The war within CBI is of Modi’s making

How do we prevent a situation like the present implosion of the Central Bureau of Investigation (CBI)? Till the 1990s, the CBI was considered the only dependable instrument to impartially investigate high-level corruption and tangled crimes. That impression disappeared with the ‘hawala’ scam case, which forced the Supreme Court to direct the Chief Vigilance Commissioner (CVC) to supervise the working of the CBI. Still, the CBI’s public image did not improve.

In May 2013, the Supreme Court observed during the ‘coal scam’ hearing that the CBI was “one parrot, many masters”. That provoked some retired police officials and even a serving director to suggest that the CBI should be insulated from political influence by giving it a constitutional status to make it responsible only to the law.

This is a dangerous recommendation. The ongoing ‘war’ within the CBI proves it. The notion that the CBI should only be responsible to the ‘law’ is vague. The Criminal Procedure Code confers sufficient autonomy on the CBI and the police forces to conduct unfettered investigations.

That the CBI and state police forces do not utilise that autonomy and choose instead to kowtow to the politicians is not the fault of the system. The Supreme Court had also said in that May 2013 observation that, “The CBI cannot be given unbridled power as an unruly horse is a dangerous thing”.

The American FBI, which is cited as the perfect example of an independent investigation agency, works under the supervision of the Attorney General. The bureau does not have the final power even to decide whether a charge-sheet is to be presented. That power is with federal prosecutors or US attorneys. It has to obtain court orders for electronic surveillance of suspects. The court has the power of monitoring wiretaps to prevent misuse. Its budget and operations are tightly supervised by congressional committees.

The FBI’s intelligence activities are supervised by the Director of National Intelligence. To investigate crimes in any of the US states, it has to obtain the concurrence of the state concerned. Its anti-terror investigations are carried out by joint teams comprising even non-police officials. Finally, there is an Inspector General, independent of the FBI, who works as both whistleblower and auditor to keep a close watch on its activities. Contrary to what many of our analysts think, even the FBI does not enjoy the kind of autonomy the CBI wants.

How did the present war in CBI originate? It was due to the over anxiety of some in the high circles of the Narendra Modi government to make Rakesh Asthana the interim chief and subsequently the director. The government knew well in advance that then director Anil Sinha would retire on December 2, 2016. Yet, it did not constitute the selection committee — with the prime minister, the leader of the opposition and the chief justice of India — to select his successor in time.

Even in that event, in the normal course, Sinha should have handed over the charge to then CBI special director R K Dutta and retired. But Dutta was abruptly transferred to the Ministry of Home Affairs on November 30, 2016, just three days before Sinha retired. That paved the way for additional director Asthana to take charge as interim director from December 3, 2016 till January 31, 2017.

On December 9, 2016, the Supreme Court asked the government why Dutta, who was supervising the high-profile 2G and coal scam cases, was shifted out of the agency “without the nod of this court.”

Dutta, who went back to his home cadre and retired in October 2017, gave an interview to a leading daily on October 8, 2018, blaming the CVC, who should have asked the government to explain the reason for his abrupt transfer. Thus, the seeds of the internecine war in the CBI were planted by the highest level in the government.

The Supreme Court’s order of October 26 eloquently proves that the series of actions taken by the Modi government after the midnight coup on October 23-24 were not approved. First, the powers of the interim CBI chief M Nageshwar Rao are severely curtailed. He will have to justify all his actions, taken since the midnight coup against director Alok Verma, including the vindictive transfers of members of his team investigating Asthana.

The court’s displeasure against CVC K V Chowdary was made evident by subjecting his probe against Verma to the scrutiny of a retired Supreme Court judge. All other points will be examined by the court when it reconvenes after Diwali.

Governments in power should not create conditions to pave the way for their favourite officers, and evade Supreme Court orders in the process, as they did in December 2016. Second, only retired judges, not retired bureaucrats, should be appointed as CVC.

Bureaucrats, like the present incumbent who had handled powerful but controversial financial enforcement jobs, should not be considered as such cases are likely to invite public litigation as Chowdhary had faced in 2015. In this case, the impression lingers, although he was cleared by the Supreme Court.

Finally, like in America, we should have an inspector general, independent of the CBI, to be a whistleblower, auditor and enquirer. The utility of this system in America becomes clear from the publicly available report of Inspector General Michael Horowitz, “FBI, Comey, Clinton & 2016 campaign” (June 2018), which found that Comey had “usurped the authority of the Attorney General,” “chose to deviate” from established procedures, and engaged “in his own subjective, ad hoc decision-making” although he did not act out of political bias.

(The writer is a former Special Secretary, Cabinet Secretariat)

(The Billion Press)