(To be read in continuation of my earlier article of August 28,2011, on the Anti-Corruption Crusade at http://ramanstrategicanalysis.blogspot.com/2011/08/my-thoughts-on-anti-corruption-crusade.html )
In 1941, during the Second World War, the British set up an organisation called the Special Police Establishment (SPE) to investigate cases of bribery and corruption in the War & Supply Deptt. Even after the War, the need for a Central Government agency to investigate cases of bribery and corruption by Central Government employees was felt. It was decided by the Government of India to continue the SPE and give it a legal cover under the Delhi Special Police Establishment Act which came into force in 1946. The CBI's powers to investigate cases of bribery and corruption are derived from this Act. This Act was amended by the Central Vigilance Commission Act, 2003
2. The Act of 1946 transferred the superintendence of the SPE to the Home Department ( now called the Ministry of Home Affairs of the Government of India) and its functions were expanded to cover all departments of the Govt. of India. The SPE’s territorial jurisdiction was extended to all the Union Territories. It was also laid down that its jurisdiction can be extended also to the States with the consent of the State Government concerned. The DSPE acquired the name the Central Bureau of Investigation (CBI), through a Home Ministry resolution dated 1.4.1963.
3. Initially, the CBI’s powers were confined to investigation of cases of bribery and corruption by employees of the Government of India. Subsequently, its powers were extended to cover employees of public sector units, including public sector banks, too.
4. From 1965 onwards, the CBI was also entrusted with the investigation of economic offences other than bribery and corruption such as serious cases of fraud and important conventional crimes such as murders, kidnapping, terrorist crimes, etc., when ordered to do so either by the Government of India either at the request of States or with their concurrence or by courts.
5.The SPE initially had two Wings called the General Offences Wing (GOW) and the Economic Offences Wing (EOW). The GOW dealt with cases of bribery and corruption while the EOW investigated other offences entrusted to the CBI.
6.In 1987, these two wings were re-named as the Anti-Corruption Division and the Special Crimes Division. Under its first two Directors--- D.P.Kohli and F.V.Arul—the CBI enjoyed a reputation as a politically neutral agency known for its professionalism. Before the advent of the CBI, the SPE enjoyed a similar reputation between 1947 and 1963.Neither Jawaharlal Nehru nor Lal Bahadur Shastri tried to influence the investigations of the SPE and the CBI. They let them function without political interference.
7. The politicisation of the CBI started under Indira Gandhi and all Prime Ministers from Indira Gandhi onwards tried to influence the investigation of corruption cases by the CBI either to cover up cases involving the ruling party or to implicate political opponents. Many instances of alleged attempts to implicate and harass political opponents were reported during the Emergency (1975-77) under Indira Gandhi. Under Rajiv Gandhi, there were alleged attempts to cover up the investigation of the Bofors case. There have been other instances involving the politicisation of the investigation process under other Prime Ministers too. No Prime Minister after Shastri had refrained from politicising the investigation process in some case or the other.
8. The politicisation of the CBI and its investigation process was made possible by the lack of resistance from successive CBI Directors to political interference. Some of the Directors sought to curry favour with their political masters by colluding with them either for covering up serious instances of corruption or for harassing political opponents. It was alleged that during the Emergency the CBI acted on the instructions of Sanjay Gandhi for harassing those opposed to the Emergency and Indira Gandhi.
9.Since independence, there have been two enquiries into the functioning of the anti-corruption architecture. The first was by the K.Santhanam Committee on Prevention of Corruption in 1966-68 and the second was by the L.P.Singh Committee which was set up by the Morarji Desai Government (1977-79) to enquire into the misuse of the CBI and the Intelligence Bureau by Indira Gandhi during the Emergency.
10. While the recommendations of the Santhanam Committee, which suggested, inter alia, the strengthening of the Vigilance architecture were implemented, those of the L.P.Singh Committee were ignored by Indira Gandhi when she returned to power in 1980.
11. Some of the important recommendations of the L.P.Singh Committee for ensuring the political neutrality of the CBI were:
(a). There should be a separate oversight committee set up by the Parliament to supervise the working of the CBI.
(b). The practice of having only an officer of the Indian Police Service as its head should be discontinued and it should have as its head the best person for the job from whichever walk of life. The committee reportedly felt that IPS officers, who developed close contacts with political leaders during their career, lend themselves to easy manipulation by the political class.
12. The National Police Commission, set up by the Morarji Desai Government under the former Cabinet Secretary, and Governor of West Bengal, Dharam Vira, recommended the formation of a National Security Commission entrusted, inter alia, with the task of supervising the functioning of the CBI. Its recommendations too were not implemented by Indira Gandhi and her successors as Prime Minister.
