CBI at war with the CBI

  How do we prevent a situation like the present implosion within the Central Bureau of Investigation (CBI)? Till the 1990s, the CBI was considered the only dependable instrument to impartially investigate high level corruption and tangled crimes. That impression disappeared with the “hawala” scam which forced the Supreme Court to issue directions that the Chief Vigilance Commissioner (CVC) should supervise the working of the CBI. Still the CBI’s public image did not improve. On May 8, 2013, the Supreme Court observed during the “coal scam” hearing that the CBI was “one parrot, many masters”. That provoked some retired police officials and even a serving Director to suggest that the CBI should be insulated from political influence by giving it a constitutional status to make it responsible only to the “law”.

I have long argued that this is a dangerous recommendation. The ongoing “war” within the CBI proves it. The notion that the CBI should only be responsible to the “law” is vague. The Criminal Procedure Code confers sufficient “autonomy” for unfettered investigation to the CBI and the police. That the CBI and State police had not utilised them and were kowtowing to the politicians, is not the fault of the system. The Supreme Court had also said on May 8, 2013, “The CBI cannot be given unbridled power as an unruly horse is a dangerous thing”.

It will be interesting to know that the FBI, which is always quoted as the perfect example of independent investigation, works under the supervision of the Attorney General (like our Law Minister). The Bureau does not have the final power even to decide whether a charge sheet is to be presented. That power is with the federal prosecutors or US attorneys. It has to obtain court orders for electronic surveillance of suspects.

The notion that the CBI should only be responsible to the “law” is vague. The Criminal Procedure Code confers sufficient “autonomy” for unfettered investigation to the CBI and the police. That the CBI and State police had not utilised them and were kowtowing to the politicians, is not the fault of the system. The Supreme Court had also said on May 8, 2013, “The CBI cannot be given unbridled power as an unruly horse is a dangerous thing”.

The Court has the power of monitoring wiretaps 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 both “whistleblower” and auditor to keep a close watch on their activities. Contrary to what our security analysts might think, even the FBI does not enjoy the type of “autonomy” the CBI wants.

How did the present “war” originate? I firmly believe that it was due to the over anxiety of some high circles in the Modi government to make Rakesh Asthana the interim chief to pave the way for him to take over the coveted post eventually. The government knew that Director Anil Sinha was retiring on 2 December 2016. Yet they did not constitute the selection committee with the Prime Minister, Leader of the Opposition and Chief Justice to select his successor. In the normal course, Sinha should have handed over the charge to Special Director R.K.Dutta and retired. But Dutta was abruptly transferred to the Ministry of Home Affairs (MHA) on November 30, 2016. That paved the way for Additional Director Asthana to take over charge as “Interim Director” from 3 December 2016 till 31 January 2017.

On December 9, 2016, the Supreme Court asked the government why Dutta, who was supervising high profile 2G and coal scam cases, was shifted out of agency “without the nod of this court." Dutta, who went back to his home cadre and retired in October 2017, gave an interview to a leading daily on October 8, 2018, blaming the CVC, who could have asked the government the reasons for his abrupt transfer as he was duty bound, under Supreme Court orders, to oversee the functioning of the CBI. Thus, the seeds of internecine war were planted by the highest level in the government.

What are the lessons for the future? Governments in power should not create conditions to pave the way for their favourite officers by evading Supreme Court orders as they did in December 2016. Second, only retired senior judges, not retired bureaucrats, should be appointed as CVC.s.  Bureaucrats like the present incumbent who had handled powerful but controversial financial enforcement jobs should not be considered as such cases are likely to invite public litigation as the present CVC had faced in the Supreme Court in 2015.

The Supreme Court’s order of October 26 eloquently proves that the series of actions taken by the Modi government after the midnight coup on 23 and 24 were not approved. First, the powers of the interim CBI chief M.Nageswar Rao are severely curtailed. He will have to justify all his actions taken from the 24th against Alok Verma, including the vindictive transfers of his team. The displeasure against the CVC K.V.Chowdary was evident by subjecting his probe against Verma to be under the scrutiny of a retired Supreme Court judge. All other points would be examined by the Court when it reconvenes after Diwali.

What are the lessons for the future? Governments in power should not create conditions to pave the way for their favourite officers by evading Supreme Court orders as they did in December 2016. Second, only retired senior judges, not retired bureaucrats, should be appointed as CVC.s.  Bureaucrats like the present incumbent who had handled powerful but controversial financial enforcement jobs should not be considered as such cases are likely to invite public litigation as the present CVC had faced in the Supreme Court in 2015. In this case, the impression lingers although he was cleared by the Supreme Court.

Finally, we should introduce a system like in America and have an inspector general within the CBI to be a “whistleblower”, “auditor” and “enquirer”. Those who want to know the utility of this system in America should study the publicly available report of Inspector General Michael Horowitz, “FBI, Comey, Clinton & 2016 campaign” (June 2018), which found that Comey had “usurped the authority of the Attorney General,” “chose to deviate” from established procedures, and engaged “in his own subjective, ad hoc decision making” although he did not act out of political bias. They could also study the Council on Foreign Relations publication of June, 16, 2015, “Top Ten Findings of the CIA Inspector General’s Report on 9/11”.

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