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RESTORING CREDIBILITY TO CRIME INVESTIGATION

It is the national character of the CBI that makes it stand head and shoulders above the myriad crime investigation departments. But does the CBI, in its present form, fully qualify to be a premier investigating authority? The answer is, no. A statutory panel comprising(retired) members of the judiciary may help restore the dignity of the institution.

The last decade of this century sees the Central Bureau of Investigation (CBI) becoming the Indian version of the U.S. Federal Bureau of Intelligence(FBI) headed by J.Edgar Hoover in the middle of the century With one difference.

The FBI became a key component and much feared public institution, thanks to the open aggressive moves of its energetic Director, while the CBI gained notoriety as a pawn in the political game of chess used to bring rivals down on their knees. The trend altered the judiciary which became active.

The CBI, closely watched by the judiciary, had to discharge its professional responsibilities and this saw many skeletons in the cupboard tumbling. The organisation, in the process, shed its meekness against powerful politicians and proved it was a force to reckon with.

2 Being the highest authority of the country in crime investigation, the CBI must contain the best investigation brains vested with the power to execute the work.

Personal attributes such as probity and professionalism are essential. But does the CBI meet all these needs?

The seventh Schedule of the Constitution has the police and public order, except for the deployment and use of forces of the Union, under the State List, and criminal law, criminal procedure, administration of justice and judicial proceedings under the Concurrent List.

The Central Bureau of Intelligence and Investigation figures in the Union List. The arrangement provides for a separate bureau of investigation. The legal authority of the CBI is defined by a short six-section Act of 1946 titled “Delhi Special Police Establishment Act, 1946” which provides for the constitution of a special police force by the Central Government for the investigation of notified offences in any Union Territory and in any area in a State where the jurisdiction of the police force is extended by the order of the Central Government on the consent of the State Government.

The last section of the Act states the special police force cannot exercise its powers in an area without the consent of the Government of that State. The special

3 police force enjoys all the powers, duties privileges and the liabilities of the police officers of an area in the investigation of the offences committed there.

The superintendence of the special police force lies with the Central Government and the administration with an officer whose grade is on par with State police chief.

The preamble of the Act speaks about the need for the constitution of “ a special police force in Delhi for the investigation of certain offences in the Union Territories and to make provision for the superintendence and administration of the said force and for the extension to other areas of the powers and jurisdiction of the members of the said force in regard to the investigation of the said offences”.

It is the national character of the CBI that makes it stand head and shoulders above the myriad crime investigation department. Its prime position as the investigator of all important and sensitive crimes has brought it to the centre-stage in the public life of India.

Otherwise, the CBI, as an investigating agency, is on par with any other crime investigation department regarding the law, judicial proceedings, investigation methods and the powers and privileges given to the investigators.

Does the CBI, in its present form, fully qualify to be a premier investigating authority? The answer is no. The restraint on the CBI from exercising its powers and

4 jurisdiction in any area in a State without the consent of the government of that State is a great handicap.

India, in 50 years, has come across

several States giving and withdrawing

consent depending on their political and parochial conveniences. This attitude renders the CBI part of a political game plan tarnishing its image and degrading the merit of the investigations.

The CBI should be empowered to extend its tentacles to all areas of the country and investigate all types of offences classified crime. The Act has to be amended to that effect.

The Act provides for the appointment of the head of the CBI by the Central Government, which involves politicians. Now, why should the head of the premier investigating agency be named according to the whims and fancies of the politicians in power? The power of appointing the head of the CBI should be taken away from the Centre. The agency will then have its credibility restored. Again, the Act has to be amended.

Once a case is referred to the CBI, the people assume that the law will take its course. Only insiders know the turns and twists it undergoes depending upon who is what in the case and in the Government

5 Right from taking up a case for investigation to the stage of filing a chargesheet and later, anything may happen at any stage depending upon the political dictates. A case may be investigated and chargesheet filed within a few weeks or months or just shelved for decades. Arrests, decisions on bails, searches, seizures and chargesheets are all subject to political convenience. The political head gains this leverage by becoming instrumental in the appointment of a particular police officer who would never have dreamt of making it to the top.

