The CBI-- Caged Parrot, Swooping Eagle, or Sitting Duck?

                            

The Supreme Court's now famous description of the CBI has created a stir in the avian community, especially among the flightless ones in Lutyen's Delhi. Its now open season for the CBI, with all four estates prescribing all kinds of life-saving medication for the hapless organisation, in varying dosages. It reminds me of a joke I'd almost forgotten: it goes something like this. One day a Red Indian brave rides furiously into town and heads for the local Doctor. He tells the Doctor: " Heap big Chief, no shit!" Correctly diagnosing that the brave's Chief had constipation the Doctor prescribes some strong laxatives and the brave rides away at a gallop. Next day he gallops into town again and screams at the Doctor: " Heap big shit, no Chief!" Is something similar happening to the CBI?

The diagnosis first. Yes, the CBI's track record over the last few years has been a mixed one at best- it has repeatedly and blatantly and inexcusably caved in to political pressure in a large number of important cases; even without the pressure it has not covered itself with glory in many other cases. It is no longer trusted by anyone- not the common man, not the judiciary, not the opposition. But please ask yourself: is it any different from any other govt. organisation? Have the track records of the Enforcement Directorate, SEBI, IB, all govt. Ministries and Departments, the state police and their Vigilance Departments, the various Regulators, State Public Service Commissions- mention anyone- been any better? Why pick only on the CBI? The fact is, every organ of the Govt. has succumbed to pressure from outside and capitulation by the bureaucrats from the inside and has self destructed insofar as objective, fair and effective governance is concerned. Is it reasonable to expect the CBI to be any different from other governmental entities? The CBI is just one rash among a horde of others on the thick skin of our polity, and by concentrating exclusively only on it we are making the mistake of missing the woods for the trees.


The medication next. One panacea appears to be on everyone's lips these days- GIVE CBI AUTONOMY FROM THE GOVERNMENT. The Supreme Court is keen on this, the Opposition is screaming for it( madly hoping it won't happen before they come to power), and TV anchors go apoplectic demanding it be injected immediately. Only the discredited Central govt. is opposing this, and for once, much as it goes against the grain, I agree with it ( though our reasons are totally different, believe me!). Please do a reality check. We are a democracy, and not yet one that has evolved a strong system of checks and balances unlike the UK or USA. In a democracy every organ of the state has to be accountable to, and has to be superintended by, Parliament. The instrument for doing so is the Government of the day elected by Parliament, no matter how incompetent or venal such a Government is: any other formulation-such as the Autonomy from Government control now being bandied about-weakens the democratic underpinnings of the state and should be abjured. The latent danger in taking this route multiplies exponentially when the talk is about giving autonomy to a uniformed, armed force which is legally empowered to detain, arrest and prosecute. Let us not, in a moment of media inspired hysteria, do the framers of our Constitution the injustice of implying that they did not know what they were doing when they firmly and unequivocally placed all uniformed forces under the unambiguous control of the civilian Government of the day. Do we wish the CBI to become like the ISI or the KGB, just two autonomous police forces I can think of immediately? And where do we draw the line?- if the Government's meddling with the CBI is adequate reason for making it autonomous then, by the same specious logic, shouldn't we be granting similar autonomy to the IB, BSF, CRPF, ITBP, SSB, all state Police forces, and maybe the Army, Navy and Airforce? Because you can rest assured that the Governments-all of them without exception- do just as much meddling with them. The chorus for Autonomy is a red herring introduced by people who should know better. Autonomy from Government control does not automatically lead to better performace unless the nuts and bolts of the machine are fixed. Neither Scotland Yard nor the FBI have the kind of autonomy we are now demanding for the CBI, yet they are the finest police organisations in the world.

