It was set up to investigate cases of corruption within the government. Oddly, that’s the one thing the Central Bureau of Investigation is now having trouble doing.
From the Bofors deal to the disproportionate assets cases against former Uttar Pradesh chief minister Mulayam Singh Yadav and current CM Mayawati, the Bureau has repeatedly come under fire from the courts and the Opposition for its lax handling and frequent changes of heart.
But really, what else can one expect?
The director of the CBI — a grand-sounding title, isn’t it? — is only empowered to spend Rs 30,000 at a time from the bureau’s Rs 335 crore budget (2009-10).
That’s not enough to buy a motorcycle.
And the director couldn’t buy one, even if he had the money. On paper, the power to buy motorcycles, four-wheelers and even cellphones on behalf of the Bureau lies with the Department of Personnel & Training (DoPT).
The CBI director must likewise depend on the DoPT to fill all vacancies — a process that moves so slowly that there are currently over 1,000 vacancies in the CBI.
Many of the top officials are, not surprisingly, more loyal to the government than the bureau. And the director himself is not immune to pressure, having just a two-year tenure himself.
And that’s an improvement. There was no tenure for the director till a 1997 Supreme Court order demanded more autonomy for the country’s premier investigating agency.
“Unfortunately, the government has succeeded in effectively subverting the CBI’s autonomy,” says Prakash Singh, former Uttar Pradesh director general of police, who also spearheaded a movement for police reform in India.
“This is manifest in the selection of the CBI Director. The head of the organisation is beholden to the ruling party for his selection and his work culture gets reflected in the functioning of other officers down the line.”
That’s not all.
Under the Delhi Special Police Establishment Act, the government had barred the Bureau from conducting an enquiry against any officer of the rank of joint secretary or above in the Central government, including those in public sector undertakings, the Reserve Bank of India, SEBI and nationalised banks, without prior sanction of the secretary of the concerned ministry or department.
And the government is now planning to delink prosecution from the ambit of the CBI, further chipping away at its power and credibility.
Compare this with the CBI’s United States counterpart, the Federal Bureau of Investigation.
FBI directors have a minimum tenure of 10 years, unless they resign or are fired by the President. The FBI director is responsible for all day-to-day operations and recruitment.
And the US Bureau is free to investigate all federal criminal violations. In addition, it is in fact empowered to conduct non-criminal inquiries, examining the background of US Supreme Court nominees, Cabinet nominees and other presidential appointees to help the Senate decide if these candidates should be confirmed.
The CBI must be empowered too, or some of the country’s most high-profile, big-ticket cases will never see justice.
Here’s what we suggest: Give the CBI operational autonomy, allowing it to recruit its own employees and spend at least as much of its own money as other Secretary-rank officers at the Central government level, who are permitted to make purchases of up to Rs 10 crore.
This would boost morale, improve efficiency and, most importantly, release it from the purse-strings of the very establishment it was set up to investigate.
Also, extend the tenure of the director to at least six years — two years is about the same tenure as a junior policeman or senior bureaucrat, and even they can’t get much done in such temporary postings.
The government must also do away with the special clause in the Delhi Special Police Establishment
Act, opening up all arms of the government at all levels to scrutiny and allowing the CBI to investigate — at its own discretion or at the request of a government or court — any case with inter-state or international ramifications.
“The CBI should be given full jurisdiction over all Central government employees whether in the Centre or the states,” says former CBI director Joginder Singh.
The advantages would be many. In a time when most government and law enforcement agencies are viewed by suspicion, the CBI still commands the trust of the people. And, in a vote of confidence on its efficiency, all governments finally look to the CBI for definitive investigations into high-profile or controversial cases with wide implications.
Not without reason. Since all the three divisions of the CBI — investigation, prosecution and forensics — work in tandem, its conviction rate is as high as 70 per cent, as against just 43 per cent in the states.