13. Thus the recommendations of the L.P.Singh Committee for a CBI Oversight Committee to be set up by the Parliament and of the National Police Commission for an independent National Security Commission to supervise the working of the CBI were ignored by successive Governments. So too the recommendation of the L.P.Singh Committee that the practice of appointing an IPS officer as the head of the CBI should be discontinued.
14. An investigation agency performs three kinds of functions---administrative, budgetary and investigative. In the US, the FBI comes under the joint control of the President and the Senate in respect of its administrative and budgetary functions. All appointments of the Director of the FBI have to be confirmed by the Senate Judiciary Committee, which holds a detailed enquiry by its staff into the background of the candidate suggested by the President, including an enquiry into the financial background of the person under consideration for appointment as the FBI Director. Many of the Directors chosen by the President and the Senate Judiciary Committee came from the community of distinguished attorneys.
15. The FBI Director has a tenure of 10 years, which is not extendable. This reduces the possibility of the incumbent currying favour with the Executive or the Senate in order to get an extension. Even though the President’s power to remove an FBI Director for valid reasons before he completes his term are not subject to confirmation by the Senate, this power has not been exercised arbitrarily by any President after the Nixon Administration because the Presidents know that if they exercised this power arbitrarily, the Senate could block the appointment of the successor.
16. In India, the CBI Director has a tenure of two years which is extendable. This enabled the Prime Minister of the day to dangle the carrot of possible extension before an incumbent in order to make him carry out his wishes. There is no parliamentary Oversight Committee on the CBI. In the past, the Director of the CBI was chosen by the Prime Minister of the day from amongst IPS officers whom he or she thought would be pliable.
17. In 2003, it was laid down that the Director should be appointed by the Central Government on the recommendation of a Committee consisting of (i) the Central Vigilance Commissioner as Chairperson, (ii) Vigilance Commissioners as Members, (iii) Home Secretary and (iv) Secretary Coordination and Public Grievances in the Cabinet Secretariat. No incumbent can be removed during his tenure or no extension can be granted without the concurrence of this committee.
18. While the Central Vigilance Commissioner has thus been given a role in the selection and removal of the Director, who still has to come from the IPS, the Parliament has not been given a role so far. Under the changes proposed by the Government in the Lokpal Bill, the Leader of the Opposition and the Lokpal are to be given a role in the selection and removal of Director, CBI. While this would be an improvement from the earlier practice, this would not be totally satisfactory since we now have a multi-party and not a two-party system which is likely to continue for many years. It is, therefore, important to set up a Lok Sabha CBI Oversight Committee and give it carefully defined powers to confirm the appointment and removal of the Director and to go into the administrative and budgetary aspects of the functioning of the CBI.
19.So far as the investigation process is concerned, all over the world the investigation agency is accountable to the law of the land and the judiciary. Neither the Executive nor the legislature is supposed to have a role in this matter. De jure, this is so even in India. But, de facto, the Executive interferes in the process of investigation and tries to politically influence it. If the CBI Director has no qualms about letting the investigation process be influenced by the political leadership, how to prevent it?
20. One possible way of doing so is to give the Lokpal powers of superintendence over the investigation process of the CBI or by separating the investigation and prosecution wing of the CBI in corruption cases and place it under the control of the Lokpal. If this is done, the residual CBI will become a federal law enforcement agency with powers of investigation and prosecution in important cases other than those involving bribery and corruption. The Lokpal would have no control over this residual law enforcement agency which should be placed under the shared control of the Executive and the Lok Sabha.
21. The new agency for the investigation and prosecution of corruption cases should function under the superintendence of Lokpal. How to prevent the Lokpal from misusing his or her powers to distort the investigation and prosecution process? A multi-member Lokpal, like the multi-member Election Commission, could provide the necessary corrective.
22. Thus, the new architecture could consist of the following:
(a). A multi-member Lokpal with a constitutional status with the procedure for appointment and removal through impeachment carefully laid down.
(b). The bifurcation of the CBI in order to create a new agency for the investigation and prosecution of corruption cases to work under the superintendence of the Lokpal.
( c ). The conversion of the residual CBI after the bifurcation into a federal law enforcement agency to be accountable jointly to the Executive and the Lok Sabha. This residual CBI could be headed by an IPS officer (26-12-11 )
( The writer is Additional Secretary (retd), Cabinet Secretariat, Govt. of India, New Delhi, and, presently, Director, Institute For Topical Studies, Chennai, and Associate of the Chennai Centre For China Studies. E-mail: email@example.com Twitter : @SORBONNE75 )