IASbaba’s Daily Current Affairs – 19th October, 2015
TOPIC: General Studies 3
Various Security forces and agencies and their mandate.
Crisis of Credibility: CBI caught on the wrong foot
Saddled with issues of corruption in the department of war as well as eventually, the spread of the same to various other departments, the British government passed ‘Delhi Special Police Establishment Act’, which was again amended in 1946 to keep a check on the corruption issues involving all the employees of the Central Government.
The powers involved; registering an FIR under the relevant sections of the IPC and later, Prevention of Corruption Act (1988) wherein it was registered only after Preliminary Enquiry established that prima facie an offence of corruption had been committed.
In 1963, on the recommendations of Santhanam Committee and through a resolution passed by the Government of India, the agency acquired the name ‘Central Bureau of Investigation’ and came into formal existence.
CBI’s charter involved investigating cases of bribery (against central government employees), fiscal crimes (Hawala Transactions), Trans-border & interstate offences, anti-terrorism cases, collection of criminal intelligence, maintenance of crime statistics and coordinating implementation of criminal laws.
Justice Verma and VineetNarain Case, 1997 (Jain Havala Transaction):
The directions passed by Justice Verma are following:
The CVC be given a statutory status and be entrusted with responsibility to supervise the work of the CBI ensuring its efficiency and impartiality;
Its head be selected by a team of the prime minister, home minister and leader of the opposition in Parliament from a panel of eminent people and the CBI director be appointed for a minimum tenure of two years by a committee headed by the CVC including the union home secretary and the secretary, personnel;
A report on the activities of the CBI be submitted in three months;
A nodal agency be set up for dealing with the emerging political-criminal-bureaucratic nexus;
A directorate of prosecution be set up
Bureaucratic-political manipulations witnessed:
The CVC’s powers of superintendence over the CBI, called for by the apex court, was diluted to maintain “dual control” by government and the CVC
No steps were taken to follow the apex court’s directions to ensure efficiency and impartiality on the part of the CBI;
The Supreme Court recommendation that a document on the CBI’s functioning be submitted in three months was ignored;
Its direction to set up a nodal agency to deal with politico-bureaucratic-criminal nexus was ignored and its direction to set up an independent directorate of prosecution was ignored.
“The CBI has become the state’s parrot. Only screaming, repeating the master’s voice” ~Justice R.M. Lodha
There exists no political insularity and this leads to succumbing to political pressures, from time to time. Even the control over CBI keeps shifting from one Ministry to another, leading to a void filled with instability. Much politicization and interference leads to suffocation, lending an able personnel working with full integrity and fearlessly, toothless.
Freedom to investigate crime and yet being answerable to a bipartisan committee of the Parliament will call for a full functional autonomy balanced with accountability.
In addition to this arrangement, a neutral mechanism to look after the overall functioning and operational issues is necessary, till an independent Lokpal is put to function.
Cooperation of other agencies is required for successful and high-profile trans-national investigations.
Funds are sanctioned by the Personnel ministry and thus, the Ministry exercises a direct control over CBI’s Financial Autonomy, which needs to be curbed and put to certain rules and restrictions on the part of government’s interference.
Poor Leadership & Personnel:
Poor Leadership leads to a major roadblock for lack of professionalism. The Director should carefully tread the path of political manipulations and his responsibilities, stand up to the pressure and makes sure to keep himself and his team insulated by always being prepared with the written instructions passed and proof of the actions initiated from his end.
There needs to be put in place a proper file system tracking every detail, orders and periodical progress reports. This will help in shielding the agency from unwanted allegations and maintain high transparency, at the same time.
Justice Verma’s recommendations ought to be put in place and a judicious mix consisting of a permanent CBI cadre, expertise from outside, opposition’s and judiciary suggestion needs to be considered for men with integrity to get recruited. Also, a collegium comprising the prime minister, the Chief Justice of India and the Leader of the Opposition can be constituted for the same.
There is a need to put up a cadre of supervisory officers quashing the uncertain system of inductions through deputation from the State Police Forces and Central Police Organisations.
Reviews of the historical experiences with respect to the efforts employed in fighting political and administrative corruption through CBI and CVC points out towards a lackadaisical process. The thin line between superintendence and interference in its investigation work is not vague but very much prevalent and calls for urgent reforms in the present scenario.
