Analyzing Government Affidavit on CBI autonomy

Analyzing Government Affidavit on CBI autonomy

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CBI is a “caged parrot”. So said the Supreme Court on 8th May 2013 while hearing the PILs relating to the coal scam. It asked the Government of India to file an affidavit as to what the Government intends to do to make CBI autonomous and independent of political interference. Well, earlier this week, on 3rd July 2013, the Government filed its affidavit (here) before the Supreme Court narrating the actions that it proposes to take to make CBI more autonomous and to free it from political interference. Do these proposals make any sense? Will they make CBI completely autonomous and free it from political interference? Let us analyze these proposals thread-bare to find out whether the Government has been sincere in its efforts to make CBI independent.

(1) Selection of Director CBI:

Government proposes to amend Section 4A of the Delhi Special Police Establishment Act, 1946 (hereinafter, “DSPE Act”) relating to selection of Director CBI. The amended section would provide that Director CBI would be appointed on the basis of the recommendation of a 3-member Committee consisting of the Prime Minister (as Chairperson) and the Leader of Opposition in the House of the People (as Member) and the Chief Justice of India or a Supreme Court Judge nominated by him (as Member).
This is definitely a positive step. The proposed Committee is quite balanced and can definitely be considered to be capable of selecting the best person as Director CBI. This is perhaps the best that one can expect about the composition of such a Committee. However, there are certain other issues worth noting.
Firstly, it is not specified in the proposed section as to whether this Committee will select Director CBI by a unanimous decision or by a majority vote. If the selection can be made by a majority in the Committee overruling strong reasoned objections by the third member in respect of the selected person, it may lead to compromising the selection process. In this regard, one may recall how a similar 3-member selection committee in the recent past had selected Mr. P.J. Thomas as the Chief Vigilance Commissioner by a majority of 2 members (Prime Minister and Home Minister) overruling the strong objections raised by the third member in the Committee – Mrs. Sushma Swaraj (leader of the Opposition in the House of People). Thus, a person with subsisting allegations of corruption was selected as CVC despite the fact that the Central Vigilance Commission Act provided for an independent selection committee for ensuring selection of the right person to the important post of CVC. Of course, subsequently, the appointment of Mr. P.J. Thomas as CVC was set aside by the Supreme Court.
However, the saving grace in the proposed Committee for selection of Director CBI is that all of its three members belong to different institutions and that the Government does not have a majority in this Committee unlike the selection committee that chooses the CVC wherein the Government has two members (Prime Minister and Home Minister) in the 3-member committee. Thus, the proposed 3-member committee consisting of the Prime Minister, Leader of the Opposition in the House of People and the Chief Justice of India (or a Supreme Court Judge nominated by him) for selection of Director CBI can be considered to be a far better, and perhaps the best possible, composition for such a committee.
Nonetheless, it would have been advisable if it was specifically laid down in the proposed section that the aforesaid selection committee will have to select the Director CBI by a unanimous decision rather than by a majority. A unanimous decision by the committee will definitely ensure selection of the best possible person. [Of course, to avoid a complete stalemate, it may perhaps be provided that if the Committee is not in a position to come to a unanimous decision in spite of, say 5 consecutive meetings, the decision shall be taken by a majority.]
The second issue is about the preparation of panel of officers from amongst whom one officer would be selected as Director CBI by the said selection committee. There is no provision in the proposed section as to how and by whom such panel would be prepared. It is necessary to lay down a transparent and foolproof system of preparing the panel of officers by an independent search committee consisting of persons of impeccable integrity or by some other foolproof mechanism. Moreover, such panel needs to be prepared by considering all available eligible officers and by following a transparent process, and not by limiting the choices at the threshold itself. In the absence of such provisions, there is a likelihood that the Government will include a limited number of its own preferred officers in the panel, thereby limiting the choices before the aforesaid selection committee and in turn completely destroying the very purpose of constituting such a high level selection committee.

