Excerpts From An Interview
Q: What were the deliberations when former CBI Directors and the incumbent Director gathered last October to evolve a common position which could be articulated on behalf of the agency before the Lokpal Standing Committee?
Basically, it was decided that the government’s control over the CBI should pass over to the Lokpal. There are certain legal provisions which put the CBI under the government’s direct control. What are they? The first is Section 6A of the Delhi Special Police Establishment (DSPE) Act, which says that even for an inquiry against officers of the level of Joint Secretary and above prior permission has to be taken from the minister concerned.
Q: Even for a preliminary inquiry?
Yes, even for initiating an inquiry. First, the request goes to the minister under whom the officer works. So, it is held up for months. In effect, this upper level of government, where big-ticket corruption occurs, is not at all covered by the CBI. We said that the power to grant permission, if at all retained, could be bestowed upon the Lokpal. This is called single directive. This was shot down in the 1997 Vineet Narain judgment. It was restored in 2003 by an amendment in the CVC Act and became a statute. Just around that time, I became CBI Director. Before being appointed CBI Director, I was Director of Vigilance in the Orissa government for five years. In states, the power of granting permission for inquiry is vested with the Chief Minister and not the minister concerned. As CBI Director, I suggested that the Cabinet Secretary could give permission with the Prime Minister’s approval instead of the power resting with individual ministers. But my suggestion was turned down. You can imagine how a minister would give permission. We also said that Section 19 of DSPE Act, under which government sanction is mandatory for prosecution, needs to be amended. Section 19 reads that no court shall take cognisance unless it is the sanctioned by the competent authority to remove the accused from service. We suggested that the power of giving sanction for prosecution could go to the Lokpal.
Then Section 197 of the CrPC, which applies not only to the CBI but to the police as well and makes prior government sanction mandatory for prosecution, needs to be amended and the power could be vested in the Lokpal.
We suggested amendments in Section 377 and 370 of the CrPC, under which the power of appeal and revision in criminal cases lies with the government. As CBI Director, I asked for permission to appeal in certain cases but it was turned down by the government. Then under the Section 24 of the CRPC, the power to appoint public prosecutors rests with the government. Who argues a CBI case in the court? It is the public prosecutor, Solicitor General or Attorney General. One Attorney General told me, “I’m not supposed to take brief from you.” So, they will take the brief from the government but not from the CBI, which investigated the case and filed the charge sheet. I told the Standing Committee on the CBI when I was the Director that the power to file appeals and appoint lawyers should be given to the CBI. But the suggestion was again turned down.
Q: Are these the various legal provisions through which the government controls the CBI and investigations?
Yes. Besides, there is financial and administrative control. For everything, the CBI Director has to approach the government, which directly or indirectly encumbers the agency.
Q: For instance, if you have to travel abroad, you have to take…
Everything—for travel, postings, allocation of funds. There was a view that the anti-corruption wing of the CBI should be with the Lokpal. But we (former CBI Directors) had firmly said that the integrity of the CBI should not be touched. Because the CBI has three wings: anti-corruption, economic offences and special crime—all are inter-related. Many cases span across these three wings and have over-lapping overtones. Besides, there is the issue of common support systems. We have a common training centre. The CBI is also a member of the Interpol. I was also the Vice-President of Interpol. The CBI Director represents the country on the world forum. Let us not diminish his position. Lastly, we suggested that let the CBI Director be the ex-officio member of the Lokpal with a fixed, five-year tenure. These were the broad legal, structural and administrative reforms which all CBI Directors had agreed upon.
Q: So, the final consensus was that either you do away with the single directive or you vest it with the Lokpal. But it should not be with the government in any scenario.
