A lost battle?

Any conclusion of the current exercise in favour of probity in public life without the CBI being taken out of the purview of the government will be unfortunate.

THE impasse over the Lokpal Bill continues. The inability to arrive at a consensus on the subject even after a long-drawn-out all-party meeting convened by the United Progressive Alliance (UPA) government on December 14 came as no surprise. It confirmed the widely held view that political parties across the spectrum were not exactly interested in entrusting the fight against graft to more convincing and autonomous centres of authority.

The concept of a new and powerful ombudsman or an autonomous Central Bureau of Investigation (CBI) does not excite them. It actually scares a few of our legislators. Driven to a corner by strident public opinion, they could at best accept the Lokpal as a necessary evil. Nothing more. I am not for a moment suggesting that all law-makers in our country are dishonest. This is the mistake I believe Team Anna has made. Branding all politicians corrupt and lacking in integrity is not only erroneous and unfair, it actually earns Team Anna more enemies.

In fact, it works to the unintended advantage of those venal elements who somehow want to scuttle the movement against the current shockingly low standards in public life. What we are now witness to is simply a case of many politicians wanting to let sleeping dogs lie.

Indifference suits the majority in the polity, who want to just drift in the hope that Team Anna, unable to sustain itself for too long, will just vanish very soon. They are possibly right, because the odds are weighted heavily against Anna succeeding. This is especially because Anna has somehow given the feeling, wittingly or unwittingly, that he is acting at the behest of those who are opposed to the current establishment. Also, some of the language employed by a few in his camp has been excessively vitriolic.

After 40 years in government I have realised that a sense of balance and the ability to restrain oneself even when one is outraged and provoked by calumny poured by vested interests and to doggedly focus on one's objective earns one rich dividends. This is the test one faces almost ceaselessly in public life. If you succeed in facing up to the mud thrown at you, there is an even chance of your succeeding. Or else you will come to grief or just vanish. Anna and his admirers should remember this.

It is, however, unfortunate that the momentum built against corruption by Anna is being frittered away. This is not only because of the wrong tactics of Team Anna, it is also the result of the ganging up of a wide range of forces for whom venality is part of their lives and the expression anti-corruption is anathema. And such forces dominate every government.

These are, therefore, critical times for those who want to see a transformation of India into a low-corruption country. If a strong and autonomous Lokpal (read the CBI) is not created now, it will never be. For, it would take decades for another phenomenon like Team Anna to arrive on the scene. This is real tragedy, especially when even a contentious issue regarding the Prime Minister has reportedly been sorted out, with the government agreeing to bow down to the popular sentiment that no one should be above the law.

Incidentally, I am amused by the amount of misinformation that envelops the matter. Whoever said that the Prime Minister was now above the law? He enjoys no immunity, in power or out of it. There is nothing in the law that at present prevents the CBI (under a maverick Director) or a private individual from taking the Prime Minister to the court of law on a charge of misconduct. This is one example of how ignorance of law or pretence of it distorts the exercise seeking to bring about greater accountability of a public servant. In my view the debate over the Prime Minister is frivolous and inane.

The draft legislation approved by the Union Cabinet will be taken up by Parliament on December 27. The Lokpal Bill is said to be categorical that the CBI will be out of the purview of the Lokpal. Two major concessions the Bill is believed to make are: the Prime Minister will be within the ambit of the Lokpal, and the legal requirement of a mandatory government sanction of prosecution to proceed against a corrupt public servant will be done away with. The major bone of contention remains the status of the CBI, and the Lokpal's control over it. The government seems to be clear that the Lokpal will have little to do with the CBI. This has incensed Team Anna who is determined to take this issue to the streets. Pitched battles in many centres are a distinct possibility.

The Lokpal will perhaps have its own small investigative wing that could at best launch a preliminary enquiry, and then pass on the findings to the CBI for appropriate action. This is what the Central Vigilance Commission (CVC) does under the present dispensation. So, will the Lokpal be duplicating the CVC's role? This is a ludicrous situation, to say the least. If this is going to be the ultimate outcome of the exercise forced on the government by Team Anna, we have definitely lost the battle.

There is overwhelming public opinion that the CBI, as presently placed in the government hierarchy, will remain a tool in the government's hands, either to protect one who is part of the establishment, or to frame someone who is against the government of the day. This popular perception may be a slightly exaggerated assessment of the readiness of the CBI to bend to its political masters.

People who assail the CBI on this count tend to forget that the organisation is accountable to the judiciary in every sense of the term. A charge sheet against an accused is scrutinised by a magistrate and then the trial court before the latter frames charges. Any irregularity or dishonesty is easily detected at this stage by these two levels of judicial authority.

There is also the additional safeguard that anyone who has been wrongly excluded from a charge sheet can still be made to face trial at the initiative of a private individual or the court acting suo motu. This is why it is not all that easy for the CBI to protect any wrongdoer, however highly placed he or she may be. The CBI's accountability to the law and the judiciary is not a myth. It is real. The 2G spectrum case is an instant example.

Fundamental to the demand for total autonomy of the CBI is the fact that our jurisprudence does not permit any executive interference in the process of setting the criminal law in motion. There is no way any authority can tinker with the right of an investigating officer to file his own conclusions before a competent court. Courts in India have recognised this. Please recall the Supreme Court refusing to vet the charge sheet in the 2G spectrum case. Courts generally refrain from ordering who should be arrested and when a first information report (FIR) should be registered. Act as per law is the dictum that they usually commend to an investigating agency. This is why I have always held the view that the public prosecutor has no authority to prevent an investigator from placing all his facts in a court. The PP, if he does not agree with the investigator, can at best convey his views in as many words to the judge concerned.

Fortunately, such an unseemly situation is usually avoided by a judicious investigator, who does not want to weaken a case so assiduously probed by him through engaging in a fight with the PP. A Superintendent of Police or Director of the CBI can overrule his legal adviser or PP and act on lines he considers most appropriate.

Any conclusion of the current exercise in favour of probity in public life without the CBI being taken out of the purview of the government will be unfortunate. It is a victory for dishonest elements in the polity. Remember, their numbers are not insignificant.

In my view the CBI, despite all its faults (slow pace of investigation, poor infrastructure, inadequate legal support and lack of incentives to its personnel), is the best bet to bring about greater fear of the law among those who enjoy enormous money power. The latter tribe is burgeoning at an alarming pace. There should be no objection to the CBI being taken out of the CVC's ambit and transferred to be part of the Lokpal establishment. But this will be only to give the kind of administrative support that is now lent to the CBI by the Department of Personnel of the Government of India and the CVC. Beyond this, the Lokpal should have no say on how the CBI will conduct its inquiries/investigation.

The Lokpal can, of course, send complaints received by it directly from the public to the CBI for further action. But the Lokpal cannot dictate how the CBI should dispose of such complaints. This is analogous to the role of superintendence of the CVC over the CBI that the CVC Act permits now.

Let us hope some good sense prevails among both members of Parliament and Team Anna. Posterity will not forgive them if they do not reach a consensus quickly in favour of honesty in public life.