CBI AND ITS UNEASY HISTORY

Source: indianexpress

1. Background

• CBI was set up in 1963 under a resolution of MHA ( Ministry of Home Affairs ) on recommendations of the Santhanam Committee. 
• The Special Police Establishment setup in 1941 was also merged with the CBI 
• As CBI is neither a constitutional body nor statutory and it derives its powers from Delhi Special Police Establishment Act, 1946. 
• It plays a crucial role in the prevention of corruption and maintaining Impartiality, and integrity in the administration.

2. Questioning the credibility of CBI

• Multiple corruption scandals in 2013 the Supreme Court made an observation about the Central Bureau of Investigation (CBI) that has stuck to the agency ever since. 
• A Bench headed by Justice R M Lodha described the CBI as “a caged parrot speaking in its master’s voice”.
• The observation was made in the context of government interference in the functioning of the CBI in its investigation of the coal blocks allocation cases. The apex court has since criticized the CBI for its “actions and inactions” on several occasions, and flagged fundamental problems with the functioning of the agency.
• “When it comes to the CBI, it possessed immense trust of the public in its initial phase. …But with time, like every other institution of repute, the CBI has also come under deep public scrutiny. Its actions and inactions have raised questions regarding its credibility in some cases,” Justice Ramana had said.
• In 2019, then CJI Ranjan Gogoi questioned the role of the CBI in “politically sensitive” cases and said that it reflected “a deep mismatch between institutional aspirations” and “governing politics”.
• “The SC judgment and the CVC Act (of 2003) have been progressively diluted by various governments over the years. The advent of Lokpal diluted it even more. The current situation is that central agencies such as CVC, CBI, and ED have become completely defunct. Apart from following instructions from the government, they are doing nothing. And it is happening blatantly. The entire struggle for independence of CBI and ED is being defeated,”

3. Role of various instances in maintaining the credibility of law enforcement agencies

• The struggle to free elite law-enforcement agencies such as the CBI and Enforcement Directorate (ED) from the stranglehold of governments and political parties has been ongoing since the 1990s. The landmark 1997 Vineet Narain judgment of the Supreme Court (Vineet Narain & Others vs Union Of India & Anr) dealt with this issue in detail.
• The Supreme Court fixed the tenure of the CBI Director at two years, gave statutory status to the Central Vigilance Commission (CVC), and stipulated that a panel headed by the CVC and including top secretaries to the Union government would draw up a panel from which the Director of the ED would be selected.
• The Lokpal Act, 2013, laid down that the CBI Director should be chosen, unanimously or by majority vote, by a search committee headed by the Prime Minister and also comprising the Leader of Opposition and the CJI or his representative, from a list of candidates drawn up by the Home Ministry and examined by the Department of Personnel and Training.

4. Structural constraints of CBI

• The CBI has been stymied both by the legal structure within which it functions and by the changes made by governments in the Rules governing it. Over the years, these have progressively made the agency subservient to the Union government.
• To prosecute any MLA, state minister, or MP, the CBI needs sanction from the Speaker of the state Assembly (in case of MLAs) or the Governor (for state ministers). In the case of an MP, the sanction is sought from the Speaker of Lok Sabha or Vice Chairman of Rajya Sabha. Since all these sanctioning authorities have links to the ruling dispensation, Opposition parties feel they are unfairly targeted.
• In the Narada Sting Operation case, the CBI charge-sheeted Firhad Hakim, Subrata Mukherjee, Madan Mitra, and Sovan Chatterjee — all ministers in the TMC-led West Bengal government at the time of the offence — after getting sanction from the Governor. However, other MLAs and MPs have not been charge-sheeted, including TMC-turned-BJP leader Suvendu Adhikari, for lack of sanction from the West Bengal Assembly Speaker and Lok Sabha Speaker. Adhikari was an MP when the sting operation was conducted.
• In 2012, CBI sought sanction to prosecute former Maharashtra Chief Minister Ashok Chavan in the Adarsh Cooperative Housing case, which was denied in 2013 by then Governor K Sankaranarayanan. In February 2016, after the Narendra Modi government came to power and a new Governor, C Vidyasagar Rao was appointed, the sanction came through.
• The Rajiv Gandhi government, through what is known as the “single directive”, introduced a provision in The Delhi Special Police Establishment (DSPE) Act, 1946, (from which the CBI derives its powers) which barred the CBI from investigating officials of joint secretary level and above without permission from the government.
• This was struck down by Vineet Narain but was reintroduced after the 1999 Loksabha election. After it was struck down again by the Supreme Court in 2014, the current government introduced Section 17A into the Prevention of Corruption Act through an amendment. This amendment went far ahead of reintroducing the “single directive”, and barred the CBI from probing any public servant without the consent of the concerned government.
• “It’s very clear that the agency has no freedom to probe anyone on its own. It is the government, at the Union or in states, or the court, which will decide who will be investigated,”

