COMMENTARY

Central Bureau of Investigation

Crisis of Legitimacy, Credibility
and Accountability

of service. Khatre, in order to wreak

vengeance, attempted unsuccessfully to
implicate Somiah in a corruption case
relating to the purchase of firearms for a
central armed police force.
Directors Misdeeds

K S Subramanian

Throughout its history the Central

Bureau of Investigation has been
compromised by its own actions
and occasionally by the acts of its
directors and political masters.
One cannot be optimistic that the
CBI can ever function in an
independent manner.

K S Subramanian (mani20026@gmail.com) is
a former officer of the Indian Police Service
and director of the Research and Policy
Division of the Ministry of Home Affairs.
Economic & Political Weekly

EPW

december 20, 2014

he order of the Supreme Court

asking the Director of the Central
Bureau of Investigation (CBI),
Ranjit Sinha, to recuse himself on the
eve of his retirement from the investigation of the 2G spectrum allocation scam
cases involving top politicians and bureaucrats, calls for a review of the success
or otherwise of the role of the CBI in
discharging its basic anti-corruption
responsibilities.
Sinha is only one of the many former
CBI/Intelligence Bureau (IB) directors who
have committed various misdemeanours
in the course of their official duties. A
former IB director was accused of surrendering to the National Democratic
Alliance (NDA) government of 1998-2004
a secret video-graphed report exposing
the proceedings of a top-level party
meeting which decided to demolish the
Babri Masjid in December 1992 in return
for the post of governor in one of the
north-eastern states. A CBI director was
alleged to have obtained a major postretirement position as reward for letting
off a top Bharatiya Janata Party (BJP)
leader from a CBI criminal case he was
faced with. C G Somiah, a former union
home secretary has revealed in his
autobiography that in the mid-1980s,
the then CBI director, Mohan Khatre,
obtained post-retirement extension in
service after helping former Prime
Minister Rajiv Gandhi in the CBIs Bofors
case against him. Somiah had earlier
rejected Khatres request for extension
vol xlIX no 51

The credibility of the CBI has thus been

steadily eroded by the actions of its own
successive directors. The lack of accountability, transparency and credibility on
the part of the CBI has thus become an
endemic problem aggravated by the
murky politicking of ruling politicians of
all shades. Corrupt politicians seem to
have effectively destroyed the efficacy of
the well intentioned move in 1963 to set
up the CBI as an instrument in the fight
against the increasingly massive problem
of corruption in Indian politics and
governance. Structural reforms in the
agency appear increasingly impossible
despite the recent positive intervention
by selected civil society forces.
The CBI is the premier agency for
criminal investigation in India. It figures
in the Union List of the Seventh Schedule
of the Constitution. Given its importance,
it is a mystery why the CBI was set up
in 1963 only on the basis of a government resolution in the Ministry of
Home Affairs (MHA) as against the more
obvious need to set it up on the basis
of an Act of Parliament; and why the
agency was obliged to work under an
antiquated, all too brief piece of legislation called the Delhi Special Police
Establishment (DSPE) Act of 1946.
Though the DSPE had been set up during
the 1940s to deal mainly with corruption
in military procurements during the
second world war, it was retained after
Independence to deal more generally
with corruption in government departments. In 2013, however, the Guwahati
High Court questioned the legal legitimacy of the CBI as a central government
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COMMENTARY

institution. The matter is now before the

Supreme Court.
The DSPE was made applicable to all
the state governments, if they needed it.
The CBIs officials are equipped with the
powers, duties, privileges and liabilities
of policemen across the country. The
Supreme Court and the state high courts
too can direct the CBI to investigate cases
affecting the fundamental rights of citizens specified in the Constitution. The
CBI investigates crimes with interstate
ramifications; collects criminal intelligence; liaises with international police
organisations; maintains crime statistics;
disseminates criminal intelligence; conducts police research; and coordinates
implementation of criminal laws.
Expanding Divisions
It has set up separate divisions to deal
with different categories of crime. In
recent times, it has expanded on a large
scale. Additionally, new agencies such
as the Bureau of Police Research and
Development (BPR&D) and the National
Crime Records Bureau (NCRB) have come
up. Since 1987 the CBIs anti-corruption
division has taken up major corruption
cases; its special crimes division has
taken up major conventional crimes. In
1994, the economic offences division
came up. Thus, though it started as an
anti-corruption agency, the CBI today
has become a specialised agency: its
divisions deal with corruption, economic
offences, special crimes, legal and technical work, coordination of policy and
administration. It has a Central Forensic
Science Laboratory based in Delhi and
has branches across the country.
The CBI was originally accountable to
the central governments Ministry of Personnel, Public Grievances and Pensions.
In 1997, the Supreme Court directed that
the Central Vigilance Commission (CVC)
would be its supervisory authority. Its
director was to be selected by a committee headed by the central vigilance commissioner with the home secretary and
secretary, personnel as members. More
recently, it has been stipulated that
based on the Lok Pal Act of 2011, the CBI
chief would be selected by a committee
consisting of the prime minister, the
union home minister and the chief justice
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of India. Remarkably, the Supreme Court

