PM, Chidambaram wrong on CBI: Policy is not free from corruption

By Ajit Joy Earlier this week, both the Prime Minster and the Finance Minister came out strongly against the CBI, charging it of exceeding its brief of looking beyond crime and into policy. Prime Minister Manmohan Singh in his speech - to an international anti-corruption conference hosted by the CBI - noted with concern that, “investigating agencies in our country have been increasingly enquiring into administrative decisions and also matters relating to policy making.” What is most alarming to the Prime Minister, and which he says is “flawed and excessive”, is “pronouncing decisions taken with no ill-intention within the prevailing policy as criminal misconduct.” Finance Minister Chidambaram made the government’s stand even clearer at the very same conference saying, “I would caution investigating agencies to respect the line that divides policy-making and policing”. An investigating agency, he went on to say, “must confine itself to the question whether there has been a violation of a laid-down rule of conduct”. [caption id=“attachment_123428” align=“alignleft” width=“380”]  Despite popular discontent with the system, there is no urgency in countering corruption.[/caption] The top leadership of the government, without mincing words, is reminding the only federal anti-corruption investigating agency of the country of its limits and cautioning or rather warning the agency to tread very carefully when it comes to higher level decision making, and policy matters. It is intriguing how an investigation agency can probe something like a 2G scam or the coal scam that has cost the nation a huge financial loss without examining the policy that led to this loss making decision. Two primary ingredients go into making a crime. An actus reus or a guily act, and mens rea or a wrongful intent. Now these two ingredients can come together even during policy formulation. If policies and rules are made with the intent to enrich certain people, then it’s a clear case of corruption – and therefore to say keep policing and policy separate really makes no sense. The fact that CBI is a “caged parrot” is made again very clear by the PM when he said: “The debate on autonomy should not lose sight of the fact that the CBI and other investigating agencies are part of the executive.” “We should”, he said, “be able to clearly distinguish between operational autonomy and the rules of oversight, supervision and control in organizational and institutional matters that are normal for public bodies of the Executive funded by public money.” In other words, come what may, the CBI is a normal agency of the government and it would exercise the same bureaucratic and ministerial ‘oversight, supervision and control’ over it. Where is the question of autonomy? After all these years of debate on autonomy for the CBI that the Supreme Court has been leading, we have come full circle. While the PM says, in matters of investigation, the CBI has full autonomy, in practice, it is only a notional autonomy where the government decides upon all issues relating to finance, staffing, travel, civil works, and everything related to the organisation. Autonomy is a package – either an organisation is fully autonomous or it is not. With full autonomy also comes full responsibility, wherein the agency cannot then point fingers and find excuse for failure. It is in this light that in the coal scam case before the Supreme Court, the CBI had in an affidavit to rescue itself from its present status of being a “caged parrot”, asked for certain powers that would give it true autonomy. This included provision for the Director CBI to report directly to the minister concerned and not through the normal bureaucracy. The Director also wanted powers to appoint special counsel for the agency, a requirement in prosecuting high profile complicated cases. The Government in its counter to this plea, also filed this week, has strongly opposed any such move. The government argued: “If the CBI Director reports directly to the Minister, the superintendence of the Minister would stand compromised and an independent layer of scrutiny would no longer be available.” How will the superintendence of the minster be compromised when the CBI director, a responsible senior officer of the rank of Secretary, is reporting to him on matters administratively supported by the machinery of the entire CBI? Will the so-called superintendence be complete only if a few babus go over the file and make a note to the minister? The government says giving such powers to the CBI will upset the Government of India (Allocation of Business) Rules and affect the statutory scheme of governance. The question is - what is so sacrosanct about these colonial style rules of 1961 vintage? Rules of business have to change and this should be seen as an opportunity by the government to facilitate such a change. We have seen how the existing system has utterly failed in providing fair investigation in matters of corruption and how the CBI is being used as an extension of politics. The government also argues that CBI needs to be treated in parity with similar organisations, and that “it was not desirable to set a precedent which would create heartburns in similarly placed organisations.” Which are the other organizations charged with investigating corruption that is asking for this autonomy? And why compare CBI with others which are not tasked with fighting the multi-crore corruption scandals under the glare of the courts and the media? India has ratified the United Nations Convention against Corruption (UNCAC) and is therefore obliged to give effect to its provisions. One of the mandatory provisions of the UNCAC is to have “independent” bodies to prevent corruption. The requirement is “independent” not even “autonomous”. Though the Convention came into force in 2003, India ratified it only in 2011. There seems to be no urgency in being truthful to what we have committed, or in countering corruption. CBI is the only anti-corruption investigation agency which today functions - thanks to the courts - with some credibility and effectiveness in this large country. State anti-corruption agencies, completely stifled by state government controls and organisational weaknesses, hardly do anything in fighting corruption. In the interest of improving governance and honouring our commitment under international law, why don’t we set the caged parrot free? (The author is a social activist and was formerly an IPS officer)