Baba’s Explainer – CBI and its troubles

  • IASbaba
  • September 20, 2022
  • 0
Indian Polity & Constitution
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  • GS-2: Statutory, regulatory and various quasi-judicial bodies.
  • GS-2: Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

Context: Time and again, Supreme Court has called out on the partisan nature of CBI, India’s premier investigative agency. CBI has been termed as “caged parrot” pointing towards subordination of agency to the executive and its disastrous consequences for the cause of justice.

What is the status of CBI?
  • The CBI was established as the Special Police Establishment in 1941, to investigate cases of corruption in the procurement during the Second World War.
  • Later, the Santhanam Committee on Prevention of Corruption recommended the establishment of the CBI. As a result, it was set up in 1963 by a resolution of Union Home Ministry.
    • The Special Police Establishment (which looked into vigilance cases) setup in 1941 was also merged with the CBI
  • Later, it was transferred to the Ministry of Personnel and now it enjoys the status of an attached office.
  • The CBI is not a statutory body. It derives its powers from the Delhi Special Police Establishment Act, 1946.
  • The CBI is the main investigating agency of the Central Government.
  • The CBI investigates crime of corruption, economic offences and serious and organized crime other than terrorism.
    • National Investigation Agency (NIA) has been constituted after the Mumbai terror attack in 2008 mainly for investigation of incidents of terrorist attacks, funding of terrorism and other terror related crime.
  • The CBI is headed by a Director who is assisted by special/additional director. The Director of CBI has been provided security of two-year tenure by CVC Act, 2003.
  • As per the CVC Act of 2003, the Central Government shall appoint the Director of CBI on the recommendation of a three-member committee consisting of the
    • Prime Minister as Chairperson,
    • Leader of Opposition in the Lok Sabha
    • Chief Justice of India or Judge of the Supreme Court nominated by him.
  • If there is no recognized leader of opposition in the Lok Sabha, then the leader of the single largest opposition party in the Lok Sabha would be a member of that committee.
  • The CBI Academy is located at Ghaziabad, UP and started functioning in 1996. It also has three regional training centres at Kolkata, Mumbai & Chennai.
  • The superintendence of CBI related to investigation of offences under the Prevention of Corruption Act, 1988 lies with the Central Vigilance Commission (CVC) and in other matters with the Department of Personnel & Training (DOPT) in the Ministry of Personnel, Pension & Grievances of the Government of India
What are the functions of CBI?
  • Investigating cases of corruption, bribery and misconduct of Union govt employees
  • Investigating cases relating to infringement of fiscal and economic laws
  • Investigating serious crimes, having national and international ramifications, committed by organised gangs of professional criminals.
  • Coordinating activities of the anticorruption agencies and various state police forces
  • Taking up, on the request of a state government, any case of public importance for investigation.
  • It takes up investigation of conventional crimes like murder, kidnapping, rape etc., on reference from the state governments or when directed by the Supreme Court/High Courts.
  • Maintaining crime statistics and disseminating criminal information.
  • The CBI acts as the “National Central Bureau” of Interpol in India.
  • The Central Government can authorize CBI to investigate such a crime in a State but only with the consent of the concerned State Government.
What types of cases are handled by CBI?
  1. Special Crimes – for investigation of serious and organized crime under the Indian Penal Code and other laws on the requests of State Governments or on the orders of the Supreme Court and High Courts – such as cases of terrorism, bomb blasts, kidnapping for ransom and crimes committed by the mafia/the underworld.
  2. Economic Crimes – for investigation of major financial scams and serious economic frauds, including crimes relating to Fake Indian Currency Notes, Bank Frauds and Cyber Crime, bank frauds, Import Export & Foreign Exchange violations, large-scale smuggling of narcotics, antiques, cultural property and smuggling of other contraband items etc.
  3. Anti-Corruption Crimes – for investigation of cases under the Prevention of Corruption Act against Public officials and the employees of Central Government, Public Sector Undertakings, Corporations or Bodies owned or controlled by the Government of India.
  4. Suo Moto Cases – CBI can suo-moto take up investigation of offenses only in the Union Territories.
    • The Central Government can authorize CBI to investigate a crime in a State but only with the consent of the concerned State Government.
    • The Supreme Court and High Courts, however, can order CBI to investigate a crime anywhere in the country without the consent of the State.
What are the issues with CBI?
  1. Structurally constrained
  • The CBI has been stymied both by the legal structure within which it functions, and by the changes made by governments in the Rules governing it. Over the years, these have progressively made the agency subservient to the Union government.
  • To prosecute any MLA, state minister, or MP, the CBI needs sanction from the Speaker of the state Assembly (in case of MLAs) or the Governor (for state ministers).
  • In the case of an MP, sanction is sought from the Speaker of Lok Sabha or Vice Chairman of Rajya Sabha.
  • Since all these sanctioning authorities have links to the ruling dispensation, Opposition parties feel they are unfairly targeted.
  • It is understood that the agency has no freedom to probe anyone on its own. It is the government, at the Union or in states, or the court, which will decide who will be investigated