Can we trust the CBI with autonomy? To find an answer to this question you need look no further than the expose by Shoma Choudhury( in the Tehelka magazine of 29th June) of the CBI's handling of the Aarushi murder case. It is a brilliantly researched, doggedly persevering and systematic uncovering of the depths to which the CBI has gone to frame the parents of the poor girl, Rajesh and Nupur Talwar, in the murder of their own daughter. She exposes everything point by point- the manipulation of witnesses, the tampering of evidence, the misleading of the courts- by a DIG level officer, simply because he had made up his mind that they were the murderers- in the process, according to that article, he refused to look at evidence that could have pointed him in the right direction. Shoma Choudhury's point-by-point detailing and marshalling of facts makes one sit up and take another look at what many people thought was an open and shut case. This is not a case that involves political big-wigs, and so even the fig leaf of " political pressure" by the govt. is not available to the CBI. No. sir, this is just usual police working- the same mindset that makes police beat up women in UP, lathi charge protesting young students at India Gate, kill by the hundreds people in their custody, extort crores from petty hawkers every year on the streets of Delhi, rape women in lock-ups, arrest a young girl for tweeting her dislike for Bal Thackeray, allow the murderer of Jessica Lal to get away.  There was certainly no pressure from the government in these cases.And you would like this same police to be autonomous? Because make no mistake- there's no difference in the mentality of state police and central police, and most of the time its the same personnel flitting from one to the other. Think- if this is how they behave when they are accountable to the governments on a daily basis, what can they not do when they are no longer accountable?

 The fact is, government pressure/ covert interference is not the only factor that influences the actions of the CBI or any other police force. Their behaviour is also dictated by other forces- money power, caste and community considerations, personal loyalties to individuals who may or may not be within the Government, unabashed personal ambition, obligations to others in the matter of appointments and promotions, and the sheer predatorial instincts of all those who wear a uniform in this sub-continent. Taking away the Government's powers of superintendence will not remove these influences- in fact, this will only make them stronger, because now they can indulge their malfeasance and worse without fear of being pulled up, because now they are " autonomous".

There are no short-cuts to reforming the CBI, and no quick-fix solutions, certainly not of the kind that our TV channels want in the space of one panel discussion. Every trekker knows that the shortest path up a mountain is usually the most dangerous. Persisting with our present course of medication for the CBI will destroy this organisation for ever. Autonomy has to be eschewed in favour of " operational independence" and MORE( not LESS) monitoring. The structure of the organisation has to be reviewed. Selection procedures have to be reformed. The carrot and the stick both have to be taken away from the Government. This cannot be achieved by mere diktat, either by the courts or the Government, but needs comprehensive introspection by experts and a wide consultation with civil society. It should not be driven by a transient media frenzy This article is an attempt to perhaps kick-start the process. Given below are some of my own suggestions:

[1]   The appointments of not only the Director but of all officers till the rank of Superintendent of Police should be with the UPSC( for both direct recruits and deputationists). Only the best should be chosen and both the present and proposed systems cannot ensure this. It is being suggested that the Director should be chosen by a collegium comprising the CJI( or his rep), Prime Minister and Leader of the Opposition. Three Wise Men, granted, but they are immediately handicapped by the fact that they would choose only from a short-list prepared by the Government, and its in the preparation of this list that the mischief lies. As all of us who have served in Government know( some to our cost) the preparation of such " panels" are totally subjective,opaque and not based on any verifiable criteria. Secondly, the selection of the Director of such a critical organisation should not be something that is completed in a short sitting over a polite cup of tea, which is all  these three wise( and presumably busy) men would have time for. Thirdly, it is certainly inappropriate and an infringement of the theory of separation of powers for a judicial officer to be involved in the selection of a senior executive functionary, who may even have to appear before him in court some day in a case relating to his conduct, or even his appointment- will the CJI( or his rep) then recuse himself ? And what does it say of our executive, and indeed the country, to impliedly admit that we can't find three competent and objective individuals outside the judiciary? As for the other two worthies on this collegium, suffice it to say that deals on senior appointments can be struck before between the Government and the Opposition....

 The UPSC is a constitutional body established to make selections to senior appointments in the Government. It has an objective and transparent process, and it has no personal axe to grind. It is far removed from the consequences of its recommendations. The Government should prepare the Recruitment and Promotion Rules for the post of Director( and all ranks upto SP) and leave it to the UPSC to make the selection. The person so selected is not obliged to anyone for any act of kindness because he has made it on his own merit, and herein lies one of the biggest advantages of the UPSC route. There can be no quid pro quo, no payment of an eternal debt which makes the Directors of such organisations effectively bonded labour.