Single directive and all the legal sections controlling appeal, revision, sanctions and appointment of lawyers. The foundation of single directive was laid down by P Chidambaram. When I was DIG, CBI, in the 80s, Chidambaram was Minister of State Personnel. Though single directive was not statutory that time, we were informally taking permission from him. That was struck down by the Vineet Narain judgment. But the NDA government brought it back through a statutory provision. But even then the government did not lay down a procedure as to how to get permission. We just started writing to the Secretary. But the government till date has not laid down the procedure as to how to permission needs to be taken. Who will give it? The minister concerned? When Chidambaram was Finance Minister, one Customs Commissioner Azwani was caught by the CBI in Mumbai. But Chidambaram was refusing to give permission to investigate him. Then one Additional Director in the CBI who was under me made Chidambaram hear a taped conversation. He told Chidambaram that the complainant who had recorded this incriminating conversation with Azwani was threatening to go to the press if the government didn’t act. Subsequently, Chidambaram gave the permission. A CBI raid on Azwani found a massive amount of cash and valuables. In future, Chidambaram never delayed permissions. But even today, I’m told more than 25 cases are pending with the government where permission has not been granted.
Q: It has been reported in the papers that the current position of the CBI Director is that the agency should have complete autonomy—controlled neither by the government nor by the Lokpal.
Yesterday, I had a talk with Amar Pratap. I asked him that what was his stand? See, we had decided that the Lokpal could exercise various controls—which I discussed above—that the government exercises at present. But the government decided that it didn’t want to give the Lokpal these powers. With the Lokpal out of the fray, the CBI Director took the stand that the agency wanted complete financial and administrative independence and accountability to a parliamentary committee. So, postings and transfers will be decided by the Director. And our activities can be overseen by the parliamentary committee.
Q: And how will the budgetary provisions be made for the CBI?
See, even the CMD of a corporation has more autonomy than the CBI Director. How the corporations are being managed? They have total autonomy, financial and administrative. The government has remote control. So think of certain autonomies along these lines. Also, the Lokpal should be given some teeth; otherwise, he would be ineffective. In Karnataka, the Chief Minister could be arrested because the vigilance is under the Lokayukta. Otherwise, is it possible under our system?
Q: Were there any high-profile cases during your tenure as CBI Director in which the government was constantly interfering?
There were many cases which had political overtones. Like the Bofors scam, the Taj Corridor case and the fodder scam. The government tried to interfere in these cases several times directing us to put the status report in this way or that way in the Supreme Court. I worked under both NDA and UPA governments, and both the regimes interfered. So, in sensitive political cases, backhand interference by politicians was happening and shall continue to occur.
Q: During your tenure, were there instances where sanction to prosecute didn’t come despite the CBI having a watertight case?
There were few cases. Like the Supreme Court was monitoring the Taj Corridor case. There were compulsions. But the thing is that everybody who has a case makes the request. But when a politician does in his case, we call it interference.
Q: There are two options before the CBI Director: one is to listen to the minister; the other is you can always overrule him, go your own way and do your investigation.
But then the CBI Director has to run his organisation. In everything, he depends on the government. As a result, he has to make certain compromises and do the balancing act. In his mind, there is the image of the organisation and people’s perception of the CBI and then what the government is saying. So he manages in a very tactful way. He cannot go and act as he wishes to because he has to manage the organisation also. He’s to run the house and without government help, it’s impossible.
Q: Then there is the problem of selection of CBI Director. Most of the times, officers of impeccable integrity from different cadres are deputed to the CBI. People like you and ML Sharma served in the CBI for long years. But there’s a perception that the appointment of the CBI Director is always a political decision. Like in the case of ML Sharma, at the last minute his name was omitted and somebody else was brought in. People still feel that he was a deserving candidate. So do you think there’s political meddling in the final selection of the CBI director?
A panel of select names is recommended after taking the views of CVC, Home Secretary and ex-Directors of CBI into account. The government has the discretion to pick one person from the panel. So they picked up Ashwani Kumar over ML Sharma. But the government has no discretion to go out of that panel.
Q: So, there is no suggestion to change the selection process?
The selection process is alright. There’s no problem.
Q: In your deliberations, did you discuss about extending the CBI Director’s tenure? The current tenure of two years seems too less.
We decided that the tenure should be of five years or retirement at 65 years.
Ashish Khetan is Editor, Investigations with Tehelka.