Friday, December 25, 2015

Is the CBI the Pet poodle of the Central Government?

Vishwanath Chaturvedi has a pleasant demeanour, but he can still irritate you with his persistence. For many years, the 50-year-old has been going on mostly about a single topic since he landed in Delhi with his Public Interest Litigation (PIL) in the Supreme Court. He was a much-sought-after figure in the initial years of his Delhi visits, but as time rolled on, his PIL, sensational initially, began to lose its news value, and reporters no longer sought him out.
The subject of his PIL, Samajwadi Party (SP) chief Mulayam Singh Yadav and his family, meanwhile, continue to flourish in Indian politics, packing in many of their extended clan into Parliament and the Uttar Pradesh Legislative Assembly. Mr. Chaturvedi’s allegations against them, that the Yadav family had accumulated assets worth over Rs.100 crore between 1999 and 2005, remain merely that, allegations.
Josy Joseph
The Central Bureau of Investigation (CBI), which was tasked by the apex court with investigating the allegations, has amply demonstrated during the tenure of the United Progressive Alliance (UPA) government what is wrong with its conduct and what hampers its independence.
The story is not isolated to the case against Mr. Yadav alone. It is the larger story of most other high profile, politically important investigations by the CBI. A disproportionate assets case against Bahujan Samaj Party chief Mayawati is dragging along in a similar fashion.
Pattern of swings
Other than political scandals, the other high-profile cases handled by the CBI in recent years have regularly been big defence scams. Starting with the Bofors scandal, in which people close to then Prime Minister Rajiv Gandhi were accused of accepting kickbacks from the Swedish arms company in the mid-1980s, the CBI has occupied much public mindscape with claims about defence scandals. But the fact remains that in not one of those cases has the CBI successfully prosecuted the accused.
The direction of the CBI investigation into the Bofors scandal kept swinging depending on whether the Congress party was in power or not. During the tenure of the UPA, the CBI told the U.K.’s crown prosecutor that there was no case against the key accused Ottavio Quattrocchi, put up a weak case for extraditing him from Argentina and withdrew the Interpol notice against him.
The fate of other arms scandals investigated by the agency has not been very different. A slew of cases registered by the UPA government against arms purchases sanctioned by the previous Atal Bihari Vajpayee government have mostly been closed without any evidence in recent times.
Sometimes the political efforts to control, or manipulate, the CBI emerge in public. In 2013, the Supreme Court severely criticised the then Law Minister, Ashwani Kumar, for trying to interfere with investigations into irregularities in coal block allocations, forcing his resignation from the Cabinet. The court said the “heart of the report was changed on the suggestions of government officials”.
A visible pattern of the CBI becoming a handmaiden to the party in power is now a permanent theme in Indian politics. As a result, high-profile cases either get dragged on, or appear to be argued poorly.
Given this backdrop, it was not very surprising to see the CBI receive widespread flak for carrying out araid in Delhi Chief Minister Arvind Kejriwal’s Secretariat early this week, albeit on his principal secretary. Unleashing the CBI on political rivals has been a standard practice in Indian politics for years now. From Prime Minister Narendra Modi to the Congress party leaders, all have cried foul about the misuse of the CBI sometime or the other, but once in power at the Centre, they turn defensive about charges of interfering in the agency’s functioning.
The shifting sands of politics
The case against Mulayam Singh came to the apex court first in November 2005. On March 1, 2007 it ordered a CBI enquiry into the case. On October 26, 2007, the CBI completed its preliminary inquiry and submitted a damning indictment of the Yadav clan. “On the basis of result of aforesaid enquiry, registration of a Regular Case” under various sections against Mr. Yadav, his son Akhilesh and “others is warranted,” the CBI concluded.
Citing the seriousness of the case, the CBI in March 2008 demanded early hearing into the case. Mulayam Singh Yadav, by then, was out of power in Uttar Pradesh and without much sway at the Centre, even though he was supporting the UPA government from outside.
However, the unpredictability of Indian politics came to his rescue, with the Left Front refusing to budge from its stance against the India-U.S. nuclear deal — on which Prime Minister Manmohan Singh soon staked his premiership. Changing tack, the Samajwadi Party reversed its opposition to the deal and backed Dr. Singh, bailing out his government in a confidence vote in July 2008.
On December 6, 2008, the CBI filed in the Supreme Court: “In view of the legal advice and directions of the Union of India, the IA (intervention application) filed by CBI may be allowed to be withdrawn.”
