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Mainstream, VOL LI, No 24, June 1, 2013

Independence of the CBI, Police and Administration

Saturday 1 June 2013, by P R Dubhashi

Taking exception to the CBI sharing its progress report on ‘Coalgate scam’ with the Law Minister and Joint Secretaries in the Prime Minister’s Office and Department of Coal, the Supreme Court characterised the CBI as “a caged parrot speaking its masters’ voice”—“one parrot with many masters”. The Court further observed that the CBI should have stood up to the pulls and pressures. The Court did not directly mention who it was that put the agency in the cage. The Court, in course of the hearing, had observed that the action of the CBI of sharing the report led to an ‘erosion of trust’ reposed in the agency by the Supreme Court which expected that the report would be kept confidential before submission to the Court.

Earlier the Law Minister, Ashwani Kumar, had tried to play down his action by saying that as the Law Minister he was entitled to vet the draft and what he had done was only to correct ‘grammatical mistakes’ and no substantive changes were made. The Supreme Court noticed that vetting amounted to changing “the heart of the report”. Significant portions—stating that no guidelines or objective criteria were laid down for allocation of blocks nor any record maintained of the proceedings of the screening committee which took decisions regarding sanctioning of the coal blocks allocations to the agencies concerned—were omitted. As it turned out, many of the selected agencies did not have the experience nor technical competence needed. As a result several blocks remained unused.

The whole scandal was exposed by the CAG’s report on the process of allocation which resulted in a huge financial loss to the exchequer running into thousands of crores of rupees. It was when the case came before the Court in a public interest litigation, that the Court asked the CBI to investigate into the matter and submit a report. The Court trusted the CBI to make an ‘independent’ investigation and submit the report but the agency failed to come up to its expectations and betrayed the trust reposed in it by the Supreme Court. It showed the draft report to the Union Law Minister, Ashwani Kumar, who had summoned the CBI chief to his office where the top law officers, Attorney General Vahanvati and Additional Solicitor General Raval, were present. Both the law officers had told the Court that they had not seen the report but later Raval, when his conscience pricked, wrote a long letter to his senior, AG Vahanavati, accusing him of pressurising for knowingly making a false submission to the Supreme Court and tendered his resignation in protest. His resignation was accepted. Vahanavati himself invited the wrath of several members of the Supreme Court Bar Association for his un-professional behaviour and action against him was contemplated; this is something which has not been witnessed so far. When the case came up for hearing on May 8 before the Supreme Court, it asked Vahanavati to take necessary legal steps to insulate the CBI from executive interference.

The action of the Joint Secretaries in the Prime Minister’s Office and Coal Ministry who went to the CBI and met officers in the agency was also faulted by the Supreme Court. It was obvious that these officers could not have gone to the CBI office on their own without directions and instructions of their superiors, the Secretary to the Prime Minister and Secretary, Department of Coal, and ultimately the Prime Minister himself.

It may be noted that the Supreme Court found fault with the CBI for sharing the report but not with the Law Minister in express terms. It called the CBI’s act a mistake. The CBI admitted the mistake but explained that the Director met the Minister as ‘desired by the Minister’ and not on his own. The CBI explained that it is an agency of the government, under its control and had to abide by the directions of the higher authorities. Though this may generally be true, in this case the Supreme Court had given specific instructions to submit the report confidentially to the Court.

This, however, leaves open the question of the status of the CBI as the investigating agency especially when the investigation is into allegations against Ministers for malfeasance and political interference. If impartial investigation is to be expected, specific guidelines should be laid down and high tradition followed by the highest agencies including Ministers and even by the Prime Minister. Unfortunately in recent years the standard of rectitude in governance has woefully fallen first in States and later at the Centre as well. This makes it necessary that things are not left to tradition and convention but necessary changes in law are carried out to insulate the CBI investigation from interference by the government.

Media reports earlier stated that the government had decided to ‘brazen out’ the uncomfortable situation but late in the evening President of the Congress party, Sonia Gandhi, called on the Prime Minister and conveyed her decision that the Law Minister should resign and late at night Minister Ashwani Kumar submitted his resignation. Such was the adverse public opinion and pressure built up in the media that the President of the Congress party felt it necessary to tell the Prime Minister to ask for Ashwani Kumar’s resignation.