The importance of selecting the right person as Director cannot be emphasised enough. It is, in the ultimate analysis, individuals and not mere legislation or court orders or autonomy that make an organisation. We have a whole host of " autonomous" organisations in our country- State Public Service Commissions, various Regulators, Commissions and Councils by the dozen, even Lokayuktas-yet, how many of them have displayed any independence of decisions and action? The Election Commission and the CAG have always been autonomous- yet it took a Seshan and a Vinod Rai ( with no additional powers than what their predecessors enjoyed) to make these organisations something any country can be proud of, entities that Governments now know cannot be intimidated or bought. The power to refuse to do anything wrong , or to refuse to suppress what is not right, is with every senior functionary of the Government, not only with Seshan or Vinod Rai- the difference is, they chose to exercise these powers while the others choose to take the route more travelled. If the CBI chooses to make U-turns in Mulayam Singh's cases, and delay those relating to Mayawati; if it dithers on Coalgate and looks the other way in Sajjan Kumar's case; if it chooses to let a wriggling Mr. Bansal off the hook and tries to put Modi there instead -its because the Director has consciously chosen not to exercise the powers he has. It is in the nature of all Governments to push, but the Head of the organisation must have the moral courage and caliber to resist: every single Director of CBI in the last few years- including the present incumbent- has failed to demonstrate this quality.

[2]   The Director CBI, like the Election Commissioners and the CAG, should on retirement be ineligible for any Government post, including any Committee or Commission. This is a vital reform provision, as anyone who has worked in Government knows. In the last couple of years of their service a kind of reverse evolutionary process usually occurs with senior civil servants- they start becoming invertebrates again and " homo erectus" starts resembling " homo prostratus"! It is the lure of a post retirement sinecure that makes all civil servants salivate uncontrollably: for most of them superannuation is a Near Death Experience, and they would happily sell their souls to Faust to avoid it- which is what most of them do. Governments know this, and have handled this phobia so well with the handing out of Governorships etc. that by now the undeclared motto of the CBI probably is: Thou shallst not bite the hand that feeds thee. Take away this bait, and half the battle is won.

[3]   Having appointed a Director who has no debts to repay,and who now knows that his golden years will be spent in looking for lost balls on the golf course and not in some Raj Bhavan ,the next step should be to strengthen his administrative powers so that he can run his organisation the way he wants to. He should have full powers of appointments for all officers of the rank of DSP and below. He should have complete powers to post his officers where he wants to- let him select his own team and then hold him accountable for their actions. His officers will also have only one point of loyalty-to him alone-because they now know that the Government has no role to play in the matter. Give the organisation complete financial independence: once its budget has been sanctioned by Parliament all financial financial powers should vest with the Director, and he should not have to approach any Ministry for sanctions.

[4]   The CBI should have its own Directorate of Prosecution and the freedom to appoint its own panel of lawyers. The Government is reluctant to allow this because, by giving legal advice which suits the government, its own Law Ministry appointed lawyers can influence the direction and nature of any investigation and prosecution. It is this which has contributed in no small measure to the CBI's loss of credibility, and this must be unequivocally corrected.

[5] Review the existing staffing pattern of the CBI, on which a lot of light has been shed by Brajesh Kumar in his article " To keep the Parrot caged" in the the June 16-30 issue of Governance Now. In his article Mr. Kumar reveals the hiatus between Cadre and Deputation officers in the CBI- at lower levels( SP and below) the ratio is 60:40 in favour of the Deputationist, which goes up to 75:25 at the level of DIG, and further to an astounding 80:20 at Joint Director rank. This is not healthy for any organisation and at least twelve Parliamentary Standing Committees have recommended that the in-house cadre should be strengthened. It is not difficult to understand why successive Governments have been reluctant to act on this recommendation. Deputationists( in this case from the IPS, IRS, IAAS) are easier to control and influence because their postings and continued tenure are completely within the discretion of the appointing authority( which is the Government and not the Director). Deputation has its positives: it brings varied experience and expertise to an organisation, but when overdone it can stunt the growth of that same organisation, as is happening to the CBI, because it prevents the internalisation and absorption of that same expertise. Furthermore, deputationists have no loyalty to their borrowing organisation, no espirit de corps, no vested interest in its future. Cadre officers in such situations, on the other hand, become demoralised and frustrated and fall easy prey to external influence and manipulation. Correction of this structural distortion has to be one of the top priorities for any meaningful reform of the CBI.

