INDIA: CBI not subordinate to CVC

Supreme Court order not a reflection on its working

| by R.K.Raghavan

( February 04, New Delhi, Sri Lanka Guardian) A very significant part of the Supreme Court’s February 2 order in the 2G scam case is the direction that the CBI should submit its future progress reports to the court through the CVC. The latter will in turn transmit them to the court within a week.

Image Source: The Hindu

The apex court was quick to add that this was in no way a reflection on the CBI. This rather generous comment was possibly to dispel any wrong impressions which could circulate from its order that the court was possibly dissatisfied with the investigating agency.

There could also be the laudable intention to take the sting out of any negative feelings within the CBI that it was being subordinated to the vigilance body. In any case the court was looking for an alternative to a SIT (special investigation team) that one of the petitioners in the case was demanding. This was a convenient arrangement which few could find fault with. There is also nothing negative about the CVC as presently constituted that could militate against this arrangement working and delivering goods. Perhaps it could become a pattern for future overseeing of crucial investigations.

What are the implications of the prescribed CVC route for the CBI? What value addition could the vetting by the CVC bring to the task of monitoring investigation in cases of great importance to the nation? First, the judicial order adds legitimacy to what the CVC Act 2003 and the Delhi Special Police Establishment Act 1946 (as amended in 2003 by the CVC Act) provide for; viz., the CVC has the power of ‘superintendence’ over the CBI. (‘The superintendence of the Delhi special police establishment insofar as it relates to investigation of offences alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988), shall vest in the commission’ : Section 4(1) of the DSPE Act..) Mind you, this was done under the NDA government. So you cannot blame the UPA alone for having made inroads into the investigating agency’s freedom of action.

Any hurt feeling within the CBI from the February 2 order is legitimate because all these days the ‘superintendence’ was just pro forma. I am not very sure that the CBI ever shared its investigation reports with the CVC. (There is however unconfirmed information that, in the past, on one or two occasions, courts did ask the CVC to comment on CBI reports.) ‘Superintendence’ is such a vague expression that an authoritarian and capricious CVC could demand that he should be privy to sensitive CBI reports on day-to-day investigation. My only fear therefore is that taking advantage of the recent apex court’s direction, an unconventional CVC, even without the specific authorisation or direction from the apex court, could start requisitioning such reports. I know my fears are just now imaginary. But who can vouch for the future? A maverick CVC could wreck a well-established tradition. When a CVC wants to see CBI reports on investigation, he will be within his right to do so. But will such action be conducive to fearless investigation? I am not very sure.

There is next the question of the quality of the CVC intervention. How equipped is the CVC to undertake this task? The CVC is invariably from the IAS. A former police officer and a banker constitute the rest of the commission. The first two have a rich experience in government. The third member will be valuable whenever there is a major investigation into a bank fraud that focuses on the role of bank officials. For taking a view on the progress in the 2G scam, the Chairman and the member from the police could play a leading role.

My hunch is that they will generally go by what the CBI had done. The CVC will have an occasion to comment on the investigation only in respect of some conclusions drawn by the CBI during the course of its investigation. I do not rule out candid discussions between the CVC and the CBI Director wherever there is a gray area. This kind of interaction should greatly reduce the scope for differences between the two organisations while the CVC finalises its comments.

Where honesty of purpose dominates perspectives, the scope for conflict is minimal. The apex court does not have the time or the expertise in mundane matters of investigation. It is these two factors that probably influenced the court to indent upon the CVC’s services. This is a good experiment. It could well become the pattern for future. The CBI should not feel aggrieved. It should welcome such a move because whatever it puts on record for the consumption of the highest court of the land gains in credibility after it passes through the CVC scanner. There is no place here for egos.

In the final analysis, what does the apex court aim at in such major investigations? It expects an objective and fearless investigation in accordance with the law so that the guilty are brought to book and no innocent gets framed. In opting to monitor a criminal investigation, it takes care of the oft-held belief that persons in high places can somehow influence the investigator and go scot-free. This is absolutely relevant to the Indian situation where money power and political authority can see a criminal element through any misdeed, however grave it might be. But then, is the CBI insular enough to ward off unethical suggestions from those close to the establishment? I am afraid it is not, because its hands are so badly tied by several restraints placed on it whereby it is an appendage of the executive. Three facts alone would confirm this. It cannot go ahead suo motu looking into the misdeeds of anyone of and above the rank of Joint Secretary without the government nod. (This includes serving ministers.) Otherwise, could Raja have got away with all that he did until fate caught up with him? Secondly, even when an investigation has established guilt, the government will have to accord sanction for prosecution. The apex court recently directed that governments cannot sit on requests for sanction for eternity and that such sanction should be accorded or denied within three months. But this possibly requires an amendment to the Prevention of Corruption Act. Whether Parliament will agree to do this is a moot question. Finally, when a case fails in a lower court, the investigating agency can go on an appeal only with the leave of the government. Instances are not few when such permission has been denied for extraneous considerations. If in spite of all these limitations, the CBI has given a fair account of itself, it speaks for a certain quality of investigation and the dedication of its overstretched personnel.

The writer is a former Director of the CBI