Examining the statutory framework of “CBI-The caged parrot”

Introduction

Central Bureau of Investigation (‘CBI’) was established by a resolution of the Home Ministry in 1963. Since then, numerous questions have been raised regarding its investigations. It is alleged that CBI works on Central Government’s directions for targeting the opposition. The Supreme Court even commented that CBI is a “caged parrot speaking in its masters’ voice.”

CBI draws its authority from the Delhi Special Police Establishment Act, 1946 (‘DSPE Act’), as it presently stands, after being amended by the Central Vigilance Commission Act, 2003 and the Lokpal and Lokayuktas Act, 2013. In this piece, the authors have argued that the statutory framework governing CBI does not ensure its authority and independence through a two-step approach. Firstly, they analyze the statutory framework that governs CBI using relevant case laws and other authorities. Secondly, they examine the recommendations made to enable and empower CBI.

The Statutory Framework Governing CBI

 [I] Problems with CBI Investigations

Firstly, the government often interferes in CBI investigations through Section 4(2) of DSPE Act. Section 4(2) provides that except in case of offences under the Prevention of Corruption Act, 1988 (‘PCA’), the superintendence of CBI in every other matter vests in the Union Government. In JAC Saldanha, the court held that ‘superintendence’ of State Government empowers it to direct “further investigation” in a matter, thereby, granting it control over the functioning of Police. However, in Vineet Narain v. UOI, the Supreme Court observed that interference of executive in the investigation led by CBI cannot be permitted. It was further held that the court’s ruling in Saldanha is not generally applicable as it was an exception to further the cause of justice. Once the jurisdiction is granted to CBI under Section 3, the executive cannot curtail/interfere in the investigation by an executive order to that effect under Section 4(2). It can merely exercise general superintendence over the functioning of the agency without exercising its influence over the substantive investigative operations. Despite Vineet limiting the executive’s superintendence, the line drawn still remains bleak. This is why in 2013, a three-judge bench of the Apex Court headed by Justice R.M. Lodha remarked, “Fifteen years on (after Vineet Narain) we are in a bad position. There is complete breach of what Vineet Narain said. In first place, we have to liberate CBI from external influence so that we can completely take pride in CBI investigation”. This criticism was in response to the draft status report on the coal scam shared by CBI with the then Union Law Minister Ashwani Kumar.

Secondly, Section 6 of DSPE Act provides that State Government can withdraw its general consent to CBI jurisdiction and investigations without any justification. This means that CBI would need to seek the State Government’s permission for registering a case against a person/ entity based in that state for the cases which initiated after withdrawal of the general consent. Despite the Apex Court’s recent remark in Fertico Marketing and Investment v CBI that Section 6 is in consonance with the Constitution’s federal character, this provision has hugely undermined CBI’s independence. For instance, recently 7 states withdrew their general consent to CBI and interestingly, all of these are non-BJP ruled. Between this Centre-State tussle, CBI ends up suffering.

Thirdly, Section 6A of DSPE Act required Central Government’s approval for conducting inquiry (including preliminary inquiry) against its employees of Joint Secretary and above level. Through this, any corrupt official could be shielded by the government, which diminished CBI’s authority to conduct an impartial investigation. In Dr. Subramaniam Swamy v. Director, CBI, the court came to rescue and held that Section 6A is violative of Article 14 of the Constitution because the group of aforementioned officers did not form an intelligible differentia. However, in 2018, Section 17A was inserted in the PCA, which again in effect, protects the public servants from any inquiry/investigation for offences under the Act, without government’s approval.

[II] Issues with Director’s Appointment  

Firstly, Section 58 of the Lokpal and Lokayuktas Act amended the DSPE Act to provide the procedure for director’s appointment. Now according to Section 4A of DSPE Act, CBI director shall be appointed by Central Government on the recommendation of a high-powered committee consisting of the Prime Minister, the Leader of Opposition/Single largest opposition party and the Chief Justice of India/any other Supreme Court Judge nominated by the CJI. Prima facie, this procedure might seem fair. However, the high-powered selection committee is given a pool of pre-selected names, from which the new Director is finalized. This list is prepared by the Central government, which enables it to exercise its control on the selection process. Recently, a similar list was being prepared by the Central government before CBI Director Rishi Kumar Shukla’s tenure ended on February 2, 2021. Currently, Additional Director of CBI Praveen Sinha, has been appointed as its interim chief, while deliberations on the next director are still ongoing. Furthermore, the current selection criteria of the Director “on the basis of seniority, integrity and experience in investigation of anti-corruption cases” (Section 4A(3)(a)) is vague. It leaves the objective extent of seniority, integrity and required experience to the discretion of the government and the committee. This is why arbitrary appointment of M. Nageshwar Rao as interim director by the government raised questions as he was a relatively junior officer and CBI was investigating corruption charges against him at the time of his appointment. This violates the rule that a statutory provision should not be vague (Papachristou v. Jacksonville) such that it gives arbitrary powers to the state (Shreya Singhal v UOI)

