The decay of institutions

what CBI symbolises

Congress workers protest near the Central Bureau of Investigation (CBI) building in Mumbai. REUTERS

The February 14 Pulwama terrorist suicide attack on a CRPF convoy killing 40 policemen and the security forces’ swift retribution on February 18 against the alleged masterminds of the attack have practically swept away from public attention other developments around our crumbling national security institutions.

We all saw the dramatic events unfold in Kolkata, beginning with the CBI raid on Police Commissioner Rajiv Kumar on February 4 and West Bengal Chief Minister Mamata Banerjee’s strident response, all of which finally ended in Kumar’s questioning by CBI under Supreme Court orders. However, the national media totally missed a similar CBI versus local police drama enacted in Odisha between January 29 and February 9. First, the CBI served notices on two BJD leaders in connection with a chit-fund scam being probed since 2014. In response, the Odisha police issued notices to two BJP leaders in connection with a two-year-old murder case.

However, all these pale into insignificance compared to the institutional ignominy the CBI suffered on February 12 when the Supreme Court punished its ‘interim’ director M Nageshwar Rao and his legal adviser S. Bhasuram for contempt of court. Both were ordered to sit in a corner of the court room for the whole day, like errant students, and fined Rs 1 lakh each. The media interpreted this as indirect censure of the Modi government for permitting the hasty transfer of CBI Joint Director A K Sharma, rival of the PMO-favourite, former Special Director Rahul Asthana.

The only comparable instance of such humiliation was on July 19, 1993, when US President Bill Clinton removed abruptly the then FBI director William S Sessions before the completion of his term for misusing the FBI’s resources and agency planes. But that was a personal censure and not of the organisation. If that standard is applied to India, those in the higher echelons of government who have been misusing secret intelligence aircraft to ferry politically-important gangsters or scamsters from abroad should have been dismissed for violating national security interests.

Admittedly, the CBI suffers from bad optics due to legal and operational problems, not all of their own making. In 2013, the Supreme Court described the CBI as “a caged parrot” and “its master’s voice.” Following this, senior retired police officers like Prakash Singh suggested that the CBI be given a statutory standing comparable to the Election Commission or the Comptroller & Auditor General. I had opposed this in an article then on the ground that the EC and CAG do not have powers to search and arrest, as the CBI does, and without checks and balances, this power would be misused.

I had also quoted the Supreme Court’s observation that “The CBI cannot be given unbridled power as an unruly horse is a dangerous thing.” In retrospect, who would have controlled the Alok Verma-Rakesh Asthana feud within a constitutionally-empowered CBI?

Fortunately, this discourse took a different turn when Guwahati High Court pronounced an important judgement in November 2013, setting aside the Government of India’s resolution dated April 1, 1963, constituting the CBI and observed that the organisation was “Neither an organ nor part of the Delhi State Police Establishment (DSPE) and the CBI cannot be treated as a ‘police force’ constituted under the DSPE Act 1946.”

No doubt this judgement was stayed by the Supreme Court on the Centre’s plea that this would affect 9,000 trials and 1,000 investigations. However, no final verdict has been delivered so far by the Supreme Court.

Has this inadequate legal foundation made the CBI an “unruly horse” or a cabal of clashing interests with loyalty to different centres of power as we saw during the Verma-Asthana clash? Or, was its ineptitude evident when a large team of CBI officers descended on the residence of Kolkata Police Commissioner Rajiv Kumar to intimidate him on a Sunday evening without a warrant but with only a Section 160 CrPC notice to question him? Was the CBI deceptive in ignoring a July 16, 2018, Supreme Court order that they should approach the Calcutta High Court in case they encounter any “Obstruction” from West Bengal government or its machinery? Was the nation wrong in concluding that the CBI’s intention was only to humiliate Mamata Banerjee?  

We always want to elevate our CBI to the level of the US FBI. We forget that the FBI has earned this high position in America through hard work and professionalism. Firstly, they do not have ‘Deputationist’ officers like in India who operate in a ‘revolving door’ fashion. This includes some who are tainted in the states for being too cozy with politicians. Second, the FBI works under the supervision of an Attorney General who has a distinct legal identity independent of the President as this post was created under the Judiciary Act, 1789, two years after the US Constitution was passed. That was how Attorney General Jeff Sessions was able to defy President Donald Trump, although he was appointed by him. 

Next, FBI’s independent functioning has in-built checks and balances to prevent misuse. For example, FBI does not have the power to decide whether a charge-sheet is to be presented. That power is with federal prosecutors or US attorneys. The bureau also has to obtain court orders for electronic surveillance of suspects. The court has the power to monitor wire taps to prevent misuse.

FBI’s budget and operations are tightly supervised by Congressional Committees who can hold special hearings. Its intelligence activities are supervised by the Director of National Intelligence. It has to obtain states’ concurrence to investigate crimes in the states. Its anti-terror investigations are carried out by joint teams that even include non-police officials.

Lastly, there is an ‘inspector general’ under the 1978 Act, independent of the FBI, who works as a ‘whistle blower’ and ‘auditor’ to keep a tight check on the FBI’s operations. Is the CBI prepared to work within such constraints?

(The writer is a former Special Secretary, Cabinet Secretariat)

(The Billion Press)

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