ARATI R JERATH, TNN, Aug 21, 2010, 01.23pm IST
We know it as the CBI or the Central Bureau of Investigation. But in court, the country's premier investigative agency cannot use the name. Thanks to a legal anomaly, the CBI in court goes by a nomenclature that dates back to colonial times, the Delhi Special Police Establishment. Thereby hangs a tale of subterfuge and ambivalence that explains, at least partially, why the CBI has failed to fill the shoes it's wearing.
Among the many controversies dogging the organisation that was envisaged as an Indian version of the American Federal Bureau of Investigation ( FBI), a new debate has opened after Congress Member of Parliament Manish Tewari moved a private member's bill in the Lok Sabha last week, seeking statutory status for the CBI. Tewari's bill raises existential questions about the CBI. More importantly, it exposes the absence of an empowering legislation that would not only provide the CBI with an appropriate legal architecture for investigation and prosecution but also give it the autonomy it has been seeking to escape from direct government control.
Tewari, a lawyer by profession, states his case quite baldly. "In my view, the CBI is not a legal body. It draws its powers from a moth-eaten piece of legislation from the British Raj --the Delhi Special Police Establishment Act (DSPE) (1946) whose legality is tenuous and whose six brief clauses carry the entire weight of the CBI's investigations into the many different kinds of crimes that afflict modern India, like economic espionage, cyber crimes and terrorism, " he says.
Tewari's shocker found an echo in the views of Biju Janata Dal Member of Parliament Pinaki Misra, also a lawyer by profession. Says Misra: "The CBI was created in an ad hoc fashion and every government has just carried on with it. It hasn't been tested in court so I'm not sure what would happen if someone were to challenge it legally. But it's certainly an imperfect way of functioning in this day and age and should be changed. "
First, here's a brief history of the CBI that sheds light on the debate that has raged within the government for more than 20 years without satisfactory resolution. The CBI began life as the Special Police Establishment in the Department of War in 1941 to investigate allegations of corruption in the department's expenditure. After World War II ended, in 1946, the British converted the SPE (War Department) into the Delhi Special Police Establishment and expanded its jurisdiction to cover corruption cases in other central government departments.
In 1963, the Government of India set up the CBI through a resolution and widened its net to include crimes other than corruption, such as narcotics smuggling, bank frauds, and so on. The DSPE was merged into the new organisation. But because the CBI was not created through an Act of Parliament, its legal powers rested in the DSPE Act of 1946. This is the reason why the CBI is forced to do all its legal work as the DSPE.
The government of the day in 1963 perhaps had its reasons for refraining from creating a statute specific to the CBI. The Indian state is a federal setup under which law and order is a state subject. The central government was clearly wary of doing anything that would seem to encroach on the powers of the states. At the same time, the need of the hour was an investigating agency that could deal with crimes that extended beyond the borders of one state into other states and were, therefore, too big for the local police to handle. The creation of the CBI through a resolution, rather than an Act of Parliament, was a subterfuge of sorts so as not to ruffle feathers and invite objections from the states.
The Centre's dilemma has been the CBI's weakness and has hampered its evolution as an independent specialised investigative agency. In the anxiety to preserve the autonomy of the states, the CBI has not been empowered to take suo moto cognisance of a crime. It can begin investigations only if a state government makes a formal request for CBI intervention.
Over the years, despite repeated appeals from the CBI, the organisation has remained under the thumb of the central government. "I keep pointing out that the CBI director needs government permission even to go the bathroom, " jokes former CBI director Joginder Singh.
Another retired CBI director who did not want to be identified points out: "Even a thanedar of the Tughlak Road police station (in New Delhi) has more powers than the CBI. He can register a case against the President of India if someone files a complaint. The CBI needs government permission to register a case and begin investigations, then it needs permission to prosecute, and then it needs government permission to appeal in a higher court if a lower court judgement goes against it. What kind of joke is this?"
Successive CBI directors have had serious issues about the powers and functioning of their organisation. Over the decades, they have pleaded for an empowering legislation but to no avail. "Nobody has listened. It makes me angry to talk about it, " says a retired officer.
Forget CBI officials, governments have ignored recommendations from two parliamentary standing committees and the Second Administrative Reforms Commission. All stressed the need for a law to govern the CBI for optimum functioning as a premier investigation and prosecution agency. The country needs a strong CBI more than ever today because technological advances are changing the nature of white collar crime.
The retired CBI directors who spoke to TOI-Crest were quick to defend their former organisation. They insisted that it has functioned as well as it can, given its constraints. But they all acknowledged the need for a statute that lays down a clear, unambiguous legal framework for the CBI with guarantees for the much-talked about autonomy.