Secondly, DSPE Act provides for the procedure of transfer of CBI director. But a lacuna in the Act regarding such procedure was used by the Central Government to remove Alok Verma from his post. However, in this case, the Supreme Court held that ‘transfer’ in Section 4B(2) of DSPE Act should be widely interpreted to include any action that may have the effect of a transfer, even if it is not transfer in the pure sense. Hence, divesting CBI director of their duties now requires the permission of the high-powered selection committee as it amounts to their transfer under Section 4B(2). 

Recommendations to Empower CBI

RTI as an Oversight Mechanism – CBI investigations, except cases of corruption and human rights violations, are exempt from RTI under its Section 24. However, in Vineet, the Apex court recommended that information related to “CBI’s functioning should be published” to provide public feedback on the ongoing investigations. As the line drawn by Vineet between the executive and CBI is often being transgressed by the former in current times, it becomes essential to implement RTI as an oversight mechanism. This measure will ensure transparency regarding investigations, without revealing any sensitive information. Furthermore, this measure will allow public to get a clearer idea on the extent of adherence to Vineet’s recommendations.

Regarding Section 6 of DSPE Act – Section 6, regarding general consent of states to CBI, is not absolute. In West Bengal v. CPDR, a 5-judge bench of the Apex Court held that the Constitutional Courts i.e. Apex Court and High Courts, can order CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State. In CPDR it was also observed that such probes “will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law.” Such power of Constitutional Courts can widely be used to ensure that CBI doesn’t suffer in Centre-State tussles. To ensure that such power is fully utilized, the public should take an active part in this and pray from the courts that investigation is referred to CBI.

Inquiry Against Public Servants – Apart from negating the effect of the 2014 Subramaniam Swamy case, Section 17A of the PCA, 1988 also impedes the right to speedy trial. It is noteworthy that right to speedy trial also includes the stage of investigation. Thus, Section 17A must be struck down as it also violates Article 21 of the Constitution of India.

Funds – The Parliamentary Committee’s suggestion that CBI should have financial autonomy must be implemented to provide ample funds. This will ensure its smooth functioning and prevent any financial hindrance from the government.

Appointment of Director – The list of candidates presented before the high-powered committee should be prepared by a Supreme Court-appointed committee, headed by a former Supreme Court Judge, and should follow Vineet’s selection criteria. This will prevent executive interference in the Director’s appointment. Moreover, Director’s tenure should not be less than the government’s (i.e. 5 years) and they should not be allowed to take charge of any public office thereafter. This model is followed by many countries and it (see Elliot Bulmer page 33) ensures that the head of an oversight institution works in an unbiased manner without fear of removal from their post.

Conclusion

Evidently, problems with CBI’s current statutory framework are multi-fold. They include executive’s superintendence over CBI’s investigations, general consent of the states, the insertion of Section 17A to the PCA and appointment of CBI Director. Political leaderships through such lacunas in the framework try to control CBI in order to (a) overcome the system of checks and balances that it offers; and (b) suppress the voice of opposition. Thus, there is an urgent need to revamp CBI’s statutory framework to insulate it from the executive’s interference, otherwise CBI’s motto “Industry, Impartiality and Integrity” will remain an empty rhetoric.

The authors would also like to thank Anupriya Dhonchak and the editors of LAOT for their valuable suggestions on the previous drafts of this piece.

Shubhankar Tiwari

Shubhankar Tiwari is a 3rd year student pursuing B.A. LL.B.(Hons.) at National Law University, Delhi. He is interested in Investment Arbitration and Constitutional Law.  You can reach out to him on LinkedIn by clicking here

Snehil Tiwari

Snehil Tiwari is a 2nd year student pursuing B.A. LL.B.(Hons.) at National Law School of India University, Bangalore. He has keen interest in Constitutional Law, Criminal Law, and Policy & Governance.

You can reach out to him on LinkedIn by clciking here

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