On 19 July 2018, the CBI filed a supplementary chargesheet against former Union Home Minister and Finance Minister Palaniappan Chidambaram, his son Karti Chidambaram and five other public officials including a former Secretary, a Joint Secretary, an Under Secretary and a Joint Director of Economic Affairs in the Ministry of Finance in the Aircel Maxis case. This case in which the CBI filed fresh charges against Chidambaram four years after the first chargesheet filed was yet another case where the government in power was using the CBI for conducting a political witch-hunt.
No additional evidence was required – the gaping holes in CBI’s investigation in this case revealed that the agency was being influenced by the powers that be, whether it was the BJP-led National Democratic Alliance (NDA) government in 2018 or the Congress-led UPA government earlier.
The Aircel Maxis case started in 2006 when politician-advocate Subramanian Swamy moved the Supreme Court and demanded an investigation. In 2014, the CBI filed a chargesheet against the two Maran brothers – Dayanidhi and Kalanidhi, the first of whom had been Union Minister of Communications, while the other was at the helms of the Sun Media Group – and some other officials, but the case was dismissed by the Special CBI Judge OP Saini who concluded that no criminal offence had occurred. After the BJP government came to power, the CBI reopened the case, and it is now under revision.
Meanwhile, Swamy had been insisting from the very beginning that Chidambaram should be criminally charged, alleging that he had earlier been the approving authority for the deal between Aircel and Maxis. But then, this had always been the charge against Chidambaram. So, the question was: why did the CBI fail to prosecute Chidambaram earlier? Should we not assume that it was because, back then, they were under the influence of the UPA government?
The alternative assumption would be that there was no case, and that they are influenced by the BJP government now. Either way, it shows the CBI in a very bad light. The bureau’s officials must explain this gap in their investigation, which seems to have changed its course with the change in government.
Successive governments, irrespective of party affiliation, have used the CBI to score political points over its political opponents. The irony is that several political regimes that came to power on an anti-corruption agenda conveniently steered clear of making real efforts to clean up the system. Yet the same leaders shout the loudest against corruption when they are part of the Opposition. In this circus, the people of India are taken for a ride. They repose their trust in political leaders who promise to take serious measures to tackle corruption, but every leader has so far failed them.
One part of the problem is built into the system itself that we need to fix. The CBI needs the government’s permission to investigate cases of corruption against government officials. Consider the journey of the Single Directive.
This trendy phrase that sounds like jargon from a futuristic science fiction movie was an order issued by the central government way back in the mid-eighties, which made it mandatory for the CBI to take prior approval of the government before initiating even preliminary investigations against corrupt officers in all civil services of the rank/grade of Joint Secretary and above.
In effect, the provision was an instrument of political interference that undermined the CBI’s autonomy. In a case where a CBI official has reason to believe that an offence has been committed, she or he would still need the government’s permission to investigate the case. It put the watchdog on a short leash.
The Single Directive was challenged in court by Swamy, who appeared to be one of the fiercest anti-corruption crusaders in India. But if we trace his own fight against this provision, we notice that even he has failed in rising above his political allegiance, and his fight against the Single Directive died a silent death after the BJP government came to power in May 2014 and he became a member of the Rajya Sabha subsequently.
In December 1997, a three-member bench of the Supreme Court hearing a Public Interest Litigation (PIL) filed by journalist and anti-corruption activist Vineet Narain under Article 32 of the Constitution against the “failures” of the CBI, Central Vigilance Commission (CVC) and other agencies to investigate the Jain Hawala Diaries, also adjudicated upon the validity of the Single Directive. The court declared this provision unconstitutional and violative of Article 14 which guarantees the right to equality to every Indian citizen. It also gave a series of directions to the CBI and the CVC to ensure that their future investigations were free from political interference.
However, in 2003, the NDA government led by Prime Minister Atal Bihari Vajpayee decided to undermine the Supreme Court judgment by giving a statutory status to the CVC and by amending the DSPE Act. Readers might remember that the CBI and CVC came into existence in 1963 and 1964 respectively by executive orders and despite the felt need to strengthen them by giving statutory powers, successive governments failed to do so.
Suddenly in 2003, the NDA government enacted the Central Vigilance Commission Act (CVC Act) and as part of the legislation, reintroduced the Single Directive declared invalid earlier by the Supreme Court. The DSPE Act (which is the legislative base of the CBI) was accordingly also amended.
In February 2005, Swamy and the Centre for Public Interest Litigation (CPIL) led by advocate Prashant Bhushan, in a series of PILs, challenged the constitutional validity of the legislation (Section 26C of the CVC Act and Section 6A of the DSPE Act which was inserted by the amendment). A larger bench of the apex court was constituted to decide these petitions and in May 2014, at the fag end of the UPA tenure, a five-member bench of the Supreme Court declared the Single Directive as violative of Article 14 and unconstitutional – for the second time.
Within few weeks of this judgment, the BJP-led NDA government came to power with a historic mandate after a gap of decades, the party obtained a majority of seats in the Lok Sabha. The people of India wanted to get rid of the corruption that had become synonymous with the Congress party. And what did the BJP government do? They diluted the 30-year-old Prevention of Corruption Act (PCA), 1988 by introducing new amendments and once again reintroduced the Single Directive.
With the insertion of Section 17A in the PCA, the mandatory requirement of obtaining the government’s permission before initiating investigations was now extended to all bureaucrats, not just senior ones but even to retired bureaucrats. Further, the bureaucracy was now given a blanket cover from investigations as the CBI would now need prior sanctions at two stages – inquiry and prosecution.
In the eighties, a Congress government had put the watchdog on leash. Over thirty years later, a BJP government, which came to power fighting the Congress’s years of corruption, tightened the leash.
Swamy is yet to approach court against the reintroduction of the Single Directive in a different avatar. While the Emergency period during the seventies was an anomaly that adversely affected governance, law and order, civil liberties and institutional integrity, the CBI’s downfall in particular started in the mid-eighties.
“The CBI’s once exemplary record of 75 per cent convictions has dipped by 5 per cent since 1987. The reasons are clear. The CBI’s plate is full of politically-sensitive cases that other agencies should be handling. Many of its top sleuths are engaged in this work and they find it demoralising,” wrote Pankaj Pachauri in a special report titled “CBI transformed into a political tool of the ruling party”
The article mentioned several cases handed over to the CBI by the government which had more to do with politics than crime. It also listed several politically-sensitive cases in which the CBI’s role was compromised and the institution played a role in covering up corruption. Sadly, in one such case, involving journalist Arun Shourie and Congress MP Kamal Nath, I was involved as the investigator, and I confess that the CBI indeed failed to do its duty in the case.
Excerpted with permission from Corruption, CBI and I: More than Memoirs Of A Veteran Scam-Buster, Shantonu Sen with Sanjukta Basu, Authors Upfront | Paranjoy.
