Incredible CBI

J. S. Verma
Indian Express
Apr 11, 2009

A few days back I wrote in these columns cautioning against failure of the twin duties to preserve our democratic polity: duty of political parties to eschew selection of tainted candidates; and that of the people to reject them, even if they are fielded. A later unsavoury incident has highlighted the generally perceived failure in its statutory duties by the premier investigating agency - the Central Bureau of Investigation (CBI); a failure which abetted these twin failures enabling growth of corruption and increase in criminalisation of politics, which are the bane of the polity. The incident indicates the waning credibility of the premier investigating agency, with people’s growing frustration driving them to resort to extra-legal means to ventilate their grievances against perceived injustice. The dangerous consequence is the erosion of the rule of law, which is the bedrock of democracy. These failures and the aftermath negate good governance.
I refer to the shocking behaviour of a journalist at a recent press conference of the genteel and suave Union Home Minister, P. Chidambaram. It was his dignified reaction that saved the situation and its awkward repercussions. The culprit made no attempt to justify his misconduct, conceding immediately that his mode of ventilating the grievance against the injustice was wrong and indefensible. However, he justified his grievance against the CBI for partiality towards a politician set up as a candidate for election by a ruling party. The media has reported prompt reaction of the concerned ruling political party to withdraw not only that candidate, but also another candidate allegedly with similar taint. Are we to assume that only extra-legal means can be effective to deal with corruption and criminalisation of politics? It is tragic, if such an impression were to gain ground.
The above incident reveals our penchant for reaction instead of proactive response to cure evils. We tend to treat only the symptoms when they become eyesores, forgetting even then the need to eradicate the root cause of the malady. It is time we took steps to eradicate the malady that produces the symptoms. In this context the statutory role of the CBI needs to be revisited, and the public perception of its lacklustre performance needs scrutiny. For obvious reasons, I refrain from referring to any specific matter that is sub judice, and confine myself only to the emerging issues pertaining to its governance, to focus on the malaise corroding the polity.
The genesis of the CBI was the post-World War II need to combat corruption. Increasing, unpunished corruption eroding the polity is eloquent testimony to its failure to efficiently serve this purpose of its existence. The occasion for the Supreme Court’s intervention resulting in the judgment in the Hawala case (1997) was the reluctance and failure of the CBI to investigate allegations of corruption against the powerful. It gave autonomy to the CBI and insulated it from political influence by judicial creativity, despite a few doubting it as judicial overreach. It was held that the government’s statutory power of "superintendence" over the CBI does not empower it to interfere with or regulate the investigation into any offence conducted by the CBI. The CBI’s power to investigate being statutory, it is insulated from any extraneous influence, including that of the concerned minister.
The legal impact of insulating the CBI from political influence in discharge of its statutory duty of impartial and effective investigation into charges of corruption and criminal offences levelled against the powerful has not been doubted, at least since then. It is sad that even now the CBI continues to disappoint the people whenever it deals with cases against the powerful. The blame can no longer be laid elsewhere. It is too much of a coincidence that in sensitive matters, the outcome of the CBI’s investigation invariably depends on the political equation of the accused with the ruling power, and it changes without compunction with the change in that equation. The nadir is reached with the somersault in the CBI’s stand witnessed recently even in the apex court on the culpability of such accused with the changing political equations, which invited caustic comments from the court, but no effect. A former CBI director who enjoyed insulation from political interference given by the Supreme Court has publicly claimed that an attempt was made by the then prime minister to influence investigation in a sensitive matter, adding that there was nothing new about "political interference" in the agency’s working! It is happening too often, inviting public outrage.
As the author of the judgment in the Hawala case, I am often asked whether it has any practical utility if the behaviour of the CBI personnel remains unchanged in spite of being given immunity from political influence. The final outcome of the Hawala case with the discharge of all accused is cited as the first example of the many such instances that followed. Half-baked charge sheets were filed against the accused without investigation into the substantive offence of possessing disproportionate assets - based only on diary entries of corroborative value, which without basic substantive evidence were bound to fail. There was a miserable failure in its statutory duty to investigate impartially into the charges and to faithfully prosecute the accused, in spite of the full autonomy it had been given for the purpose. The CBI is not to be insulted by imputing to it the ignorance of even elementary law. Subsequent public reminders, including that in my D.P. Kohli Memorial Lecture, to the CBI top brass that discharge is not acquittal to debar a subsequent trial on further investigation are blatantly ignored to avoid political displeasure of all shades.
More so, no attempt has been made to discover and plug the common source of funding of terrorism and corruption at high places in governance, even though the Hawala case originated with the arrest of two terrorists funded by that source, thus disclosing the link between them. The issue relates to national security and can be ignored only at great peril. Credibility of the premier investigating agency, in spite of the insulation from extraneous influences in the performance of its duty, including that of the government, is at a low ebb.
Politicisation of crime is a corollary of the above evils because of the CBI’s failure. Corruption and crime are visualised as high profit and low risk business of the powerful. This trend must be reversed. The lure of post-retirement benefits and honours at the discretion of the government accruing to the top brass in the CBI and other national institutions perceived as a reward for their pusillanimity during the tenure in high office has to be insulated by systemic changes. There should be no scope for any temptation to the head of any national institution to deviate from the course of total objectivity and integrity at the highest level. Once the sanctity of the top is secured, the rest will fall in place. Reaching the top of the profession should be considered sufficient reward and lifetime achievement. Then only the nation will thrive!
(The writer, as Chief Justice of India, authored a judgment guaranteeing CBI autonomy)