Wednesday, February 21, 2024

Timely Intervention

The recent suggestion of CJI NV Ramana to improve the functioning of central investigative agencies and make them insular to political pressure is timely. The India Legal show on APN channel, moderated by the channel’s Editor-in-Chief Rajshri Rai, tried to answer many questions related to the role of these agencies and their relationship with the party in power.

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By Sanjay Raman Sinha  

The role of the central investigative agencies is under a harsh spotlight. The blatant misuse of probe agencies has not only created a fear psychosis amongst the Opposition leaders, but it has also raised the issue of violation of human rights and misuse of government powers for achieving narrow, selfish ends.

Speaking at the 19th DP Kohli Memorial Lecture in Delhi, Chief Justice of India (CJI) NV Ramana had suggested the creation of an “independent institution” to bring various agencies like the Central Bureau of Investigation (CBI), Serious Fraud Investigation Office (SFIO) and the Enforcement Directorate (ED) under one umbrella. The CJI said: “There is an immediate requirement for the creation of an independent umbrella institution, so as to bring various agencies like the CBI, SFIO, ED, etc. under one roof. This body is required to be created under a statute, clearly defining its powers, functions and jurisdictions. Such a law will also lead to much needed legislative oversight.” 

NK Singh, former officer of CBI, said: “We welcome the comments of the chief justice of India. But the question is—does there exist any intention or will at all to reform the CBI? In 1997, the suggestions to reform the CBI, put forward by the then CJI Justice Verma-led bench, were ignored by the government in power. Earlier, the probe on joint secretary and above ranked officials proceeded after government permission. Now for any investigation of government official, the CBI has to take permission of the government. The judgment had also called for an act of Parliament for the CBI, but till now, no act has been made. The NIA was formed quite recently and it has an act, but the CBI doesn’t have an act.”

The CBI is the premier investigating agency of the country. Its impartiality is so respected that states or victims often ask for its help in sensitive investigations. Though its mandate is primarily corruption cases, the CBI has been investigating economic offences, murders, political violence and special crimes. The CBI is not free from criticism because of its inefficiency, delay in investigations and political interference. Moreover, the CBI lacks a constitutional position. It is still regulated by the Delhi Special Police Establishment Act, 1946, making it a obstacle for investigators to perform their duties in some cases.

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MN Singh, former police commissioner of Mumbai, said: “There is a general decline in moral values across the board, and the political class and the investigative agencies are no exception. However, when the judiciary comments strongly on the CBI or the police, it affects the moral of the personnel of these institutions. Earlier, the Supreme Court had called the CBI a ‘caged parrot’. I believe that the CBI is doing a fairly good job. That is why there is demand for CBI probe from states and by the affected parties who want justice.

“Recently, CJI Ramana had decried the nexus between the police and the political class. The constitutional position is that the CBI or the police have to work under the instructions of the executive class or the government. Even the committee formed under the late Soli Sorabjee to develop a model police act had underlined this fact. The Delhi Police Act for the CBI and the Police Act for the Indian Police Service are also clear on this point. As long as this is the constitutional position, the nexus shall persist. All efforts to refurbish the police force have been a farce. Even the follow up done by states on the Prakash Singh recommendations has been cosmetic.”

The central agencies tasked with internal security are also not playing with a straight bat. National security apparatus has external and internal security challenges. The National Security Advisor’s (NSA) appointment is not one empowered by law, but by an executive order. The use of NSA has often been alleged to have implicit political considerations.

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Jitender Ojha, national security expert, has another take on the issue. He said: “We have been following the colonial model of police and intelligence establishment. In the process, many values have been set aside. We can’t look at investigative reforms in isolation. It is part of the overall decay of institutions. To reboot the system, we need two basic reforms—electoral reforms and electoral funding reforms. We have to improve the quality of people entering the governance. Secondly, international organised crime is trying to get its hold on the institutions. We have to be wary of that as well.”

The recent issuance of Look Out Circular (LOC) against former head of Amnesty International India, Aakar Patel, and the subsequent order of the Additional Chief Metropolitan Magistrate to the CBI to withdraw the LOC and tender apologies to Patel is also a matter of concern. The CBI failed to heed the LOC withdrawal and stopped Patel at the airport again. This is being viewed as intransigency on the part of the CBI and its political masters.

Vikas Pahwa, senior advocate at the Supreme Court, said: “I have been the standing counsel for the CBI for about three years. I would like to add a legal perspective to the issue. The credibility of the CBI has nosedived in the last 10 years. One barometer of this loss of credibility is the low conviction rates of the CBI, ED or the SFIO. The discernable trend is that the main focus of the investigative agencies is not conviction, but arrest and opposing bails. They want to assure that the accused stays in jail for a long period. The bail jurisprudence of the country has changed a bit now. For example, a company indulges in a fraud case and the company owner absconds abroad. If the case is linked to Prevention of Corruption Act, the CBI gets activated. If the CBI gets activated then ED also swings in action. As a company is involved, the SFIO also moves in. If the funds of the company are stashed abroad then the Black Money Act kicks in, and if the director is abroad, then the Fugitive Offenders Act is also invoked. So, we find many statutes and more than one probe agency in action. So, there is multiplicity of proceedings. If more than one probe agency cross-examine the witness, then confusion and inter-agency conflict occurs, evidentiary quality deteriorates. The effort is not so much on effective trial, but on prolonged incarceration.”

Raids on Opposition leaders by the ED has also created a bogey of fear and have buttressed the charges of political misuse of investigative agencies. The raids become all the more suspect because it invariably happens against Opposition leaders and during a political crisis, or just before state elections. Furthermore, most cases remain under investigation without any major development or breakthrough.