(2) Safety of tenure of Director CBI:

The proposed amended section 4B in the DSPE Act,inter alia, provides the following:
  • Safety of tenure of two years for the Director CBI;
  • Director CBI cannot be transferred without the previous consent of the aforesaid 3-member selection committee.
  • A stringent provision for removal of Director CBI on the ground of proved misbehaviour or incapacity following an inquiry conducted by the CVC on a reference made by the President.
These provisions will provide some protection and safety of tenure to the Director CBI. The proposed provision relating to removal is somewhat similar to the protection provided under the Constitution to the UPSC members, though in their case the inquiry for establishing proved misbehaviour or incapacity is required to be conducted by the Supreme Court. Perhaps a similar provision (i.e., inquiry by the Supreme Court) would be advisable for removal of Director CBI. As we shall see later, the CVC is also given the power of superintendence over CBI functioning in respect of corruption cases, due to which the CVC will have a conflict of interest if such an important inquiry was to be conducted by him. Supreme Court will perhaps be the most appropriate institution that can impartially conduct such an inquiry.
There is also a provision in the proposed amended section 4B of the DSPE Act for suspension of Director CBI during the pendency of an inquiry referred to above. Again, this provision is similar to the one existing in the Constitution for the UPSC members. Of course, it does give some indirect power to the Government to interfere in CBI working, keeping in view the fact that no time limit has been prescribed for completion of such inquiry.

(3) Selection of other senior officers in CBI:

For selection of other senior officers in the CBI (of and above the rank of Superintendent of Police), another 6-members selection committee has been proposed in the amended section 4C of the DSPE Act. This committee will also decide about the extension and curtailment of their tenure in CBI. This selection committee consists of the following:
  • Three members from the Central Vigilance Commission (the CVC will be the chairperson, and two other members of the Commission will be members).
  • Two members from the Central Government (Home Secretary and the Secretary DoPT).
  • One member from CBI (Director CBI).
Thus, the composition of the selection committee does not appear to be free from Government control, more so since it appears that this committee can select officers for CBI by a majority decision. Moreover, the proposed section 4C lays down that on receipt of recommendations from the said selection committee, the Central Government shall pass such orders “as it thinks fit” to give effect to such recommendations. Thus, certain discretion has been left with the Central Government for acting on the recommendations of the said committee.
Officers of and above the rank of Superintendent of Police in CBI form its backbone. Investigations conducted by the CBI are closely supervised by these officers. The quality and integrity of the investigations, thus, depend largely on the calibre and integrity of these officers. Therefore, it is important to lay down a foolproof method of selection of these officers.

(4) Non-interference in investigations conducted by CBI:

Section 4 of the DSPE Act is proposed to be amended to give further independence to CBI in matters of investigation. Broadly speaking, it is on the same lines as the existing provision with some changes.
For example, for corruption related cases, it is proposed that the CVC would have the power of superintendence over CBI; however, the CVC shall not exercise this power in such a manner so as to require CBI to investigate or dispose of any case in a particular manner. Therefore, a general power of superintendence is given to the CVC in corruption cases investigated by CBI, but the CVC cannot interfere in investigation of any individual case. It is pertinent to point out that a similar provision already exists in the Proviso to Section 8(1) of the CVC Act, 2003; what is now proposed is to simply reiterate the same in the DSPE Act also. So, nothing changes in reality.
For cases other than the corruption cases (such as a murder case or an encounter case, for example, the Ishrat Jahan case) and for other matters (such as administrative matters), the Central Government will have the power of superintendence over CBI. Here again, it is proposed that the Central Government shall not exercise this power in such a manner so as to require CBI to investigate or dispose of any case in a particular manner. So, interference in the investigation of individual cases is barred. However, the fact remains that the Central Government will continue to have the power of superintendence at the macrolevel in respect of investigations into cases other than corruption cases and also in other matters such as administrative matters. So, the allegations of political interference in CBI investigations in cases (such as Ishrat Jahan encounter case) will continue to thrive in future as well, since there is hardly any change in the proposed law.
So, CVC and Central Government will continue to have superintendence over CBI investigations in their respective fields though they won’t have power to micro-managethe investigation in an individual case. This is proposed to be the letter of the law. However, it is well known that, in practice, nobody bothers about the limitations under law. There is always a thin line between superintendence at the macro level and interference at a micro level in an individual investigation. When the Director CBI is called for a meeting in the name of superintendence at the macro level or for an administrative matter, details of individual cases can also be discussed conveniently, more so when the officers are pliable.
Another issue is the actual interpretation of what exactly amounts to “superintendence” of investigations and what exactly amounts to not requiring CBI “to investigate or dispose of any case in a particular manner”. Isn’t it likely to lead to wrong interpretations?