2.Withdrawal of Consent due to Federal Politics

  • The work of the agency has been further constrained by the increasingly hostile relations between the Centre and the state governments.
  • As many as nine states have withdrawn general consent to the CBI. Most of these are Opposition-ruled states, which have alleged that the CBI is being used by the Centre to target the Opposition.
    • In March 2022, Meghalaya, where the BJP is in a coalition government, withdrew general consent.
  • Since CBI needs consent of a state to probe offences in the state’s jurisdiction, a general consent is given to the agency so that consent is not required for every individual case.
  • Withdrawal of consent means CBI cannot investigate even a central government employee stationed in a state without the consent of the state government.
  • However, this is not unique to the NDA regime. Throughout the history of the agency, several states — including Sikkim, Nagaland, Chhattisgarh, and Karnataka — have withdrawn general consent.
  1. No Ban on Post-Retirement Appointments
  • Critics have also pointed to the way in which successive governments have used the lure of post-retirement jobs to make CBI Directors toe their line.
  • Former CBI Director Ashwini Kumar was appointed Governor of Nagaland by the UPA in 2013. Other former CBI chiefs got post-retirement jobs as members of the National Human Rights Commission under the UPA.
  • The NDA government in 2021 amended the DSPE Act to give the CBI Director a tenure of five years, but added a caveat that after completion of the SC-mandated two-year tenure, the Director would get an extension of tenure each year at the pleasure of the government. Many saw this as an attempt to make the Director toe the line of government
  1. Inadequate Administrative Capacity
  • The agency is dependent on the home ministry for staffing since many of its investigators come from the Indian Police Service. The CBI also relies on the ministry of law for lawyers and also doesn’t have functional autonomy to some extent.
  • The CBI, run by IPS officers on deputation, is also vulnerable to the government’s ability to manipulate the senior officers because they are dependent on the Central government for future postings.
  1. Outside the ambit of Right to Information
  • CBI is placed in the 2nd Schedule, Section 24 of the Right to Information Act. It provides an exception to obtaining information from intelligence and security organizations specified in the second schedule to the Right to Information Act or any information furnished by them to the government.
  • The CBI was not one of the organizations included in the exempted category. It was much later in 2012 that the CBI was brought in.
    • CBI was not brought into the ambit of the RTI initially because the CBI was not considered to be one of those organizations which really looks into the strategic interests of India.
    • However, Intelligence Bureau (IB), the Research & Analysis Wing or RAW and such organizations which gather intelligence, dealing with strategic matters were from the very beginning kept in the exempt category.
    • The CBI was never considered to be one which collects or maintains such information which are of strategic importance for the country and hence not included in the exemption list of RTI.
    • However, the CBI made out a case that they are also investigating into all kinds of cases- and that these cases include those which are of strategic importance for India and therefore, if they would be subjected to the RTI, much of that information would go out into the public domain. The then government had agreed to this.
  1. Declining Trust of Public on the institution
  • Chief Justice of India (CJI) N V Ramana lamented that the agency had gone from being the people’s most trusted to the subject of deep public scrutiny.
  • Earlier in 2019, then CJI Ranjan Gogoi had questioned the role of the CBI in “politically sensitive” cases, and said that it reflected “a deep mismatch between institutional aspirations” and “governing politics”.
How has Judiciary played its role in reforming CBI?
  • The struggle to free law-enforcement agencies such as the CBI and Enforcement Directorate (ED) from the stranglehold of governments and political parties has been ongoing since the 1990s.
  • The landmark 1997 Vineet Narain judgment of the Supreme Court (Vineet Narain & Others vs Union Of India & Anr) dealt with this issue in detail. The Supreme Court fixed the tenure of the CBI Director at two years.
    • This mandatory tenure was meant to insulate the CBI Director from the pressures of the executive that ended in transfer of posts if not adhered to will of executive.
  • The Rajiv Gandhi government, through what is known as the “single directive”, introduced a provision in The Delhi Special Police Establishment (DSPE) Act, 1946, (from which the CBI derives its powers) which barred CBI from investigating officials of joint secretary level and above without permission from the government.
  • This was struck down by Vineet Narain case, but was reintroduced by the Atal Bihari Vajpayee government.
  • After it was struck down again by the Supreme Court in 2014, the Modi government introduced Section 17A into the Prevention of Corruption Act through an amendment.
    • This amendment went far ahead of reintroducing the “single directive”, and barred the CBI from probing any public servant without the consent of the concerned government.
  • Higher Judiciary has often reprimanded investigators for their sloppiness and deviation from ethics. This has brought in some sort of fear among investigators & prevented the agency from losing the trust of the public.
  • Meticulous supervision by the Supreme Court in some important cases has made difference to the honesty of investigation.
  • There is palpable fear among CBI officers that the judiciary could intervene were an aggrieved person to prove that an investigator had been arbitrary and dishonest.
What is the way ahead?
  • Investigators needs to stand up to unethical pressures in order not to betray the trust reposed in them by the public.
  • Courts need to enforces discipline and adherence to the law. If investigators deviated from the path of objectivity and neutrality, they should pay for it dearly.
  • If the CBI has to tread the path of virtue, it should have the strongest leader with a distinct belief in the law and ethics.
  • There needs to be a strong and virtuous leader who will not only be honest but also protect his honest deputies if and when confronted by an unscrupulous political heavyweight.
  • The leadership should focus on weeding out the dishonest among officers and rewarding those who have shown and proven themselves to be honest and professionally innovative.

Main Practice Question: Justice should not only be done but seen to be done. Analyse the statement in the light of recent criticisms of CBI.

Note: Write answers to this question in the comment section.

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