The angst of a ruling regime against independent media is not a new phenomenon. Every ruling party has been at loggerheads with the independent gestures of media. Congress’s hostile attitudes towards Ramnath Goenka and The Indian Express in the 1970s and 1980s under Indira Gandhi and Rajiv Gandhi's leadership are perfect pointers. Going a step further, the present ruling regime has used the Central Bureau of Investigation (CBI) to register a case against the promoters of NDTV and conduct raids at four locations to collect documents related to an alleged loss of Rs 48 crore to the ICICI Bank.
One cannot deny the fact that no person/institution shall be exempted from the test of fair principles of equality before the law. But given the past experiences of CBI’s misuse, the mala fide intention of the government to use this investigative agency to intimidate NDTV’s promoters to soften the channel's anti-establishment reporting cannot be ruled out. In other words, it would be wrong to assume that the ‘CBI can do no wrong under BJP’s regime’.
The colonial origin
The CBI owes its origins in a special order passed by the British government in the early stages of World War II (1941). A Special Police Establishment (SPE) under a deputy inspector general in the then Department of War was created with the mandate to investigate cases of bribery and corruption in transactions with which the War and Supply Department of the pre-Independence Government of India was concerned. Later, the activities of the SPE were extended to the Railways, and in 1946, the Delhi Special Police Establishment (DSPE) Act was passed, which led to the establishment of the Central Bureau of Investigation by a resolution dated 1 April, 1963.
The mandate was that the CBI would investigate not only cases of bribery and corruption, but also major financial law violations, and other serious crimes.
The CBI’s power to investigate crimes currently arises from Section 2 of the DSPE Act, 1946. Section 3 of the DSPE Act confers upon the CBI concurrent and coextensive powers to investigate offences mentioned under the same section. Additionally, the central government has the power to extend the jurisdiction of the CBI to any area — except Union territories — that falls within the geographical boundaries of our country, subject to the consent of the state so concerned (Section 6 of the DSPE Act).
DSPE sans constitutionalism
It is prima facie deceitful to confer such an unguided discretion to the CBI and the central government to pick and choose a particular case. The necessity of speedy and serious investigation in a particular case is too vague to withstand the test of reasonable classification. Also, there is no intelligible differentia which can sustain the classification, and hence, it is hostile, discriminatory and contrary to the basic tenants of the Article 14 of the Constitution.
The excessive and unguided delegation of power to the executive and its instrumentalities has been professed to be contrary to the constitutional scheme by the Supreme Court in a number of cases such as State of West Bengal vs Anwar Ali Sarkar, Ram Krishna Dalmiya vs Justice SR Tendolkar, etc.
A dubious record
Undoubtedly, the CBI is the premier investigative agency of India and has a brilliant track record of convictions. As per the latest data presented to the Lok Sabha, from 2006 to July 2016, the CBI has secured 68 percent conviction rate in corruption cases. The agency probed 7,000 cases, filed charge sheets in 6,533 cases, secured a conviction in 4,054 cases while 2,095 cases ended in acquittal. But despite this fact, the credibility of CBI is not firmly entrenched in India in dealing with high-profile cases.
The elitist and feudal bias of the CBI is reflected in the socio-economic profile of those convicted in corruption cases as most of these include lower officials, people without political patronage and police officials while it dealt with few cases of politicians, bureaucrats and businessmen. To put it differently, the CBI records bear testimony to the fact that, in identical circumstances, the common people are convicted but the highly networked people are spared.
Strangely, in the last five and half decades of CBI’s existence, no substantive action has taken place against the political masters and their close associates except in few cases like the conviction of Om Prakash Chautala for illegal teacher recruitment scam in Haryana, Lalu Prasad Yadav and 43 others in the fodder scam in Bihar, and late J Jayalalithaa in a disproportionate asset case.
Even these recent convictions do not add glory to the CBI as the convictions happened at the fag end of the political careers of these leaders and with the approval of a hostile central regime.
