August 03, 2020
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Public Eye, Put No Tinted Lens

The judiciary proposes curtailing of legislative control over the CBI to ensure its freedom from political interference

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Public Eye, Put No Tinted Lens

THE tension was palpable at the Supreme Court's packed court number one last week. In a fresh salvo, the no-nonsense hawala bench, presided over by Chief Justice J.S. Verma, ordered the government to respond to a proposal that would ensure greater autonomy to investigative agencies. In effect, it meant the court was ready to take on the administrative function of reorganising Central agencies like the CBI, the Income Tax department and the Enforcement Directorate to ensure their freedom from political interference. The message was clear: in the new power-game between the arms of the Republic, the judiciary would like to set the rules. Literally.

After decades of an uneasy balance between the judges on one side and an obdurate legislature-executive combine on the other, the situation has reached flashpoint once again. The government, which had been making moves to curb the courts by proposing limits on the filing of public interest litigations (PILs), was up in arms. "Deciding appointments and transfers of bureaucrats is the privilege of the government.... The courts have no jurisdiction in this regard," challenged attorney general Ashok Desai during the hearing.

Vehement opposition, indeed. But not entirely unexpected, given that the court is deliberating on a blueprint prepared by senior advocate Anil Diwan—who is functioning as an amicus curiae in a host of politically sensitive cases—and is likely to exercise its constitutional jurisdiction and issue directions on the same lines to the government. Diwan's charter for unshackling investigative agencies from legislative control includes:

  • The setting up of an independent, high-powered body consisting of a retired judge of the Supreme Court (nominated by the Supreme Court); a minister nominated by the Central government; the leader of the Opposition; and with the Union home secretary functioning as its member secretary. This body will select the director, CBI, from a panel of names proposed by yet another expert committee—comprising the UPSC chairman, the home secretary, the IB director, the outgoing CBI director and the central vigilance commissioner. The selection of the individual will be communicated to the Central government and the government will pass the orders.

  • The director, CBI, will have a fixed tenure of three years or till superannuation and will not occupy any post in the Central or state government or public sector undertaking for two years after his appointment ends. No officer on extension will be appointed director, CBI. He will be overall incharge of investigations and no CBI officer of the rank of joint director and above will be transferred out without the prior approval of the independent body.

  • The director and all other officers of the CBI will have total operational independence and neither the Central government nor any other executive authority will issue any directions to them regarding the exercise of their statutory powers. The Single Directive of 1988 (a procedural norm prescribed by the department of personnel which prevents the CBI from taking action against officers above the level of joint secretaries) will be cancelled.  

    The last aspect has been a source of worry ever since the court started monitoring the Rs 1,300 crore Indian Bank scam last year. For, despite concrete evidence regarding the involvement of senior officials, the CBI had been unable to proceed against them, largely due to this administrative hurdle. The Deve Gowda government had even made an abortive attempt to bring both former and serving ministers into the ambit of the Single Directive. "The Single Directive actually militates against the Criminal Procedure Code. The courts would be doing a great service to the CBI by removing this obstacle," says a senior CBI officer.

    But other attempts to curtail legislative control over the CBI will not find such easy acceptance. "There is a clear-cut separation of powers between the executive and the judiciary.... It is finally the executive's power to make appointments and the executive will get it," said law minister Ramakant Khalap, in a recent interview. Counters a senior Supreme Court advocate: "If an appointment or extension is given against the principles of natural justice and by circumventing codes of procedure, the courts do have the power to intervene in what may be conventionally regarded as an administrative function of the executive."

    The Supreme Court appears to have decided to exercise its constitutional powers given the CBI's murky track-record of political appointments—where the director has conventionally been the prime minister's handpicked candidate. There have been examples galore. During former prime minister P.V. Narasimha Rao's regime, for instance, the court was forced to continuously remind CBI director K. Vijay Rama Rao to extend the scope of investigation in the Jain hawala case and not spare anybody, "who so high he may be".

    THE immediate provocation for the court's sudden aggressiveness is the controversy surrounding the appoint-ment of R.C. Sharma as director, when he had superannuated and was on a one-year extension. And though the Supreme Court had earlier refused to entertain a PIL regarding the arbitrary removal of former director Joginder Singh from the post on the grounds that they (the court) would not interfere in an administrative matter, the Sharma PIL is different on many grounds. For one, the petitioners—Centre for Public Interest Litigations represented by senior advocate Shanti Bhushan—have not only argued that the appointment was technically wrong but that it was politically motivated. Sharma's position is made even more precarious by the allegations regarding his track-record in the CBI. What has also motivated the court to issue final directions on appointments and extensions is the fact that a proposal to grant extension to special director D.R. Karthikeyan—who is due to retire on September 30 this year—has been moved by S.R. Balasubramaniam, minister of state for personnel. The court, it is learnt, is not convinced by the personnel ministry's reasons—that Karthikeyan's presence is essential to ensure continuity in the Indian Bank investigation.

    An individual monitoring of sensitive cases by the court is not a practical solution to the problem. "How long can the courts keep goading investigating agencies? If officers in the CBI have the confidence that they will not be victimised for doing their job, only then will investigations go according to law," says Abani K. Sahi, Supreme Court advocate. With this in view, the new charter for CBI details the mechanism for monitoring politically sensitive cases. It advocates the setting up of a standing committee of two retired Supreme Court judges (nominated by the Chief Justice) who will guide, oversee and advise the CBI on sensitive investigations. The committee can also examine all the case records and obtain orders from the Supreme Court for seeking the help of retired police officers and other professionals. It will also have the right to make the CBI employ independent counsel of eminence to advise, coordinate and appear in important cases, provided these counsel do not belong to any political party.

    The attempt is to make the system as foolproof as possible. As Justice Verma said at a hearing last week: "We are not interested in targeting individuals.... We are concerned with setting up a structure which will stand scrutiny." But whether such a Utopian proposal can be implemented is the question. Says a senior home ministry official: "Finally, individual and partisan biases will creep in when the committees are formed. Whoever said the judiciary is above board?" The immediate hurdle for the court, however, will be to tide over the stiff executive opposition. Given the attorney general's recent outburst, that will be a daunting task.

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