ON September 27, 2013, the present Union Finance Minister, Arun Jaitley, who was then the Leader of the opposition in the Rajya Sabha, wrote to the then Prime Minister, Manmohan Singh, on the diminishing popularity of the Congress. He wrote, in great detail, how the Congress would not be able to fight the Bharatiya Janata Party (BJP) and Narendra Modi politically. He implied that the Congress was resorting to other means to fight the BJP. The reference was to the Central Bureau of Investigation (CBI), which, Jaitley alleged, was used to implicate Modi, who was then Chief Minister of Gujarat, and Amit Shah, Gujarat’s Home Minister, and other BJP leaders.
Jaitley’s letter was justified given the fact that Modi was going to be the face of the BJP’s election campaign. Jaitley gave some examples, notably the Sohrabuddin encounter case in 2005. He stated that even though the operation was carried out by the Intelligence Bureau of the Central government, the Congress had backed a petition filed by Sohrabuddin’s brother, where the Additional Solicitor General and the Attorney General appeared to be taking instructions from the government. The Central government agreed to shift the case to the CBI, stated Jaitley, but after the neutrality of the CBI began to be questioned, the Supreme Court ordered an investigation by the Gujarat police and the Rajasthan police. The matter came back to the CBI after the Supreme Court felt that there were inter-State ramifications.
Jaitley alleged that the CBI never investigated the Andhra Pradesh angle properly (there was a Congress government in power there then) and that the “probable purpose was to try and implicate the government of Gujarat, setting aside the pretence of the federal character of India’s governance”. He went on to write that the “CBI targeted Shri Amit Shah, the then Home Minister of Gujarat and the Minister of Law, Transport and Parliamentary Affairs, with the ultimate desire of implicating Narendra Modi, the then Chief Minister of Gujarat”. He referred to a note by the then director of CBI, Ashwani Kumar, that approved the arrest of Amit Shah. He also accused the CBI of being part of a conspiracy to implicate Amit Shah in the killing of Tulsiram Prajapati, who was the key witness in the Sohrabuddin case. It may be recalled that the then Home Minister of Rajasthan, Gulab Chand Kataria, was also implicated in the killing of Prajapati. The CBI, he alleged, was similarly misused in the case of the encounter killing of Ishrat Jahan, who was believed to be an operative of the Lashkar-e-Taiba (LeT), a charge that was refuted by her family members. Jaitley also pointed out how jobs were promised to CBI officers after their retirement and that two Directors of the CBI “have been offered lucrative jobs after retirement”.
The truth of Jaitley’s claim is yet to be established but whether out-of-turn appointments were made in the present imbroglio surrounding the CBI is under the scanner. The letter did not help the BJP much then as another Minister in the Rajasthan government, Rajinder Singh Rathore, got embroiled in a case involving the encounter killing of a person called Dara Singh. Similar charges of misuse of the CBI were made in the assassination of Haren Pandya, a BJP Minister in Gujarat. Jaitley also alleged that an IPS officer was used by the Congress to frame Modi.
The letter concluded with a request to Manmohan Singh to look into the facts and to restore the professionalism and independence of investigative agencies. All charges of politicisation and motivated investigation should be subjected, he wrote, to an inquiry commission headed by a sitting judge of the Supreme Court. The United Progressive Alliance (UPA) government did not institute any such inquiry, though it is interesting that two top officers of the CBI, one of whom has close ties with Gujarat, are before the court now, with the court taking an interest in the charges levelled by them.
Modi went on to become the Prime Minister of India and the BJP won the elections with a thumping majority. But, then, much before the BJP assumed the reins of power, Bahujan Samaj Party president Mayawati, in March 2013, accused both the BJP and the Congress of targeting her by using the CBI to investigate a complaint of disproportionate assets against her. She told reporters how the BJP, too, targeted her after she parted ways with the National Democratic Alliance (NDA). This was the same year when the Dravida Munnetra Kazhagam (DMK) leader M.K. Stalin’s house was raided on a charge of tax evasion. Stalin, who was elected DMK president after M. Karunanidhi’s death, recently criticised the BJP for using the CBI and the Enforcement Directorate (E.D.) to intimidate political parties in Tamil Nadu using selective raids and arrests.
