The CBI is susceptible to Governmental pressure and hence it’s almost imperative to modify its model and make it independent, writes Madhav Godbole. Excerpts:
The record of investigating agencies such as the CBI (popularly known as the Congress Bureau of Investigation or the Congress Bachao Bureau of Investigation), the Directorate of Enforcement, Revenue Intelligence arid others is dismal. These agencies have been misused by whichever Government is in power at the centre. The most recent scandal pertains to law Minister Ashwani Kumar and the Prime Minister’s Office calling the senior investigating officers of the CBI to ‘familiarise themselves’ with the investigation in the coal scam and to take a hand in amending the investigation report to suit the Government. Even the efforts of the Supreme Court in the hawala and other cases to ensure independence and autonomy of the institutions have failed. More troubling is the stand taken by CBI Director, Ranjit Sinha, that he was a part of the Government and there was therefore nothing wrong in showing the investigation report to law Minister Ashwani Kumar.
With such a mindset, any talk about granting independence and autonomy to the CBI is futile, Sinha should have politely but firmly told the minister that the investigation report could not be shown to him, as the case was being monitored by the Supreme Court. But Sinha was prepared to go along. This is one more case where a senior officer preferred to crawl when he was asked to bend. The roles of law officers in the Government, who are expected to assist the court in arriving at the truth, is also highly questionable. Instead of attending the meeting called by the law Minister the Attorney General and the Additional Solicitor General should have advised the minister not to convene the meeting.
There is often a clamour for handing over complicated and sensitive cases to the CBI but mostly the results are highly disappointing. There is a new demand these days that the investigations should be placed under the supervision of the Supreme Court. The latest case of this type is the Augusta Westland scam involving the purchase of VVIP helicopters. Obviously, this course of action will not be feasible except in a few politically sensitive or high profile cases. What should be done in the other cases is a million dollar question. Unless an answer is found, eradicating corruption will remain a quest in the wilderness. I have been advocating for some time that, to begin with, in important cases we should adopt the inquisitorial system followed in Europe from the 13th century onwards, as opposed to the accusatorial system prevalent in India, by putting police investigations under a judicial magistrate.
In the inquisitorial system, the judge is expected to take the initiative and find out for himself by examining all relevant persons including the accused, what really happened, that is, what the truth was and then act according to the law. In the accusatorial system, the judge acts only as an umpire between the two contesting parties. Adopting the inquisitorial system will free the investigation from political and other extraneous influences. Judicial magistrates will work under the supervision of senior judicial officers and ultimately under the High Court. This will mean creating more posts of judicial magistrates but this extra expenditure will be well worth it if one looks at the dividend of establishing the rule of law. Having a high level panel for the selection of the incumbent for the post of Director CBI, as is being advocated as a part of the lok Pal Bill, by itself will not be enough. What is equally important is ensuring an impartial investigation, free of any outside influence and interference, and making the Director CBI, ineligible for holding any public office after demittirig charge of the post.
It is equally necessary to create an independent Directorate of Prosecution. In the hawala case it was suggested to the Supreme Court that an institution of an independent public prosecutor should be created on the lines of that in the United States, Unfortunately, the court felt that the time had not yet come to give such a directive and that the government itself should take adequate steps in the matter instead, As experience has shown, with vested interests holding sway, it is unlikely that the Government will mend its ways. Since UPA II came to power in 2009, four senior law officers at the level of Solicitor General and Additional Solicitor General have resigned due to differences with the government regarding handling of cases.I would suggest that an independent Directorate of Prosecution (DP) be established urgently under the CVC. It should be his statutory responsibility to ensure vigorous and fair prosecution of all major government cases.
The writer is the author of Good Governance Never On India’s Radar (Rupa Publications)