Saturday, December 3, 2022

Misuse of Official Agencies?

The political use of central investigating agencies by the government has raised several concerns. The India Legal show on APN channel, hosted by the channel’s Editor-in-Chief Rajshri Rai, assessed the laws, lacunas and ethical and constitutional liabilities of the participant actors of democracy. A report

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By Sanjay Raman Sinha   

The recent actions of the central investigating agencies in India have again brought to the fore the charges of political vendetta from the opposition parties. A few days after the Enforcement Directorate (ED) arrested Delhi minister and Aam Aadmi Party leader Satyendar Jain in a money laundering case, Congress president Sonia Gandhi and party leader Rahul Gandhi were also summoned in connection with the National Herald case. They have been accused of misappropriation of funds. After these actions, the Opposition has accused the government of misusing central investigating agencies for political ends.

The list of opposition leaders who are being probed by central agencies is long. It is necessary for these agencies to investigate corruption cases, but since the investigation is mostly confined to the Opposition leaders, the matter starts looking suspicious. The investigation goes on for years and cases are closed and opened as per political expediency. Charges of political coercion fly thick in the air. The Opposition may attack the use of central agencies for biased investigation, but when it is in power, such voices become silent. The party in power then uses agencies according to its own political needs.

GK Pillai, former home secretary, strongly commented on the trend. He said: “All the heads of the agencies are bound by the rule of law and the Constitution. If the agencies are misusing the law, or using it for political purposes, they should be hauled up in a court of law. If you are depriving someone of their constitutional rights, they should be penalized. The department head should be made accountable for the misdeeds, and if need be, even sent to jail.”

The Central Vigilance Commission (CVC) has superintendence over the investigation of cases registered under the Prevention of Corruption Act, 1988. For other matters, supervision is done by the Department of Personnel and Training (DoPT) of the central government, which comes directly under the prime minister’s office. This is the reason why questions often arise on the CBI regarding investigation of political cases.

NK Singh, former CBI officer, spoke from personal experience. He said: “During the reign of Lal Bahadur Shastri, when he was the home minister and later prime minister, the CBI was in its golden period. In 1963, the CBI was established. It was formed to fight corruption. LP Singh, ICS, and BP Kohli, the first director of the CBI, helped in the sterling performance of the organization during its initial years. Shastriji succeeded in making the CBI an impartial investigative agency. Then Emergency days came and the CBI and the income tax department were politically used. Sanjay Gandhi was the de facto authority and interference was at its peak. Then during the reign of Morarji Desai, again the CBI workings improved.”

Income Tax is another department which is often in the headlines for its raids. The purpose of an income tax raid is to seize and curb illegal wealth or black money. However, the rules are complicated and prone to misuse.

DP Semwal, former principal commissioner of income tax (IRS), said: “Laws and procedures of income tax is not such that it can be misused for long without gaining notice. The officer in charge of a particular case has to do ground research and prepare a satisfaction note before a raid. This note is submitted to a higher official for review. The DI Investigation crosschecks the facts and then the report is submitted to the director general who finally gives assent for the raid. Thereafter, raid warrants are made and officials assigned for the raid. The taxpayer can, however, object to the raid and move court. There have been instances when the court has asked for satisfaction note from the department to satisfy itself of the charges. The new Direct Taxes Code is more complex than the Income Tax Act of 1961. There are many income tax laws which are variously interpreted by experts.”

A search is generally carried out when there is a continuous non-compliance on the part of the assessee to attend to the summons received from the department or showing negligence towards income tax. A survey, on the other hand, is meant to discover assessees who could have been in the limelight, but have been managing to avoid. On-site investigation helps in gathering information, including conducting inspection of stock and cash. After apprehension, the ED or the CBI usually asks for custody of the accused for ferreting out relevant evidence. 

Semwal said: “I don’t agree with the assertion that income tax laws are complicated and hence prone to misuse or manipulation. In fact, the Indian Penal Code is equally open to diverse interpretations and the accused pin hope for acquittal from successive courts. As for the demand for custody for further probe and evidence collection, it is not incumbent on the ED to know the whole process of scam or money laundering in a particular case to initiate action. By taking note of only a few wrong entries, a case can be made and custody demanded for further interrogation and evidence collection.”

The IT department, too, has been quite active in raids. However its conviction rate is dismal. In the financial year 2019, 570 of its prosecution cases were disposed of by courts, and it managed to secure convictions in only 105 cases, which is less than a 20% success rate. Under PMLA, the ED had conducted over 1,700 raids from March 2011 to January 2020 in connection with 1,569 cases. However, the agency had managed to secure convictions in only nine inconsequential cases.

Justice Dr. Satish Chandra, former judge of the Allahabad High Court, said: “Income tax looks at undisclosed income. If tax is not paid then penal tax is demanded. I have looked at the conviction rate of the income tax department. In many cases, irrelevant income figures are taken into consideration. The income tax department is selective in its targeting. Many prominent political figures have been overlooked for their trespasses. The Opposition may attack the use of central agencies for investigation, but when it is in power, such voices become silent. They indulge in similar misuse. I suggest that a review committee be formed in every investigative agency which should assess the work of the probe. There should be proper utilization of manpower resources too. Transfer and postings should be done without favour.”