One needs to consider the views of the Select Committee’s directives like:
CBI officers investigating cases referred by the Lokpal will be transferred with the approval of the Lokpal; and
For cases referred by the Lokpal, the CBI may appoint a panel of advocates (other than government advocates) with the consent of the Lokpal.
Also, a new CBI Act must substitute the archaic Delhi Special Police Establishment Act and the role, jurisdiction and legal powers of the agency need to be clearly laid down for the effective functioning of its delegated powers.
Relevance of RTI should be established over the functioning of CBI to maintain public trust in its workings. Sensitive matters and selective cases can be kept inaccessible and confidentiality of involvement of whistle-blower and their statements need to be kept under close guarding.
Connecting the Dots:
Enumerate the structural problems of CBI and suggest the institutional reforms needed to facilitate CBI into becoming an empowered and a responsible agency.
‘Accountability and autonomy go hand in hand’. Discuss
TOPIC: General Studies 2
Separation of powers between various organs dispute redressal mechanisms and institutions.
Structure, organization and functioning of the Executive and the Judiciary
Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies.
NJAC verdict : An analysis[PART I]
The Supreme Court rejected the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment which sought to give politicians and civil society a final say in the appointment of judges to the highest courts.
Article 124(2) : Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years: Provided that in the case of appointment of a Judge other than the chief Justice, the chief Justice of India shall always be consulted:
Evolution of Collegium system:
The collegium system has its genesis in a series of three judgments that is now clubbed together as the “Three Judges Cases”.
The S P Gupta case (1981) is called the “First Judges Case”. It declared that the “primacy” of the CJI’s recommendation to the President can be refused for “cogent reasons”. This brought a paradigm shift in favour of the executive having primacy over the judiciary in judicial appointments for the next 12 years.
In 1993, came a nine-judge bench decision in the Supreme Court Advocates-on Record Association vs Union of India case — the “Second Judges Case”.This was what ushered in the collegium system. The majority verdict written by Justice J S Verma said “justiciability” and “primacy” required that the CJI be given the “primal” role in such appointments.
It overturned the S P Gupta judgment, saying “the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter.
Again in 1998, in the “Third judges Case “ 1993 judgement was reiterated giving way for the collegium system.
Collegium system :
The collegium system of appointment of judges is popularly referred to as judges-selecting-judges.
It is a body of senior apex court judges headed by the Chief Justice of India to select persons and recommended their names for appointment as judges.
It also recommends names for appointment and transfer of judges of high courts and the Supreme Court.
Need for NJAC :
To prove why the NJAC was necessary and why the collegium system should be disposed with, here are a few examples:
In a country where there is a backlog of 3.2 crore cases in the judiciary, one judge of the Supreme Court wrote only seven judgements in four years. Out of that two were concurring where he wrote only a few paragraphs.
A High Court judge was elevated to the Supreme Court allegedly only because he was the business partner of the son of a former Chief Justice of India.
The sister of a former CJI was appointed to Calcutta High Court when allegedly many fine judges were denied the appointment.
Many judges were appointed to the Supreme Court by the Collegium despite the Intelligence Bureau (IB) giving an adverse report on them.
A brief outlook into NJAC :
A new article, Article 124A, (which provides for the composition of the NJAC) had been inserted into the Constitution.
As per the amended provisions of the constitution, the Commission would have consisted of the following six persons:
Chief Justice of India (Chairperson, ex officio).
Two other senior judges of the Supreme Court next to the Chief Justice of India – ex officio.
The Union Minister of Law and Justice, ex-officio.
Two eminent persons.
The two eminent persons would have been nominated by a committee consisting of the
Chief Justice of India,
Prime Minister of India, and
Leader of Opposition in the Lok Sabha or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in Lok Sabha), provided that of the two eminent persons, one person would be from the Scheduled Castes or Scheduled Tribes or OBC or minority communities or a woman.
Functions of the Commission:
Recommending persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts.
Recommending transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court.
Ensuring that the persons recommended are of ability, merit and other criteria mentioned in the regulations related to the act.
Connecting the dots:
Critically examine the need for judicial reforms in India.
Compare and contrast collegiums system with NJAC provisions.
Please note that tomorrow we will come up with Part 2 on NJAC Act, which would incorporate-