The grateful chief knows to whom he owes his coveted position, and his power and conscience are at the convenience of his political boss. This is an arrangement of mutual benefit.

When the new chief dares to challenge the will of his political patron, the sword of abrupt removal from the post is held over his head. Now he has no option but to go against his conscience and professional will unless he is prepared to sacrifice his job. By quitting, he does service to nobody: after all, there are others waiting to distort

professional decisions at the command of the politicians. So he would rather join the race. This is how the agency chief is brought down on his knees.

The malaise lies in the legal framework inherited from the Act the provided for constituting the special police force. When a series of sensitive cases against prominent political leaders was referred to the CIB in the Nineties, the agency stood exposed by its meddling.

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The case of the Bofors gun deal drags on; the handling of the St.Kitts forgery case, the Jain hawala case, the urea scam, the JNN bribery case, the Lakhubhai pathak cheating case, the Indian Bank scam, the telecommunications scandal, the anti-Sikh riots case of 1984 and the case of harbouring terrorists and mafia associates has dealt a blow to the credibility of the CBI. The public no more trusts the CBI.

What exactly has brought about the situation? Delay, sometimes running into years, in taking up or completing investigation of politically inconvenient cases, prompt execution when the political climate is congenial, decision to oppose or allow bails on political considerations, building up cases around flimsy evidence such as entries in diaries and inconsequential photographs sans corroboration have all eroded the status of the CBI.

Going to the press about chargesheeting key political personalities even before statutory permission is obtained for the purpose (the Supreme Court observed, in this context: “ talking too much outside and also carrying documents” in the pockets) and leaks about politically sensitive cases make the agency suspect.

The charge that the CBI is more interested in trying the cases in the media than in courts cannot be answered squarely.

7 If the appointment of the CBI chief is one side of the coin, the enormous powers he and his political masters enjoy is the other. Professional investigation by an upright officer can always be scuttled and the officer abruptly removed if he is found too inconvenient. Reverting officials to the base is always a possibility.

Mr.K.N.Singh, former Joint Director of the CBI, in his book, “My CBI Days” refers to the harassment he underwent for pursuing investigation according to his

conscience. Mr.K.Madhavan, another Joint Director, preferred voluntary retirement.

The solution lies in liberating the CBI from the grip of the politicians and bringing its top brass to their senses about professional responsibilities. Making the CBI autonomous is not going to achieve anything.

There is no guarantee that the CBI chiefs who make merry in the company of their political benefactors will behave better when left free. Chances are that they may run parallel political manoeuvres to build a base for theselves.The Supreme Court pronounced on May 5, 1997, that it was not in favour of making the prime investigating agency totally autonomous, but would like to evolve a method based on checks and balances so that it could function independently in accordance with the law.

The crux of the matter is “ a method based on checks and balances”. The key is the appointment of the chief of the agency.

8 A statutory panel constituted of men from the judicial profession as advisor to the agency may fulfil the need for “checks and balances”. The panel may be invested with the power to appoint and remove CBI chiefs on the basis of their performances.

The panel may advise the agency on taking up cases, arrests, searches, seizures bail and chargesheets. The advice has to be statutorily binding on the process of the investigation. The panel has to be free to monitor the process and the pace of the investigation.

The panel may consist of a dozen senior most retired judges of the Supreme Court as permanent members, one of them as chairman and the CBI chief as member-secretary. The membership of the panel must be awarded to the senior retied judges including chief justices.

Only a full panel with a minimum of 80 percent quorum must be empowered to decide, on a simple majority, about the appointment and removal of the CBI chiefs, promotions and transfers of officers of an above the rank of Assistant Director.

The function, privileges, rights, liabilities and responsibilities of the panel have to be clearly defined in order to avoid clashes with the CBI.

A suitable amendment to the ”Delhi Special Police Establishment Act 1946” is the first step. The constitution of the panel as part of the body of the CBI shall be the

9 second step. And the third and most crucial step will be suitable administrative measures to ensure that the panel discharges its responsibilities in a fair manner. Appreciation and an atmosphere free of bureaucratic hassles and pulls and pressures will help the elder members of the judiciary discharge their responsibilities in guiding the CBI in the right course.