CBI reform: Cosmetic or real?

There is as yet no major public debate over the GOI draft scheme for CBI autonomy presented to the Supreme Court a few days ago. The latter had asked for such a blueprint in its now famous ‘caged parrot’ order during the coal scam hearings. Although the department of personnel’s affidavit has not yet been shared with the media, it is generally known that the government has offered a collegium (prime minister, CJI or a judge of the Supreme Court, and leader of the opposition in the Lok Sabha) instead of the current absolute hold it has over the appointment of a CBI director.

It is also said that an ombudsman comprising three former judges would look into complaints against the CBI. Also in place will be a committee of three secretaries to government to examine each request for sanction for prosecuting a public servant on an expeditious basis.

The government says this would speed up the process that is now tardy. Finer details are not known. But the offer of reform runs broadly on these lines. While the CVC will continue to oversee CBI work when it comes to anti-corruption cases, in other matters such as general and special crime, the government will have powers of general superintendence.

While one can go on quibbling over whether the proposed process of selection will help to anoint the best candidate, I am reasonably confident that an unscrupulous favourite of the ruling party will find it hard to make the grade.

Also, the opposition cannot any longer grumble that it was not consulted. I am also impressed with the provision that an incumbent director cannot be removed during his mandatory term of two years without the order of the president of India. Again, such removal will be only for proven misconduct. This is only as far as a government can go.

However, there are some vital aspects to CBI autonomy on which the affidavit is silent. The infamous ‘single directive’ remains undisturbed. This is a tool to protect favourite civil servants who have acceded to irregular executive demands. The current requirement for a government nod even to initiate a preliminary enquiry (PE) against a civil servant of and above the rank of joint secretary is obnoxious.

‘Single directive’ and CBI autonomy just don’t go together. Not only is freedom to investigate not available to the CBI, there is here the real danger of compromising secrecy that should normally govern the process of investigation.

The Criminal Procedure Code (CrPC) requirement for government leave before filing an appeal in courts against an acquittal is another irritant that cuts into CBI freedom. It also protects dishonest civil servants. Successive governments have scuttled appeals to higher courts in order to shield their favourites. It is time this untenable CrPC provision is deleted.

Finally, the union law ministry has often played a dubious role vis-à-vis the CBI. The coal scam, which rightly invited the apex court’s ire, offers strong support to my assertion. Unlike in my days, the director of prosecution (known earlier as a legal adviser to DCBI) is now a nominee of the ministry which is nearly totally independent of the director. He owes his loyalty to the law minister and secretary, and is often a conduit through which the ministry executes its designs to deflect a controversial investigation.

In tandem with the provision that demands government approval for choosing whom the CBI will use for prosecution work in important cases, the law ministry has the opportunity to influence what stand the CBI should take in courts. This undesirable situation can change only if the DCBI has absolute authority over whom he will hire to prosecute an important case in courts.

In sum the government’s latest stand on CBI autonomy is a mix of good and bad. Let us however wait for the apex court’s reactions to what the government has offered, before we pronounce our own judgment.

The writer is a former CBI director.