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The CBI’s on a slippery slope today

The premier investigating agency is surviving on its past credibility as it battles serious internal problems.

analysis Updated: Jan 31, 2019 07:19 IST
Sidharth Luthra
Sidharth Luthra
CBI,supreme court,central bureau of investigation
Keeping in mind the range of CBI’s work, what is needed is rigorous training, an infusion of professionalism, highly trained external experts in fields such as technology, forensics, accounting and investigators who are immune from governmental and other pressures, yet independently regulated.(Mujeeb Faruqui/ HT Photo )

The Delhi Special Police Establishment, from which the Central Bureau of Investigation (CBI) derives its powers, was created in 1946. This was followed by a 1963 executive order creating the CBI. At the time, no one could have envisaged the shape the CBI would take later. It changed from an independent investigating agency to one whose existence depends on a 2013 stay granted by the Supreme Court .

An agency whose independence has repeatedly been questioned (by politicians when not in power), and by the Supreme Court itself in 2013 when it called the CBI a “caged parrot” has now been accused of adventurism by a top-ranked Cabinet minister. Over the past five years or so, its credibility has been undermined by a slew of allegations and petitions not only about the manner of appointment, but the functioning of successive directors. This reached an all-time low in 2018 with infighting at the top, culminating in the removal of its incumbent director and shunting out of a special director and erstwhile likely successor.

Apart from cases of corruption, the CBI is now flooded with Court-mandated investigations, often an outcome of political battles or public interest litigations (PILs) .

This once professional outfit is now fighting to deal with case loads it is not equipped for and with a continuous turnover of investigators who come for a fixed term, adversely affecting the institutional memory of the organisation.

The Supreme Court having freed the CBI of its shackles in Vineet Narain’s case (1994), while deciding a review of Akhilesh Yadav’s case in 2013, termed it an independent body with freedom to act and not bound to report to the government.

Between 2012 and 2014, the court in the CBI v Saurin Rasiklal Shah, pushed the Central government to fill vacancies and create special courts for CBI cases in order to expedite investigations and prosecutions and ensure it retained its cutting edge. Between 2008 and 2016, the CBI conviction rates of all cases were claimed to be around 65-70%; for corruption cases, the figure in 2016 was 48%.

But this data is sterile and does not demonstrate the fact that, of the cases registered, how many were discharged and/or convicted by trial courts, but overturned by the high courts and Supreme Court. CBI investigations begin with much fanfare (and are often) sensationalised in the press, but then linger for years. Arrests often result in default bail due to non-completion of the investigation. Data on how many investigations result in chargesheets, how many are untraced or closed and the time taken in this process is not available.

The reluctance of the constitutional courts in the past to interfere and quash FIRs which are an abuse of process or are malafide, makes space for motivated and unfounded investigations to proceed.

After Lalita Kumari’s case (2014), there is also limited discretion and scope for the CBI to examine the authenticity of complaints by a preliminary inquiry as they clearly can’t avoid the registration of an FIR and investigation in cognisable offences.

Though a systems-driven organisation, with a past record of large numbers of closure reports in doubtful cases, once the CBI registers FIRs, investigations continue and there is often a failure to ensure that material exonerating the accused receives equal attention. The desire to prosecute overcomes the desire to comply with the constitutional mandate of a fair investigation and trial. Courts have come down heavily on the agency for selective placement of prosecution documents and avoiding placing material favouring an accused.

On the administrative side, the internal struggles centre on the different sources of its cadre — deputationists (Indian Police Service and All India Services) versus the direct recruits/internal cadre of the CBI at different levels — have led to numerous service litigations which are demoralising for the organisation. An agency which should be focusing on cutting-edge investigations, is now surviving on its past credibility while being plagued by battles within.

Keeping in mind the range of its work, what is needed is rigorous training, an infusion of professionalism, highly trained external experts in fields such as technology, forensics, accounting and investigators who are immune from governmental and other pressures, yet independently regulated. The Central Vigilance Commission, though tasked with overseeing the CBI, cannot effectively monitor the size and volume of investigations by the CBI.

The prosecutors of the CBI, who ought to be a corrective safeguard against unjustified investigations, are independent on paper. The director of public prosecution is an officer on deputation from the law ministry, ensuring indirect government control. And challenging an adverse order in the Supreme Court requires the concurrence of the law ministry and the Department of Personnel & Training, reducing any semblance of independence.

These are all serious questions that need to be answered, and taken into account, when determining the future of the agency as a premier, specialised investigative agency. There are questions which concern the credibility of the organisation.

This article is co-authored by Anoopam N Prasad, advocate at the Supreme Court of India

Sidharth Luthra is senior advocate and a former additional solicitor general of India
The views expressed are personal

First Published: Jan 31, 2019 07:18 IST