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Mainstream, VOL LVI No 1 New Delhi December 23, 2017 - Annual Number

Appointment of CBI Special Director Rakesh Asthana

Need for a Radical Overhaul of its Functioning and Staffing Process

Sunday 24 December 2017

by Gautam Sen

The appointment of Shri R. K. Asthana as the Special Director of the Central Bureau of Investigation (CBI) was challenged recently in the Supreme Court of India through a public interest litigation petition filed by the NGO, Common Cause. The ground for challenge was purportedly the reservation expressed by the incumbent CBI Director on Asthana‘s selection owing to some investigation and vigilance cases pending against him with the same agency. The Union Government contested the petition stating to the effect that, no view formally conveying opposition to the selection of Asthana as the Special Director of the CBI, was formally recorded by the incumbent CBI Director, when he was consulted by the designated statutory committee concerned with the appointment process.

The government of the day had always appointed officers as CBI Directors, reckoning their proclivities towards the political executive though after considering their suitability from efficiency, fitness and seniority angles. When the use of the instrumentality of the CBI in pursuing cases politically rewarding for the ruling party or combine became manifestly too evident and consequently inconvenient for those in the Opposition, the present system of a vetting process by a committee, headed by the Central Vigilance Commissioner, was adopted. It is, however, interesting that, now, even the appointment of the Special Director that is, the officer at the second highest echelon, has become a matter of controversy.

Asthana incidentally, an Indian Police Service officer of the 1984 batch of the Gujarat cadre, had served in the Gujarat Government under the Chief Minister, Narendra Modi. Though not proven through any trial, there have been allegations in the past against Asthana, on account of his less-than-impartial official behaviour while pursuing sensitive cases inconvenient to the ruling party in the State, including as a member of the Special Investigation Team set up by the Modi Government on the 2002 Godhra kar sevaks’ burning case. In this backdrop, the filing of the public interest litigation petition, against Asthana‘s appointment as the Special Director of the CBI, is understandable. The moot point is that the premier internal investigation agency is presently being viewed as so subservient to the political party in power, warranting a legal challenge to the appointment of even a senior officer in the second topmost hierarchy.

The time has come to drastically overhaul the status of the CBI, its structure and modality of appointment of its officers from the rank of Superintendent of Police and above, and move it out of the ambit of the Union Government. First and foremost, the premier internal investigative organisation should be given the status of a constitutional entity like that of the Union Public Service Commission (UPSC). The eligibility criteria for appointment of the Director and Special Director of the CBI and the appoint-ment process should be codified through a constitu-tional provision. The duties, powers and conditions of service of the functionaries of the organisation may be specified through an Act within the ambit of the above-mentioned constitutional provision. The entire budgetary resources for the organisation should be obtained as a ‘charge’ on the Union Budget which will not require voting by Parliament. This will obviate the possibility of the executive, in concert with the legislature, undermining its operational freedom by constraining its financial resources through a voted budget process, should these politically dominated organs of state try to influence or constrict the functioning of the CBI.

The prerogative or scope for entrusting cases to the CBI may remain with the Union Government. However, once a case has been entrusted to the CBI, there should no interference or influence, tacit or explicit, from any governmental quarter. This can only be possible if there is total independence and not functional independence only, of the government. A sine qua non to achieve such a mode of functioning for the CBI, is to empower it with a special committed cadre of officers of impeccable integrity and professional competence. This can be achieved if the placement of personnel from the cutting edge level to the highest tiers, say, Deputy Inspector General and above, are on a long-term basis. The appointment process should involve the UPSC also, and the term of service in the CBI should not be for less than ten years, for continuity and avoidance of apprehension among those reverted after deputation (for deputationists) of political consequences of their investigative activities when on deputation, after reversion to their parent state cadres and departments from service with the CBI for five years or so. The unseemly situation which has arisen regarding Asthana‘s appointment, could have been avoidable under the institutional arrangements outlined above.

There is also a need to involve the State governments in the selection of officers for the CBI. In many cases, the CBI is tasked to probe on events which have arisen in the domain of the States. The CBI is entrusted with such investigations by the Union Government in a pick and choose manner, which tends to erode public confidence and also creates an ambience of latent non-cooperation on the part of the States. A joint reinforcing endeavour in a spirit of cooperative federalism would be feasible, if the selection of officers for the CBI can be organised in a transparent and well-defined manner from a common pool of officers created with the consent of the States, with final vetting by the UPSC as proposed above. Staffing of personnel in the CBI may also be based on a rotational formula so that a particular group of officers, or officers from some States or regions only, do not predominate in the investigative organisation. If such a system can be instituted within a constitutional and statutory frame-work, lurking suspicion on appointments of Directors and Special Directors can be obviated. The selection of cases for probe by the CBI should also be by a committee, with the involvement of both the Union and State governments. This could be achieved if a consensus-based mechanism could be put in place under the Union and State Home Ministers or a group of States’ Home Ministers, or even a Standing Committee of the Inter-Council Secretariat.

The Indian political system is being buffeted by a contentious environment. Many of the existing institutions are under threat, owing to attempts by the executive to politicise certain appointments, use them for partisan ends or reduce the status of key constitutional functionaries. Lowering the status of the Chairperson and members of the UPSC to that of the Cabinet Secretary and Secretary, respectively as against that of High Court judges earlier, is another example. In this backdrop, it is all the more necessary to undertake transformational changes pertaining to the CBI, as opined above. Mere tinkering with certain attributes of the existing institutions like that of the CBI, will not yield proper outcomes towards revitalising the Indian state and its polity.

The author is a retired IDAS officer who has served as a Special Secretary equivalent under the Government of India, and an Adviser to a State Chief Minister.

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