For real autonomy

Published : Feb 27, 2009 00:00 IST

Former directors of various security agencies at a conference of the CBI and the State Anti-Corruption Bureaus in New Delhi in November 2006.-V.V. KRISHNAN

Former directors of various security agencies at a conference of the CBI and the State Anti-Corruption Bureaus in New Delhi in November 2006.-V.V. KRISHNAN

IF there is one jurist in the country who is still known for his integrity and fearlessness, it is the venerable Justice V.R. Krishna Iyer. He does not speak too often these days. When he does, however, one has to sit up and listen. That is why I was excited when he made a statement recently on the need to allow criminal investigating agencies enough independence to deliver the goods in an impartial manner. I cannot resist quoting him verbatim:

Investigating agencies must enjoy immunity and independence in their operations like judges. Ministers or parties in power at the State or Central level shall not be allowed to influence in any manner the persons, method or progress of criminal investigation by the CBI or State police. However high or powerful the alleged accused be, the investigating agency should fearlessly proceed in collecting evidence. Public figures, if they commit corrupt crimes, must not enjoy special exemption. Guilt or innocence of the concerned person will be investigated relentlessly by the officer charged with the duty of discovery of truth.

Few amongst us could have summarised better the appalling situation where every investigating agency in the land is accused of a lack of objectivity and integrity. When the judiciary itself is assailed on the same charge many a time wrongly how can one expect the police, under the stranglehold of the street-level politician, to be different from what they are?

Krishna Iyer has not voiced any demand that has not already been made by right-thinking people in the country. But when he goes to town echoing the sentiment, it assumes new importance and strength. It is nearly a decade since I left the Central Bureau of Investigation (CBI). It would not, therefore, be fair for me to make any value judgment. From what I hear, the organisation is doing its best to steer clear of political interference. At the same time, I refuse to believe that it is not subject to subtle hints or indirect pressure while investigating cases that have political connotations.

Ultimately, the CBIs ability to withstand attempts to influence decisions depends on the courage displayed by the head of the organisation. The CBI Director walks a tightrope all the time. If he still performs and gets convictions for those accused of major crimes, it is a tribute to the CBI, which, incidentally, could do with a lot more autonomy, especially in the area of personnel management.

The Central Vigilance Commission, manned no doubt by men of great rectitude, has proved to be an albatross around the CBI Directors neck. Every senior appointment from the level of superintendent of police in the CBI has to be approved by the CVC. This tedious process is hardly conducive to speed. It may have stalled some questionable recommendations of the CBI Director as also delayed a few unexceptionable inductions. This is an unfortunate state of affairs that without a doubt affects the efficiency and therefore the independence of the countrys premier investigating agency.

The Department of Personnel and Training and the Ministry of Home Affairs ultimately initiate action with State governments on procuring the officers approved by the CVC. They wield enough authority (read mischief sometimes) to slow down the process further. In these circumstances, it is facetious to believe that the CBI has enough autonomy to pursue its targets. There are many ways in which the CBIs autonomy and speed are scuttled. My reference is mainly to corruption cases against senior civil servants. First is the reluctance of Ministries to hand over the documents needed and requisitioned by the CBI. The delay is unconscionable and deliberate in many cases, especially when the civil servant under investigation is a favourite of the Minister concerned.

Another constraint on the CBI is the requirement of prior government approval to register a case against an officer of the rank of Joint Secretary and above. Such an approval can be denied or delayed in the case of an official who is in the good books of his or her Minister. What remained an executive instruction (the so-called infamous Single Directive) has now got into the statute book through amendments to the CVC Act and the Delhi Special Police Establishment Act from which the CBI derives its legal authority. There is the fear, not unjustified, that before according such permission the official under the scanner could be tipped off about the CBI request, thereby allowing him to bury or tinker with evidence against himself.

The most potent and disastrous instrument in the governments hands is the power to deny sanction to prosecute a public servant under the Prevention of Corruption Act at the end of a successful investigation. Such denial has happened in some cases that should shock the conscience of every right-thinking citizen who stands for probity in public life. I am told that such denial is not justiciable, that is, it cannot be challenged in court. I have always maintained that this should be tested for its legal validity. There have been no takers.

In cases of conventional crime, however, the CBI has greater freedom. That is, unless a politician close to the ruling party or coalition is involved in a crime. In the final analysis, fortunately, the CBI is not at the mercy of the street-level politician. As such, it enjoys greater freedom than State government outfits such as the Crime Branch Criminal Investigation Departments, the Anti-Corruption Bureaus (ACBs) and the district police.

Years ago, the CB-CID enjoyed a reputation that was second only to the CBI. The situation has changed vastly with the unbelievable politicisation of the State police. The picture in the southern States is a shade better than in the north although it is still not the ideal. Flimsy cases against members of parties in the Opposition are the order of the day. Seldom is a politician of the ruling party arraigned unless the offence committed by him becomes a public scandal.

In most States the ACBs are a joke. Many of them cannot even initiate a preliminary enquiry against a corrupt civil servant who belongs to the All-India Services, namely, the Indian Administrative Service, the Indian Police Service and the Indian Forest Service. What is seen in New Delhi is witnessed in the States as well. Where a corrupt officer is close to a Minister, he enjoys near immunity from ACB action.

What is the way out of the morass? The fundamental reforms ordered by the Supreme Court in September 2006, taking into account the recommendations of the National Police Commission (NPC) (1977), offer a ray of hope. These include the creation of a State Security Commission (SSC), to which a police officer who has received an illegal direction from the Executive can complain. Also significant is the directive that the chief of a States police force, the director general of police, should be selected on merit and through a transparent process. Further, he should have an assured tenure of two years unless he comes to adverse notice for any unethical action. All the NPC recommendations are backed by the Supreme Court and cannot but have a positive impact on policing.

But then, few State governments are enthusiastic about ushering in changes that would make the police at least partially free from the clutches of politicians. Some States claim to have implemented the reforms. A study of the changes brought in by them can leave one appalled. In one State, the government has made a mockery of the SSC by having 66 members in it. When such a body meets, it will be more a jamboree than a serious meeting to review police performance or lay down policy. Other States are buying time in the hope that the Supreme Court will forget about the reforms.

It is for enlightened souls such as Krishna Iyer to go into all this and also lead the struggle against political interference in sensitive investigations. He may be too frail to take this up in a serious manner to its logical conclusion, but he can at least give the initial thrust so that like-minded citizens can follow up and make enough noise to bring pressure on the Executive for early reforms. The task is gargantuan. Far too many forces are arrayed against the reformers. But the mission is too critical for us to give up easily.

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