Insights into Editorial: CBI – Role of Director, Reforms in its Functions
NGO ‘Common Cause’ has moved the Supreme Court seeking quashing of Rakesh Asthana’s appointment as interim director of the CBI, alleging that such ad hoc arrangement violated the apex court’s 1998 judgment.
Recently, Rakesh Asthana was named as interim Central Bureau of Investigation (CBI) director by the government. On the same day CBI Director Anil Sinha retired from the post. This time the government did not name any full-time chief.
According to the petitioner, the government has failed to appoint a director of the CBI as per Section 4A of the Delhi Special Police Establishment Act, 1946, on the expiry of term of the last incumbent on December 2.
What the law says?
The head of the CBI is selected by a group comprising the Prime Minister, the Leader of Opposition or largest party in opposition in Lok Sabha and the Chief Justice of India (CJI).
India’s first agency to investigate corruption, the Special Police Establishment, was set up in 1941 – six years before independence from British rule – to probe bribery and corruption in the country during World War II. That agency was part of India’s War Department.
- In 1946, it was brought under the Home Department and its remit was expanded to investigate corruption in central and state governments under the Delhi Special Police Establishment Act.
- That law gave the central government the right to set up and govern a special police force to investigate acts of corruption. The special police force became the Central Bureau of Investigation after the Home Ministry, which is in charge of domestic security, decided to expand its powers and change its name in 1963.
- The CBI is still governed by the 1946 act. But in a series of moves in the 1960s, its remit was expanded from investigating corruption among senior federal civil servants to being able to probe irregularities at all public sector bodies, including state-owned banks. Its investigations also include prominent crimes, such as cases of terrorism, murder and kidnapping.
Problems associated with CBI:
- The agency is dependent on the home ministry for staffing, since many of its investigators come from the Indian Police Service. The agency depends on the law ministry for lawyers and also lacks functional autonomy to some extent.
- The CBI, run by IPS officers on deputation, is also susceptible to the government’s ability to manipulate the senior officers, because they are dependent on the Central government for future postings.
- Another great constraint on the CBI is its dependence on State governments for invoking its authority to investigate cases in a State, even when such investigation targets a Central government employee.
- Since police is a State subject under the Constitution, and the CBI acts as per the procedure prescribed by the Code of Criminal Procedure (CrPC), which makes it a police agency, the CBI needs the consent of the State government in question before it can make its presence in that State. This is a cumbersome procedure and has led to some ridiculous situations.
SC over CBI’s autonomy:
The landmark judgment in Vineet Narain v. Union of India in 1997 laid out several steps to secure the autonomy of CBI. Says Mr. Narain: “Limited autonomy was granted. Still the administrative and financial control wrests with the Ministry of Personnel, and thus the government can directly control CBI.”
What needs to be done?
- The first reform is to ensure that CBI operates under a formal, modern legal framework that has been written for a contemporary investigative agency. A new CBI Act should be promulgated that ensures the autonomy of CBI while at the same time improving the quality of supervision.
- The Lokpal Act already calls for a three-member committee made up of the prime minister, the leader of the opposition and the chief justice of the Supreme Court to select the director. However, not enough has been done to administratively protect CBI from political interference. For this to happen, the new Act must specify criminal culpability for government interference.
- One of the demands that has been before Supreme Court, and in line with international best practices, is for the CBI to develop its own dedicated cadre of officers who are not bothered about deputation and abrupt transfers. The CBI did recruit some officers in the past to its cadre, but that effort has gone nowhere, and all senior posts in the CBI are now held by Indian Police Service (IPS) officers.
- It is also possible to consider granting the CBI and other federal investigation agencies the kind of autonomy that the Comptroller and Auditor General enjoys—he is only accountable to Parliament. A more efficient parliamentary oversight over the federal criminal and intelligence agencies could be a way forward to ensure better accountability, despite concerns regarding political misuse of the oversight.
- The CBI is not really popular among the youth who are looking for Central government employment through the Union Public Service Commission examination route, other than those appearing for the All India Services, including the Indian Police Service. This makes a case for a fresh look at the service conditions for direct recruitment to the CBI.
The CBI continues to operate under a notification issued by the Ministry of Home Affairs on April 1, 1963, for investigating crimes under the Delhi Special Police Establishment Act, which derives its legacy from concerns during World War II regarding misappropriation of war spending. A comprehensive act of Parliament setting out the autonomy, powers, etc. is the first step towards improving the CBI’s autonomy.
It is time to drum up political support to reform the CBI. Why this has not found favour till now is perhaps the irrational fear that the CBI will become far too autonomous and powerful. Persons who peddle this argument obfuscate the truth that an autonomous CBI is not one that is devoid of accountability.