Toothless Tiger

FROM the assassination of a prime minister to the purchase of the Bofors-Howitzer gun; from an out-right defalcation in a moffusil cooperative bank to investigating a maniac homosexual killer on the loose. The war cry of those affected is the same: a C B I probe. In a body politic marred by corruption scandals and shady phantom deals, the C B I has come to acquire a unique constitutional position: a government within a government. It may not find a mention in the Constitution of India, but has practically taken over governance from well-established institutions. Not quite like the F B I o f America in the ’60s, but pretty close.

Not unnaturally, the list of the C B I’s acquisitions are growing. Investigations include Bofors, Airbus, St Kitts, H D W submarine deals, the Babri Masjid demolition, Mumbai blasts, the 1984 anti-Sikh riots in Delhi, urea scandal, the securities scam, hawala, fodder and just about everything that catches the public eye. The list is not only endless, but is growing steadily by the day.

But in sharp contrast to the burgeoning number of cases, the country ’s premier investigating agency’s ability to actually convict those it chargesheets is dismal. In political cases particularly, rarely has a conviction been obtained. The question is, does the CBI have actual powers? Says political scientist Rajni Kothari: "It is a unique situation. The executive is confused. The legislature is not acting. So what we have left is the judiciary, which is now acting in tandem with the CBI. The armed police is more than keen to hand over cases to the CBI. So in the end we just have the CBI left."

Not many would disagree with that, for the agency lacks autonomous powers. For every case to be registered, technical clearance from the Ministry of Personnel is required— which in most cases lies directly with the prime minister of the day. Little wonder then that charges of "motivated investigation" are thrown freely at the CBI. The CBI director has powers only to propose changes and amendments.

Nothing demonstrates this better than the 13th Estimates Committee of Parliament which noted in its 1992 report that without any legal charter it would be futile for the organisation to do justice to its assigned role. As Manoranjan Bhakta, the chairman of the committee, noted: "Despite being in existence for 30 years, the bureau has no charter of its own and is still drawing its legal force from the Delhi Police Establishment Act 1946 and operating for its purposes in the guise of a special police establishment. The committee has taken serious note of this legal deficiency."

So should the CBI be autonomous? Says former CBI joint director K. Madhavan: "A police organisation should not be autonomous. What is required is an independent security commission comprising the home minister, a ruling party MP, an opposition MP, a retired judge and a public figure to oversee the CBI. That way transparency can be maintained."

In addition, state governments can always turn down the agency’s request for investigation, as and when it suits them. A classic example is the corruption case filed against former Sikkim chief minister Nar Bahadur Bhandari when he was out of power. Soon after he returned to power in 1984, the state government withdrew the general consent given to the C B I. Later the Supreme Court ruled that states cannot withdraw general consent with retrospective effect. It can only do so in prospective cases, giving the C B I cases which it has already started before the withdrawal of consent.

For an agency given to handle casesrelated to major international deals, it is acutely short staffed. Of an overall staff of 5,000, there are barely 1,500 hard core investigators. Former director K. Vijaya Rama Rao filled up as many posts as he could, while a recent proposal from the C B I to the Personnel Department has called for recruiting 358 personnel all over the country. Adding to the agency’s problems is the lack of competent prosecutors to take on lawyers hired by affluent economic offenders.

It is interesting to note that the role and public perception has changed over the years. It began purely as an anti-corruption agency and had its genesis in an organisation called the Special Police Establishment (SPE) set up in 1941. By 1946, the Delhi Police Establishment Act came into being and the powers of the SPE were enlarged to cover all government departments. In 1963, the Government felt the need for a central police agency at the disposal of the Centre which would investigate only cases of bribery, breach of fiscal laws and major frauds relating to government departments. In April that year, the CBI came into being.

FROM the year it was formed to half-way through the Indira Gandhi years, the agency remained what it claimed to be: purely a crime busting organisation. This was best reflected in the CBI’s conviction rate of that period: they registered convictions in almost 90 per cent of the cases chargesheeted.

Emergency and its aftermath marked a  watershed. It began with J.S. Bawa taking charge of the agency around the same time Indira Gandhi returned to power. One of the first things he did was to withdraw the Jeep case against ‘Madam’ and her son. Bawa was granted extension. Then the C B I under Mohan Katre declined to register a case against Reliance boss Dhirubhai Ambani, when the case had been sewn up by additional director Radhakrishnan Nair. Later it turned out that Katre ’s son was a joint venture partner with the Ambanis. In fact, Khatre was granted an extension. Extensions were also given by P. V. Narasimha Rao to K. Vijaya Rama Rao amidst charges that the agency proceeded on the hawala cases at the behest of the prime minister.

Bofors has put the C B I in the public eye again. Speculation is rife whether the agency will actually file chargesheets or whether there will be just another round of extended ‘interviews’ with the dramatis personae involved. It could be an indicator to the agency’s conduct in the many other scams being investigated.