(5) Sanction of Central Government necessary to conduct investigation / inquiry against senior functionaries:

Section 6A of the DSPE Act lays down that the CBI shall not conduct any inquiry or investigation into any corruption case against certain senior functionaries (such as those of and above the rank of Joint Secretary in Central Government) without taking prior approval from the Central Government.
In a recent article, I had written that deletion / repeal of the aforesaid provision is a must in order to make CBI autonomous and independent of political interference. I am not going into the details of that article, but in brief I may mention that this is the biggest hurdle in the CBI being made independent. This section ensures that the CBI is not in a position to conduct any inquiry or investigation in a corruption case where senior Government functionaries are involved unless it first obtains permission from the Government. So, the CBI does not have the power to conduct investigation in big corruption scandals without Government permission. What better example can you find of political interference in CBI working?
So, what does the Government propose to do in its affidavit before the Supreme Court? Does it say that it will repeal Section 6A of the DSPE Act? No, there is no such proposal. This section will remain in the statute books. In effect, it implies that the Government interference in the CBI functioning will continue unabated.
Of course, the Government has proposed a minor change in Section 6A of DSPE Act by offering to lay down that the Central Government shall take a decision on such requests for prior approval for investigation / inquiry within a period of three months and that if the prior approval for investigation is to be declined, reasons shall be given in support thereof.
But, this proposed change is no solace for not repealing the said section 6A altogether. It is pertinent to point out that, as I had mentioned in my earlier article, this section was inserted in the DSPE Act only after the Supreme Court had set aside a similar so-called “Single Directive” that prescribed a similar prior approval for CBI investigations by way of an administrative order. Moreover, the constitutional validity of Section 6A is already under challenge before a Constitution Bench of the Supreme Court  for last several years. In view of these reasons, it was expected that the least the Government would do would be to repeal Section 6A of DSPE Act. It has not happened, though.
Thus, the Government has completely failed in this test of providing autonomy to CBI by not proposing to repeal Section 6A from the DSPE Act, which would perhaps have been the best indicator of the Government’s intentions.

(6) Director of Prosecution:

The Government has proposed to insert a new Section 5A in the DSPE Act to provide for a Director of Prosecution in the CBI who shall work under the overall supervision and control of the Director CBI. It is pertinent to point out that this section does not make any great changes in the present arrangement. A Directorate of Prosecution already exists in CBI under the administrative arrangements, with more or less similar provisions, though now these provisions are proposed to be put in the statute itself.
Director of Prosecution will be selected by a committee consisting of the following:
  • CVC as its Chairperson.
  • Three Secretaries to the Central Government (one each from MHA, DoPT and Department of Legal Affairs).
  • Director CBI.
Thus, Government has a clear majority in the said selection committee, with 3 members out of a total of 5 members. This clearly implies that the Government will have the final say in the selection of the Director of Prosecution.
Moreover, the selection of Special Counsel and Retainer Counsel for conducting prosecution, revisions and appeals on behalf of CBI in various courts will require approval from the Ministry of Law & Justice of the Central Government.
Further, where Director CBI disagrees with the advice of the Director of Prosecution, the matter shall be referred to the Attorney General for India (who works under the Central Government). Thereafter, the Director will take the decision in the matter keeping in view the opinion of the Attorney General.
It may also be noted that the Annual Confidential Report (ACR) of the Director of Prosecution will be reviewed by the Secretary, Department of Legal Affairs in the Government of India.
Thus, in the matter of prosecution of all CBI cases and for advice during investigation stage (as also, appeals, revisions in various courts), the interference of the Central Government will continue to exist, directly or indirectly.

