Shoofly On A Leash

It's hailed as the country's premier probing agency but the Central Bureau of Investigation has had a chequered past. And an examination of its recent history will show that the CBI has suffered a severe erosion of credibility, especially on politically sensitive cases. Be it the Babri Masjid case, where former deputy prime minister L.K. Advani was let off, or the Taj Corridor scam when the CBI recommended the closure of the case against ex-UP chief minister Mayawati, its failure to prosecute the guilty has completely undermined its capability to deter corruption in the higher echelons of governance. Instead, every year the agency trots out "impressive" figures of cases prosecuted against lower-level functionaries, and conducts routine raids against faceless junior bureaucrats. If the recent flip-flop on the Bofors case is any indication, it has once again proved that the goalposts for the agency get shifted by every government that comes to power.

Worse, successive governments have also chosen to make redundant the role of the parliamentary standing committee for personnel, public grievances, law & justice, tasked with overseeing the CBI's functioning. Government after government has routinely brushed aside criticism from the committee as well as its pleas to grant greater autonomy to an agency that is supposed to serve as a deterrent against corruption. In fact, in its fifth report, the standing committee went so far as to point out that "dependence on the executive wing of the state for both financial and administrative matters impinges upon its role as an independent investigating agency".

So what actually ails the CBI? Senior officers recall the pressure the agency faced when the Congress-led upa came to power in mid-2004. "Efforts were mounted to transfer out the officers investigating the Bihar fodder scam because Laloo Prasad Yadav (a key accused) had been appointed as a cabinet minister," says a senior CBI official familiar with the case. After much discussion, the government finally gave up on its demand to prevent a political fallout. Even in the case against Vincent George, secretary to Congress president Sonia Gandhi, the CBI has been dragging its feet since theNDA days. This, despite the agency having claimed earlier that it had zeroed in on the "assets which are disproportionate to his known sources of income".

The government saw nothing wrong either when the CBI was prodded on to wrap up the case against Mayawati in the Taj Corridor scam last year. In a sudden move, the agency's then director U.S. Mishra recommended that the case be closed. While this invited flak, officials in the agency point their fingers at the law ministry. In circumstances uncannily similar to the present Bofors imbroglio, attorney general Milon Banerjee opined that there was no case against theBSP leader. "Even if we were to go to court, we would need the same law officers to argue the case. But how could we pursue the case further so long as we are burdened with this opinion from the highest law officer in the land," asks an exasperated CBI official. He maintains that the opinion given by the attorney general is not binding, but notes that it is a well-established convention that the CBI director works in conjunction with the opinion offered by the law ministry and its officials.

Even when it comes to arguing a case in court, the CBI lacks the financial powers to appoint its own lawyers. This was brought to the notice of Parliament's standing committee in a presentation made by Mishra during his tenure as the agency's director. Sources say that noted lawyer and Rajya Sabha member Ram Jethmalani even offered to 'argue' cases on behalf of the CBI if required. "This was an ironic situation because Jethmalani was the senior advocate defending Prakash P. Hinduja in the case in the Delhi High Court against the CBI in 2004," points out a senior official with the agency. Incidentally, while Jethmalani was defending Prakash, present minister of state for science and technology Kapil Sibal was the senior advocate for another Hinduja brother, Gopichand, in the same case.

Knowing the CBI's inability to probe with 'credibility and impartiality' due to its 'dependence on the state', the standing committee recommended that the government examine "the possibility of promulgating a separate Act for CBI in tune with the requirement of the time". The committee, chaired by Rajya Sabha member E.M.S. Nachiappan, thought granting the CBI a status on par with the Election Commission would give it the desperately needed 'impartiality and credibility'.

It was thus left to the CVC to spell out the CBI's problems. It noted that "even though appointment and removal of officers of the rank of SP and above are subject to the recommendations of the committee, all other administrative matters continue to be with the government". The CVC charged that "this, to a large extent, compromises the autonomy and independence of the CBI. This included disciplinary authority over officers of the CBI". The country's "premier investigation agency" it may be, but its director did not enjoy the same amount of powers, "financial and otherwise, as head of department unlike other heads of central police organisations".

What has in fact been irking the CBI and its officers is its inability to conduct raids against officers of the level of joint secretary and above. For any such prospective raid, the CBI needs to take prior clearance from the ministry concerned. "This ensures that there is no secrecy in our investigation," an official said. But the unkindest cut is that ministries have continued to stonewall even requests for raids for months on end. "Surface transport is the worst ministry when it comes to stonewalling such requests," shrugged a senior CBI official. However, in recent times, there have been rare cases—like finance minister P. Chidambaram quickly sanctioning permission to the agency to raid and prosecute guilty officials. The arrest of P.K. Ajwani, central excise commissioner from Mumbai, was in that sense a major victory for the CBI.

Already grappling with its existential problems, the CBI is also facing a massive manpower crunch. This has been brought out by both the CVC as well as the standing committee at several meetings. The committee stated as much that it was "disturbed over the prevailing vacancy position in the CBI" and felt that "despite repeated recommendations, adequate steps are not being taken at the central government's level to overcome this persistent problem". What has rattled the CBI is that nearly 620 out of the present 1,084 posts lying vacant were of investigating officers, who form the backbone of the agency.

Unfortunately for the CBI, the Bofors episode has lent more grist to its critics. With its less than impressive track record, chances are that the agency will eventually be seen as being an instrument in the hands of its political masters.