There are finer points of law in this debate that are best left for competent experts to argue. What Tewari's bill has done is to raise questions that many in the CBI have asked over the years as investigations hit political road bumps and pressures mounted on the agency. Says retired CBI director U S Misra: "Everything happens at the back door. Investigators should be answerable only to the magistrates but the way the system works, there is covert interference. "
Tewari's bill seeks to resolve some of the existing lacunae in the functioning of the CBI. It proposes autonomy for CBI investigations by empowering the body to take suo moto cognisance of certain crimes that extend beyond the jurisdiction of the police of one state. It also suggests parliamentary oversight for the CBI by making it accountable to a standing committee and not the ministry of personnel as is the current practice. And it proposes setting up an independent directorate of prosecution that would have the power to decide whether a prosecution is tenable, instead of leaving this critical decision in the hands of the government.
The minister of state for personnel Prithviraj Chavan counters Tewari with a vehement defence of the present system. He says that the government has studied the issue in depth and come to the conclusion that there is no need for a special law for the CBI. "There is no legal infirmity and the CBI is working well, " he says, stressing yet again that the federal set up should not be disturbed.
SAYS WHO?
It is ironic that the government hasn't cared to listen to the Parliament or its own commission on the contentious issue of creating a separate law for the CBI so that it functions in an effective, independent and more transparent manner. Here are some excerpts from three reports: "The Committee, in its earlier reports on the Demands for Grants of the Ministry of Personnel, Public Grievances and Pensions, had recommended that the possibility of getting enacted a separate Act for CBI in tune with the requirement of the time, rather than deriving its powers from the Delhi Special Police Establishment Act, 1946, may be examined by the Government. The Committee regrets to note that no proactive steps have so far been taken in this regard inspite of strong recommendations made by this Committee. The Committee strongly opines that unless CBI is suitably empowered statutorily it cannot investigate cases and take it (sic) to logical conclusion. "
-The 24th report of the parliamentary standing committee on CBI's functioning, tabled in March 2008
"The Committee is of the opinion that since the various provisions of the Constitution mandate concurring powers to CBI, it is in public interest that, in this era of successive waves of terrorist attacks and highly technical crimes, a statute is enacted, without much ado, granting to the CBI, powers which are enshrined in the Constitution, so that such crimes are tackled in a more consistent and effective manner. "
-The 27th report of the committee, tabled in March 2010
"A new law should be enacted to govern the working of the CBI. This law should also stipulate its jurisdiction including the power to investigate the new category of crimes. "
-The fifth report of the Second Administrative Reforms Commission, submitted in June 2007
Among the many controversies dogging the organisation that was envisaged as an Indian version of the American Federal Bureau of Investigation ( FBI), a new debate has opened after Congress Member of Parliament Manish Tewari moved a private member's bill in the Lok Sabha last week, seeking statutory status for the CBI. Tewari's bill raises existential questions about the CBI. More importantly, it exposes the absence of an empowering legislation that would not only provide the CBI with an appropriate legal architecture for investigation and prosecution but also give it the autonomy it has been seeking to escape from direct government control.
Tewari, a lawyer by profession, states his case quite baldly. "In my view, the CBI is not a legal body. It draws its powers from a moth-eaten piece of legislation from the British Raj --the Delhi Special Police Establishment Act (DSPE) (1946) whose legality is tenuous and whose six brief clauses carry the entire weight of the CBI's investigations into the many different kinds of crimes that afflict modern India, like economic espionage, cyber crimes and terrorism, " he says.
Tewari's shocker found an echo in the views of Biju Janata Dal Member of Parliament Pinaki Misra, also a lawyer by profession. Says Misra: "The CBI was created in an ad hoc fashion and every government has just carried on with it. It hasn't been tested in court so I'm not sure what would happen if someone were to challenge it legally. But it's certainly an imperfect way of functioning in this day and age and should be changed. "
First, here's a brief history of the CBI that sheds light on the debate that has raged within the government for more than 20 years without satisfactory resolution. The CBI began life as the Special Police Establishment in the Department of War in 1941 to investigate allegations of corruption in the department's expenditure. After World War II ended, in 1946, the British converted the SPE (War Department) into the Delhi Special Police Establishment and expanded its jurisdiction to cover corruption cases in other central government departments.
In 1963, the Government of India set up the CBI through a resolution and widened its net to include crimes other than corruption, such as narcotics smuggling, bank frauds, and so on. The DSPE was merged into the new organisation. But because the CBI was not created through an Act of Parliament, its legal powers rested in the DSPE Act of 1946. This is the reason why the CBI is forced to do all its legal work as the DSPE.
