CBI Impasse: An Opportunity in Distress
By Prof Ujjwal K Chowdhury
New Delhi – For close to a month now, the premier investigative agency of India, Central Bureau of Investigation (CBI), which was established as a small unit during the reign of PM Lal Bahadur Shastri, has been creating headlines, and for all wrong reasons.
However, before we get into the details of the impasse in this much larger, much powerful agency of today, let us remember that this is also an opportunity in distress. It is an opportunity to actually create a constitutionally protected, institutionalized agency with a statutory status, and having its own cadre, budget and rights and responsibilities. And there cannot be a better time than now for a total overhaul of the CBI.
The Crisis at Hand
The extra-ordinary crisis needs an extraordinary response. The CBI Director Alok Verma took an extra-ordinary step some time back, on some documented evidence of bribery against the Special Director Rakesh Asthana, a Gujarat cadre officer brought into CBI by the government, filed an FIR against him and arrested his team member Devender Kumar. In response, the Special Director approached the Supreme Court for protection from arrest, to which gave interim relief till October 29, the day on which the case of corruption charges against him was to come to the Court.
But the government did not wait till then. It took an extra-ordinary step and struck in the midnight of October 23, and divested the Director and Special Director of all powers, sent the entire team investigating the case of the Special Director to Andaman, and hoisted another tainted officer, Joint Director M Nageshwar Rao as the interim Director of CBI.
Naturally, the divested CBI Director knocked at the doors of the Supreme Court of India.
Supreme Court Stand on the Impasse
The Supreme Court has once again proved its elements by being fair in the first round of the ongoing judicial battle in the CBI impasse. If one institute that the incumbent government is desperate to influence and failing, it is the top judiciary, as seen in this case again, after earlier SC verdicts in Adhaar case, right to privacy, Sabarimala temple women’s entry dispute, Article 377, and the like.
The SC bench, comprising of Chief Justice Ranjan Gogoi, Justices S K Kaul and K M Joseph, has ordered a CVC enquiry into the allegations against CBI Director Alok Verma brought by the Special Director Rakesh Asthana, to be conducted under the supervision of retired SC Judge AK Patnaik, known for acquitting the Akshardham attack accused six Muslim men in 2014, and taking the Police and the Gujarat state government to task then. The report of CVC enquiry will be submitted within two weeks, and court will take up the issue on November 12 next. Here too, the SC has noted today that the enquiry will be only to find out whether there is a prima facie case of corruption against the CBI Director.
Further, the interim CBI Chief has been barred from taking any policy decisions, and run the routine affairs of the agency, and submit all decisions taken by him from the midnight of October 23 to the SC in a sealed envelope.
The SC Bench declined to give more time to CVC and also rejected the plea of Rakesh Asthana against his divesting of powers by the government calling it a delayed after-thought.
The government on the Back-foot Today
The government is clearly on the back-foot. Asthana plea rejected, two weeks short timeline given for enquiry, a strong former SC judge to monitor the enquiry, interim Director effectively restrained. And earlier, CBI itself had to issue a statement the night before the SC took up the matter to note that Alok Verma remains CBI Director and so does Asthana as Special Director, and interim Director works till the probe against the top two is completed. This was to decidedly to pre-empt the SC from calling the divesting of powers of the CBI Director null and void de as his appointment is constitutionally protected with a minimum tenure of two years. The legal brains on the government side could see the obvious lacuna on their side.
It can be expected that the SC monitored CVC probe against the CBI Director, and the investigation on the FIR against the Special Director shall bring documented evidence, if any, of bribery against the two top CBI officers. Interestingly, Team Alok Verma has already submitted all their evidence against Asthana in the court of the CBI magistrate, a copy of which is now with the SC too after Asthana approached it for protection from arrest. This is on the basis of six months long probe by Team Verma against Asthana, whereas allegations made by Asthana are yet in the realm of charges and speculations without any evidences yet before the court.
It is important to note that the SC had earlier ordered the selection of the CBI Director through a collegium of PM, Leader of Opposition & Chief Justice of India, and for a minimum term of two years, which cannot be cut short by the incumbent government. This Selection committee was constituted under the Lokpal and Lokayuktas Act, 2013. Before this central vigilance commissioner, under CVC act, had this power. That is how Alok Verma was selected DCBI. The govt had earlier appointed Rakesh Asthana as acting Director and was forced to have him continue in CBI as the Special Director instead. Hence, while CBI Director Verma holds a constitutional position, with tenure protection till January 2019, his deputy Asthana is an executive appointment only with no such tenure protection.
And, several legal luminaries have opined in the last two days that the seven decades old DSPE Act cannot be used to divest CBI Director from his powers before the end of tenure. In fact, the same Delhi State Police Establishment Act 1946 says, in Section 4B
(1) The director shall notwithstanding anything to the contrary contained in the rules relating to his conditions of service, continue to hold office for a period of not less than two years from the date on which he assumes office; and
(2) The Director shall not be transferred except with the previous consent of the Committee referred to in sub-section (1) of section 4 A (which was revised by Lokpal Act of 2013 to be of the PM, the CJI and the Leader of the Opposition).
Naturally, this was challenged in the Supreme Court by Alok Verma, to which the SC has taken the above stand.
