Government’s proposals won’t free CBI
The Congress-led UPA Government wrongly believes it has taken a giant step forward in giving autonomy to the Central Bureau of Investigation by promising to set up a collegium to appoint the Director of the probe agency and establish an oversight panel to monitor and supervise the investigations. An affidavit which it has filed before the Supreme Court proudly mentions these two initiatives the regime plans to take to supposedly ‘uncage the parrot'. While the Director's appointment by a collegium consisting of the Prime Minister, leader of Opposition in the lok Sabha and the Chief Justice of India (or a Supreme Court judge) will bring in transparency and inclusivity, it does not address the core issue of autonomy.
In any case, in the absence of the principle of ‘appointment through consensus', the Government can overrule objections that the Opposition leader may raise over a candidate in the collegium and select the person. We saw that happen in the case of Mr PJ Thomas as the Central Vigilance Commissioner. Although senior BJP leader Sushma Swaraj, who was part of the panel to select the CVC, had strongly objected to his name for the post on the ground that he faced charges in an earlier case in Kerala, the Government rammed through his appointment. It was later challenged successfully in the Supreme Court; Mr Thomas lost his job and the UPA regime, credibility. Nor does the proposal of the oversight panel that will comprise three retired Supreme Court or High Court judges — which, incidentally, will be appointed by the Government and report to the CBI Director — lead to freedom from Government control. Moreover, it is not clear whether the recommendations of the panel will be binding on the investigation agency.
That the Government is not keen on relinquishing control over the CBI's functioning as an investigator is obvious from its proposal that the agency will get to independently handle only cases of ‘corruption', while the Government will have direct control over all other cases. In other words, the Government will continue to use the CBI to terrorise political opponents or help out its own, such as in the 1984 anti-Sikh massacre case, the Ayodhya issue, the Ishrat Jahan encounter episode, and many others. Even in cases of corruption, the CBI will not really be completely free. For instance, the Director of Prosecution, who will also head corruption-related matters, will have a panel of legal experts selected in consultation with the Union Ministry of law, for conducting prosecutions and appeals in courts. Given how Government's law officers have in the recent coal block allocation scam case helped doctor documents to whittle down the Government's culpability, it is anybody guess how independent the Government-appointed legal experts will be. When the CBI does not have the autonomy to appoint its own lawyers, then the role of the Government in giving shape and direction to the investigation and prosecution of cases becomes paramount.