Polly In Fine Fetter

When in the Opposition, BJP leaders, including current Prime Minister Narendra Modi and Union finance minister Arun Jaitley, had belittled it as the ‘Congress Bureau of Investigation’. The Supreme Court famously likened it to a ‘caged parrot’, and former Bengal governor Gopalkrishna Gandhi coined the acronym ddt— Department of Dirty Tricks—to indicate that the CBI operated at the behest of the government of the day. Irony reigned when these themes got a fresh airing as the country’s leading investigative agency plunged headfirst into a welter of cases last week. Among them:

• A 40-member team headed by a joint director landed in Bhopal to take over the politically sensitive Vyapam case, allegedly involving senior members of the RSS and the BJP, apart from Madhya Pradesh chief minister Shivraj Singh Chouhan and his family.

• In Mumbai, three CBI teams raided the residence and office of activist Teesta Setalvad, who has filed a number of cases pertaining to the Gujarat riots of 2002 when Modi was chief minister.

• Veteran journalist Avirook Sen released a book, Aarushi, on the sensational murder case in which he writes that a CBI investigator manipulated evidence and also produced a transcript in court that differed substantially from a recorded conversation.

• A Supreme Court bench formed a panel to inquire into the propriety of retired CBI director Ranjit Sinha meeting some of the accused in the 2G case at his residence on 2, Janpath, in New Delhi.

Despite the promptness with which the CBI filed a series of FIRs in the Vyapam case shortly after arriving in the MP capital, speculation is rife whether, based on its past record, the CBI will merely follow in the footsteps of the local investigators and arrest the small fry while the rich and powerful are shielded from scrutiny. Everytime there is a case involving politicians, there is inevitably a chorus to entrust it to the CBI. (Or perhaps not always. Last year, there was demand for a CBI inquiry when a four-year-old child was locked up in a kennel by a private school in Kerala.) Union minister Gopinath Munde died last year in a tragic if unavoidable road accident, but it did not stop supporters from dem­anding a CBI inquiry into the ‘conspiracy’. The CBI is the counterpart of America’s Federal Bureau of Investigation but without its track record, resources or strictly apolitical approach.

Seeking CBI help Anti-Vyapam protest in Bhopal

More damning than that is the agency’s average record of convictions, interference in appointments by the government of the day (see Little Gujarat in CBI Headquarters) and the high-profile cases that drag on for years or remain unsolved (think Bofors, the urea scandal, the Jain hawala case)—all of which ensured the CBI continues to be treated with deep distrust and suspicion. Even Narendra Modi, before he became PM, had on his Facebook page posted that “the nation has lost faith in the CBI”. His view may have been coloured by the fact that he was chief minister of a state when the Congress ruled at the Centre, but even the late chief justice J.S. Verma had declared, “The CBI continues to disappoint people whenever it deals with cases against the powerful.” The Supreme Court is where a majority of the CBI’s cases end up and show up the agency, in too many instances, as a handmaiden of the government.

In fact, soon after the Modi government was sworn in, the CBI dropped the name of Upendra Kushwaha from the list of MPs accused in the so-called ltc scam, which involved cancelling air tickets yet receiving reimbursement from the Rajya Sabha secretariat. Simi­larly, while a trial court in Mumbai acquitted the now BJP president Amit Shah in the Soh­rabuddin Sheikh fake encounter case without a trial, the CBI did not appeal against it in the high court. Now the Vyapam scam will be the acid test to show that the agency has changed since 1996 when Laloo Prasad Yadav had explained his reluctance to hand over the fodder scam to the CBI saying that he would then be blackmailed by the then PM Narasimha Rao. The impact of the Vyapam scam goes beyond Madhya Pra­desh, as it puts at risk the Modi government’s boastful claim of running a corruption-free government. The opposition Congress, its scars still fresh, has already upped its game and is losing no opportunity to embarrass the Modi government.

That the CBI is used to settle political scores has been acknowledged for years and even recorded in official files, this once again involving Gujarat and Modi. In an eloquent noting in the files of the Department of Training and Personnel (DoPT), which falls under the PMO and oversees the CBI, the chief secretary, Gujarat, had in 2012 warned against the desirability of appointing Kuldeep Sharma, an IPS officer of the Gujarat cadre, as director, CBI. The chief secretary in his correspondence had painted a bleak picture of Sharma’s conduct, integrity and impartiality. “It is well-app­rehended that number of cases under investigation by the CBI will provide Shri Sharma as Director, CBI with an opportunity to settle scores against selected officers and political functionaries in the state (sic).” Sharma had been a thorn in the Gujarat government’s side during his tenure there. In line to become CBI dir­ector, the post eventually went to Ranjit Sinha, the same man before whom the Supreme Court bro­ught up the “caged parrot” remark.

