November 26, 2013 may soon be the '26/11' of India's premier anti-graft agency. That's the date,when the counsel for the Central Bureau of Investigation (CBI) respectfully reminded the Supreme Court(SC) about the pending matter of his client's autonomy.
But the apex court was busyenlarging the radar screen of the sensational case on illegal allocations of coal to seven state governments and the enforcement directorate (ED), “Find a meeting point,” their lordships quipped on the autonomy query, hurling the agency back to its extant administrative master, the department of personnel and training (DoPT) in the executive branch.
Thursday, December 5, is the next date of hearing when the seven CoalGate-afflicted states, Jharkhand, Andhra Pradesh, Maharashtra, Chhatisgarh, Odisha, West Bengal and Madhya Pradesh,depose in that sequence. January 15, 2014 is when the ED has been told to respond; the plea by complainant Common Cause being that the enforcement directorate has the wiring to probe the complex financial transactions relating to coal allocations.
But there's a log jam on the much vaunted autonomy that CBI was targeting from its present status of a DoPT subordinate underthe Delhi Special Police Establishment (DSPE) Act and a reportee of the Central Vigilance Commission for the purposes of anti-graft cases. Neither side (CBI or DoPT) has contacted each other since 26/11 to explore the “meeting point.” In fact, the folks in DoPT have had much to snigger about! Here's how they led the “caged parrot,” as the chose to SC describe the CBI, toits '26/11':
1.September 6, 2012: A public interest legislation was filed in the SC seeking scrapping of 194 coal licenses allegedly allotted arbitrarily between 2004-11.
2.May 6, 2013: CBI chief RanjitSinha made clean breast that law minister Ashwani Kumar affected changes in the affidavit filed by his agency. Though Sinha claimed that the alterations were minor, Justice RM lodha, among the three-member bench that also has Justice Madan B lokurand Justice Kurian Joseph, was prompted to famously remark, “CBI is a caged parrot with many masters!”
GE Vahanvati, the attorney general of India (AG), countered that the investigating agency should not be allowed to run like an “unbridled horse,” Kumar, who thought the changes he made were limited to Sinha's bad grammar, had to resign anyway.
3.A group of ministers under finance minister P Chidambaram was then tasked to draft the DSPE's successor. PC led government's claim that the parrot can be uncaged. Sinha deposed before the ministers, but Cabinet on June 27, 2013 approved what the GoM believed was the right mix of autonomy and regulation.
4.The apex court asked CBIto comment. Sinha demanded a much stronger dosage of autonomy.
5.August 2, 2013: Government (read DoPT and Vahanvati) summarily rejected Sinha's demands, echoing, once again, the danger of CBI turning into an unbridled horse.
6. In its affidavit in the coal blocks case filed in November, DoPT turned the screwsjust a little bit more, stating that additional powers being sought by CBI would harm the criminal justice system and it would be bad in law if such demands were met, resulting in “vesting unbridled power in one authority.”
7.Sinhadenied any ideas of turning into an unbridled horse. Instead, he countered stating that the issue of more autonomy wasn't even his own demand but an observation by the apex court.
The CBI counter has stated to the effect: 'An investigation agency which is beholden to the government for routine approvals and sanctions is not best placed to take independent decisions in crunch situations..in fact, financial freedom will allow us to discharge our obligations in a complete and objective manner.'
While DoPT and CVC are busy taking their errant subordinate to task, the seven states have to contend with the Vahanvati: Did the Centre, as the AG is claiming, merely discharge its statutory role of a regulator by identifying the coal blocks, while the rest of the formalities - signing of mining lease and all environment and forest clearances -- squarely rested in the domain of statesIJ
Could the coal block allocation letters, “at the highest”, be treated as letters of intent conferring zero right on allotteesas far as mining was concernedIJ
Also, as the SC is now asking:
* How did the states understand the allocation of coal blocks by the central governmentIJ
* What was their role in the allocation of coal blocksIJ
* What was their role in the subsequent steps having regard to the provisions of Mines and Mineral (Development and Regulation) Act, 1957IJ
* The details of agreements entered into by state PSUswhich were allotted coal blocks, with private parties in coal blocks located in their states.
Finally, the states' view on competitive bidding. Here Vahanvati has stated, “States were crucially involved in coal mining operations. (And) When the decision relating to competitive bidding was floated, most of them opposed it. They are the owners and that was their view.” Having painted a caged parrot into an unbridled horse, can the AG pull off this one tooIJ
(The writer is CEO and Co-Founder, India Strategy Group, Hammurabi & Solomon Consulting llP. Twitter handle: @therohitbansal).