(This post is written by Kirti Kapoor and Ashok Pandey. Ashok is a fourth year student and Kirti is a fifth year student at ILS Law College)
Featured Illustration – “Police Raid” by George Pemba
The phrase in the title of this article has been used as a satirical label by the Supreme Court of India to point out the politicization of CBI during a hearing of the coal block allocation scam case in 2013. It draws attention to the dire state of affairs regarding the autonomy of CBI. The many-fold issues majorly revolve around the fundamental need of functional autonomy and respite from the burden of consent for investigation.
Originally, the CBI was set up as the Special Police Establishment (SPE) and vested with powers for the investigation of certain offences in connection with the departments of the Central Government committed anywhere in India. However, on the basis of the recommendations of the Santhanam Committee on Prevention of Corruption, it was granted an expanded jurisdiction by a resolution of the Home Ministry.
As on date, the CBI is dependent on the Home Ministry and the Law Ministry for the investigatory and legal staff respectively, the deputation and postings of the many IPS officers that practically run the CBI is also in the hands of the Government. All these factors along with an inefficacious governing legislation lead to the possibility of manipulation of the procedure and renders the bureau to the status of a mere ’Handmaiden’ for the Party which is in power.
Another aspect which hinders the Bureau’s functionality is the ambiguity in the imposition of its jurisdiction in states. Although primarily, the jurisdiction of CBI extends to the capital and the union territories only, it can also deal with important cases in the states. However, under Section 6 of the DPSE Act, the Bureau requires prior consent from the states before it can take charge of the investigation. Additionally, there are no guidelines which assist the states in taking a call before consenting to the Bureau’s investigation. Such a prerequisite often leads to a tussle of power between the Centre and the states.
Considering the extraneous influences on the Bureau leading to its inefficient functioning, the Hon’ble Supreme Court in the case of Vineet Narain and others V. Union of India and another said the following:
“It is this need which has impelled us to examine the structure of these agencies and to consider the necessary steps which would provide permanent insulation to the agencies against extraneous influences to enable them to discharge their duties in the manner required for proper implementation of the rule of law.”
In the above case, apart from giving the Central Vigilance Commission a statutory status, and supervisory powers over the CBI in cases of corruption, the Court also directed the Central Government to take all measures necessary to ensure that the CBI functions “effectively and efficiently and is viewed as a non-partisan agency”.
This, along with a number of other judgments, such as Shashikant V. Central Bureau Of Investigation & others, Prakash Singh & ors V. Union of India & others and State of West Bengal & others V. Committee for Protection of Democratic Rights, West Bengal and others, culminated into the Second Administrative Reforms Commission (2007) and the Parliamentary Standing Committees of 2007 and 2008 to indicate the need for a separate legislation for the administrative autonomy of CBI which lays down provisions aimed at strengthening its legal mandate, infrastructure and resources. Apart from this, the Lokpal Act suggested the appointment of the CBI Director through a collegium and also emphasized on assurance of its financial autonomy by the parliament. Furthermore, the need for securing the officers from abrupt transfers and ensuring the Bureau’s accountability to the parliament only was also emphasized.
The various prospective suggestions and the many promising verdicts sound pleasing to the expectant ears. But in hindsight, there are many “politically motivated” factors which limit their implementation. In his book, The Diary of the Nation’s Conscience Keeper — Not Just an Accountant, former CAG Vinod Rai opines that bringing the CBI under direct control of the parliament may have a retrograde effect as seen in the 2G and Coal scams where it became the ‘easy game’ for allegations and speculations. He further says, “The CBI, unfortunately, gets caught in the crossfire. Being an executive agency functioning in the Department of Personnel — which is directly under the Prime Minister — makes it vulnerable to speculations,”
COMPARATIVE ASSESSMENT WITH AUSTRALIA AND GERMANY
CBI is the National Control Bureau (NCB) for India at the International Criminal Police Organization (INTERPOL). Since India is a federal state and is represented at the INTERPOL by its apex, centrally governed police agency, it would be fitting to strike a comparative analysis of the CBI with similarly regulated agencies which serve as NCB for the Interpol. Therefore, a comparative analysis with the Australian Federal Police (AFP), which is the principal federal law enforcement agency of Australia and the Bundeskriminalamt (BKA), which is the federal investigative police agency of Germany has been put forth. Both these countries have a federal setup with similar constitutional mandates of vesting the power of law and order with the states.