The government of the day in 1963 perhaps had its reasons for refraining from creating a statute specific to the CBI. The Indian state is a federal setup under which law and order is a state subject. The central government was clearly wary of doing anything that would seem to encroach on the powers of the states. At the same time, the need of the hour was an investigating agency that could deal with crimes that extended beyond the borders of one state into other states and were, therefore, too big for the local police to handle. The creation of the CBI through a resolution, rather than an Act of Parliament, was a subterfuge of sorts so as not to ruffle feathers and invite objections from the states.
The Centre's dilemma has been the CBI's weakness and has hampered its evolution as an independent specialised investigative agency. In the anxiety to preserve the autonomy of the states, the CBI has not been empowered to take suo moto cognisance of a crime. It can begin investigations only if a state government makes a formal request for CBI intervention.
Over the years, despite repeated appeals from the CBI, the organisation has remained under the thumb of the central government. "I keep pointing out that the CBI director needs government permission even to go the bathroom, " jokes former CBI director Joginder Singh.
Another retired CBI director who did not want to be identified points out: "Even a thanedar of the Tughlak Road police station (in New Delhi) has more powers than the CBI. He can register a case against the President of India if someone files a complaint. The CBI needs government permission to register a case and begin investigations, then it needs permission to prosecute, and then it needs government permission to appeal in a higher court if a lower court judgement goes against it. What kind of joke is this?"
Successive CBI directors have had serious issues about the powers and functioning of their organisation. Over the decades, they have pleaded for an empowering legislation but to no avail. "Nobody has listened. It makes me angry to talk about it, " says a retired officer.
Forget CBI officials, governments have ignored recommendations from two parliamentary standing committees and the Second Administrative Reforms Commission. All stressed the need for a law to govern the CBI for optimum functioning as a premier investigation and prosecution agency. The country needs a strong CBI more than ever today because technological advances are changing the nature of white collar crime.
The retired CBI directors who spoke to TOI-Crest were quick to defend their former organisation. They insisted that it has functioned as well as it can, given its constraints. But they all acknowledged the need for a statute that lays down a clear, unambiguous legal framework for the CBI with guarantees for the much-talked about autonomy.
There are finer points of law in this debate that are best left for competent experts to argue. What Tewari's bill has done is to raise questions that many in the CBI have asked over the years as investigations hit political road bumps and pressures mounted on the agency. Says retired CBI director U S Misra: "Everything happens at the back door. Investigators should be answerable only to the magistrates but the way the system works, there is covert interference. "
Tewari's bill seeks to resolve some of the existing lacunae in the functioning of the CBI. It proposes autonomy for CBI investigations by empowering the body to take suo moto cognisance of certain crimes that extend beyond the jurisdiction of the police of one state. It also suggests parliamentary oversight for the CBI by making it accountable to a standing committee and not the ministry of personnel as is the current practice. And it proposes setting up an independent directorate of prosecution that would have the power to decide whether a prosecution is tenable, instead of leaving this critical decision in the hands of the government.
The minister of state for personnel Prithviraj Chavan counters Tewari with a vehement defence of the present system. He says that the government has studied the issue in depth and come to the conclusion that there is no need for a special law for the CBI. "There is no legal infirmity and the CBI is working well, " he says, stressing yet again that the federal set up should not be disturbed.
SAYS WHO?
It is ironic that the government hasn't cared to listen to the Parliament or its own commission on the contentious issue of creating a separate law for the CBI so that it functions in an effective, independent and more transparent manner. Here are some excerpts from three reports: "The Committee, in its earlier reports on the Demands for Grants of the Ministry of Personnel, Public Grievances and Pensions, had recommended that the possibility of getting enacted a separate Act for CBI in tune with the requirement of the time, rather than deriving its powers from the Delhi Special Police Establishment Act, 1946, may be examined by the Government. The Committee regrets to note that no proactive steps have so far been taken in this regard inspite of strong recommendations made by this Committee. The Committee strongly opines that unless CBI is suitably empowered statutorily it cannot investigate cases and take it (sic) to logical conclusion. "
-The 24th report of the parliamentary standing committee on CBI's functioning, tabled in March 2008
"The Committee is of the opinion that since the various provisions of the Constitution mandate concurring powers to CBI, it is in public interest that, in this era of successive waves of terrorist attacks and highly technical crimes, a statute is enacted, without much ado, granting to the CBI, powers which are enshrined in the Constitution, so that such crimes are tackled in a more consistent and effective manner. "
-The 27th report of the committee, tabled in March 2010
"A new law should be enacted to govern the working of the CBI. This law should also stipulate its jurisdiction including the power to investigate the new category of crimes. "
-The fifth report of the Second Administrative Reforms Commission, submitted in June 2007
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