5. Is CBI used to meet political ends

• The work of the agency has been further constrained by the increasingly hostile relations between the Center and the state governments. As many as nine states have withdrawn general consent to the CBI. Most of these are Opposition-ruled states, which have alleged that the CBI is being used by the Center to target the Opposition. In March this year, Meghalaya, where the BJP is in a coalition government, withdrew general consent.
• Since CBI needs the consent of a state to probe offences in the state’s jurisdiction, general consent is given to the agency so that consent is not required for every individual case. Withdrawal of consent means CBI cannot investigate even a central government employee stationed in a state without the consent of the state government.

6. The prime functions associated with CBI

• CBI investigates very severe cases from all over the country. 
• Investigating cases of corruption. 
• Investigating cases relating to infringement of fiscal and economic laws. 
• Investigating cases related to bribery and misconduct of Central government employees. 
• Investigation of corruption-related cases, economic offences and cases of conventional crime. 
• Investigation of conventional crimes like murder, kidnapping, rape etc. 
• The CBI acts as the “National Central Bureau” of Interpol in India.

7. Concluding the overall challenges faced by CBI

• The CBI is exempt from the Right to Information Act, implying that it is not accountable to the public. 
• The State Government must approve the authority and jurisdiction of CBI members for investigation, limiting the scope of the CBI's probe. 
• Due to its extreme political influence, irrespective of whatever party was in power, the CBI was dubbed a "caged parrot speaking in its master's voice" by a Supreme Court of India judge and later Chief Justice of India. 
• The CBI is experiencing a labour shortage. The majority of the time, it is used by politicians or the ruling government against their opponents. 
• Political interference which leads to low conviction rate and delays in the investigation. 
• Training is not very modern. 
• A key hurdle in the battle against corruption at the highest levels of government is the requirement for prior clearance from the Central Government to conduct inquiries or investigations of Central Government employees at the level of Joint Secretary and above.

8. Why is CBI being criticized as a Caged Parrot

• Politicization of the Central Bureau of Investigation (CBI) has been a work in progress for years. Corruption and Politically biassed: This was highlighted in Supreme Court criticism for being a caged parrot speaking in its master’s voice. 
• CBI has been accused of becoming a ‘handmaiden’ to the party in power, as a result, high-profile cases are not treated seriously. 
• Since CBI is run by central police officials on deputation hence chances of getting influenced by the government were visible in the hope of better future postings. 

9. Need of the Hour

• The role, jurisdiction and legal powers of the CBI need to be laid down. 
• It will give it goal clarity, role clarity, autonomy in all spheres and an image makeover as an independent autonomous statutory body. 
• 2nd ARC recommended new legislation for CBI’s governance

10. Concluding Remarks

• There is an urgent need to implement the recommendation of the Parliamentary standing committee (2007) that is Strengthen Human & financial resources, better investments and more autonomy.