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Weapon of mass distraction

When the CBI serves as the tool of the government and its friends, whom do we trust, asks Arun Jaitley.

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On January 26, 1990, along with a senior officer of the Central Bureau of Investigation (CBI) and another from the Prime Minister’s Office, I met P Smith, an officer of the Swiss Police who headed the section for International Cooperation. I was then Additional Solicitor General of India. VP Singh had just taken over as Prime Minister.

We handed him a copy of the First Information Report (FIR) in the Bofors case, along with a request to freeze the beneficiary’s accounts. He read the FIR and shook hands with the three of us. “Finally your government is asking the right questions,” he said, adding, "We can now give the right answers."

He told us that the condition for rendering international cooperation in crime detection was that there should be, first, a case under investigation. Second, it must be an offence within India and Switzerland. And third, it should not be a revenue or a currency offence. The CBI would, earlier, under the Congress government, make a request for details of ‘accounts’ from Switzerland. It would not register an FIR or file a regular case. It would ask for details only in relation to foreign exchange violations by Win Chadha. The CBI would make a request wanting it to be declined.

Ever since, the CBI has mastered the art of scoring own-goals and conducting sabotage in criminal law investigations. It behaves particularly so if the accused are politically powerful and connected with the party in power. The result is that the CBI’s investigations into offences and offenders with a political connection depend neither on law nor on facts.

It is the political antennae of the CBI that direct the course of its investigation. If the government of the day wants the CBI to bend, it is willing to crawl. If the government wants it to harass a political opponent, the CBI readies for overkill.

The intelligence agency has used different methodologies for scuttling its own cases against ruling party favourites. One: go slow on the investigation and let public curiosity be lost in the investigation. Exploiting media fatigue in an old trick. Two: allow the investigation to reach a dead-end, so that a closure report may be filed. Three: if a chargesheet is to be filed, ask for State sanction even when it is not required. The government will refuse sanction and kill the case.

Four: make feeble attempts when arguing the case. Change an effective public prosecutor and enable a court to pass an order on a technicality in favour of an accused. Fifth: ask for the opinion of a government law officer who will inevitably proffer advice that the said case is not fit for challenge before a higher forum. Sixth: if someone also challenges the order favouring the accused, argue against the Public Interest Litigation (PIL) and favour the accused.

Seven: if a case against an Opposition leader is registered by a government, the CBI spokesman must be asked to sensationalise the registration of the case, leak vital leads in the investigation, submit false evidence if necessary, and give it a burial only when the government changes. The CBI was created in 1963 under the Delhi Special Police Establishment Act. Its function was to essentially investigate offences against public servants of the central government. Law and order is a state subject. State police, obviously, should never be allowed to investigate offences against public servants of the Centre. This would have been contrary to federalism. The CBI can, thus, investigate offences within states only if states, by specific notification, consent to it.

Additionally, the Supreme Court and the high courts can, pursuant to their writ jurisdiction, direct that the investigation of a case be referred to the CBI. Does the CBI retain the credibility to investigate sensitive cases with political overtures fairly and objectively? If hard cases make bad law, the CBI will be only too willing to oblige by creating a bad law.

Let us look at the track record in some recent cases. JMM leader Shibu Soren was discharged in a case of possessing disproportionate assets. The CBI did not challenge the order any further. Two judgments of the Delhi High Court in the Bofors case — one holding that no case was made out against a public servant and the other holding that copies of documents filed by the CBI were not properly authenticated — were allowed

to stand and not challenged further. The case was given a judicial burial.

The defreezing of Italian businessman Ottavio Quattrocchi’s London account was based on a CBI concession. A State law officer opined that there was no case against Quattrocchi.

Attempts were made to stall the investigations against BSP leader Mayawati on the ground that the Attorney General had given his opinion that no case against her was made out. The Supreme Court thought otherwise and directed the filing of a chargesheet.

More recently, the case of disproportionate assets against RJD Lalu Yadav was weakened by changing the public prosecutor and on the basis of collusive income tax proceedings. Law offices of the present government advised against challenging the somewhat questionable orders of the Income Tax Appellate Tribunal and the Special Judge in Patna.

News reports have now indicated that the same fate will be met in the case of the alleged ‘procurement’ of MLAs against Ajit Jogi.

The CBI recommended the filing of a criminal case against Satish Sharma for nepotism in petrol pump allotments. It asked for a sanction from the Centre when no sanction was required. Needless to say, the sanction was refused and the case was closed.

The Congress has been routed in the assembly elections in Punjab, especially in the Majha and Doaba regions. It saved itself from a complete rout by improving in the Malwa area. This performance is primarily attributable to the appeal made by a religious sect to the Congress. Analysts in Punjab believe that this appeal has more to do with a CBI case pending against certain members of this sect than anything else. Has the CBI’s investigation been used as a bargaining counter? Having watched Punjab closely, I will not rule out that possibility.

Just compare all this with the CBI’s conduct against Opposition leaders. Most eye-witnesses of December 6, 1992, have given statements to the CBI that BJP leader LK Advani repeatedly appealed to the crowd not to damage the disputed structure. And yet, arguing against Advani’s discharge, the CBI tried to play down such statements.

An FIR has been registered against George Fernandes in some cases arising from the ‘Tehelka’ tapes, even though a former Supreme Court has opined that there is no case against Fernandes.

One won’t be surprised if the CBI turns itself into a ‘Congress Bureau of Investigation’ against the Uttar Pradesh Chief Minister in the case of disproportionate assets, after the Congress received a poll-eve judgment from the Supreme Court.When the state investigation loses credibility, we turn to the CBI. When the CBI loses norms of fair practice, whom do we trust?

Arun Jaitley is a BJP MP at the Rajya Sabha and a former Additional Solicitor General of India.