The casualty in Lokpal fight is CBI's autonomy

By RK Raghavan

To say I am disappointed is something of an understatement. I am appalled as well as furious at the blatant inadequacies of the Lokpal bill, snippets of which are trickling in.

It is not that I am a great votary of the concept of a Lokpal. But I was hoping that the momentum built by the debate on Lokpal would somehow lead to an autonomous, or at least a semi-autonomous, Central Bureau of Investigation (CBI). I suspect that a ganging up of all elements who are opposed to greater probity and less venality in public life has led to the brainwashing of a majority of our honest lawmakers into believing that a strong Lokpal and a strong CBI would spell disaster for the polity.

This is a tragedy at a time when many of us were assured that the days of unlimited corruption in government were over. We were naïve to trust the spin doctors who have taken over all that surrounds the ill-informed debate on the Lokpal and the CBI.

The casualty in Lokpal fight is CBIs autonomy

The Lokpal’s oversight of the CBI should be only nominal. PTI

My stand is that the creation of a Lokpal is a fait accompli. To me it does not matter very much what shape it would take. Once a Lokpal is created, I believe that it would be a more credible organisation to oversee the CBI than the Central Vigilance Commission (CVC), especially in the context of what happened over the appointment of the previous CVC.

The government did not emerge very well from the Thomas episode. This is why I am afraid I would prefer the Lokpal to the CVC, without however casting aspersions on the men of great repute who are now manning the CVC.

I would like to hasten to add that the Lokpal’s oversight of the CBI should be only nominal. All the logistical support that both the Department of Personnel and Training (DOPT) and the CVC now give to the CBI could be transferred to the proposed Lokpal.

In my scheme of things the latter will, however, have no authority to monitor CBI enquiries or investigation. The CBI will be absolutely autonomous in this respect. It would be free to register its cases, do the investigation and then lay charge-sheets or apply closure to cases before competent courts, uninfluenced by anyone in government or outside. The Lokpal will have no say in the matter.

Under the jurisprudence we have given ourselves, no authority, including the courts, can tell the investigator when he should register an FIR or whether he should arrest this or that person and what kind of conclusion he should arrive at. These actions are the sole prerogative of the investigating officer.

The courts come into the picture only later to make sure that an investigation had been done fairly in accordance with the procedure laid down by the Criminal  Procedure Code (CrPC). When this is the existing law, how could Anna and his team demand that control of the CBI should pass on to the Lokpal?

It is for this reason that the current restraints imposed on the CBI by the government are highly irregular and extra-legal, if not downright illegal. First is the obnoxious ‘single directive’ revived by the NDA government in 2004 (after the Supreme court had struck it down in the famous hawala case) whereby the CBI cannot even do a preliminary enquiry against any officer of and above the rank of Joint Secretary, what to speak of registering a Regular Case (RC), without the permission of the government.

Reckon this against the ostensible objective of the Lokpal that it should root out corruption in high places. The refusal of government to withdraw the directive even at this historic moment is a travesty. If my memory serves me right, the legal validity of the ‘single directive’ is still before the apex court.

The challenge is on grounds of ‘equality before law’ guaranteed by the constitution. How can public servants be treated differently when they are being investigated for alleged criminal misconduct? By the same token, why should public servants enjoy the privilege of mandatory government sanction before they are prosecuted in a court of law?

The Lokpal legislation does away with the need for prior sanction. If this is true, it would deter at least some in government from straying from the path of virtue. Another factor that facilitates dishonest governments protecting unscrupulous public servants is the stipulation that no appeal against an acquittal can be preferred by an investigating agency without the leave of the government. This power has been misused ad nauseam by many governments.

Deleting this CrPC section would greatly help to pursue dishonest government servants who somehow ‘manage’ an acquittal in a lower court. The three measures that I have suggested here will go a long way in freeing the CBI from political pressures.

Finally, the news is that the government has sought to introduce more transparency in the process of selecting the CBI director. The addition of the Leader of Opposition in the Lok Sabha and the Chief Justice of India to the selection collegiums is most welcome. But this is not enough.

The current mandatory tenure of the director is two years. This should be raised to five years to give him stability and freedom from a sense of obligation to a government that appointed him. (The FBI Director enjoys a tenure of 10 years.) A two-year term is too short for any director to leave an imprint of his abilities.

There should further be a bar on post-retirement employment of a director by the government at least for five years after he lays down office. In at least two recent cases this salutary convention has been violated. There is, therefore, the need to introduce this stipulation into the Delhi Special Police Establishment Act under which the CBI functions.

All the above safeguards can be set at naught by a clever and unscrupulous government. This is why we need strong and clean leadership in the polity. Anna Hazare means well by the nation. His problem is one of convincing those in power now at the Centre and in states that he is apolitical. This is indeed a tall order.

(The writer is a former CBI Director)

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Updated Date: Dec 23, 2011 10:43:21 IST

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