Minister Ashwani Kumar, in his statement after his resignation, showed no remorse at what was perceived as a clear attempt to tamper with the report to be submitted by the CBI to the Supreme Court by way of a cover-up of the coal scam. He said ‘his conscience was clear’, he had done no wrong and the Supreme Court itself had not said anything by way of his indictment. His resignation was only for political reasons, to avoid unnecessary controversy. The Minister did not realise that though the Supreme Court did not directly indict him, it did question interference in the investigation report of the CBI by the superiors. But if a Minister takes a stand as taken by Ashwani Kumar, the Supreme Court could well be compelled to indict the Minister. After all, in neighbouring Pakistan the Supreme Court of that country summoned the Prime Minister to the Court for refusing to take action against President Zardari for keeping illegal accounts in Swiss Bank. The Supreme Court could not have been unaware that whatever the CBI had done was at the behest of the Law Minister, Prime Minister’s Office and the Department of Coal. The CBI candidly admitted that it was but a part of the executive and did not have independence of action especially while investigating a case where those in the dock were government authorities — both political and executive.

This is not the first time that the Supreme Court had insisted upon the independence of the CBI in investigating cases, especially when persons holding high positions in government were themselves involved in malfeasance or criminal acts. Fifteen years ago in a landmark judgment in 1993 on a public interest lititation filed by Vineet Narayan for an honest probe in the hawala case, the Supreme Court Bench headed by the late Chief Justice J.S. Varma laid down a system under which the CBI would be supervised by the Chief Vigilance Commissioner (CVC). The government contemplated appointing an officer of questionable integrity to the post of the CVC despite the opposition of the Leader of the Opposition and as a consequence had the discomfiture of seeing the appointment quashed by the Supreme Court.

While implicitly disapproving Law Minister Ashwani Kumar’s interference with the coal scam investigations, the Supreme Court pointed out that the Prime Minister, who had administrative jurisdiction over the CBI, did not have the power to interfere in the CBI’s investigations. This is not a question of power but of propriety in the use of power. Power of a position in government should be used in public interest and not in partisan or private interest.

There is no law at present to ensure independence in an investigation by the CBI. At present the CBI derives its powers from the Delhi Special Police Establishment Act under what is only an investigating arm of the Central Government.

The political class wants investigating agents to be under its control—whether at the Centre or in the States. Chief Ministers want to control police and to curtail the police’s independence.

It is only after being nudged by the Supreme Court that the government moved to make changes in the CBI Investigation Act to ensure independent investigation by the CBI. The observations of the Supreme Court in the Vineet Narayan and Prakash Singh cases had were not put into effect for a long time. According to Chief Justice Verma’s observations, the CVC and Lokpal would have supervisory roles. This would make the CBI more autonomous. The Act should be well thought out and the mechanism laid down for the selection of the CBI Director and its internal structure which to make it professional and independent.

In order to make the CBI an independent agency, the CBI Director should be appointed by a collegium which should include the Chief Justice of the Supreme Court, the Prime Minister and the Leader of the Opposition. The CBI should have a statutory status similar to the Election Commission and CAG.

With the Supreme Court setting July 10 as the deadline for the Centre to come out with a law to insulate the CBI from external influence, the government has constituted a Group of Ministers headed by P. Chidambaram to draft a new legislation for the agency within three weeks. The legislation is expected to provide for extension of the powers and jurisdiction of the CBI, a separate cadre of its officials, and an independent Directorate of Prosecution as also a Committee for the appointment of the CBI Director.

II. Independence of Police

It is not as if the case of the CBI is sui generis. All administrative institutions and authorities have to function independently within their jurisdiction to discharge their duties and functions within the frame of law, rules and general instructions as laid down from time to time. Any arbitrary intervention in the discharge of duties as laid down by law is illegitimate and should be eschewed. This is the basic condition of good governance.

These conditions are often violated. Years ago the Police Commission made a recommendation for police reform to facilitate independent and professional functioning of the police. Among other recommendations was the constitution of an independent board to make appointments. But the recommendations of the Police Commission have remained on paper. Recently it is reported that R.R. Patil, the Home Minister of the Government of Maharashtra, has taken charge of transfers and promotions of the police functionaries, reducing the DGP, the head of the police, to a non-entity. How can the police chief make the police machinery accountable to him, when all transfers and promotions are in the hands of the Home Minister? It is reported that the Minister directly speaks to officers in police stations and gives instructions. Under such conditions the police cannot be expected to act impartially while discharging its duties for the maintenance of law and order.

Prakash Singh, the former DG of the Central Security Force, has been fighting for police reforms which include preventing political interference in police work. The recommendations of the Police Commission in this respect have been put in cold storage both by the Centre and States. Prakash Singh filed a public interest litigation in 2006 in the Supreme Court which ordered reforms to prevent political interference in police work. But there has not been much progress.

III. Independence of Administration

What is true of independent and professional functioning of the police is true in the case of all the administrative agencies.