As relations between the SP and Congress nosedived soon after, the premier investigating agency filed a fresh affidavit before the court on March 30, 2009. This time it said that it “still stands by its status report dated 26.10.2007,” referring to its original recommendation for cases against the Yadav clan. In less than a year’s time, the CBI had gone from recommending criminal investigations against the Yadav clan to seeking permission to end it all to expressing readiness again to investigate the case — stances that reflected the shifting sands of politics.
By December 2012, the apex court exempted Dimple Yadav, Akhilesh’s wife, from the case, and in September 2013, then CBI chief Ranjit Sinha said he was sending a closure report to the apex court because of insufficient evidence. However, there is no such official communication with the apex court yet, and no court order.
CBI officials and other observers are not surprised by the fate of the Mulayam case. “The conviction rate of CBI is actually quite poor if you were to look specifically at cases involving senior politicians or business houses,” says a veteran CBI officer. “Even in ordinary corruption cases, we often find that the witnesses turn hostile, and the investigation officers get transferred out.”
Political manipulation and internal sabotage are twin challenges that have dogged the CBI throughout. Many old-timers in the agency point towards the career graph of Ranjit Sinha, who is now under probe by a Supreme Court-appointed committee for allegedly interfering with high-profile cases and scuttling them, to understand how the government of the day continues to have a stranglehold over the agency. As a DIG associated with the investigation into the fodder scam case involving Lalu Prasad and others, Mr. Sinha was accused of favouring those under investigation. One officer who was involved in the internal reports on Mr. Sinha, which led to him being forced out of the CBI in 2006, says: “Years later, he returned to head the CBI, and we, the ones who had caught him favouring the accused, were now reporting to him.”
The way out
The arrest of Ashfaq Hussain Lone, an alleged militant belonging to Hizbul Mujahideen, on March 25, 1991, wasn’t anything out of the routine. However, as investigations picked up pace, the CBI raided the premises of well known hawala dealers Surendra Kumar Jain and his brothers who had supplied money to Lone. The CBI recovered two diaries and two notebooks from the Jain brothers. The diaries contained details of payments made by them to various people. All of them were identified by initials. The names of over 115 senior politicians and bureaucrats were matched to the initials in the diaries. Among those who figured in it were L.K. Advani, V.C. Shukla, Balram Jakhar and Sharad Yadav. Over Rs.65 crore had allegedly been distributed by the Jain brothers to the persons on the list.
Outraged over the way case was moving, journalist Vineet Narain moved the Supreme Court to ensure autonomy for the CBI, Enforcement Directorate and the Central Vigilance Commission (CVC). The landmark judgment in Vineet Narain v. Union of India in 1997 laid out several steps to secure the autonomy of CBI. Says Mr. Narain: “Limited autonomy was granted. Still the administrative and financial control wrests with the Ministry of Personnel, and thus the government can directly control CBI.”
Of late, especially since allegations against Ranjit Sinha emerged, Mr. Narain points out that many have come to realise that if you give absolute power to CBI, it could end up becoming draconian. “It is a fine line,” he says.
A retired CBI officer points out that many would argue that greater autonomy to the CVC could be the solution. “The CVC monitoring is working to the extent possible. However, we never had absolute power over them, given the kind of pressure faced by the CBI from government,” says a former Vigilance Commissioner.
The CBI, run by IPS officers on deputation, is also susceptible to the government’s ability to manipulate the senior officers, because they are dependent on the Central government for future postings. One of the demands that has been before Supreme Court, and in line with international best practices, is for the CBI to develop its own dedicated cadre of officers who are not bothered about deputation and abrupt transfers. The CBI did recruit some officers in the past to its cadre, but that effort has gone nowhere, and all senior posts in the CBI are now held by Indian Police Service (IPS) officers.
Parliamentary oversight
It is also possible to consider granting the CBI and other federal investigation agencies the kind of autonomy that the Comptroller and Auditor General enjoys—he is only accountable to Parliament. A more efficient parliamentary oversight over the federal criminal and intelligence agencies could be a way forward to ensure better accountability, despite concerns regarding political misuse of the oversight.
The CBI continues to operate under a notification issued by the Ministry of Home Affairs on April 1, 1963, for investigating crimes under the Delhi Special Police Establishment Act, which derives its legacy from concerns during World War II regarding misappropriation of war spending. “A comprehensive act of Parliament setting out the autonomy, powers, etc. is the first step towards improving the CBI’s autonomy,” says a CBI officer.
Will Parliament rise to the challenge?

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