Dubious legality casts a shadow over CBI

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There is perhaps no other moniker endowed by the Supreme Court of India that has stuck as much as when it referred to the Central Bureau of Investigation (CBI) as “A caged parrot speaking in its masters voice”. The remarks were made in 2013, when the CBI presented a seemingly watered-down report in what was popularly known as the coal scam.

If there was any hope that the admonishment would lead to accountability, the eight years since has been a lesson in how old habits never change, and certainly not in bureaucracy. The investigations seem to be guided more by political expediency — take for instance, the suicide of actor Sushant Singh Rajput, which the agency is, presumably, still investigating after a year, and even though all indications are that there was no foul-play involved. The controversies, on the other hand, have abounded — most notably, the midnight sacking of CBI chief Alok Verma after he began investigating the Rafale deal.

Then there is the 2013 judgment of the Gauhati High Court, which had declared the agency unconstitutional. The Supreme Court had to stay the order or risk delegitimising all of the many cases the agency was handling. This hasn’t stopped lawyers appearing in cases against the agency questioning the very authority under which it functioned.

On August 17, the Madurai Bench of the Madras High Court came up with a set of nine directions to ensure the proper and independent functioning of the agency. These directions include enactment of a law giving statutory status with more powers and jurisdiction to CBI; separate budgetary allocation and functional autonomy, ensuring of independence to make it more like the Election Commission of India and the Comptroller and Auditor General of India, and improving the infrastructural support.

Needless to say, this order will be challenged and most likely stayed. For good reason — under the principle of separation of powers, courts cannot direct passage of a law. That is encroaching into the legislature’s domain. At best, the court can make a recommendation, as it did in the case of barring convicted criminals from contesting elections. Many of the other directions from the high court are policy decisions, which again, the judiciary is constitutionally barred from making.

What should be obvious is the Catch-22 situation this leads us to. Only the legislature/executive can make these changes, but their self-interest is in maintaining the status quo. Given how successive governments have used the investigative agencies to further their own political interests, it is almost naïve to expect that they might dismantle a structure that, at least presently, seems to be working for them.

Having said that, the fact still remains that the nation’s premier investigative agency is operating under dubious legality, shorn of any meaningful independence, and possibly, grappling with its own existential crisis internally.

For instance, the CBI was established under a Government Resolution of 1963 under the Delhi Police (Special Establishment) Act, 1946, a pre-Independence law. After the Constitution came into force, investigation of crimes, being a State subject, became outside the scope of the Centre’s rule-making powers, and therefore, the 1963 resolution was perhaps never valid.

The remedy to this (unless the apex court comes to the government’s rescue, when it is eventually heard) would be to enact a constitutional amendment giving the Union government the power to establish such an agency. This would require ratification by at least half the state legislatures, apart from a majority in Parliament. The process would potentially give states the power to negotiate for adequate safeguards and more accountability at the agency — such as ensuring operational autonomy and financial independence.

Currently, even though the Director is selected by a committee comprising the Prime Minister, the Leader of Opposition and the Chief Justice of India, its wings are severely restricted as the government prepares the list of candidates. According to the committee-member and opposition leader, Adhir Ranjan Chaudhary, it was the government that shortlisted 16 of the 106 original candidates based on unspecified criteria.

The time is perhaps long due by which investigative agencies, including the CBI and the Intelligence Bureau, come under a strong legislative framework. They must continue to be guided by an elected government, but there must be sufficient safeguards to ensure that the agency is not forced to operate outside the framework of the Constitution just because it was directed to do so.