The Opposition should have a say in appointing CBI chief

by RK Raghavan

Senior IPS officer Ranjit Sinha’s appointment as the next Director of the Central Bureau of Investigation (CBI) to succeed AP Singh has triggered a major controversy, with the BJP saying that this should have been done by a collegium (that would include the Leader of the Opposition and the Chief Justice of India) rather than selection solely by the Appointments Committee of the Cabinet (ACC).

This demand has in mind the analogy of what obtains in the selection of the Central Vigilance Commissioner (CVC). The party’s charge is that the government has forestalled a recommendation to this effect by a Select Committee of Parliament whose report on the subject is due anytime. The Prime Minister has turned down the suggestion that Sinha’s appointment be put on hold.

Courtesy: ibn live

This course of events does not surprise me because of the CBI’s increasingly crucial role in the polity, particularly in the context of the 2G scam, which threatened to destabilise the government, and the nagging feeling that the CBI has been politicised. The BJP has, however, questioned only the procedure adopted and not the suitability of Sinha to fill the position.

Lawyer Prashant Bhusan has gone beyond this and raised the issue of the integrity of the appointee. This is rather unfortunate. Unless he produces credible evidence to prove that Sinha had an integrity problem, we will have to ignore his charge. Sinha was the senior-most officer on the panel prepared by the CVC – he belongs to the 1974 batch of the IPS - in accordance with procedure laid down in Section 4 of the CVC Act 2003. He had also worked in the CBI earlier when I was heading it more than a decade ago.

After the bitter experience in the PJ Thomas case, when the government committed a faux pas by appointing him as CVC in spite of the fact that he was facing a criminal trial, I am sure the government had done a double-check on Sinha before choosing him. Interesting days therefore are ahead.

The CBI is undoubtedly a controversial organisation for both for what it does and what it does not do. In substantive terms, it is assailed for sins of both omission and commission! Over the years it has acquired the reputation of being a handmaiden of the government. Is that the fault of successive directors? Not necessarily, because the government has tied the premier investigation agency’s hands with so many restrictions, chief of which being the infamous ‘single directive’, which requires the CBI to get the government’s permission before proceeding with even a preliminary enquiry (PE) against officers of and above the rank of joint secretary.

Also, for getting the sanction for prosecuting an accused officer it is at the mercy of the ministry concerned.  The CBI cannot also appeal against an acquittal without the government’s leave. The systematic emasculation of the CBI is now very well known, and successive governments, cutting across party lines, have been culpable on this score. Naturally, when the system is so porous, the attempt by every government is to install a pliable officer to lead the CBI.

When a panel for the job is prepared by the CVC for the government’s consideration, the whole world gets to know who the three officers figuring in it are. This certainly encourages lobbying by the officers concerned. And knowing, as we do, governments are delighted at this, because the officer who ultimately gets the nod feels obliged to those in power. This is an unintended evil in the system that is difficult to avoid. If, however, you did not have such a panel, the numbers doing the lobbying will only multiply!

Prior to the hawala judgment of the Supreme Court in 1997, CBI directors were being changed at very short intervals and as often as we change our shirts. If I am not wrong, one director had served less than two months before he was eased out, all because he did not do the government’s bidding. Incensed by this scandalous state of affairs, the apex court prescribed a procedure while issuing orders in the case.

According to this the CVC was to be given the power of superintendence over the CBI, and the CBI director appointed by a committee headed by the CVC and comprising the Union home secretary and secretary of the Department of Personnel and Administrative Affairs, which would prepare a panel of officers and remit it to the ACC for a final choice. (This direction was incorporated into the CVC Act of 2003.)

In a further direction in 2004, the Supreme Court restricted the zone of consideration of officers for the job to four years so that the very junior do not stake a claim. The 1997 judgment laid down three criteria, viz., seniority, length of experience in anti-corruption investigation work and integrity as basic to the selection of a director. Also, each director was to be given a mandatory two-year term.

The BJP’s demand for involving the leader of the opposition (in addition to the Prime Minister and the Chief Justice) in the selection process is unexceptionable. The director so chosen will enjoy the confidence of opposition parties as well. The only discordant factor is that if there is a difference of opinion between the three members, there will be no way one can resolve it to the satisfaction of the member dissenting. This was in view when PJ Thomas was chosen to be the CVC. In such a case another panel will have to be drawn in the hope that such a panel will receive unanimous approval. This would, however, mean enormous delays in filling the vacancy caused by an incumbent’s retirement or removal on extraordinary grounds.

The one way of avoiding the situation at least partially is to make the selection very much in advance. But then no government makes up its mind early. Dilly-dallying is the order of the day. Very often appointments are ordered just a few hours before the retirement of the incumbent director!

In my view, bringing in the leader of the opposition into such a selection process will enhance the acceptability of a CBI director. It will also improve the status of the director, which is presently low in the pecking order. He is just now equivalent to a special secretary in the ministry. The IAS bureaucracy will seldom permit an IPS officer to attain the rank of full secretary. But then to believe that a director chosen by this process will act with independence is preposterous.

He will still be an underling of the government, subject very much to the pressures of the ruling party. The only solution to this tangle is to give him a separate budget and rid him of the need to run to government for permission to register a case or to go on appeal when a case fails in court. Equally important is the need to do away with the requirement for a sanction for prosecution of an accused at the end of an investigation by government.

Anything short of this is an exercise in futility. I do not visualise any government agreeing to this. It is, therefore, the popular consensus that the CBI will continue to be misused by a government in position.

The writer is a former CBI Director

Updated Date: Nov 24, 2012 17:35 PM

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