In that respect, the BJP seems not to be any different from the Congress. If anything, many people think that the misuse of the investigative agencies has been much more rampant now, considering the manner in which the CBI and the E.D. went after certain media houses and political parties that were perceived as being critical of the government. The raids on Aam Aadmi Party officials, including Chief Minister Arvind Kejriwal’s Principal Secretary, did not reflect well on the BJP-led NDA government.
In 2013, Justice B.M. Lodha called the CBI a “caged parrot” in a hearing on the coal block allocations scam during the tenure of the UPA government. This term is getting used increasingly in the context of the misuse of the CBI. The then Law Minister was pulled up by the Supreme Court in the case for interfering with the agency, and it observed that the “heart of the report” had been “changed”, ostensibly to favour the government. The Law Minister resigned following the expose. People recall how, when the Left parties withdrew support to the UPA in 2008, it was Mulayam Singh, Samajwadi Party president, who came to its rescue. The CBI had almost finalised its investigations in a corruption case involving Mulayam Singh and the matter was in court. The CBI withdrew the case on the advice of the Union of India. But within less than a year, it showed a willingness to reopen the case. The case was formally closed in 2013.
Vineet Narain’s PIL
In 1993, Vineet Narain, the journalist and founder-editor of Kalchakra magazine, drew the court’s attention through a public interest litigation (PIL) petition in which he petitioned the courts to insulate investigating agencies from the influence of the executive. Narain said his PIL was never about corruption in the CBI but about following the trail of hawala money for terrorist activities, which, he says, no government took up.
“Every successive government has kept total control over the CBI irrespective of commissions, reports, the judgment in the hawala case, or Lok Pal. Nothing has changed in the basic functioning of the CBI. When it comes to big political names and political parties, it dances to the tune of the political party in power. And governments always used the CBI as an instrument to arm-twist their opponents, whether to get a Bill cleared or to win a vote of confidence or make sure they did not enter into an alliance against them. That is why cases involving politicians hang on for years,” he said. Nothing came out of the Bofors investigations by the CBI, with the final nail in the coffin being struck when the CBI withdrew the Interpol notice against the key accused Ottavio Quatrocchi. A similar pattern was observed in a case of arms dealers involving middlemen which was never investigated by the NDA.
Narain, whose name is synonymous with the expose on the links between hawala money and terrorist activities involving some big names in the nation’s polity, said that once a case was filed, the leverage of arm-twisting went along with it. “No ruling party at the Centre is an exception. In 1991, the CBI accidentally got hold of the Jain diaries while chasing a trail of hawala funding to the Hizbul Mujahideen. All sorts of high-ranking people, including those in the government, were named in the diaries. Pressure was exerted but nothing happened. In 1993, when I exposed it in the Kalchakra video magazine, personally interviewing lawyers and others, things began to move as panic grew. I filed a PIL petition and there were attempts to bribe me. We had a case which involved not only corruption but, more importantly from the point of view of the security of the nation, certain terrorist outfits. A humbug investigation was conducted despite the Supreme Court’s monitoring. The CBI was closely monitored here but nothing happened.”
In 1997, he said, the court’s attention was diverted to issues of autonomy of the CBI and the Central Vigilance Commission (CVC).
“I pointed out that the accused were running away. I had warned about it. If they had done something about that case, there would have been a concrete outcome. But others benefited. Some leading lawyers, who became MPs, sabotaged the investigation. I knew that simply making the CBI autonomous would not make any difference. It’s been 20 years now and I am asking a straightforward question—has the CBI ever been able to solve a case in big corruption cases? Isn’t it a fact that the CBI has been accused of blackmailing the government’s political opponents? Weren’t there charges of corruption against Directors of the CBI? What has happened now is a singular case of manifestation of malice. The majority of CBI officials are clean,” he said.
