CBI: Will the current turbulence eventually lead to smooth sail?

December 18, 2018 12:17 AM

With more focus on financial crimes, CBI has been left wanting in investigating such matters. Also, it relies solely on police officers from state cadres to fill its ranks on deputation.

Will the current turbulence eventually lead to smooth sail? (Illustration: rohnit phore)

By Akhil Arora

The recent happenings at the Central Bureau of Investigation (CBI) have caused much mirth, since these are being compared to Spy vs Spy—the wordless comic strip made so famous by the MAD magazine. That this was waiting to happen is trite, but when an institution is raised far above its competence, the fall
has to be swift.

Widely considered as India’s ‘premier investigation agency’, the CBI has often been left red-faced due to criticism around its functioning. Endless investigations, intolerable lethargy, non-adherence to courts’ instructions, failure to maintain secrecy in investigations … the CBI has been repeatedly reprimanded by various courts, including the Supreme Court, on all these grounds and more still.

On account of the usually blotched and blinkered investigations, the CBI accused are often considered spending time in jail awaiting bail. Add to all these, the counter-allegations by two senior-most officials at the CBI and it seems like a good occasion to consider euthanising the “caged parrot” as public confidence in the institution has been completely eroded. However, not all of the CBI’s failings are its own doing, and it is important to understand the reasons that have led to the CBI’s current state before we start re-imagining the federal investigation agency.

The CBI is the successor to the Special Police Establishment (SPE), which was set up for investigating bribery cases in transactions with the War and Supply Department during the Second World War. The CBI was set up in 1963 to serve the same purpose. Over time, its jurisdiction was extended to public sector undertaking (PSU) employees, and economic offences and crimes such as murders, kidnapping, etc. Additionally, the jurisdiction of the CBI was extended to most states upon consent from the respective state governments, making its scope akin to any other police force. The powers of the CBI were far extended by constant marking of cases by various courts. When in doubt refer to CBI became the refrain. What damage it did to state police was never comprehended by the courts. In addition, the many hats the CBI was forced to wear eventually wore down its capabilities and it became eponymous with the “jack of all trades, master of none.”

Blames can be apportioned and attributed to various reasons, but the principal blame lies in the attempts by the courts to grant the CBI independence. The judiciary has repeatedly sought to insulate the CBI from the executive. In public interest, the Supreme Court, in the Vineet Narain & Others vs Union of India & Another case, had sought to secure the autonomy of the CBI by making it accountable to the Central Vigilance Commission (CVC). But the CVC is responsible only for monitoring corruption cases, and the larger platter of the CBI is now full of cases relating to finance, crime, and so on. Also, the courts’ attempts to insulate the CBI have created far bigger problems. The administrative control shall always vest with the government. In addition, a point missed by the Supreme Court is that no institution can become bigger than the State.

The CBI is a creature of the government and cannot, and should not, be made into an independent empire. The “power corrupts…” adage applies to any such misadventure. The worse happened when the Supreme Court sought to implead itself in the selection-making process. This, coupled with the fixed tenure of two years, brought matters literally to head, in that it became reminiscent of the Louis XIV brag: “I am the State.” The courts’ directive that the CBI report directly to them in certain matters did not help matters either. Power without responsibility is dangerous. Also, bereft of proper scrutiny of decision-making process caused roving inquiries and far too often cases fell flat. The 2G matter so trumpeted by the Supreme Court was quashed by a magistrate.

Logistically, the CBI has hampered itself by avoiding the creation of a dedicated cadre. Until the 1990s, the CBI had direct recruitment at the Deputy Superintendent of Police level, but soon conflicts and inter-service rivalry started, and the direct recruitment process was stopped. The CBI used to take officers on deputation from other organised services and financial institutions. But to encadre the posts, the Indian Police Service (IPS) lobby got the service rules amended, to have only one of the 16 Joint Directors open to lateral movement from other services. With the refusal to give rank and equivalent status to the professionals, this source dried up. No person, however capable, can be a master in every field. With increasing focus on financial crimes, the CBI has been left wanting in investigating such matters, forcing it to engage outside agencies such as CA (chartered accountancy) firms to assist in investigating such matters. The agency now relies solely on police officers from state cadres to fill its ranks on deputation. However, the police force in India is itself dysfunctional—understaffed and woefully lacking in the necessary forensic capabilities and the subject matter expertise required to crack the kinds of cases dealt with by the CBI. Further, the Director of the agency always belongs to the IPS, and this has not helped in changing either the culture or the way of operating of the agency.

It’s time Parliament creates a proper law for exercising control over all intelligence and investigation agencies of the government. They must all be answerable to Parliament. A similar structure is available in the US to emulate. Of all the federal or central investigating agencies, the FBI of the US is considered the most powerful and effective in its functioning. It enjoys both functional and financial autonomy. The FBI is accountable to the US Senate and reports to the US Attorney General. The Director of the FBI is not encadred in police agencies. Men of talent and often from judiciary have held the top position. The FBI, under J Edgar Hoover, had become a loose cannon, a lesson to be read by the government and courts while espousing autonomy or larger than statute status to any agency.

The author is Master of Laws from University of Chicago Law School

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