Empowering the CBI

The CBI is the premier investigative agency of India. Naturally, it must command the best brains in the country and should have wide-ranging powers. It must have adequate leadership, marked by exemplary personal attributes like probity and professionalism. But are these needs met by the CBI at all?

The seventh schedule of the Constitution brings police and public order, except for deployment and use of forces of the Union, under the State List, and criminal law, criminal procedure, administration of justice and judicial proceedings under the Concurrent List. However, it specifically lists the CBI under the Union List. The legal basis of the CBI is provided by a short six-section Act of 1946 titled the Delhi Special Police Establishment Act, 1946, which provides for the constitution of a special police force by the Centre for the investigation of notified offences in any Union Territory and in any area in a state where jurisdiction of the police force is extended by the order of the Centre, with the consent of the state government. The last section of the Act specifies that the force has no jurisdiction in any area in a state without the consent of its government. The force enjoys all the powers, duties, privileges and liabilities of the police officers of an area in connection with the investigation of offences committed in that area.

A premier investigative authority invested with powers extended to all areas is a sine qua non for maintaining the rule of law. Naturally, police and public order provisions under the State List cannot meet the needs of a central agency. Hence the enactment of the Delhi Special Police Establishment Act, 1946, as a prelude to the constitution of the CBI and its inclusion in the Union List. But sadly, the CBI does not measure up. The dependence on state clearance is a great handicap. We have seen umpteen number of states providing and withdrawing consent to the CBI depending on political and parochial conveniences. This is a dangerous trend that renders CBI functions and jurisdiction subject to political manoeuvring, and lowers its images. The result is the growing criminalisation of politics. The remedy lies in spreading the tentacles of the CBI, by law, to every area of the country, with blanket powers to investigate all classes of offences.

The Act provides for the appointment of the head of the CBI by the Centre. Considering the importance of the CBI, it is natural to wonder whether the choice ought to be dictated by the politicians in power. The question is of immediate significance because of degraded political and public morality, and fragile coalition governments. The appointment of the CBI chief has to be a professional, not political, decision. This power must be taken away from the Central Government, to bring all on par, deprive the party in power of an unfair advantage and give the CBI some credibility.

There is no alternative to trust, even in the current atmosphere of degraded values, in building an institution. Fides punica leads nowhere. So also in the appointment of the CBI chief. The solution lies with the judiciary, whose members are assumed to be nonpartisan. The CBI should be subjected to the supervision of a statutory panel constituted of men of the law, acting as advisors to the agency. The panel has to be invested with powers to appoint and remove CBI chiefs, on the basis of performance, at its collective discretion. It should advise the CBI on whether a case merits investigation and decide on arrests, searches, seizures, bail and chargesheets. Its advice has to be statutorily binding. The panel has to be free to monitor the process and pace of investigation and must constitute a statutory part of the CBI at the highest layer.

The panel may consist of a dozen senior retired judges of the Supreme Court as permanent members, with one among them chosen as chairman on the basis of seniority, and the CBI chief as member-secretary. The membership of the panel must come to the seniormost retired judges, including retired chief justices, as a matter of right, unless an eligible candidate opts out in writing or is incapacitated by age or illness, ratified by a two-thirds majority in the panel. By the same majority, the panel may force out one of its extant members in the interests of justice. The panel may monitor and take decisions on cases as a full panel or constitute sub-panels, with the CBI chief as member-secretary for each. However, only a full panel with a minimum 80 per cent quorum can decide by simple majority on the appointment and removal of CBI chiefs and decide on deputations, promotions and transfers of officers of and above the rank of Assistant Director, and assess their work.

The panel’s functions, privileges, rights, liabilities and responsibilities have to be clearly defined by statute to avoid clashes with the main body of the CBI. An amendment is the first step, followed by the constitution of the panel. And the third and most crucial step will be administrative measures to ensure that the panel discharges its responsibilities with commitment. Due recognition and an atmosphere free of bureaucratic pressures will help the members discharge their responsibilities properly. Life membership, barring contingencies, will help them to be true to their conscience.

The CBI is the spine of the criminal justice system, and a shattered spine leads to umpteen complications. The derailment of the CBI is reflected in public life, in political uncertainty. It is an irony that the situation created by a weakling CBI led to circumstances wherein it is in a position to dictate terms to political parties. The CBI is metamorphosing into a Frankenstein’s monster. This is not in the interests of the CBI, the country or its criminal justice system. The sooner our leaders realise the gravity of the situation and infuse new life in the CBI by amending the Act, the better.

Kumar belongs to the Indian Police Service