Professionalise the CBI, let it report to Supreme Court

The Central Bureau of Investigation’s (CBI) submission of its first charge sheet in the 2G spectrum case, a complex case with strong political overtones, makes me wonder whether it is time to transform the CBI into a wholly professional outfit that would make all of us proud. At present, unfortunately, the CBI has the image of being a handmaiden to the Union government.

I do not think we are going to have a holiday from scams, which makes it necessary to build a first-class investigating agency that is insular from political manipulation and comprises ace investigators who are skilled, honest and content. To go about this task, first, we need to free the CBI from executive caprice. As the law stands today, ‘superintendence’ of the CBI is vested in the Central Vigilance Commission. We now know how the apex court recently frustrated the government’s design to impose on the commission a chief who was under a cloud. A salutary provision of an assigned role for the leader of the opposition in choosing a CVC was unabashedly flouted. It was by an accident or design that the whole process got vitiated because the relevant material regarding the government’s favourite nominee was not placed before the selection committee.

There is no guarantee that the sinister exercise will not be repeated in some other form when making the next appointment.

There is no point in depending on the CVC to protect the CBI from political directions. The only alternative is to make the CBI accountable solely to the Supreme Court. I am sure many sceptics will shoot this down as impractical and undemocratic. It is an experiment that is worth attempting to make our anti-graft investigations, especially against those in high places, more credible and acceptable to the public. In such a dispensation, the CBI will derive its logistic support — manpower and equipment — with the help of the department of personnel, which works under the prime minister. But in respect of its investigative function, it would report to the Supreme Court. The chief justice of India could possibly earmark a bench of three or four judges to oversee the CBI’s prosecution work. This would not involve too much of labour or effort on the part of this bench, which could summon the CBI director and his chosen deputies for a periodic review.

Moreover, the Union government must withdraw its infamous single directive. The latter order is an abomination, requiring the CBI to obtain the permission of ministries to launch a preliminary enquiry (PE) or a regular case (RC) against a civil servant of and above the rank of joint secretary. This constitutional validity of this directive is now being examined by the apex court. This had originally been struck down by the court in the ‘hawala’ judgment of 1997, but was revived by the NDA government and later unconscionably incorporated in the CVC Act 2003. This provision, meant to safeguard senior civil servants from any tendentious investigation, gives an opportunity to a Union minister to protect an unscrupulous favourite civil servant. It further tips off a dishonest civil servant when the CBI seeks permission from a ministry in which he is working, giving him/her enough time to destroy material evidence.

Another important reform could be to involve the leader of the opposition in choosing the CBI director. Under the present procedure, after an initial scrutiny of the department of personnel in conjunction with the ministry of home affairs, a shortlist of IPS officers is made by the CVC on the basis of three criteria, viz., seniority, length of experience in anti-corruption work, and integrity.

The list is forwarded to the Appointments Committee of the Cabinet (ACC), comprising the home minister and prime minister, which finalises the appointment. The selection process can be fortified by getting the concurrence of the leader of the opposition as well so that the choice is absolutely on professional grounds and there is no complaint later that the favourite among the three candidates in the list was preferred over the other two.

This is transparency at its best. I am confident that this will enhance the stature of the director, who handles the most sensitive investigations. An added embargo that the director will not be eligible for a further spell of employment with the Union government for at least another five years after demitting office will ensure his total independence and objectivity.

— The writer is a former CBI director