Although all the three countries have law and order as state subjects, there are instances enshrined when the jurisdiction of these apex, federally/centrally governed agencies is extended to the states. The AFP has original jurisdiction to investigate commonwealth crimes (crimes whose legislation can be formulated by the Federal Government) and also crimes that take place in the Australian Capital Territory. The governing legislation of AFP is the Australian Federal Police Act, 1979. This detailed legislation lays down the powers and functions of the Police Force and also the necessary professional standards for the officers of AFP. Under Section 4AA of the Act, instances of when state offences have a federal aspect have been provided. This is because, under Section 8 (1) (baa) of the Act, the AFP performs the function of investigating such offences. Therefore, the jurisdiction of the AFP in the states is invoked by the officials on the basis of the guidelines mentioned in the legislation.
Germany’s BKA too, has its original investigative responsibility which includes investigation of internationally organized illegal trade in weapons, pharmaceuticals or narcotics, internationally organized production and distribution of counterfeit money or money laundering, internationally organized terrorism etc. And apart from these cross-border crimes, the BKA also conducts preliminary investigation in cases where it is commissioned by the Federal Public Prosecutor, any Public Prosecutor’s Office or by the Federal Ministry of Interiors, on the basis of the seriousness of the case.
The CBI’s jurisdiction on the other hand is invoked either by intervention of the higher judiciary upon request, or by the consent of the State Government where the CBI seeks to extend its jurisdiction. Unlike the AFP and BKA, CBI has no original investigative jurisdiction of its own and for all cases which are directly assigned to it, either of the abovementioned prerequisites needs to be fulfilled. Even though the CBI has original jurisdiction when it comes to investigating matters involving Central government employees in the states, it can exercise this power because most of the states have given a “general consent” to it. In fact, there have been various instances when the CBI’s jurisdiction was invoked after the state police investigations failed and this led to damage/misappropriation of evidence.
The Australian Federal Police also comes within the purview of the Freedom of Information Act, 1982 and there is a certain category of information and documents which the citizens can access even without invoking their right under the FOI Act, 1982. Information obtained in confidence, involving threat to national security, cabinet documents, investigations or law enforcement methodologies are exempted from disclosure.
On the other hand, Germany’s Freedom of Information Act, 2006 applies to all federal government agencies including the BKA. However, there are a wide range of exemptions provided under the Act and it is not a popularly utilized legislation among the people of Germany. Also, the BKA does not have any mention of the Freedom of Information Act, 2006 on its website unlike the AFP’s which extensively lays down the categories of information available, exempted, the fees involved etc.
The Central Government’s move to include the CBI in the Second Schedule of the RTI Act, 2005, which lists down agencies exempted from providing information except in cases of corruption and human rights violations, has been widely criticized. This has been discussed in detail subsequently.
THE DOUBLE INTERDICT DILEMMA
On 9th June 2011 the Department of Personnel and Training issued a notification which effectively included CBI in the second Schedule of the RTI Act, 2005 along with National Intelligence Agency (NIA) and National Intelligence Grid (NATGRID). This has been widely criticized as it appears to be an arbitrary act without any plausible reasons. The Second Schedule of the RTI Act enlists the various Intelligence and Security Agencies which are exempted from the purview of the Act, except in cases having subject matter related to corruption and human rights.
The Central Information Commission which acts as an appellate and supervisory authority over the CBI has described the step to be contradictory to the law as it narrows the citizen’s fundamental right in a manner not supported by the RTI Act. It in fact brings to light the very tactful saving of the Agencies from accountability to furnish information due to the conundrum established by sections 8 and 24.
Section 8 of the Act provides a set of exemptions to the obligation of providing information under the Act whereas Section 24 provides for the non-applicability of the Act to certain organizations enlisted in the second schedule. These sections provide for an efficacious veto against transparency which is the primary objective of the Act. The conflict within the Act is noticeable under Section 22 which provides for an overriding effect to the RTI Act over the Official Secrets Act, 1923 and any other law or instrument established under any law except the RTI Act. Owing to the interdict, Section 22 proves to be a mere subterfuge of the efficiency and potency of the Act as the information sought has already been saved under S.8 or S.24.
