On Tuesday, the Central Bureau of Investigation was back in the news after the Supreme Court held its former interim director M Nageswara Rao guilty of contempt and fined him Rs 1 lakh. In recent weeks, after the unsavoury saga of its two top officials accusing each other of corruption, we witnessed confrontation between the agency and the Bengal police. This crisis is arguably more ominous as it involved the brazen use of police power by the state and central governments against each other. Battles over the jurisdiction of investigative agencies are not new but the direct confrontation in Bengal, aggravated by the deployment of central paramilitary forces to guard the CBI’s regional office, raises worrying questions about the state of India’s federalism.
The response to the Kolkata saga has been predictable with Opposition parties rallying behind the Bengal government and the Centre accusing the state of protecting the corrupt. Chief Minister Mamata Banerjee sat on a dharna against the Centre and after Kolkata, she plans to repeat the performance in New Delhi on Wednesday to “save democracy, save Constitution”. Such catchphrases have been gaining traction among a wide set of critics who accuse the Narendra Modi government of misusing its agencies and destroying India’s independent institutions. However, in the midst of righteous anger, we forget to ask a more fundamental question: is the CBI an institution worth saving?
Institutional fragility
While the decimation of institutions by the Modi government is a grave concern, we must ask whether these institutions can be “saved” merely by restoring them to their pre-2014 states.
Further, each of these institutions has its own history and faces different challenges. Equating the institutional crises in, say, the Reserve Bank of India and the CBI blinds us to the deep-rooted challenges they face. The CBI’s notoriety to act in a partisan manner precedes this government. In fact, beyond its political misuse, there are acute infirmities in the institutional foundations of the CBI.
The CBI traces its roots to an executive order issued by the British Raj in 1941. The order created the Special Police Establishment in the War Department to investigate corruption in defence purchases during the Second World War. In 1946, the colonial government expanded the agency’s ambit and gave it a legal scaffolding by passing the Delhi Special Police Establishment Act. After independence, through a resolution issued by the home ministry in 1963, the Delhi Special Police Establishment was reconstituted as the CBI. Hence, the CBI does not draw any independent statutory authority and still functions as per the provisions of the DSPE Act of 1946.
These dubious legal foundations of CBI have barely hindered its operations across the country. However, in November 2013, the Gauhati High Court in Navendra Kumar vs Union of India quashed the 1963 home ministry resolution as unconstitutional. The court ruled the CBI “cannot be treated as a ‘police force’ constituted under the DSPE Act, 1946” since the 1963 resolution makes no reference to it. The Act, in fact, does not empower the Centre to create such a body in the first place.
The court further held that the Union government does not have the competence to constitute a police force since it is an exclusive state function under the Seventh Schedule of the Constitution.
Soon after the High Court delivered its verdict, however, the Supreme Court, at an urgent hearing at the residence of the Chief Justice of India, stayed the operation of the ruling. It is yet to hear the case on its merits.
Restoring trust
In the past two decades, the Supreme Court has played an active role in introducing measures to ensure the CBI’s institutional independence. In the 1997 Vineet Narain vs Union of India judgement, the court issued guidelines regarding the appointment and tenure of the CBI’s director and placed the agency under the supervision of the Central Vigilance Commission. These measures do not seem to have worked given that several former CBI directors now face corruption charges.
While the court has tried reforming the CBI and attempted a balancing act while dealing with recent cases such as Alok Verma’s ouster and the Kolkata stand-off, it has avoided its primary responsibility: to hear and decide on the constitutionality of the CBI.
The agency suffers from a massive trust deficit. The unprecedented decisions by Andhra Pradesh and Bengal to withdraw their “general consent” for the CBI to operate within their jurisdictions demonstrates a fundamental breakdown of trust between the Centre and the states. Let alone state governments led by Opposition parties, even citizens appear to be losing trust in the CBI as we now seldom hear pleas for the agency to investigate complex criminal cases. The families of Gauri Lankesh and Govind Pansare have even opposed CBI investigations into their murders.
Given its shadowy origins, questionable legality, history of misuse and growing public mistrust, the CBI does not deserve to be “saved” as an institution, at least in its current form. If critics of the Modi government are serious about preventing institutions from being misused, they should resist lazy and fuzzy invocations to “save” them and start a discussion about the legislative framework India’s intelligence and investigative agencies need.
Key agencies in India’s security establishment such as the Intelligence Bureau and the Research and Analysis Wing also operate without any statutory basis. If powerful central authorities have no parliamentary oversight, they can become rogue agents acting purely to further the partisan interests of the ruling dispensation. For this reason, institutions like CBI should not merely be “saved”, they must undergo a perestroika.
Mathew Idiculla is a research consultant with the Centre for Law and Policy Research, Bengaluru.
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