‘Superintendence’ of the Delhi Police Establishment (and thus the CBI)’ in relation to investigation of cases under the Prevention of Corruption Act. For other cases, the CVC Act left the ‘Superintendence’ to the government. So, the ‘Superintendence’ over the CBI is shared between the CVC and the government. This arrangement has a lot to do with the crisis that the CBI  finds itself in today.

Under our legal system, the CBI, or for that matter any investigating agency for crime investigation work, is and should be accountable to the court of law, while disciplinary control should rest with the government, which, in turn is accountable to Parliament or Legislature, as the case may be.

Though established in 1963, the CBI is still functioning under the old Delhi Special Police Establishment Act of 1946. In 1991-92, the Estimates Committee of Parliament, under former union minister Jaswant Singh, had recommended that the CBI should be given statutory status and should have legal powers to investigate cases with inter-state ramifications. It had observed that it was of the firm view that unless this was done, the effectiveness of the organisation would decline substantially and rapidly. Words that seem to be proving prophetic. Therefore, a regular CBI Act should be brought in place. Such a law should do away with irrational provisions of the CVC Act, 2003, giving it ‘superintendence’ over the CBI in its anti-corruption investigations. Finally, the Lokpal to deal with corruption in high places must be brought into position at the earliest. The Lokpal Act was passed more than five years ago, but no one seems to be in a hurry to establish it even after the Supreme Court has expressed its anxiety over the delay.

(The writer is a former Joint Director, CBI, and currently Member, National Executive, Janata Dal-United).