Open Forum

New Delhi, 23 November 2018

Future of CBI

A POLITICAL ISSUE

By Dr S. Saraswathi

(Former Director, ICSSR, New Delhi)

The Government of Andhra Pradesh has suddenly withdrawn the “general consent” given to the Central Bureau of Investigation (CBI) for conducting their operations in the State. Hereafter,   consent of the State government has to be taken separately for each case. West Bengal Chief Minister is fully in agreement with this decision of the AP government. It is the first major collaborative decision of two principal members of election-eve Gathbandhan!

Had it been a genuine Centre-State issue or normal administrative reform for better performance, it would not have made first page news. But, the CBI is now a premier agency making news for many right and wrong reasons and has earned a name as “caged parrot” not for nothing.    Further, corruption-related cases under CBI investigation are growing day by day, making it the most powerful tool for its masters and a tool to be blunted by prospective victims of investigation.  The question of the position of political parties does not matter.

If other States follow suit, the investigative powers of the CBI will be limited to Union Territories and will depend on the consent of respective States to enter into their territory.  Recall, Karnataka had already withdrawn the blanket permission to the CBI in the late 1970s and withdrew even a permission granted for a case in 1998.

With growing corruption record and tightening crime-politics nexus, the need is to strengthen the hands of investigative authorities and ensure their freedom to operate without fear or favour, which rules out pressure of any government -- Centre or States -- and from any party -- ruling or opposition.

Chandrababu Naidu justified his move by holding that the CBI had been reduced as a tool for blackmail by the Centre, meaning political misuse of investigative powers to harass opponents.   But, he has not come out with any formula to eliminate the scope for undue political patronage to people and organisations involved in criminality and corruption.

As a result of his decision, it is found that the CBI cannot investigate without State permission cases under the Prevention of Corruption Act 1988 and 63 other Central Acts, and several sections of the IPC counted as 188 in Andhra Pradesh.  

Some of the offences relate to serious anti-national activities -- even waging or abetting waging of war against the Government. The long list covers several crimes that shock the entire nation.  Theft of antiquities and ancient treasures, hijacking, benami transactions, offences relating to drugs and cosmetics, customs, atomic energy, gold control, foreign currency, money laundering and many such serious offences require the permission of concerned State Government for investigation.

Created as the Delhi Special Police Establishment (DSPE) under an Act in 1946, the CBI was intended to provide for a Special Police Force in Delhi for investigation of certain offences in Union Territories and for superintendence and administration of the said force. Section 5 of the Act provides for extension of its powers and jurisdiction and Section 6 makes the consent of the concerned State Government mandatory.

In 1963, the Central Government created the CBI by a Resolution, but no law has been passed. And so, it is the DSPE that is functioning as the CBI. The SPE, the only investigating agency, is a division of the CBI. In the absence of statutory status, the CBI requires the consent of the State Governments.

In the early years of independence, State Governments were keen on maintaining law and regulations as they always should be and were expected to cooperate with agencies engaged in the investigation of offences committed in their territories, remain alert to prevent any such agency from failing in its duty, and not to block its route. But, in course of time, political power itself is often suspected to have a role in commitment of many offences, prevention of crimes, and in investigation and punishment procedures. Hence, there is reason to read in the withdrawal of permission to the CBI, a move to stall investigations in the garb of protecting the legitimate rights of State Governments.  

Union Finance Minister Jaitley responded with a cryptic remark: “there is no sovereignty of any State in the matter of corruption”. Whether the move of AP Government is motivated by a “fear of what is likely to happen” or a desire to put road blocks in the functioning of the CBI to spite its masters -- allies turned enemies -- it has raised a real political issue. But, the long-term consequences of the move of Andhra Pradesh will impact investigations of offences by high profile person in many States.

For the present, AP’s withdrawal of permission is not likely to affect cases already under CBI’s investigation as settled in Dorji versus CBI in 1994, which examined whether the consent given by a State Government under Section 6 of the DSPE Act can be withdrawn. It was decided that consent could be withdrawn but will not have retrospective effect to cases already under investigation. The stand was reiterated in 2013.

Chandrababu Naidu’s move introduces no major change, for hardly 10 States have given general consent for CBI investigation in their States. However, High Courts and the Supreme Court can direct the CBI to probe any case in a State.

The very existence of the CBI came under judicial verdict when the High Court of Guwahati in November 2013, disposing of a writ petition on the validity of the CBI, declared the Resolution that created the CBI in 1963 as unconstitutional. It said the CBI was neither an organ nor a part of the DSPE and could not be treated as a police force. The court pointed out that the Resolution had not received the President’s assent to be treated as a decision of the government.

The Supreme Court had stayed the judgement and the CBI continued to function as before. But, there has been an opinion in some circles that this agency should be made a statutory body with functional autonomy. Interestingly, this rootless agency celebrated its Golden Jubilee in 2013.

The Federal Bureau of Investigation (FBI), established in 1908, the principal investigative agency of the federal government of the US, is responsible for conducting investigations in cases where federal laws may have been violated unless another federal agency is delegated that function by  law or executive order. It has jurisdiction throughout the country and need not take the permission of State Governments for conducting investigations. However, responsibility for law enforcement rests with States.

The action of both the governments of AP and WB apparently pushed in the interest of State autonomy is in fact a blow to unity of the nation. Unified Central investigations are required in many offences that threaten the unity and security of the nation.

The real issue today is to seek ways of promoting autonomy of the CBI in actual investigations while retaining its place under the Union government. To present this as a Union-State jurisdictional issue will not help strengthen policing. A law for constitution of the CBI and for its functional autonomy is necessary in the interest of unity and integrity of the nation, which cannot come without an effective agency to investigate certain serious offences with adequate powers.---INFA

(Copyright, India News & Feature Alliance)