It is not just the appoi­ntment of CBI director that seems to trigger intense lobbying. When he was home secretary in 2012, V.K. Duggal pitched for the appointment of R.K. Pach­nanda, an IPS offi­cer of the West Bengal cadre, as the additional director. The Central Vigi­la­nce Commission (CVC) eventually went along with Duggal des­pite CBI director Ranjit Sinha producing reco­rds that questioned the officer’s integrity as well as abi­lity when he was with the CBI in Chandigarh earlier. In a stormy meeting that followed, Duggal argued that since no action had been taken against the officer despite the adverse reports, there was nothing to prevent his appoin­tment. It was left to the Appointments Committee of the Cabinet (ACC) to intervene.

Photograph by Jitender Gupta

Appointments apart, the agency, being part of the government, cannot refuse cases transferred to it either. The ‘raids’ conducted by the CBI teams against Setalvad are a case in point. The two-year-old allegations against her do not require a CBI investigation, argue her lawyers, and if there had been enough documentary evidence against her, the government could have initiated action at any time during this period. But while the CBI took into custody the same files and documents which Setalvad claims to have handed over earlier to the Guja­rat police and the Union home ministry, the investigating agency, they alleged, was being used purely for harassment and intimidation. This deadwood of political interference is what continues to drag the agency down, despite it having had many fine officers on its roster, as former CBI officers insist, and being unne­cessarily given a bad rap despite its record not being as bad as is made out to be.

Delhi police chief Neeraj Kumar, who lost out in the race to be CBI chief, defends the agency’s track record valiantly. “In innumerable cases,” he says, “the CBI has done well to prevent miscarriage of justice. For instance, in the Badayun rape and hanging case, the CBI proved that the girls had not been raped. The framed accused was eventually freed. Mammoth cases like the serial Bombay bla­sts, the serial train blasts of December 1994, the Harshad Mehta case, the UTI scam, the Rajiv Gandhi assassination case, the cricket matchfixing inquiry and so many others have not only been successfully inv­estigated but also ably prosecuted in courts, leading to convictions.”

If its hands are tied, it also tells on the method. It has been just a few days since the agency has started its investigation in the Vyapam scam, but already they are asking questions in Bhopal about the large number of cases it has registered. Serving officers admit that standard operating procedure is to file multiple cases accompanied by the marshalling of bundles of documents. Its list of prosecution witnesses often crosses the 200 mark, confirms a defence lawyer who has been opposing the CBI in court for years. “Before a trial court can go through the documents or grasp the essential points and before all prosecution witnesses are examined, very often the trial judge, the investigating officer, or both get transferred,” he told Outlook.

Several IPS officers who have done long stints in the CBI attribute the agency’s loss of credibility mainly to the selection of officers which is not always on merit. Little wonder then that in many cases, the accused walk free because of the shoddy manner in which investigations are conducted and records maintained.

Former CBI chief U.S. Mishra points to another anomaly—that of legal autonomy. “Why does the law department appoint lawyers for the CBI,” he asks. “And why are important cases argued by lawyers appointed by the government, such as the attorney-general and the solicitor-general? They will obviously toe the government and not the CBI line. Yet again, only the government, not the CBI can file an appeal. And how do you expect the directorate of prosecution to give an independent opinion when the law secretary writes their ACRS.”

The basic problem, however, remains that so many of the officers posted in the states or at the CBI headquarters are under unbearable political pressure in cases involving the high and mighty. As one retired CBI director put it, “The director, CBI, is damned if he does and damned if he doesn’t.” The fear of being unfairly treated or superceded, and even humiliated by the powers-that-be, prevent most senior CBI officers from exposing the people behind the instructions they receive. Governments may change, but the CBI is too useful a tool to be let out of the cage. In fact, that is the one issue on which the NDA and UPA have found rare common ground. In 2013, the UPA informed the Supreme Court that it was not possible to grant autonomy to the CBI. The Modi government is in no mood to oppose the motion.

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The Record

• The CBI has met with some success in the SC-monitored 2G scam investigation, but was not so successful when it came to the Radia tapes

• CBI court discharged BJP president Amit Shah in Sohrabuddin Sheikh fake encounter; agency did not appeal against judgement

• Sketchy record in disproportionate assets cases of top politicians like Mayawati, Mulayam Singh, Laloo Prasad

• Botched up the Jain hawala and urea scam cases; a new book on the Aarushi murder case punches big holes in its investigation

• The agency has been unleashed to rein in runaway state leaders like Y.S. Jaganmohan Reddy and to keep Mamata Banerjee in check

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The Body

• The CBI has 6,600 employees; works on a `460 cr budget; had a conviction rate of 68.62 per cent in 2013, and the number of pending cases stood at 9,366

• CBI is guided by a pre-Independence Act. Despite recommendations, Parliament yet to enact law to give it a legal framework

• CBI is an anti-corruption body but has been kept outside RTI; CBI director has the last word, can overturn the decision of entire team

• CBI appointments at the top are susceptible to political pressure; agency sandwiched between government and judiciary

• Is dependent for finances and manpower on DoPT which comes under PMO and home ministry; depends on law ministry for personnel and legal help

By Uttam Sengupta and Meetu Jain