Earlier this month, the Supreme Court, as part of its criticism of the UPA government’s interference in the coal scandal inquiry, sought to institutionalise autonomy for the Central Bureau of Investigation (CBI). It asked the government to come back to it by 10 July with concrete proposals for a legal and permanent insulating of the CBI from the political executive. Consequently, the government has set up a Group of Ministers (GoM), under Finance Minister P Chidambaram.
If it is serious about its task, the GoM will find it has a vast body of literature and several reports and suggestions, all of them in the public domain, to draw from. Indeed, it would make sense for the UPA government to consult the Opposition before submitting its proposals to the Supreme Court. If India is at the cusp of an enormous change in the manner in which the CBI functions — presuming the apex court is committed to its resolve — then it is only appropriate for a government in its fourth year in office to work towards the largest possible consensus.
The quest to win the CBI operative freedom and separate its investigation and prosecution wings is a well-considered one. In taking the initiative, the court has delinked this entirely valid proposition from the larger issue of the Lokpal and legislation related to setting up an anti-corruption ombudsman. Several people, not all of them partisans of corrupt and compromised politicians, have deep misgivings about the need for a Lokpal, at least in the manner in which it has been envisaged. They fear it will become a gigantic, self-serving bureaucracy and simply add a layer to the rent-seeking apparatus of the Indian State. However, there is little argument over the need to liberate the CBI from blatant political manipulation.
The CBI needs breathing space, and its director and other officers need security of tenure. They need far greater say in their budgets. It has been pointed out, for instance, that even in the purchase of vehicles, the CBI has to go running to its superintending minister to seek additional money and clearance. This gives the political executive, and the individual politician, enormous leeway over the CBI. The promise of a post-retirement job — such as membership of a commission or a governor’s post — is another allurement that can be used to immobilise a potentially difficult CBI director. The UPA government has done this fairly successfully in recent years. Two months ago, it sent a former director of the CBI, who retired in November 2010, to the Raj Bhavan in Kohima.
Having said that, it cannot be anybody’s case that the CBI director must be a law unto himself or should have the authority to initiate investigations without due diligence, or that the agency does not require oversight. The question is: who carries out this oversight? Who appoints the CBI director and monitors him from a safe distance, without calling him and his officers for private chats in the middle of a case investigation? It is fairly clear that the executive cannot be trusted with this task. When it gives the CBI permission to buy vehicles — to cite the trivial example from the previous paragraph — it ends up retaining the right to tell the CBI where to and where not to drive those vehicles. The course of corruption cases against the senior leadership of the Bahujan Samaj Party and the Samajwadi Party is there for all to see.
The only feasible solution is to give a parliamentary committee oversight of the CBI. A four-member committee, comprising the prime minister and one other minister and the leaders of the opposition in Parliament, would be ideal. The even-numbered configuration would ensure a natural bias does not exist in favour of the government. If this model is successful, it can perhaps be extended to other key national security and crime-fighting agencies, but for the moment, it is the CBI that is being discussed. There are those who will argue this eats into executive privilege and resembles the American tradition of legislative vetting of key appointments. True, it does. A mangled CBI has left India no choice.