Next week, the Supreme Court will embark on an examination which will have a definitive bearing on that institution and the degree of autonomy it enjoys(Biplov Bhuyan/HT PHOTO)
Next week, the Supreme Court will embark on an examination which will have a definitive bearing on that institution and the degree of autonomy it enjoys(Biplov Bhuyan/HT PHOTO)

The CBI is facing a crisis of credibility

The Supreme Court has drawn back the blinds that had rendered the functioning of the CBI opaque
By Abhishek Singhvi and Muhammad Khan
UPDATED ON NOV 20, 2018 05:58 PM IST

The Central Bureau of Investigation (CBI) is facing an unprecedented crisis of credibility. Next week, the Supreme Court will embark on an examination which will have a definitive bearing on that institution and the degree of autonomy it enjoys.

To compound the woes of the already beleaguered organisation, Andhra Pradesh and West Bengal have pre-emptively decided to withdraw the permission given by the state governments to the CBI to investigate offences in their jurisdiction. The central government’s shrill response to this move speaks volumes.

In addition to the above, an affidavit filed this week by another senior CBI officer makes grave and startling allegations about the extent of corruption and interference prevalent in the highest levels of this government. For Mr Modi, who held himself (and his government) out to be a paragon of probity, these are difficult times.

There are three legal and jurisdictional issues that are pending resolution before the Supreme Court. First, can the appointment or functioning of the director, appointed by way of a high-level committee, be interfered with in any manner without the sanction of that committee? Second, can the Central Vigilance Commission investigate a sitting director and issue orders with regard to leave and transfer in the interim? And third, can a sitting prime minister intervene and mediate in an ongoing criminal investigation?

This is a legacy defining moment and the government and ruling party are acutely aware that any adverse order will leave a lasting stain.

These two events are not isolated developments and, taken in the context of the last four years, provide a damning commentary on the misuse of the CBI and the erosion of its integrity under this government. The behaviour of the CBI itself leads to an inescapable conclusion of political subservience. Its selective mutism on abandoning crucial trials and investigations does not help its cause either.

To illustrate. The CBI chose not to file an appeal when Amit Shah was discharged in the Sohrabuddin Sheikh case. It was not allowed to file an appeal against BJP leader BS Yedyurappa’s acquittal by the High Court in a bribery case. It cited “technical reasons” for its abandonment of investigations in Gali Janardhan Reddy’s iron-ore export case.

Conspicuously, the CBI abandoned highly publicised investigations against former members of the Congress such as Hemanta Biswa Sarma (the Louis Berger case) and Shankersinh Vaghela once the former joined the BJP and the latter left the Congress. A single inference emerges from the above and it is not a flattering one.

Furthermore, in his seven-page petition filed before the Supreme Court, the CBI director has made a scathing remark that “not all influence that is exerted by the political government would be found explicitly or in writing. More often than not, it is tacit and requires considerable courage to withstand”. The CBI director appointed in 2017 is not making this observation in an academic manner.

In the above context, the decision taken by the two state governments to debar the CBI from carte blanche investigations makes eminent sense and is legally sound. The statute that governs the establishment and operations for the CBI is the Delhi Special Police Establishments Act 1946. Since law and order is a state subject, section 6 of the law requires the CBI to seek state consent before the exercise of its powers and jurisdiction. Additionally, the Supreme Court and High Courts have inherent powers to direct such investigations.

The central government cannot, as a matter of right, demand this consent. That it feels it is entitled to this consent without check or discretion, raises unsettling questions with regard to its intentions and overreach. To further demonstrate this government’s zeal in extending the CBI’s control without check, we may recall that in January, the CBI approached the Supreme Court (interestingly in an appeal against Congress leader Virbhadra Singh) and used that opportunity to ask for “clarifications” on this restraint contained in section 6. They contended that it would affect its power to investigate. The matter is currently subjudice before the Supreme Court.

This permission, currently in operation in 10 states, was overgenerous to begin with and implied an abdication of the sovereignty of states with regard to criminal investigations of a certain class. Whether other states will follow suit remains to be seen. A licence, howsoever generous, is always revocable, and these two states can decide whether to entrust to the CBI on a case by case basis.

Those who claim that this is business as usual are deluding themselves about the sheer and unprecedented extent of manipulation prevalent under the BJP government. This is a false equivalence drawn to exonerate the BJP government and to distract from the abuses currently occurring. In 2012, when the Bhatta Parsaul protests against the Yamuna Expressway took place, there was a demand for a CBI enquiry. The UPA government at the Centre did not as a matter of right or entitlement instruct the CBI to investigate or compel the then BSP government to grant consent. In fact, the High Court at Allahabad turned down petitions asking for a CBI inquiry. The Congress held massive protests but did not use the CBI to further its political agenda.

The Supreme Court has drawn back the curtains that had rendered opaque the functioning of this institution from the public. The late great Justice Louis Brandeis of the US Supreme Court is cited often for his remark that sunlight is the best disinfectant. The BJP government, which seems most comfortable in carrying out coups at the CBI office at 2 AM, under the cover of darkness, will likely disagree.

Abhishek Singhvi is a Member of Parliament, senior advocate, Supreme Court and national spokesperson, Congress. Muhammad Khan is a Supreme Court advocate

The views expressed are personal

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