The accountability of the CBI is fixed to the government than the people. As a result, the autonomy of CBI has been seriously compromised at the behest of a ruling party. The officials of CBI are intimidated if they insist on discharging their duties against the bureaucrats, leaders and other allies of the ruling party, but suitably rewarded if spared from the operation of laws.
In most of the high-profile situations, cases were registered hesitantly, searches and investigations were unduly delayed, charge sheets were poorly filed, arrests were scrupulously avoided for long and convictions were exceptional.
In the worst possible scenario when a ‘charge sheet’ and ‘arrest’ become inevitable under public pressure, it is being tailored with many holes and weak evidence to conveniently support the accused in the court to emerge as a bigger hero.
It is because of the vested interests of the ruling parties that no significant progress has been made in the Bofors case, Hawala Scandal, Rajiv Gandhi assassination case and Beant Singh murder case despite many decades of filing the case with CBI. Even the impartial role of CBI in cases like HDW Submarine, the Airbus 320, Czech Pistol, Nusli Wadia, S Gurumurthy, St Kitts, Chandraswamy, Lalloo Bhai Pathak, JMM, Mumbai Port Trust and so on, was highly suspected.
Similarly, the CBI has a history of burying huge scams under mountains of bureaucratic red tape or putting them under the lid for a long period of time till public memory gets exhausted. In 2013, the Supreme Court had criticised the then law minister Ashwini Kumar for interfering in the investigation of the coal block allocation case. The apex court also noted the tardiness of the CBI’s investigation in the 2G Spectrum case.
The CBI has also been used both as an instrument of intimidation and a tool of a political bargain with political opponents of a ruling party. On the directions of Congress and BJP, the CBI played a mysterious role in Mulayam Singh Yadav and Mayawati’s disproportionate assets cases. As a result, both the parties had to shift from their political stand to support not only the ruling regime but also to save their skin from convictions.
Having once termed CBI as the Congress Bureau of Investigation, BJP is manoeuvring in its right-wing circle that the CBI is no more working as an institution of intimidation, rather it's discharging its duties without any political pressure under the Narendra Modi regime. It is being done while highlighting the final charge sheet against BJP leaders including Lal Krishna Advani, Murli Manohar Joshi and Uma Bharti in Babri Masjid demolition case. But in all probability, allowing the CBI to file charge sheet against its leaders and then ensuring bail is a master stroke of BJP for the 2019 General Elections to Lok Sabha.
The Ram Mandir agenda is revived, and BJP has much to gain in both conviction and acquittal of its leaders. If convicted, a sympathy wave will help the party preserve its forte in 2019 the way the death of Indira Gandhi and Rajiv Gandhi did for Congress. If acquitted, then victorious flamboyant-ism will infuse new energy in the party.
The tactics of intimidation and bargain were used against Arvind Kejriwal’s government, Mamata Banerjee's government and Virbhadra Singh’s government. And most recently, the CBI carried out raids on properties of Karti Chidambram — son of P Chidambaram — in connection with alleged favours granted in FIPB clearance to a company in 2007. But, the CBI did not make any progress in the Vyapam scam which involves top BJP officials.
How could one differentiate the intention of the present government from the previous government when we notice a similar pattern of use and abuse of CBI that is more focussed on intimidation rather than the conviction of the political elites? The consistent display of the ugly side of CBI’s non-performance in ensuring deterrent punishment to the ‘political accused’ in financial scandals finally erodes public trust in the entire criminal justice system. The present regime is no better in saving the grace of this institution.
The CBI has failed to establish its image to fight corruption without prejudice for which it was created in 1963. In fact, it has metamorphosed into a Frankenstein’s monster and is still working on the selective principles of the applicability of the law to preserve the Jungle Raj within.
Afroz Alam is an associate professor and head of the Department of Political Science at Maulana Azad National Urdu University, Hyderabad. Yogesh Pratap Singh is associate professor of law at National Law University Odisha and works as deputy registrar of the Supreme Court of India.
Updated Date: Jun 12, 2017 16:08 PM