While the CBI has had spectacular successes, its role has also come under severe criticism from time to time. The enactments and amendments to the Act have been unable to address inherent problems. It’s time we re-think the CBI chief’s selection process

Despite recommendations of the National Police Commission in 1980 for legislation on a Model Police Act, the Indian Police Act of 1861 has continued to be in vogue for over 130 years before any serious amendments were even contemplated. On the other hand, the Delhi Special Police Establishment Act, 1946, has been already amended twice during the last 20 years. The Act was created initially to conduct inquiries and investigations into post-war anti-corruption matters.

This was reorganised on professional lines in 1963, when the scope of the Central Bureau of Investigation (CBI) was enlarged and cases of national-level importance and those having inter-state ramifications were brought into its ambit.

The focus once again shifted in 2009, when the National Investigating Agency (NIA) was especially created to investigate bomb explosions and terrorism-related cases. While the CBI needed the concurrence of the State Government before taking up any matter, the NIA does not have any handicap of this nature.

While the CBI has had spectacular successes, its role has also come under severe criticism from time to time. One such matter, popularly known as the Jain Hawala case, came under sharp gaze of the Supreme Court. Despite the fact that the CBI had failed in its pursuit of investigating allegations of corruption in high places in this case, the judgement from Chief Justice JS Verma was path-breaking and historic. The apex court had, for the first time, given concrete suggestions in the nature of directions to strengthen the organs of the state involved in fighting corruption.

The first change took place when under the directions of the top court, the supervision and administration of the Delhi Special Police Establishment got vested in the Central Vigilance Commission (CVC). This had the effect of taking away the CBI out of the direct control of the Department of Personnel, Government of India. The Ordinances issued for this purpose for the CBI and the CVC were replaced by Acts of Parliament in 2003.

Later, after the enactment of the Lok Pal Act, the Delhi Special Police Establishment Act, 1946, was again amended and a new clause at 4A, constituting the committee for appointment of Director, was added by a notification on January, 16, 2014. The committee stipulated in the provision comprised (a) the Prime Minister as Chairperson, (b) Leader of Opposition or Leader of single largest opposition party in the House as member, (c) the Chief Justice of India or judge of the Supreme Court nominated by him as a member.

The inclusion of the Chief Justice of India (CJI) in this high-powered committee, in all probability, would have been done at the draft Bill stage, only after due consultations. But at that point of time, perhaps, the possibility of certain eventualities cropping up later had got overlooked.

First, the Prime Minister and the Leader of the Opposition party, not being in agreement, the casting vote and the final stamp of approval would always be with the CJI. In the event of a petition or a hearing against the Director, CBI, in whose selection the CJI had a major role, the later would, in all probability, have to recuse himself.

On the other hand, even with the case assigned to another bench, the fact that the person had been cleared by none other than the CJI himself, would always remain on record. The point is whether Section 4A of the Act should have only mentioned the words, a judge of the Supreme Court nominated by the CJI.

Second, according to clause 4A (3) of the Act, the Committee shall recommend a panel of officers on the basis of seniority, integrity and experience in the investigation of anti-corruption cases and which has to be chosen from among  the officers belonging to the Indian Police Service. It can, thus, be simply inferred that the entire process would involve scrutiny of the records of IPS officers, sifting through the background material and career profile summary of each officer in contention and based on these making an assessment on their relative suitability. Even as most of this part of due diligence would have been done at the Secretariat level, it may still be a point of debate as prima facie, this process, far from being a judicial one, appears to be an executive function of the Government.

On the Doctrine of the basic structure of the Constitution, Justice (Retd) VR Krishna Iyer had stated, “While infallibility is no attribute of a Constitution, its fundamental character and basic structure cannot be overlooked.” Chief Justice SM Sikri, Shelat and Grover, JJ had for the first time in the Kesavananda Bharati case illustrated separation of powers between the legislature, the executive and the judiciary as one of the essentials of the basic structure of the Constitution. Since then, this doctrine of basic structure has been referred to in numerous matters by the apex court. Accordingly, it may also be seen whether the participation of the CJI in an executive function of the Government, howsoever positive and well-meaning it may be, would have the Constitutional back up of the separation of powers and the basic structure doctrine.

While the CBI Act was being amended in 2014, these issues had not figured explicitly in public domain, nor were they fully debated, nevertheless, the Supreme Court will always have the last word on the interpretation of the Constitution and the law. At the same time, we have to be conscious of the fact that these enactments and amendments have been unable to address the inherent problems as manifest in the events of the last few months.

(The writer is a retired Delhi Police Commissioner and former Governor of Uttarakhand and Meghalaya)