Bureau of nods and winks

Fali S. Nariman
Indian Express, April 13, 2009

The Central Bureau of Investigation is again in the news. With the filing in court of its (second) "closure report" in the case of Jagdish Tytler, it has become the cynosure of suspicion. Could it have been a mere coincidence (people say) that the "closure report" came hard on the heels of Tytler getting a ticket from the ruling Congress party to contest the ensuing general elections?
This raises a fundamental question - how independent is the CBI? Experience shows that it is as independent as the incumbent director of the CBI wants it to be - the director now has a fixed two-year tenure.
Structurally the CBI is under the control and direction of the administrative ministry in charge, which is the Department of Personnel and Training in the Government of India: the act under which the CBI is set up (The Delhi Special Police Establishment Act 1946) provides (Section 4) that it must function under the "superintendence" of the Central government. When exercising investigatory powers into offences under the Code of Criminal Procedure, however, the word "superintendence" does not have its ordinary meaning viz "superintend, direct and control". The word has a special meaning - especially since the decision in Vineet Narain (1998) which held that Section 4 cannot be construed so as to permit supervision of the actual investigation of a criminal offence by the CBI and the Central government is precluded (by judicial diktat) from issuing any direction to the CBI to curtail or inhibit its jurisdiction to investigate into offences.

But whatever the judges may say, the public remains sceptical. It knows that governments do not function only by issuing directions to those who occupy high positions. Central governments - whether during the NDA’s term of office or during the UPA’s - have effectively functioned not solely by notes on files, but also on the nod-and-wink of the minister in charge or of the senior bureaucrat in the ministry in charge. Whether such dignitaries do or do not so nod-and-wink in a given case is of no moment: the working of governments has been so messy in recent years that contrary to the express provisions of the Indian Evidence Act (that official acts are presumed to be regularly performed) the reality has been that as a rule official acts are not regularly or properly performed.

This is acknowledged even by the highest court. In November 2006 in the Taj Corridor Scam case (investigated by the CBI) the Supreme Court said: "In matters after matters, we find that the efficacy and ethics of the governmental authorities are progressively coming under challenge before this court by way of PIL for failure to perform their statutory duties. If this continues, a day might come when the rule of law will stand reduced to ‘a rope of sand’."

It does appear to many - though it may not be true in a particular case (because though appearances are deceptive we have only appearances to go by) - that public servants who fill important positions in government are generally (with some notable exceptions) neither able nor willing to resist pressures from "higher-ups" (that beautifully ambivalent phrase which defies definition). Normally, the filing of a closure report by the CBI would be the end of the matter: but having regard to human frailties (and failings) there are certain safeguards provided by judicial decisions, viz that even after filing a closure report by the CBI (or by the police) the court before which it is filed has the choice to disagree with it and either direct further investigation or, after pursuing the papers already submitted to it, to take direct cognisance of and register the case and proceed to trial.

However if the court decides to accept the closure report the court should give notice and hear the informant (complainant) and (though this is not yet settled) a representative from the group that persists in saying that there is sufficient evidence on record for a charge sheet to be filed. Where the court ultimately after such hearing accepts the closure report, the persons aggrieved can invoke the "justice provisions" of the Constitution: Article 226 or Article 136.

Though the request for this article was occasioned because of the Tytler drama (and the trauma accompanying it) the more important question is a general one, viz whether it isn’t time that the CBI be made institutionally independent of pressures and pulls from within the government or without. I believe we must have in place an Independent Bureau of Investigation (an IBI). But this can only be by law expressly enacted by Parliament. There are models in the US which are available which could and should be adapted.

In the end it is the personality of the man or woman at the top that counts. If newspaper reports are to be believed (The Indian Express, April 9) the Department of Personnel in charge of the CBI, notwithstanding the dictum in Vineet Narain, inquired why the ministry had not been kept informed of the CBI’s closure report - which is only illustrative of the fact that officials who read the statute just cannot accept that the word "superintendence" cannot mean "control". But kudos to the present director of the CBI who reportedly informed his controlling ministry that his duty as CBI director was to report his investigation to the court, and not to the government.

In the present state of affairs, courts appear to be the only place where justice can be expected. But a citizen does expect justice from the officials in the administration though this has become rare over the years. I recall the wise words of Swaran Singh - India’s elder statesman who during the Internal Emergency of June 1975 presided over a committee to consider whether to recommend deletion of Article 226 of the Constitution. He said that when he was a minister in the government of Punjab he found it difficult to render justice in individual cases, and it was best that courts were left to deal with them. That is why he opposed deletion of Article 226 - it is regrettable that it was the lawyer members of the committee who disagreed with him. But it was Swaran Singh who prevailed upon Indira Gandhi not to amend the Constitution and take away the right of citizens to approach the courts by way of writs. The moral of this is that though lawyers are good, sometimes they are also exceptionally good at rationalising tyranny!

One hopes that the ministry in charge of the CBI, or the IBI if established, would inculcate in all its officials the understanding that it is better for the public administration and for the image of the government that directions, commands or hints - to "fix-him" or "drop the case" - are consciously eschewed. This would help remove current public cynicism of departments of government and restore confidence in the expectation of getting justice from the administration. Approaching the courts to intervene is always a slow, tortuous process: and should be an exception. This is how good government will be ultimately achieved.