Independence and autonomy is required not only for the CBI but also for the police, and for all administrative authorities at all levels and in all sectors in the interest of good, impartial, fair and transparent administration. It is wrong to state, as is often conveyed, that the police and civil servants have to work under their ‘political masters’. In a democracy there are no masters. There are only public servants—whether elected or selected—for various public services on the basis of professional criteria and by independent public service recruitment boards. The duties of public servants are prescribed and have to be carried out according to the provisions of the relevant law and rules and circulars etc. thereunder. They have also to be in public interest and not in private, partisan or personal interest. Any public servant, who acts in infringement of law and guidelines thereunder or in partisan, private or personal interest causing loss or damage to public interest, should be liable for penal action after his guilt is established through a departmental inquiry.

If these stipulations are rigorously followed, governance and administration would work well in the interest of the people. Unfortunately these stipulations are net followed because of the arbitrary actions of politicians in power and their interference in administration. Those honest civil servants, who do not fall in line and cooperate with the misdeeds of politicians in power, are often sidelined or even penalised by frequent transfers and punishment postings, denied promotion or even suspened. The case of Khemka, an IAS officer of Harayana cadre, who had 44 transfers in a service period of 22 years, is an eloquent example of what happens when a civil servant discharges his duties as per law. For doing his duty a civil servant needs protection under the law and as per the conditions of service. To protect a civil servants from unfair and arbitrary penal action, Article 311 of the Constitution lays down that “no member of Civil Service in Union or All India Service or a Civil Service shall be dismissed or removed or reduced in rank except after enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of the charges”. While this is the constitutional shield for an honest servant doing his duties, it is not enough because it does not give protection from arbitrary and frequent transfers causing grave inconvenience to his family and even humiliation. The politicians in power often play with civil servants favouring pliable civil servants and penalising the ‘difficult’ ones who refuse to bend the law and rules to suit the wishes of politicians in power. If a civil servant works in the Secretariat, he is entitled to place his views clearly on the file and not write down a note convenient to a Minister or at his behest. If he is working in the field—whether as a Divisional Commissioner, Collector, Tehsildar—he has to act strictly as per law and duties prescribed and not at the dictates of the politicians in power.

 Unfortunately in recent years, more and more civil servants even at higher levels are seen to be compromising and submitting to political pressure. This has led to lack of efficiency, impartially, fairness, honesty and transparency in governance and administration.

The time has now come to bring about a basic structural change in our system of governance and administration. The politicians in power should confine themselves to the formulation of laws and policies in which public servants can provide assistance. But the actual implementation of laws should be entirely left to the adminis-trator without political interference. Of course, this does not mean freedom to civil servants to do what they want. Any civil servant found guilty of acting against the law and rules or anything contrary to public interest should be severely punished through effective disciplinary action. Independence of administration is as important as independence of the power of the judiciary. If this is done there will be no ‘parrots’ or ‘chickens’ in administration nor any animals preying on ordinary citizens.

That given independence of action, civil servants can deliver is shown by the two agencies which enjoy constitutional independence, namely, CEC and CAG. The CEC’s performance in successfully conducting successive elections in a free and fair manner has been exemplary. T.N. Seshan, who used to be subservient to political superiors while in service, showed striking independence as the CEC and put the fear of God in politicians resorting to questionable methods to garner votes. The CEC has no separate machinery of administration to perform election duties. The same civil servants who work in the normal administrative system, work for running elections. But when they work under an independent Election Commissioner they work fairly and impartially. The same holds good in the case of the CAG. Vinod Rai had not shown his combative colours when in government. But when he came to occupy the constitutionally independent position of the CAG, he did not hesitate to confront the government and exposed scams after major scams which brought out the ugly face of corruption in our administration and governance. Conferring the same kind of independence on the entire machinery of administration would bring about dramatic improvement in our administrative performance and make it efficient and impartial.

Political mutuality has to be a feature of civil service in our system of parliamentary demo-cracy. Different political parties may come to power, and the political complexion of the government may change. But the civil service has to work with the same sense of commitment. Unfortunately, in our democracy there is a tendency for the governments to change the officers in positions like the Chief Secretary and Director General of Police in the States and Secretaries and other positions at the Centre with every change of government. This kind of approach demoralises the civil servants and compromises their integrity. The system of separation of administrative machinery and political authority does exist in a country like Sweden known for good governance. We should follow their example.

Dr P.R. Dubhashi, IAS (Retd.), Padmabhushan Awardee, formerly Secretary to the Government of India and Vice-Chancellor, Goa University, is currently the Chairman, Bharatiya Vidya Bhavan, Pune Kendra. He can be contacted at e-mail: dubhashi@giaspn01.vsnl.net.in

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