direction that an independent legislative
framework should be given to the CBI
has been ignored by the Government of
India for unknown reasons. The failure
to address the issue is all the more astonishing given the numerical increase in
the strength of the agency to deal with
the expanded magnitudes of crime; the
changes in the political environment;
the improved norms and standards of
criminal justice administration accepted
globally. Further, the organisation needs
to be insulated from external influences
and subjected to convincing measures of
accountability. Autonomy is needed too
but not more than accountability.
The government has a statutory responsibility to ensure a professionally
competent and impartial system of
investigation; establish objectives and
standards of performance together with
sustained monitoring procedures; clarify
the philosophy, nature and organisational
practices of the set up; and remove
impunity. The Parliamentary Standing
Committee of the Ministry of Personnel,
Public Grievances and Pensions has
repeatedly recommended a new law to
govern the working of the CBI. So has
the CVC, its supervisory agency. But the
government is obdurately indifferent.
Staffing of the CBI
The CBI depends on officers drawn from
state police cadres and can function
relatively independently if its directors
do not feel the need to oblige politicians
in different ways or from selfish motives.
State governments often ask for CBI
investigations since they are removed
from state politics and are carried out by
higher ranking officers than in the
states, which impart some credibility. It
has experts from the forensic sciences,
finance and other areas. Public pressures play a less important role in its
investigations. Despite the existence of
many objective advantages, the CBI
remains deficient in the subjective
limitations in the realms of impartiality
and objectivity, which affects its credibility. It has a tendency to succumb to
political pressures from the ruling formation in important cases. It has often
displayed a reluctance to investigate
december 20, 2014

ruling politicians and has adopted

dilatory tactics.
The CBI is thus not an exception to the
pervasive political manipulation of
criminal cases across the country. The
Supreme Court in its 1993 judgment in
the celebrated Vineet Narain (or Jain
Havala) case pulled up the CBI for its
inertia in investigating top politicians
involved in criminal cases. In a glaring
instance, L K Advani, the then home
minister and deputy prime minister,
who was an accused in the criminal case
over the demolition of Babri Masjid in
1992, was discharged by a special court.
The CBI, under political pressure, desisted from submitting a criminal revision
petition (CRP) in the Allahabad High
Court challenging the discharge. When
a new government came in 2004, the CBI
reopened the case! In 2010, the Supreme
Court had to pull up the CBI for dilly
dallying on the prosecution of the chief
minister of Uttar Pradesh in a disproportionate assets case. Similar delays have
occurred in other corruption cases
involving top politicians.
Central Vigilance Commission
The CVC was set up on the basis of the
Santhanam Committee recommendations in 1964 on dealing with corruption. Very much like the CBI, it was set
up on the basis of a government resolution rather than an Act of Parliament. Its
demand for legal powers to undertake
enquiries was ignored. It remained
largely somnolent from 1964 to the
mid-1990s. The Supreme Court in the
Vineet Narain case (1997) on the so-called
Jain Havala transactions directed that
(i) the CVC be given a statutory status;
(ii) it be entrusted with responsibility to
supervise the work of the CBI ensuring
its efficiency and impartiality; (iii) its
head be selected by a team of the prime
minister, home minister and leader of
the opposition in Parliament from a panel
of eminent persons; (iv) the CBI director
be appointed for a minimum tenure of
two years by a committee headed by the
CVC including the union home secretary
and the secretary, personnel; (v) a report
on the activities of the CBI be submitted
in three months; (vi) a nodal agency be
set up for dealing with the emerging
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EPW

Economic & Political Weekly

COMMENTARY

political-criminal-bureaucratic nexus; and

(vii) a directorate of prosecution be
set up.
Following these directions, lackadaisical efforts were initiated to give legal
status to the CVC. After considerable
bureaucratic-political manipulations lasting several years (Joshi 2013: 142-56),
the CVC Act was enacted in Parliament.
However, it defied the directions of
the Supreme Court in the following
respects: (i) the governments Single
Directive of 1988 prohibiting prosecution of senior officials without prior government approval, which had been
declared null and void by the Supreme
Court was resurrected; (ii) the CVCs

Economic & Political Weekly

EPW

december 20, 2014

powers of superintendence over the CBI,

called for by the apex court, was diluted
to maintain dual control by government and the CVC; (iii) the integrity
requirements laid down by the Court for
the selection of the central vigilance
commissioner were diluted in such a
way as to enable less qualified candidates to be appointed as seen in the case
of the appointment of the tainted official
P J Thomas as CVC in 2010 (later quashed
by the Supreme Court), showed; (iv) no
steps were taken to follow the apex
courts directions to ensure efficiency
and impartiality on the part of the CBI;
(v) the Supreme Court recommendation
that a document on the CBIs functioning

vol xlIX no 51

be submitted in three months was ignored;

(vi) its direction to set up a nodal agency to
deal with politico-bureaucratic-criminal
nexus was ignored; and (vii) its direction
to set up an independent directorate of
prosecution was ignored.
This review of the historical experience during the post-Independence era
with regard to government efforts to
fight political and administrative corruption through the agency of the CBI
and the CVC cannot but induce a deep
sense of gloom.
Reference
G P, Joshi (2013): Policing in India: Some Unpleasant Essays (New Delhi: Atlantic Publishers).

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