This double interdiction limits the accessibility of information and dilutes the efficacy of the RTI Act. There is an encroachment upon the basic objective of the Act along with the constitutional mandate of Right to Information as envisaged under Art. 19(1)(a). Thus, there must be a judicious rationale established to account for the exclusion so provided under S. 24.
NEED FOR SEPARATE LEGISLATION
The CBI was established by a resolution of the Ministry of Home Affairs on 1st April 1963. In the case of Sh. Navendra Kumar V. UOI, inter alia, the Hon’ble Guwahati High Court relied on the submissions of the Petitioner and the Amicus Curiae to hold that it cannot be inferred that the CBI derives its authority from the DSPE Act. This is because there is no express mention of the DSPE Act being the source of power for the CBI anywhere in the notification. Also, there is no delegated power in the DSPE Act which validates the creation of the CBI by way of a notification. Thus, the impugned notification was merely a departmental instruction and not a law per say as it was not a decision of the Union Cabinet and also lacked Presidential Assent.
The Court, upon reference to the Constituent Assembly Debates (Volume IX, 29th August, 1949), further held that, as elaborated upon by Dr. Ambedkar, the power pursuant to Entry 8 of the Central List (Central Bureau of Intelligence and Investigation) did not extend to investigation of crimes and filing of the charge sheet, but only to cover general enquiry for the purpose of finding out what is going on. On reading the debates further, it can be noticed that before the amendment to substitute the entry from “Central Intelligence Bureau” in the draft constitution to “Central Bureau of Intelligence and Investigation” was moved, Mr. Naziruddin Ahmad raised a very important question:
“Then, why not use the word “enquiry”? The word “investigation” has acquired a very definite meaning. Why use a word which has acquired another meaning?”
This question however, remained unaddressed and the amendment proposed by Dr. Ambedkar was adopted. Had this question been deliberated upon further, the present complexities surrounding the CBI would probably not exist.
Upon reading of the Articles 73 , 245 and 246 of the Constitution, the Court further held that the executive’s power to make laws on state subjects with regards to their applicability in states, is subject to Constitutional provision or any other law made by the parliament. On these grounds, the High Court declared the CBI as unconstitutional.
Although the Hon’ble Supreme Court stayed the judgment and is yet to take it up for consideration, concurring to the views of the Guwahati High Court, the authors are of the opinion that a separate legislation laying down the procedural and substantive powers of the CBI is the need of the hour. It should also be noted that by virtue of Entry 2 of the Concurrent List (Criminal Procedure, including matters in the CrPC), the Parliament is empowered to lay down separate investigating procedures for the bureau and it need not be bound by the Code of Criminal Procedure. As far as the vision envisaged by the Constitution makers goes, the legislation should also limit the powers of the CBI to investigation of offences only. The power to make arrests and detention should be within the purview of the state police authorities as envisaged by the distribution of powers under Schedule VII.
The parliament, by virtue of Entry 1 in the Concurrent List (Criminal Law, including matters in IPC and further restrictions subject to the Union List) is further empowered to list down instances in the legislation as to when an offence can directly attract the investigative jurisdiction of the CBI. Furthermore, in cases where the jurisdiction of the CBI is required to be invoked in the territory of a state, the state’s Advocate General’s Office could be vested with the power to do so while considering the instances in the legislation, in order to avoid any conflict of interest or power tussle.
A comprehensive legislation keeping in view the above mentioned suggestions would really go a long way in ensuring the autonomy of the bureau.
CONCLUSION
History is witness to the fact that as crime in the country increased, trust in CBI for investigating high profile offences of criminal and economic nature has also increased. Yet, rather than strengthening its working with an efficacious statutory backing, the government has left it on the mercy of an inefficacious legislation, i.e. the DSPE Act and executive resolutions to determine its powers. This has reduced the working of the agency to a cumbersome state.
Therefore, keeping in view the intention of the Constitution makers and the federal structure of the country, effective and timely redressal of its lacunae is very important. This, along with appropriate provisions to ensure the implementation of the RTI Act on the CBI in its true letter and spirit is the only way forward to ensuring its non-partisan functioning and giving the CBI the reputation and standing it deserves.
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