Why CBI is critical

Powers of Lokayukta

The Union government appears to have tied itself in knots trying to introduce a ‘credible’ Lokpal bill in Parliament. From all accounts, the autonomy or otherwise of the CBI appears to be the most contentious issue.

The government has agreed to create the post of director, prosecution, to keep the prosecution insulated from investigation. The investigation is the prerogative of the police only but the police, including the CBI, have been used as the long arm of the government, especially the political executive. And this is the crux of the problem.

The credibility of our elected representatives is at the lowest ebb and that is precisely the reason that a demand is being made to confer autonomy on probably every institution.

If our leaders enjoyed the reputation like Roman consul Fabricus about whom it was said that the sun could deflect from its path but he could not deflect from the path of rectitude, or like King Asoka, who always put himself under the majesty of law, there would not have been any problem.

Sharad Yadav candidly admitted while addressing the meeting of Anna Hazare at Jantar Mantar that the CBI has been misused by every government including his government, i.e., the NDA government. The probability of misuse is all the more in the era of coalition politics when regional satraps are calling the shots.

The CBI could not get the permission of the Union government to challenge the acquittal of Lalu Prasad in the disproportionate case as his party, the RJD, was the second largest constituent of the UPA-I.

Again, the CBI made a volte face in the DA case against Mulayam Singh Yadav when the government was faced with a no-confidence motion in the wake of withdrawal of support to the UPA-I government by the Left front. It had no compunction in submitting before the apex court that its earlier stand against Mulayam was due to some mistake in computation.

The flip-flop by the premier investigative agency in the cases of Mulayam and Mayawati may appear bewildering but there is a method behind this. The shameful change in the stand of the CBI was influenced by the change of equation of the accused with the ruling dispensation at the Centre.

The Supreme Court did try to disabuse the system of such ills and sought to give functional autonomy to the CBI in Vineet Narain (1998). It gave a fixed tenure to the director and conferred on the CVC the supervisory jurisdiction over it. It also set aside the Single Directive which requires prior sanction for prosecuting the officers of the rank of joint secretary and above.

It is discriminatory and violative of the right to equality, and the court struck it down on the ground that it was just an executive order which had no statutory basis. The directions given in Vineet Narain case have been observed in breach only, and the Single Directive was restored by the government by making it part of the CVC Act.

Misuse of power
However, it is not just the question of the misuse of the CBI. The police, as such, are misused by the powers that be or by influential people. The Gujarat government is in the dock over the role of the police in several cases of 2002 riot. Several police commissions recommended to make the investigation independent but the recommendations were never implemented.

Again, it was the Supreme Court which in Prakash Singh’s case (2007) gave directions to fix the tenure of police officials and create security commissions at the national as well as state levels. Even these directions have either not been complied or if complied, it is just technical which does not fulfill the objective of the judgment.

Similarly, the apex court to make the prosecution independent in S B Sahane case (1996) and gave clear directions to create the directorate of prosecution which is not to be staffed or headed by police officers. Pursuant to it, section 25 of the CrPc was amended in 2006, and in place of an IPS officer, the home secretary of the state was made the head of the directorate of prosecution.

It is inscrutable how can the directorate be independent of the government if it is headed by a senior officer of the government. Now, the government proposes to create a post of director, prosecution, in the CBI. It is well-nigh impossible to arrive at justice unless the investigation and the prosecution are impartial. 

However, giving total autonomy to the police is fraught with unimaginable danger if we have officers like S P S Rathore whose torture led Ruchika Girhotra to commit suicide. A biased investigation and prosecution led to his conviction with a mild punishment and he had the temerity to come out of the court with a smirk like a conqueror.

It was only because of the activism of the media that he could not escape. There are charges of police indulging in fake encounters to eliminate political opponents. Sometimes, the police take money to kill people in fake encounters. So,while it must be ensured that the investigation is independent, it has to be under an impartial body of civil authorities.

Any person having a gun, whether he is a policeman or a hoodlum, has inflated ego and uses his power to the hilt to harass anyone who dares to question his illegalities. Secondly, the problem of tardy pace of justice is another and the judiciary must be sensitised to dispose of cases expeditiously delivering quality judgments. The whole culture of governance needs to be changed. Lokpal will not come with a magic wand and extirpate corruption.