[6]  Reduce the multiplicity of authorities which hover above the CBI like a menacing cloud, striking it with bolts of lightning to assert their powers from time to time. DOPT, Law, Finance,MHA, CVC, Cabinet Secretariat, PMO- with so many conductors its no wonder the CBI doesn't know whose tune to dance to! Therefore, one is not too sure of the wisdom of the proposal before the Supreme Court that for cases under the Prevention of Corruption Act it should report to the CVC and for all others to the DOPT( its parent Ministry). Why introduce this schizophrenic element? This dichotomy is untenable also because most cases, even those with The PCA element, would also involve charges under the IPC and other Acts-forcing the Agency to report again to multiple Ministries. In the interest of both, effective functioning of the CBI and better monitoring by the Government, the agency should be superintended by just one authority-it could be either the PMO or the Cabinet Secretariat. The role of the DOPT is an anachronism and the sooner it is done away with the better.

[7]  The suggestion made in court that the CBI should not show its files or share any information with the Government is against the logic of a democratic polity. Perhaps this could be the case in a specific, court-monitored investigation, or where the court so orders, but it should not be made a general rule. As I've stated earlier in this article, the CBI has to be accountable to the Government, but there can be no accountability if the Government is denied any information it seeks. Furthermore, many cases have major ramifications that may impinge on international relations, economic policy, the country's security, issues related to defence; a Government that is denied information about these cases cannot act in the best interests of the nation. And thirdly, the law mandates that a civil servant cannot be prosecuted for an action done in the discharge of his official duties without the sanction of the appropriate Government- how will this sanction be given or denied if the latter is unable to see the papers relating to the case? The Government should have the powers to call for reports from the Director, to review his organisation's functioning from time to time. This cannot-and should not- be done by the proposed three member judicial panel: they themselves are not accountable to anyone, and they are not part of the executive. Their presence can only weaken the Government's role, which cannot be healthy. It is Government which has to answer to Parliament and the people, not the judicial panel. The Director cannot serve two masters. This further erosion of executive authority should be opposed in court.

[8] One final point: the CBI should no longer be made to serve as a lifebuoy for ineffective state governments whose own police forces have lost all credibility with the people. I refer to the practice of states handing over to CBI routine murder/ rape/kidnapping cases because of lack of trust in their own police. This has to stop: the CBI Director should be empowered to refuse to take over these cases because (a) the CBI is not a run of the mill thana, (b) such cases stretch its resources and other, more important investigations suffer as a consequence, and (c) it should be used only for cases with a national ramification. The relevant Act should be amended to achieve this, and to prevent politically expedient cases being dumped in its lap. In fact, the ideal we should move towards is to have a separate list of federal offences, cross-border in nature, which should be the CBI's exclusive turf, as in the case of the FBI.

All the above suggestions are a package-adopting one and not the other defeats its purpose.

      

I have attempted this write-up because I strongly feel that this country of ours is at a make or break stage of its evolution. The issues we face today, including the future of the CBI, are far too important to be left to be decided by the Courts or Governments alone. As someone once famously said: Politics is far too important a business to be left to politicians alone! Civil society has to get involved in this debate. We cannot have a CBI that can run amok with impunity, freed from all accountability except to the courts in some cases. It is the job of the Executive to run its organs, and if it is not being able to do so properly then we should look for systemic solutions, not administer steroids that transform the patient into a monster. Dr. Frankenstein did it once........                                                                                                      


I have given my views here, most of it based on 35 years of service in the Governments in the State and at the Centre. I have also at times played the Devil's Advocate in this article- or should I say, the Devil's Attorney General? After all , as Attorney General I can always revise my advice, or, better still, deny that I ever gave it in the first place!