Total decay of our institutions
The February 14 Pulwama suicide terrorist attack on a CRPF convoy killing 40 policemen and its swift retribution four days later on February18 have practically swept away from public attention other parallel developments around our crumbling national security institutions.
We all saw the dramatic events unfolding in Kolkata beginning with the CBI raid on Police Commissioner Rajiv Kumar on February 4 and its dramatic retort by Chief Minister Mamata Banerjee which finally ended up with Rajiv Kumar’s questioning at Shillong under Supreme Court orders. However national media had totally missed a similar CBI versus local police drama which was enacted in Orissa between January 29 and February 9. First the CBI served notices on 2 BJD leaders in connection with a chit fund scam which they have been investigating since 2014. This was alleged to have been in response to the fiery election speech delivered by a top BJP leader one day earlier in Orissa. Soon thereafter the local 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 their “interim” director M.Nageswar Rao and his legal adviser S.Bhasuram for being guilty of contempt. Both were ordered to sit in a court room corner like errant students and fined Rs. 1 lakh each. Media also interpreted this as an indirect censure of the Modi government for permitting the hasty transfer of 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.
All these pale into insignificance compared to the institutional ignominy the CBI suffered on February 12 when the Supreme Court punished their “interim” director M.Nageswar Rao and his legal adviser S.Bhasuram for being guilty of contempt. Both were ordered to sit in a court room corner like errant students and fined Rs. 1 lakh each.
Admittedly the CBI suffers from bad optics due to legal and operational problems, not all their own making. On May 10, 2013 the Supreme Court, while hearing the “Coalgate Scam” 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 should be given a statutory role comparable to the Election Commission (EC) or Comptroller & Auditor General (CAG). I had opposed this through a column on 19 May 2013 saying that the EC and CAG did not have powers to search and arrest like the CBI. Without checks and balances this power would be misused. I had also quoted the Supreme Court’s observation on 8 May, 2013: "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 run-in within a constitutionally empowered CBI?
Fortunately, this discourse took a different turn when the Guwahati High Court pronounced an important judgment on 6 November 2013 which began with a quotation from Thomas Jefferson. “When the people fear the government, there is tyranny; when the government fears the people, there is liberty”. This verdict set aside the Government of India’s resolution dated 1 April 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.” It was this judgment which had provoked the Shiv Sena, BJP’s ally, to brand the CBI as “The Centre’s illegal police force” after the Kolkata incident on February 3 when the CBI had gone to the residence of Police Commissioner Rajiv Kumar.
No doubt this judgment was stayed by the Supreme Court on 9 November 2013 on the Centre’s plea that this would affect 9,000 trials and 1000 investigations. However, no final verdict has been delivered so far by the Supreme Court till now. A leading law website had described this as “Ventilator Support” to the CBI in the wake of the Alok Verma-Rakesh Asthana episode as any declaration of unconstitutionality made by a High Court would have operated across the country.
We always want to elevate our CBI to the level of the 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.
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 Alok Verma-Rakesh Asthana experience? Or was their ineptitude evident when a large team of CBI officers descended on the residence of Kolkata Police Commissioner Rajiv Kumar as a show of intimidation on a Sunday evening without a warrant but with only a Section 160 CRPC notice to question him on the Saradha Chit Fund case? 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 West Bengal Chief Minister Mamata Banerjee who had challenged the BJP high brass, by “raiding” the CM’s trusted police commissioner?
We always want to elevate our CBI to the level of the 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 even President Donald Trump although he was appointed by him.
Next, their independent functioning has in-built checks and balances to prevent misuse. For example, the Bureau does not have the power to decide whether a charge sheet is to be presented. That power is with the federal prosecutors or US attorneys. They have to obtain court orders for the electronic surveillance of suspects. The court has the power of monitoring wire taps to prevent misuse. Their budget and operations are tightly supervised by Congressional Committees who can hold special hearings. Their intelligence activities are supervised by the Director of National Intelligence. They have to obtain State concurrence to investigate State crimes. Their anti-terror investigations are carried out by joint teams that even include non-police officials. Lastly, they have an "inspector general" under the 1978 Act, independent of their organisation, who works as a "whistle blower" and "auditor" to keep a tight check on the FBI’s operations. Is our CBI prepared to work within such constraints?
[The writer is a former Special Secretary, Cabinet Secretariat]