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GK Pillai, former home secretary, acknowledges the political misuse of the CBI and other central probe agencies. He said: “Personally I think it is not about wanting or not wanting an umbrella organization. It is the intention to do with these agencies. If the motive is to have total control over these agencies then whatever is done, it can be sidestepped for usurping control of these agencies. This is what we are witnessing now. An example is the CBI. In the choosing of its director, the prime minister, the leader of the Opposition and the chief justice of India are involved. Yet, at the ground level, the control of the CBI happens. So, the intention of the ruling class is more important.”

In his lecture, CJI Ramana had said that one additional safeguard that needs to be built into the scheme is to have separate and autonomous wings for prosecution and investigation in order to ensure total independence. Justice VK Jain, former Chief Justice of the Punjab and Haryana High Court, seconds the suggestion of the CJI. He said: “It is imperative to separate the prosecution and the investigative wings. This was also a recommendation of the Supreme Court in the Prakash Singh case. But it is not being implemented. During the Jain hawala case, the Supreme Court had mandated that the CBI should be under the Central Vigilance Commission (CVC), but till now, it hasn’t come to pass. The law enactment is the realm of the legislature. The judiciary can merely make a suggestion. The bottomline is that the working of the investigative agencies should be transparent. This will ensure accountability and impartiality.”

Pahwa has fought many cases in court and feels that an independent prosecution will go a long way in ensuring fairness and integrity of trial. He said: “If the prosecution is freed from government control and separated from the investigative arm then things will get streamlined. Conviction rates will also increase. Also the appointment of prosecutors is done on political lines. It is a biased choice, an extraneous choice based on who is close to political power. There is no audit of prosecution. Nobody analyses the conviction rates and reasons of failure in prosecution. Good lawyers are not inducted in the prosecution department. They are not paid well. The quality of prosecution has to improve. Accountability, quality of prosecution, swiftness in prosecution and conviction and independent courts like fast-track courts are a few things which will help make the difference. There seems to be a directive to the investigative agencies to issue LOC at a drop of a hat. This is impinging on the human rights as well.”

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The workload of investigative agencies is another cause for concern. In February 2022, the Supreme Court had been informed by the Solicitor General of India Tushar Mehta that, as on date, 4,700 cases are being investigated, right from the inception, by the Directorate of Enforcement. Recently, the Minister of State for Personnel, Jitendra Singh, had informed Parliament that as many as 1,256 cases are under investigation by the CBI, and of these, 64 are pending for more than five years. Clearly, an overloaded investigative agency has an impact on its work efficiency. CJI Ramana’s suggestion of a provision in the proposed law for the annual audit of the performance of the institution by the appointing committee will be a reasonable check and balance.

NK Singh said: The CBI is overburdened with work. Its mandate is being artificially widened. The CBI was primarily created as an investigative agency to probe corruption cases and cases where non-partisan probe was expected. Now, the agency is asked to probe riot cases, etc. Even the judiciary has often delegated cases to the CBI which is outside its mandate. A special act for the CBI is a must. The CBI should be able to work without political fetters and should be answerable to the court of law only. It doesn’t need freedom, it needs set laws under which it may work, unfettered by political pressures. Take the Sushant Singh case. The CBI was brought in, but its investigation details are still not out due to political considerations. The Justice Verma bench had given a suggestion that the tenure of the CBI chief should be fixed for two years. But now, the government has increased the tenure to five years, with a catch that the tenure will be increased one year at a time. It clearly means that the tenure increase inducement will be given to the CBI chief. Hence, the tenure should be restored to two years. As far the separation of the prosecution and investigative arms is concerned, their exists a separation even now. The prosecution is quite independent of the probe agency. Finally, the institution of Lokpal should be activated and the CBI should report to it in major corruption cases. But due to lack of political will, this doesn’t happen.”

There has been no dearth of police commissions. National Police Commission, Julio Ribeiro Committee, Padmanabhiah Committee, and Malimath Committee on police reforms, to name a few, have been formed. These Committees had examined the issues concerning autonomy from political interference in police organizations and suggested reform measures. But their suggestions are yet to be heeded.

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In the light of the plight of police commissions, MN Singh, however, is not on same page with the CJI when it comes to the formation of umbrella organization. He said: “I am not in favour of CJI Ramana’s suggestion for an umbrella organization for the investigative agencies. The Justice Verma bench had suggested that the CBI should come under the CVC. It didn’t happen. There have been umpteen commissions for police reforms. Their suggestions have not been heeded. The Prakash Singh case guidelines are yet to be fully adhered to by the states. So, there is no guarantee that an umbrella organization is going to make a difference. Secondly, I don’t think it is feasible to separate the investigative and the prosecution wings, at least in the police force. It may work in the CBI, the ED and other central investigative agencies. In the police, it is going to be calamitous. There will be a total breakdown of the police machinery. In 1977, police commission was formed because of the excesses of the Emergency. We need another Morarji Desai to bring about a police reform.”

The unholy nexus of politicians and the mandarins of the central investigative agencies are a matter of fact now. Even the CJI has unabashedly mentioned it in his address. Is this nexus unbreakable? Pillai said: “As far as the law and order is concerned, it is a closer relationship as the government of the day is responsible for the law and order situation. In case of investigative agencies, if an officer finds his hands are tied, he is duty bound to ignore those orders and put his objections in writing. If the officer gets replaced by a more pliant officer then he should approach the court for remedial action.”

Wading through the facts, figures and opinions, one thing is quite clear that the investigative agencies have to work through a legal and political maze and an impartial, efficient investigation is only possible when the integrity of the probe body is held sacrosanct. The suggestions of CJI Ramana shouldn’t be viewed cynically or taken as clichéd, but as a stepping stone for a new beginning.

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