What will SC Monitored CVC Probe look into?
The CBI had earlier booked its Special Director Rakesh Asthana in a bribery scandal, naming him as an accused in an FIR, for demanding and taking bribe from a businessman who was under investigation in the Moin Qureshi corruption case by a special investigation team (SIT) headed by Asthana.
According to sources, CBI has put telephone intercepts, WhatsApp messages, money trail and a statement before the magistrate under Section 164. Exposing fault-lines within, the CBI on September 21, had said that it had informed the Central Vigilance Commission (CVC) that it was investigating Asthana in six cases of corruption. This investigation is on, though derailed temporarily.
Asthana also brought in allegations against his former boss Verma with regards to bribes taken from people being investigated by CBI, for which no FIR has been filed and no evidence submitted in any court of law. This is what the CVC probe will specifically focus on. A charge in the CBI FIR against Asthana and the arrested Team Asthana officer, Devender Kumar, has been that they were falsifying testimony to manufacture a case against Verma.
The possibility is bright that the Supreme Court may reinstate the CBI Director due to the constitutional protection the position enjoys. That will be a setback for the government indeed.
Second, if Alok Verma gets back his powers as CBI Director, chances of a CBI enquiry into the Rafael deal is highly possible since Verma had already met advocate Prashant Bhusan once to get full details of the Rafael corruption charges brought by Bhusan, Arun Shourie and Yashwant Sinha earlier through a plea submitted by them to the CBI. Possible Rafael probe by CBI is the elephant in the room now.
Third, the well documented Asthana enquiry may lead to several sensitive cases being exposed with regards to their political implications. Asthana has spearheaded several important investigations such as those into the AgustaWestland scam, the Bihar fodder scam, the coal scam and the probe against liquor baron Vijay Mallya. Asthana was also probing the INX Media case, allegedly involving former Union minister P. Chidambaram, as well as the IRCTC tender issuance case involving former Bihar chief minister Lalu Prasad Yadav. It is observed by many legal luminaries and political observers that Asthana was brought in by the government, on NSA Ajit Doval’s advice, to derail Vyapam investigation and fix political opponents in the cases noted above.
According to the Supreme Court earlier during UPA rule, the CBI has been criticized for being a “caged parrot speaking its master’s voice”, due to its excessive political interference irrespective of which party happened to be in power at the time. Because of the CBI’s political overtones, it has been exposed by former officials such as Joginder Singh and B. R. Lall (director and joint director, respectively) as engaging in nepotism, wrongful prosecution and corruption. In Lall’s book, Who Owns CBI, he details how investigations are manipulated and derailed. Corruption within the organisation has been revealed in information obtained under the RTI Act, and RTI activist Krishnanand Tripathi has alleged harassment from the CBI to save itself from exposure via RTI.
Assam High Court had given a verdict on 6 November 2013, that CBI is unconstitutional and does not hold a legal status. However, the Supreme Court of India stayed this verdict when challenged by the central government and next hearing on this is fixed on 6 December 2013. Some legal experts believe that the ultimate solution for Indian government is to formulate a law for CBI as sooner or later the Supreme Court may hold the constitution of CBI unconstitutional.
The judicial intervention would hopefully set the CBI house in order. However, structural reforms is what the CBI needs from a long-term point of view. It is ridiculous that India’s premier investigating agency was constituted through a resolution passed on April 1, 1963 and that the agency derives its power to investigate from the Delhi Special Police Establishment Act of 1946. As far back as 1978, the L P Singh committee recommended enactment of a “comprehensive central legislation to remove the deficiency of not having a central investigative agency with a self-sufficient statutory charter of duties and functions”. The Second Administrative Reforms Commission (2007) also suggested that “a new law should be enacted to govern the working of the CBI”. The 19th and 24th reports of the parliamentary standing committees (2007 and 2008) recommended that “the need of the hour is to strengthen the CBI in terms of legal mandate, infrastructure and resources”. The 24th report also expressed itself in favour of CBI taking suo motu cognisance of crimes, and said that this would in no way affect the essentials of our federal structure. It is high time that the CBI is vested with the required legal mandate and is given pan-India jurisdiction. It must have inherent powers to investigate corruption cases against officers of All India Services irrespective of the assignments they are holding or the state they are serving in.
The government would now do well to restore the institutional integrity of the CBI and give it the necessary autonomy so that it inspires public confidence.
The current impasse will open this conversation on the autonomy of the CBI from its political masters once again, and the constitutionality of the agency once and for all. This is one opportunity for the Supreme Court in particular and the people of India in general (through public opinion and media) to move forward to a new paradigm in the premier investigative agency of the country and its professional autonomy and constitutionally protected status.
A matured polity should hope to have a statutory status for the CBI, just like that of the Election Commission and the CVC, with required legal changes ahead, which can only happen if the two major national parties come together in favour of an autonomous constitutionally protected CBI with its own cadre and budget.
Shall we see the promise of a stronger and autonomous CBI with statutory authority in the election manifesto of BJP and Congress, both of whom has misused the agency in the past and as seen in the present times?
The author is a political commentator and a media academic, currently the Dean of Pearl Academy School of Media, and earlier the Dean of Symbiosis and Amity Universities.