‘The CBI should not be under the Lokpal or the government’

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Harish Salve, Former Solicitor General
Harish Salve, Former Solicitor General, Photo:Getty images

Different political formations have taken different positions on the ways of improving the efficiency and accountability of the CBI. The government’s stand is that it would continue to have administrative control over the agency. Though on the cases referred to it by the Lokpal, the CBI would report to the ombudsman. The BJP which is saying that the CBI should be completely autonomous. What you think is the right recipe?
There is the Supreme Court judgment in the Prakash Singh (the police reform) case which had spelt out seven broad measures to improve the functioning of the police. According to me a criminal investigation, in principle, whether it’s done by the CBI or by the state police, the nature and intricacies remain the same. What I had advocated when Chief Justice Kapadia had asked me to address these issues in the Prakash Singh case, is that even for the state police you have to draw the distinction between the law and order functions and the criminal investigation. Law and order, obviously has to be under the administrative control of the civilian government. But criminal investigation cannot possibly be under the civilian government. If you have the power of transfer or posting, how can ever there be an independent and fair criminal investigation?

So your point is that this will apply not only to the CBI, but across the board. Say, to the Enforcement Directorate, Directorate of Revenue Enforcement and even to the state police forces.
See, the point is, in principle you must have a fair criminal investigation; whether its rape, murder or a financial scam or a corruption related case. Every second day a case is filed before a High Court or the Supreme Court, even in the matters related to civil offences, that refer this matter to the CBI. Why? Because the state police has lost its autonomy and credibility. Half of the grievances related to the Gujarat riots would not have been there, if the state police were free from political control. Would you have needed an SIT? So we need a paradigm shift in criminal investigations. And the paradigm shift is that transfers, postings, promotion, recruitment, cadre control, etc have to be controlled by independent police establishment boards. In these boards you could have representation of the civilian government but the key is that it has to be controlled by independent functionaries. There should be two wings of the police force at the state level– the law and order wing and the other the investigation wing. And then for Central organisations like the CBI, the administrative control need to be taken out of government’s hands and placed in some independent body. Because retaining the administrative control of the CBI with the Centre, in effect, means that the officers who don’t toe the line would be relegated to some third rate job in department of statistics or some paper pushing assignment. See, an additional director or joint director in CBI is not less important than the Director. In a sensitive case the investigating officer is also very important. You just saw what happened in the case of Essar. You did the story on the Essar that I saw. So that’s the reason the CBI has to be completely independent.

But then there’s a danger that the police would go rogue?
How will they go rogue? Police is under judicial control, ultimately. Because the chargesheet goes before a magistrate. And then you could set up independent directorate of prosecution who could tell the police, look, sorry, your investigation is hopeless and we’re not filing chargesheet. And then you would have independent police establishment boards. So you are not leaving the system in the hands of one man. Enough mechanisms could be put in place, much better than what we have at present, to ensure transparency and fairness in investigations. You must have clear rules so that neither anyone is favoured nor anybody disfavoured. And in case some officer does malafide acts you could have provisions to prosecute him and send him to jail. Why Gujarat is having this problem of the persecution of Muslims by some sections of the police? Recruitment. Why Punjab is having this problem of the police being increasingly politicised? Recruitment. So the recruitment to police, posting and transfer has to be freed from state control.

But then the position of the Congress party is that the administrative control of the cadre of the CAG or CEC is also with the government. But nobody can allege that there is political intervention in their functioning.
I don’t see much merit in this argument. Nobody is saying that the salary of the CBI director would not be disbursed by the government. Look how you control the police–recruitment, transfer and postings. So let them go to the police board. The government could fix the pay scale and disburse salaries. It could frame the rules and guidelines and eligibility criterion. But the hand on the implementation has to be taken away from the state. So let us focus on issues where government has been interfering. When the Prakash Singh judgment came, three Chief Ministers – I don’t want to name them – came and told me that Sir we want you to file the review. I said, why do you want a review? It’s a good judgment, you should implement it. But they said ‘Sahab, Police humaareneechenahirahegitohsarkarkaisechalegi? (If the police is not under us how will we run the government? ’ I said, I understand that for the purpose of maintaining the law and order, if the police don’t listen to the civilian government then there is a problem. So law and order can’t be left purely to the police because it involves political decisions. But bringing a prosecution or not bringing a prosecution requires independent decision making processes.

But once achargesheet is filed, a person’s reputation, his business, his life is ruined?
So to check that you’ll have an independent director of prosecution who would vet chargesheets so that this Essar kind of anomaly doesn’t occur. If the government is going to have the last word on chargesheet then it is either cash and carry situation or one of political patronage. Even with the Supreme Court breathing down the CBI’s neck in 2G investigation, you know the quality of the investigation of the CBI. So we need a structural reform.

And yes you are right absolute power to the CBI or any police force would be dangerous. So to safeguard against frivolous or malafide prosecutions, two checks are necessary: a) an independent directorate of prosecution, and; b) greater clarity in the law of bail.

The elected government will have the overall power to lay down the legal structure like salaries, structure of the police and the law of criminal procedure. Even the principles of transfer and posting would be laid down by law. It is the administration that must vest in an independent body.

Then should the CBI be completely under the control of the Lokpal?
I don’t agree with that. It’s again a problem. One this would lead to too much centralization of power in one institution. And two, the CBI has to be independent and it could be controlled by a Central Board or a collegium which would decide transfers and postings. So that different institutions will act as checks and balances on each other. Criminal investigation cannot be under anyone except the judicial wing of the government. And that’s how it is today; the moment you find a cognizable offense you inform the magistrate. You investigate and you file investigation reports. You complete an investigation, you file a chargesheet. At every stage there is judicial control starting with magisterial control, then sessions court, the high-court and finally the Supreme Court. So you control criminal Investigations through the judicial arm of the government and not through the Lokpal or Lokayukts.

Should the prosecution and the investigation wing of the CBI should be completely separate?
They should be completely separate. You must have an independent directorate of prosecution. In America, the District Attorney’s office decides where to press charges. In UK, you have Directorate of Public Prosecution. And the director of Public Prosecution is as important functionary as CAG. He will be no less important than the Attorney General. He should be a very eminent lawyer, who is free from all these interference. I’m not saying that it won’t have its teething troubles but you have to take steps in the right direction.

Team Anna’s stand is that by transferring the full control of the CBI to an ombudsman like the Lokpal, you would not only insulate the CBI from political interference but would also insure honest, fair and transparent investigation because there would be much tighter supervision of the CBI investigations than we have in the present system. The underlying assumption, as some have been arguing, behind this proposition is of complete mistrust towards elected representatives. Do you think its reasonable to only distrust politicians and paint a law enforcing officer or a member of the judiciary as a paragon of all virtues?
In the first instance, I do not subscribe to this wholesale denunciation of the elected representatives of the people. Our political institutions need corrections but to discredit them would be suicidal. The administrative control over police engaged in criminal investigation is necessary. However this cannot vest in the government. Undoubtedly the broad control would be in accordance with the law made by the legislature, and in accordance with the general financial control of the ministry, which would exercise this control through rules and laws. And yes, no institution is free from flaws- including the judiciary, and over the years, the system of appointment of judges showcases the problem of too much centralization of functions.

Ashish Khetan is Editor, Investigations with Tehelka. 
[email protected]

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