Rather than a pat on the back from the Centre, though, the Union government is considering hiving off prosecution work to an independent Directorate of Prosecution, following a model that is clearly faltering — if not failing — in the states.
This proposal must be recalled, as the chiefs of both the CBI and the Enforcement Directorate (the investigative agency for economic offences) have requested.
In addition to “grossly undermining the performance of the CBI, denting its efforts in justice delivery and adversely affecting its performance”, as CBI Director Ashwini Kumar put it in a recent communication to the Ministry of Personnel, the move is also in direct opposition to the global trend.
Around the world, organisations like the Queensland Police Service of Australia, the Police Service of Northern Ireland and the Metropolitan Police of the UK and even the FBI are focusing on a synergy of legal and investigative divisions.
“The proposal by the Centre is being made by certain theoretical people in the government having no practical experience of law enforcement,” says former Uttar Pradesh director general of police Prakash Singh. “This move would amount to emasculating the agency and would hit hard the credibility that the CBI has today.”
Hasn’t enough been done in that direction already?
Let the CBI take off the gloves
India’s premier investigating agency, the Central Bureau of Investigation, does not have the power to spend
its own funds or hire its own people.
The CBI director is only permitted to spend Rs 30,000 at a time — not enough to buy a motorcycle or a
high-end cellphone. The CBI is also not allowed to investigate high-
ranking government officials without the sanction of the ministry concerned. And there is now a proposal to delink prosecution from the Bureau, further eroding the power of one of the few government agencies that still commands the respect and faith of the public.
n Give the Bureau operational autonomy, allowing it to recruit its own employees and spend at least as much of its own money as other Secretary-rank officers at the Central government level, who are permitted to make purchases of up to Rs 10 crore.
n This would boost morale, improve efficiency and, most importantly, release it from the purse-strings of the very establishment it was set up to investigate.
n The tenure of the director must also be extended from the current two years to at least six years. Two years is about the same tenure as a junior policeman or senior bureaucrat, and even they can’t get much done in such temporary postings.
n The government must do away with the special clause in the Delhi Special Police Establishment Act, opening up all arms of the government at all levels to scrutiny and allowing the CBI to investigate — at its own discretion or at the request of a government or court — any case with inter-state or international ramifications.
n The proposal to delink prosecution must be recalled. The CBI has a conviction rate of about 70 per cent, much higher than 43 per cent in the states, where the delinking model is clearly faltering — if not failing.
In 1997, the Supreme Court visualised an arrangement for greater autonomy to the CBI. But unfortunately, the government has succeeded in effectively subverting the CBI’s autonomy and the spirit of the judgment. This is manifest in the selection of the CBI director. The head of the organisation is beholden to the ruling party for his selection and his work culture gets reflected in the functioning of other officers down the line.
The CBI’s autonomy is a far cry. For most financial and administrative decisions, the director has to seek permission from the bureaucrats, including those in the Ministry of Personnel. The government could consider the option of making the CBI director report directly to the Cabinet Secretariat.
The issue of the CBI’s autonomy deserves a second look now. The government needs to bring about more institutional changes if it wants the CBI to function effectively.
Prakash Singh, former Uttar Pradesh DGP who has spearheaded police reforms in India.
With regard to the proposal on setting up a separate Directorate of Prosecution, it was felt that the concerns of the CBI as well as ED (Enforcement Directorate) regarding proper conduct and follow-up of cases can be adequately taken care of by laying down a monitoring mechanism as well as other safeguards in the system and ensuring appointment of persons on the basis of professional competence, integrity and experience in prosecution of criminal cases. The contention (of the CBI) that the separate Directorate of Prosecution not be created at all is also not legally sustainable in view of the directions of the Apex Court. Hence, it is essential that a separate Directorate of Prosecution may be created for the Central Bureau of Investigation and the Enforcement Directorate.
Draft note prepared by Joint Secretary (Ministry of Personnel) T. Venkatesh in February and approved by the Cabinet in March.