Rahul Jacob
INTRODUCTION
In 2013, while dealing with the coal block allocation scam, the Hon’ble Supreme Court expressed its displeasure by calling the Central Bureau of Investigation (“CBI”) a “caged parrot.” With massive interference by the then UPA-led government in the making of a probe report of the said scam, the Apex Court couldn’t help but make such a statement, which has remained and tainted the image of the CBI. From being the premier investigating agency in the country to being called a “caged parrot speaking its master’s voice” throws light on its lost credibility. When the 2G Spectrum scam received its limelight, the top court had to pass an unprecedented order directing the then Director of the CBI, Ranjith Sinha, to recuse himself from the investigation1 of the said scam, which involved top politicians and bureaucrats as he occasionally conducted several misdemeanors in due course of his duties.
“Inertia” has always been displayed by the CBI while dealing with cases that involve top politicians by deploying cheap tactics in settling old political scores and the same has also been highlighted in the Vineet Narain case. For example, the CBI failed to challenge the bail petition that was granted to MP Kanimozhi, although she was one of the prime accused in the famous 2G Spectrum scam case. This instance, along with many others, throws light on the failure of the CBI in discharging its constituted purpose, i.e., tackling corruption, and how it has lost its functional autonomy over the years.2
CBI AS A NON-LEGITIMATE BODY
In addition to the body losing its credibility and independence, the Guwahati High Court, in the case of Navendra Kumar v. Union of India, found the CBI to be unconstitutional. However, the Supreme Court immediately granted a stay on the said order. But there is a need to highlight the reasons behind the said order of the High Court as it furthers the need to make the body independent.
It is a general misconception that the CBI is usually said to have been constituted under the Delhi Special Police Establishment Act, 1946 (“Act”). The CBI lacks statutory backing. It was brought into force by a Resolution of the Home Ministry, dated 1st April 1963. There exists no relation between the said Act and the CBI, as the term “CBI” is not mentioned in the Act, although several amendments have been made. A plea that CBI is a revised name of the Delhi Special Police Establishment is flawed as §2 of the Act explicitly calls the ‘police force’ constituted under the Act, the “Delhi Special Police Establishment.” Even if it was to say that the Central Government has constituted the body under the said Act by way of a delegated piece of legislation, the Act does not vest any sort of power with the Central Government to constitute such a body.
It is fictitious to assume that the power to make such a body can be traced to Entry 8, List 1 of the Seventh Schedule, which states “Central Bureau of Intelligence and Investigation” because as stated by Dr. Ambedkar the word ‘investigation’ in Entry 8 would simply refer to a general inquiry to find out what was going on. It is not similar to the kind of ‘investigation’ that is generally undertaken by a police officer, under §2(h) of the Criminal Procedure Code, thus, giving it a narrower scope of power. But the powers and functions that the CBI has been constituted with under the Resolution, are in contravention of the intent behind which this particular entry was mentioned in the Constitution.
The issuance of this notification by the executive is also in contravention of Article 73 of the Constitution which states that the executive’s powers of making laws shall not extend to any of those matters concerning which the Legislatures of the States have the power to make laws. In this particular instance, it is only the state which has the exclusive jurisdiction to make laws on matters relating to “police”, as specified under Entry 2 of List 2 of the Seventh Schedule and not the Central Executive. Moreover, the Resolution has neither been presented nor has it ever received the assent of the President of India. Therefore, the basis for the formation of the said body is ultra vires of the Constitution.
SETTING THE BIRD FREE
Despite undertaking several investigations in the past, the CBI has always been subjective. For instance, when a special court had discharged the former Home Minister, L. K. Advani, an accused in a criminal case concerning the Babri Masjid demolition, the CBI refused to challenge the same before any higher court. But with a new government at the Centre, the CBI was quick to reopen the said case.3
Even in recent years, it has been proved that there has been a surge in the cases that are usually registered against politicians by the CBI and how the ruling party at the Centre bats the CBI as per its whims and fancies. In India, since 2014, with the advent of the BJP-led government, of all the cases that have been registered against eminent politicians and leaders, 95% of the mare from the Opposition who have been caught in the CBI’s net. And this is not something new. From 2004 – 2014, when the Congress was in power, there have been at least 72 political leaders, of which 43 leaders were from the Opposition, who have been under the purview of the CBI. While, with the BJP government in power, the number of cases has increased to 124. Of this, 118 leaders are from the Opposition.
But where exactly does the problem lie? The problem with the entire issue lies with the single directive system4 through which the Central Government shields corrupt officials. The single directive system requires the prior approval of several governmental authorities before the CBI can commence an investigation against several bureaucrats. But the Hon’ble Supreme Court struck this particular system down in the case of Vineet Narain v. Union of India. However, in the year 2003, the NDA government brought an amendment to Section 26 of the Central Vigilance Commission Act which reintroduced the concept of a single directive, which the court invalidated yet again in the year 2014. Despite the number of efforts taken by the Judiciary to depoliticize and free the CBI, the government amended Section 17A of the Prevention of Corruption Act, which completely bars the jurisdiction of the CBI from investigating any corruption charges against bureaucrats, further requiring permission from the government at the inquiry and prosecution stage.
There is an immediate need to bring about an effective reform in freeing the CBI from being used as a political weapon or being a part of the “jamai trinity.” One reformative model could be based on an anti-corruption agency called Independent Commission Against Corruption5 (“ICAC”) in New South Wales. The ICAC is independent of itself and is not subject to a political executive6; it is only accountable to the New South Wales Parliament’s Committee which comprises members of both houses of Parliament. Another reformative measure could be where the investigating body is not constituted of officials who are drawn from the police force or departments of the states, rather, a special cadre of officials needs to be hired. These specialized officials need to be trained and equipped to tackle7 various forms of corruption in today’s changing times.
The colonial method of using a police agency to fight back against corruption has proved to be counterproductive as the body has been prone to political pressure. Both, Singapore, and Hong Kong are successful in curbing corruption because of the rejection of the old-school British police models. We must learn that it is difficult to rely on a police force to address corruption. The absolute failure of the premier investigating agency to probe into matters, without any statutory backing and its inability of being impartial pervades a deep sense of gloom and this is something that needs to gain traction and attention.
1K S Subramanian, Central Bureau of Investigation Crisis of Legitimacy, Credibility and Accountability, 49 EPW 13, 13 – 15 (2014).
2K S Subramanian, Central Bureau of Investigation Crisis of Legitimacy, Credibility and Accountability, 49 EPW 13, 13 – 15 (2014).
3K S Subramanian, Central Bureau of Investigation Crisis of Legitimacy, Credibility and Accountability, 49 EPW13, 13 – 15 (2014).
4Shiladitya Chakraborty, An Impossible Dream? Depoliticising the Central Bureau of Investigation 50 EPW 15, 15 – 17 (2015).
5Shiladitya Chakraborty, An Impossible Dream? Depoliticising the Central Bureau of Investigation 50 EPW 15, 15 – 17 (2015).
6Shiladitya Chakraborty, An Impossible Dream? Depoliticising the Central Bureau of Investigation 50 EPW 15, 15 – 17 (2015).
7Shiladitya Chakraborty, An Impossible Dream? Depoliticising the Central Bureau of Investigation 50 EPW 15, 15– 17 (2015).
The author is a second-year law student at the Institute of Law, Nirma University
Image Credits: m.rediff.com
Constitutional Law Society 
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