Lokpal must oversee CBI

I think the attempt on the part of judiciary to insulate the CBI has been completely unequivocal. The judgments in Vineet Narain's case (in 1993 when the Supreme Court gave guidelines which aim to insulate the office of the CBI's director) were all founded on the principle the CBI must function - without any kind of extraneous pressure or political interference. In reality, as we have seen over the last few years, notwithstanding the fact the selection of the director takes place nominally in compliance with the process described by the Supreme Court, which is a consultative process, somewhere there does seem to be a kind of disconnect between the true intention of the Supreme Court judgment and the ground reality with which that judgement is observed.

And that's where the manifestation has gone wrong. After all if you read a judgment as a judgment, but don't incorporate its spirit, it is valueless. Then what you are doing is going through the process of appointment.

There are two aspects which we must understand. The political class is a common class. It may have differing sparring positions with each other at different points in time. But I am afraid deep down in their hearts they all know of an independent CBI. This would be quite troublesome. That's why there is a huge gap.

The police officer who is selected understands this very well. He understands the political reality. The director becomes an ace politician by the time he is appointed. For the political continuity for the government or system as it were, he understands that you have to go fast, go slow, dilute. All these become adjectives that keep rotating in his mind.

If those who govern under the constitution don't understand how to read, interpret, or fulfill a judgment, you can't expect the rule of law to be observed. The time CBI spent picking up people who have charged an extra ten rupees as a bus conductor is more systematic and thorough in an investigation compared to other cases.

Time has come for the entire process of recruitment or deputation to be overseen by an expert independent committee. Integrity must be the first quality which must be assessed. What we mean by integrity is intellectual integrity first. Not only monetary integrity, but intellectual integrity.

The ability to say if there is a case present . That's where CBI, in my view, falters. They don't have the confidence to thump their fists and say that there is no case. They err on the side of caution. The immense workload on the trial judiciary makes it difficult to do justice to these cases on time.

The second thing is that the director has to be an inspiring person. They must find out if he is capable of inspiring people. Is he a man who can support the team down the line?  Can he support an honest investigator? We must understand in our country, honesty is a dangerous word. Those who pursue their duties honestly can be in somebody else's pathway. The only way they can be out of the way is by a dilution of his work by a superior officer or that if he faces physical danger.

THE DECLINE
The degree of protection and insulation which officers in the CBI used to have under older 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 and I know that as a fact. He acted purely in a professional manner. He was an iconic figure all the way down in the CBI.

However, the selection is made short of these standards and since most people believe in cohabition, as some people call it coalition dharma, I am afraid it can never be at the expense of the law and the constitution. No person must think he is indispensable. No political party, or human being, is indispensable. I think we must understand that this assumptive behaviour, that we can make compromises if necessary so that we can continue doing that for the welfare of the people is a completely mistaken assumption.

That need to cohabit and continue means there are trade-offs that are taking place between the ruling party as well as people on whom you are looking for support. And the CBI then becomes a kind of a tool. If this were to happen to an organization, it is bound to have very little credibility. It is not that the CBI was jail-hungry. The CBI actually used to follow a rule  - if a chargesheet was filed and it was primarily based on documentary evidence, they would not oppose bail. They had courage to say we don't need him to be put into jail. We are ready to go on and get a conviction.

The point I am trying to make is the transparency of purpose has to be firmly established by the selectors. And if the selectors don't give the message that it is 'Satyamve Jayate' and we are going to stand by it, it doesn't matter. That is the confidence which is to be given. I want to know if that confidence has been given and why would there be a question at all of any director. This is indeed the critical question.

My fundamental grievance is that legal ideology has not been properly formulated by this government. They have no legal ideology. Legal ideology means ideology of the law and constitution. If you don't know how to put it into action in your political behaviour, you are not constitutional anymore.

The CBI is not a part of the government. It was never meant to be a part of the government. It is a statutory authority, a special police establishment. Having acquired the character of a statutory body, it is meant to act in accordance with certain standards.

I feel CBI has not been transparent in its criteria of their approach to crime. How do they investigate and what are their standards of sharing information? How will they deal with people fairly? It is important for citizens to know that the CBI will deal with them fairly. If the CBI becomes very powerful because it can be used for political purpose, then it can also be used for collateral purposes and the danger to people increases by that much. . You are therefore bringing into existence some sort of gargantuan machinery whose abilities to control itself may become difficult.

LOKPAL AND CBI
Now, the government can ask what might happen if the CBI becomes a rogue elephant. Let's look at that position. Can they be left completely to themselves?

The idea of the Lokpal that was mooted was in the right direction. A completely independent body must oversee the working of the CBI. And this body must be directly answerable to the parliament. Alternatively, you free the CBI completely, but make CBI answerable directly to parliament. The danger in direct answerability to parliament is because the political class as a whole has not given sufficiently inspiring dictum that the CBI will never tamper with or will scrutinize the work of CBI with complete dispassion. I find the profile and trajectory of cases reveal that once it comes to the political class, it looks as though people become very fragile. Therefore, we have to have an independent Lokpal and the Lokpal's duty is to just supervise the working of the CBI and see that there is no political interference. It is also to ensure that they have proper administrative support.

Now, tell me, how is a lawyer who is sitting all the time with police officers going to give an independent opinion at arm's length? His career is associated with the police officers. How do you think he is going to give an opinion which is free, strong,  and independent?  And therefore the prosecution wing must be at arm's length and should not be appointed under rules of the government.

You must appoint them on a contract basis and the Lokpal will see whether a prosecutor is getting compromised. Then they can take effective action against a prosecutor.

This whole idea of preliminary enquiry is sometimes being reduced to a faux. You know the offence is committed, it is very clear. In two hours you know that you can register a case and go through some long winded preliminary enquiry, calling for papers and files. The longer it takes, evidence can disappear.

So, I wonder, as the selection committee asked the director who was selected: "Can you tell us your blueprint of how you will investigate the case, can you tell us what is going to be the firmness by which you will investigate, can you tell us or prove any five cases in your career where you have broken through, let us say, past structures, investigated independently… show it to us please." So, the record is not service record which we are concerned with. It is relevant to a certain extent, in hierarchical structures which are based upon virtually the theory of pleasing and pleasing and pleasure. It is never going to produce evidence of the person's capability. I want to know whether the selectors actually looked at the capability of a person. So, show five cases which you have investigated. Let's see for ourselves what you have done. Could you stand up against political pressure? That should be the question which the selection committee has to ask him.

CBI's CURRENT PREDICAMENT
It shows a measure of helplessness, but 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 doesn't listen to anybody, does his job professionally is the safest guarantee for a citizen. He is the safest guarantee for the government. So, you must look at the value which an independent director can bring about. I make no comments about the present director but I think we need to revisit the issue of a Lokpal.

Let's understand this. No citizen is above the law, you don't need a law to bring somebody into law. The law is already there but you need a mechanism which can investigate people in high places if there is evidence and that has to be done with insulation.  It can be done only by, an organisation where the selection takes place on the basis of these public interest criteria and  a Lokpal which judges both the prosecution as well as the composition of people inside the CBI.

(The author was Solicitor General of India)

As told to Sanjiv Shankaran