(7) Accountability Commission:

Government proposes to insert two new sections 7 and 8 in the DSPE Act to create an Accountability Commission consisting of three whole time members from amongst retired Supreme Court or High Court Judges. CVC shall be the ex-officio member of this Commission.
This Accountability Commission shall exercise the power to entertain and inquire into allegations of misbehaviour, incapacity, impropriety or irregularity on the part of an officer or employee of CBI.
It needs to be pointed out that it has been wrongly reported in some sections of the media that this Accountability Commission will supervise investigations conducted by CBI. That is not true. This Commission will, in fact, look into complaints against the officers and employees of CBI.
Broadly speaking, this is a welcome provision. Where immense powers are vested in an institution (we are talking of full “autonomy” here), it is also necessary to ensure that such powers are not misused or abused, and there is a need to have an effective mechanism to look into complaints against personnel of such institution. So, this Commission will fulfil that requirement since once CBI is made autonomous with immense powers, it may perhaps be necessary to have a mechanism to look into complaints of misuse against its own officers.
However, the proposed provisions relating to Commission do not lay down as to how the members of this Commission will be selected. It appears that the Central Government will have full discretion to appoint persons of its own choice as its members. True, its members will be retired Supreme Court or High Court Judges (in addition, CVC will be an ex-officio member). But, that is no guarantee. Judiciary is not immune from corruption and other human weaknesses. Giving full freedom to the Government to select members of this Commission without there being any independent selection committee to make recommendations in this regard, is likely to be misused or at least there will be a scope for its misuse. Ultimately, this Commission will have the power to inquire into complaints against CBI officers and the complaints can be forwarded to it for inquiry also by the Central Government itself. It is not impossible to manufacture complaints and then harass an honest CBI officer (who otherwise refuses to listen to the Government) through pliable members of the said Commission. Will this not open indirect avenues for Government interference in CBI functioning?
Therefore, while having an Accountability Commission is definitely a good idea, it would be advisable to have an independent selection committee to select members of this Commission. Merely being a retired Supreme Court Judge or a retired High Court Judge is not equivalent to being a magical solution to the problems of integrity, professionalism and efficiency. There are good Judges and there are bad Judges. After all, these Judges also come from the same society and they work in the same environment.

(8) Financial autonomy:

The Government does not propose any amendment in the DSPE Act to give financial autonomy to CBI. However, by administrative orders, it intends to give the same financial powers to the Director CBI as are exercisable by the Director General of the Central Reserve Police Force (CRPF) at the relevant time under the Government notifications. While I don’t have full details of the financial powers of the DG, CRPF, I am given to understand that giving similar financial powers to Director CBI will help the CBI substantially since the existing financial powers of CBI are very limited.

(9) Concluding remarks:

Overall, it appears that the actions proposed by the Government of India in its affidavit to the Supreme Court to make CBI autonomous and free from political interference, are only half-hearted attempts. Some of these proposed actions are, no doubt, quite useful, while some others are completely unsatisfactory. Moreover, some other steps that were expected, have not been proposed. For example, it was expected that there would be a provision that the Director CBI shall not be eligible for further employment under the Government after his retirement (at least, for some specific number of years after the retirement). However, no such proposal has been made.
So, will the CBI become completely free from political interference? Well, let us also see first what is the reaction of the Supreme Court to the aforesaid Government affidavit. I do sincerely hope that the Supreme Court will further add strength to these measures proposed by the Government.
Before I conclude, let me point out that how an institution will function, in fact, depends more on the integrity, character, courage, determination, dedication and quality of the people who run that institution. I don’t think I have to cite examples to prove this statement. Suffices it to quote the following relevant observations (here) of Dr. B.R. Ambedkar during a meeting of the Constituent Assembly at the time of framing of our Constitution:
“…however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the state depends are the people and the political parties they will set up as their instruments to carry out their wishes and their politics. Who can say how the people of India and their parties will behave or will they prefer revolutionary methods of achieving them? If they adopt the revolutionary methods, however good the Constitution may be, it requires no prophet to say that it will fail. It is, therefore, futile to pass any judgement upon the Constitution without reference to the part which the people and their parties are likely to play.”
Much in a similar manner, while the legal provisions relating to CBI autonomy may be important, what is more important is the people who run the CBI. If they are bad, nobody can help.


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