In defence of the CBI

Once again, the Central Bureau of Investigation (CBI) is back in the news for “sharing” the status report it submits periodically to the Supreme Court which has taken upon itself to monitor the investigation in the coal block allotment scam. The director of the CBI was frank enough to admit that the bureau functions under the government and as any other civil servant, he too was obliged to share the report with the senior functionaries of the government and its law officers — attorney-general and solicitor-general. One would tend to sympathise with him rather than criticise him. The only other option for him would have been to assert himself and, if need be, quit rather than do what he did! He, perhaps, felt that quitting wouldn’t solve any problem as the government can always find someone who would “stand by” them. It might make him a martyr, that too for a day or two, but that wouldn’t solve the problem. If he were at fault, so is the attorney-general and the solicitor-general. It is in this context that this complex situation needs to be seen.
As the director puts it, the CBI is subordinate to the government and is not an autonomous institution, notwithstanding the recent half-hearted attempts to secure it from executive interference. These days the director cannot even choose the IPS officers to be taken on deputation to the CBI as was the case in the first three or four decades of its existence. Interestingly, the organisation we call the CBI, by itself is not even a statutory entity! It has, for its legal basis, the Delhi Special Police Establishment Act and derives its powers from it. Outside Delhi, in the states, it functions at the pleasure of the state governments. If any state government is aggrieved with it, it can withdraw its permission, relieving the CBI of all its powers of investigation! Notwithstanding all these crippling weaknesses, the CBI has built up an enviable reputation for fairness and competence. No wonder, everyone — courts, vigilance commissioners, and government — wants to ride on its back and “supervise” it without addressing its basic problems or strengthening it in any way.
All right-thinking people want the CBI to be an autonomous and accountable organisation with its own statutory basis. First and foremost, it must be secured by legislation — something like a CBI Act — which defines its role and responsibility and secures its autonomy. All these days this could not be done on the premise that no legislation can be brought to secure an investigating agency by Union government as investigation is a police function and police is on the State List of the Constitution. This problem was overcome when the National Investigation Agency (NIA) was established to deal with terrorist offences. The NIA has concurrent jurisdiction in relation to the investigation of this class of offences and comes in only on the request of the state concerned. It is possible to bring in a similar legislation, initially limited to the Union Territories with a provision in the act to extend it to the states with their concurrence. Confronted with inter-state investigations, over a period of time, all the states would fall in line and agree for concurrent jurisdiction of the CBI in relation to cases involving economic offences, inter-state frauds and big time scams. That would be possible only when they are convinced that the bureau would not be used to serve the political ends of those in power. It is not impossible to overcome this problem if the bureau is made accountable to a responsible and a politically-neutral commission — as the one suggested by the National Police Commission for State Police Forces — which would monitor its functioning while keeping away from interfering with investigations.
The next question is who should the CBI be accountable to? Certainly not the Central Vigilance Commission (CVC) or the proposed Lokpal and not even the courts as is often touted by enthusiastic reformists and intellectuals.
Of late, there has been an unfortunate tendency on part of the courts to take interest in the cases under investigation which is not their function at all. In an extended interpretation of their jurisdiction, the courts have come to treat the investigating agencies as their handmaids which they are not. Under the law, the investigating agencies have as much autonomy in respect of investigation as the courts have in respect of trial proceedings. The job of the trial judge begins after the investigator has done his job. Investigation is the exclusive responsibility of the police agencies and for more than a hundred years after the criminal justice procedures were established, this healthy norm was respected by all courts. Of late, however, one notices frequent interference of courts at various stages of investigation, at times to the extent of telling the police what to do and what not to do. Interference by judiciary is nearly as bad as interference by the executive! In the instant case, the apex court has taken upon itself the responsibility of monitoring investigation and asking for periodic status reports which is surely not their function. It is a clear case of a judge supervising the job of an investigator in which case he loses the moral authority to try the accused should his guilt be established.
In the criminal justice system, the investigator, the prosecutor and the judge are given independent roles and one is not subordinated to the other in the interests of fair trial. The system has been impaired after independence as each of these agencies wants to assert itself; this is particularly true of the courts. If the police and prosecutors are on occasion not free to do their jobs fairly as is often alleged, the reform if any shall be to enable them rather than impose multiple layers of supervision on them and project them in bad light. But if the courts attempt to substitute for one or the other of the two wings of the criminal justice system, it will undermine their morale and professional pride and that will not strengthen the system. In the chain of the criminal justice, investigation wing is perhaps the weakest link and as we all know any chain is as strong as its weakest link. So the effort shall be to strengthen the link rather than oversee or decry it or substitute for it! So the need of the hour is to secure the CBI from the interference of the executive and the judiciary.

The writer is a former IPS officer

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