Narain claimed that the appointment of top Directors was often manipulated. The UPA government brought in Archana Ramasundaram as an Additional Director of the CBI, which was not in accordance with the norms of the selection committee, the CVC and the Delhi Police Establishment Act. There were some political reasons for her appointment as it suited a constituent of the UPA. But nothing changed when the government changed at the Centre. “When the NDA government came, I thought my case would be heard and taken up. And the Additional Solicitor General would defend me. But he took a different position altogether,” Narain said. “We are standing at the same crossroads where we were in 1993.”
Narain added: “I went to a Director of the CBI and told him of a politician who had lots of money that was not accounted for. He told me they could take action but “ Upar se aadesh nahin hai ” (there are no orders from the top).”
The CBI, it seems, takes up politically non-controversial things quite diligently. The problem arises when high-profile politicians and persons from the corporate sector are involved. The common people still had faith in the impartiality of the CBI, but that faith, a former intelligence official said, was shaken up by these incidents. Sometimes the request for a CBI inquiry can be motivated. In the gang rape and murder of a minor Bakarwal girl in Kathua, Jammu, the parents of the girl were satisfied with the investigation by the State government. But there was a demand for a CBI inquiry by the BJP leadership. Several local BJP leaders protested against the arrests of the accused persons in the case.
In the SNC Lavalin case, dating to 1997, where the CBI had initiated an investigation against Pinarayi Vijayan, the present Kerala Chief Minister (who was then the Power Minister), for awarding contracts to a Canadian firm, causing an alleged loss to the exchequer, the Kerala High Court acquitted Vijayan, absolving him of any conspiracy, last year. Incidentally, it was the United Democratic Front government led by Oommen Chandy which approached the High Court for an early hearing. In 2013, a CBI court rejected the chargesheet of the CBI, saying it had found nothing, either by way of a conspiracy or pecuniary gain on the part of Vijayan and others. Yet, as recently as July 2018, the CBI filed an affidavit in the Supreme Court that Pinarayi Vijayan ought to stand trial. The Communist Party of India (Marxist) termed this totally “politically motivated”, with an eye on the 2019 elections.
The CBI face-off
“About what happened recently, I hold three individuals and agencies solely responsible for the chaos. Alok Verma had no experience of running a premier agency such as the CBI; he was a Police Commissioner and he ran the place like a daroga . He could have done this in a more dignified manner. One has to sort it out within the organisation. He was the head of the agency. Then he played politics like others.
“The CVC is supposed to monitor the functioning of the CBI. The members of the CVC knew of the complaints. Why did they take so long for the situation to get worse? Did the CVC send a note to the Cabinet Secretary? The CVC also failed in that sense.
“The third agency involved is the Prime Minister’s Office (PMO). Senior officers in the country’s premier agency were making allegations against each other. What was the PMO doing? The surgical strike was done overnight. I am not sure whether this was done to take away the documents of Rafale. Arun Shourie and others would definitely have kept more copies. The government had only one option left, which was to send both the officers on leave and get a fair investigation going. The court has given a good judgment, taking away the powers of the interim Director. The only problem is that the court has given just two weeks for the investigation by the CVC and Justice Patnaik [to submit their report]. Two weeks is too short a time. All political parties need to take an interest. But then, which ruling political party would want the CBI to be used against it?” Vineet Narain said.
The use of the CBI to go after political leaders and the media has always been viewed as disproportionate and politically motivated. The raids on the offices of NDTV India and its owners’ house last year caused a huge furore and allegations of witch-hunting. Cases appear to be picked up or dropped depending on the proximity of the individual or party to the ruling party at the Centre. The present crisis, it is felt, was waiting to happen.
It is evident that no serious investigation is going to take place into anything by the investigating agency, including the contentious Rafale deal, until the problem at the top is addressed. The demand for such an investigation has been constant despite the government’s efforts to scuttle it.
The issue is in front of the court; to what extent will the rot in the state of the CBI be addressed is a matter of speculation. For now, the state of flux suits the government.
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