I think the effort by the judiciary to insulate the Central Bureau of Investigation (CBI) is unequivocal. The judgment in the Vineet Narain case (in 1993, when the Supreme Court gave guidelines to insulate the office of the CBI director) was founded on the principle that the CBI must function without any kind of extraneous pressure or any kind of political interference. The selection of the CBI director takes place only nominally in compliance with the process described by the Supreme Court. In reality, as we have seen in the last few years, there does seem to be a kind of disconnect between the true intention of the Supreme Court judgment and the ground reality.
Now, there are two aspects which we must understand. Members of the political class, across the political spectrum, have a great deal in common. Members may take differing sparring positions with one another at different points in time, but deep down in their hearts they all know an independent CBI would be really troublesome.
That is why there is a huge gap. The police officer who is selected to head the CBI understands this very well. He understands the political reality. The director has become an ace politician by the time he is appointed. He understands when, for the political continuity of the government or the system, he should move fast, or move slow or dilute his efforts.
The time has come when the entire process of recruitment to the CBI, even by deputation, must be overseen by an expert independent committee. Integrity must be the first quality to be assessed during the selection. What we mean by integrity is intellectual integrity. as much as integrity in matters relating to money.
The ability to say honestly, on each matter taken up, whether there is a case or there isn't. That is where CBI, in my view, falters. They don't have the confidence in themselves to thump their fists and say we are professionals and we know there is no case in this particular matter. They err on the side of caution. Second, the director has to be an inspiring person. Before choosing one, it should be ascertained whether the man is capable of inspiring people.
I feel that the degree of protection and insulation officers in the CBI enjoyed under directors like Vijaya Rama Rao are not seen now. Rao acted on the basis of good faith and conscience. He thought there was not enough material in the Jain hawala case (in the 1990s) and I know that for a fact. He acted purely in a professional manner. He was an iconic figure in the CBI.
My fundamental grievance is that legal ideology has not been properly formulated by this government. It has no legal ideology. Legal ideology means ideology of the law and the constitution. If you don't know how to put it into action in your political behaviour, you are not following the constitution any more.
The CBI is not part of the government. It was never meant to be part of the government. It is a statutory authority. It is a special police establishment. Having acquired the character of a statutory body, it is meant to act in accordance with certain standards. I also feel that the CBI has not been transparent in its approach to crime. It is important for citizens to know that the CBI will deal with them fairly. If the CBI is powerful because it can be used for political purposes, then remember it can also be used for collateral purposes and the danger to people is that much more. You are, therefore, bringing into existence a sort of gargantuan machinery whose ability to control itself may become difficult.
Lokpal and the CBI
What happens if the CBI becomes a rogue elephant? I think that's an important question. Let us look at that position. Can it be left completely alone? The idea of the Lokpal was an idea in the right direction. A completely independent body must oversee the working of the CBI. And this body must be directly answerable to Parliament. Alternatively, CBI can be freed completely, but it must be made answerable directly to Parliament. The danger of being directly answerable to Parliament is that the political class as a whole has not given sufficiently inspiring evidence that the CBI's functioning will never be interfered with, or that it will scrutinise the work of the CBI with complete dispassion. Therefore, we need to have an independent Lokpal, and its duty should be to just supervise the working of the CBI and see that there is no political interference. It will also ensure that the CBI has proper administrative support.
I think the prosecution wing must be completely at arm's length from the investigation department. The Lokpal will decide whether a prosecutor is getting compromised anywhere and it can take effective action.
CBI's current predicament shows a measure of helplessness, but I think more importantly, it shows that someone has already accepted a servile position. The man at the top makes all the difference in this organisation. A professional director, absolutely clean, who is not influenced by anybody, who does his job professionally is the safest guarantee for a citizen. He is also the safest guarantee for the government.
So, you must look at the value which an independent director can bring. I make no comments about the present director, but I think we really need to revisit the issue of a Lokpal.
The author is a former Solicitor General of India. (As told to Sanjiv Shankaran)