The Narcotics Control Bureau (NCB) is often accused of giving more importance to celebrity or high-profile cases because it makes headlines. Of late, many celebrities have been on the NCB scanner. Since the murder of Bollywood actor Sushant Singh Rajput, the NCB has investigated the link between Bollywood and narcotics. Rhea Chakraborty, Deepika Padukone, Sara Ali Khan, Rakul Preet Singh, Aryan Khan …the list is long.

Umakant Mishra, former assistant director of the NCB, said: “The NCB can never say no to an investigation. The drug amount may be small or large, but the NCB is bound by law to probe. It is altogether a different matter that when high profile cases are being dealt with, the media coverage is high. In cases involving celebrities and other well-known figures, the investigation can also be influenced. Court processes may also get influenced. But, these are rare instances. One positive aspect of celebrity cases is that they highlight the misuse and ill-effects of drug abuse.”

Recently, the NCB dropped Aryan Khan and five others from its charge sheet in the drugs case, citing “lack of sufficient evidence” and “shortcomings” in the probe. The Union Ministry of Home Affairs asked the government to probe former NCB officer Sameer Wankhede’s “shoddy investigation” of the case, and he was transferred as well.

Later on, NCB Director General SN Pradhan reviewed the functioning of the agency and directed that officers should only concentrate on big narcotics cases and drug cartels, prepare strong cases and ensure conviction of the accused. The smaller cases of drug consumption may be followed up by police, he said. 

While responding to the directions of Pradhan, Mishra  said: “I welcome NCB DG’s comments. But, I have reservations. Can the NCB deny probe if it gets a drug related lead? Can it ask the police to take up the case? I don’t think so. It sounds good as a policy statement, but it has practical problems. There is an issue of fair trial, too. The DG had also said that since they didn’t have sufficient proof in the Aryan Khan case, they chose to drop six names, including that of Aryan in the charge sheet.”

The investigating agencies’ saga takes in its course the police force as well. Political use of the police force by state governments has been an established fact. Political use of the police force has negatively impacted federal ties as well. Checks and balances within the police system have weakened. In the 2006 Prakash Singh case, the Supreme Court gave its historic decision regarding police reforms. Eighteen years down the line, nothing much has changed; the states have not complied with the Court’s direction. Laws like the UAPA, the Arms Act, etc., have also become the reason for police excesses at the grassroots level.  

Ved Bhushan, former IPS officer, said: “Investigative agencies have always been in the dock. The political parties use it to meet their ends. The probability of misuse of investigation exists because an element of discretion is present with the investigative agencies and the government. However, the agencies follow norms, rules and SOPs in their investigations. 

If there is any bias in the probe, the court of law can always interfere and pass strictures. Each FIR has to be presented in court and the court can take a call on it. In cases like the Dhaula Kuan encounter and Bengaluru gangrape, the courts have come down heavily on erring officials. There are many strong laws like POTA, MISA, TADA, etc., and many of them have also been abrogated. Courts have passed directions to im­prove law implementation. It is a continuous process.”

The reins of bureaucracy are in the hands of the government. If the government wants, it can use the bureaucracy for its narrow ends. So, what options are available for an honest officer if he is forced by the government to obey a political order? 

Pillai responded: “If the law and order is concerned, there is a slightly closer relationship as the government of the day is responsible for law and order. In cases related to investigation, the officer should have full responsibility and if he finds that his hands are tied down by any instruction from the centre or state governments, he is duty bound to put in writing his protest. If he is shifted from his responsibility and a more pliant officer is given charge of the case, he can approach the court.”

Singh added: “I fully agree with Pillai that if an officer is pressurized to do wrong by the government, he can refuse point blank. I have done this in my career. The CBI chief selection process includes prime minister, leader of the Opposition and the chief justice of India. This ensures impartiality. However, the norms for the service of the CBI chief have been changed. The ordinances promulgated on November 14, 2021, paves the way for an incumbent director of the CBI or ED to get three extensions of one year each, after his/her two year term ends. This promotes pliability.”  

All conflicts of law ultimately reach the courts. It is the final altar of appeal. Though the courts of law are the ultimate arbiters of conflict, it is severly overloaded. Hence, it is incumbent on these agencies and the government to stick to the ethics of governance.

Justice Chandra concluded: “The courts can’t take all the responsibility of the probe review. It is already struggling with 3.5 crore pending cases. There is immense pressure on judges. It should be the onus of investigating agencies to maintain the sanctity of a probe. We should include two experts in the selection panel for the CBI. Many practical changes have to be implemented and everyone should own responsibility to maintain the inviolability of law and processes.”

If the probing agencies are working today outside their purview and the government is not following ethics of governance, the responsibility falls on the courts to instil discipline. However, in a democracy, the responsibility to uphold the sanctity of the Constitution and the law is binding on participant actors, and therein lies the solution to a more regulated and ethical functioning of central investigating agencies.

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