Context: "Central Bureau of Investigation: Deep Analysis" is an important topic for UPSC Prelims and GS Paper 2
The CBI owes its origin to the Delhi Special Police Establishment, established in 1941, to enquire into cases of corruption in the procurement during the Second World War.
The CBI is not a statutory body. It derives its powers from the Delhi Special Police Establishment Act, 1946. The CBI is the main investigating agency of the Central Government.
Based on the recommendations of the Santhanam Committee on Prevention of Corruption, CBI was established by a resolution of the Ministry of Home Affairs. Later, it was transferred to the Ministry of Personnel and now it enjoys the status of an attached office.
It works under the overall superintendence of the Central Vigilance Commission in matters related to the Prevention of Corruption Act, 1988.
It plays an important role in the prevention of corruption and maintaining integrity in the administration.
The broad function of the CBI includes:
Cases of corruption and fraud committed by public servants of all Central government, Departments, Central Public Sector Undertakings and Central Financial Institutions.
Economic crimes, including bank frauds, financial frauds, Import-Export & Foreign Exchange violations, large-scale smuggling of narcotics, antiques, cultural property and smuggling of other contraband items etc.
Special Crimes, such as cases of terrorism, bomb blasts, sensational homicides, kidnapping for ransom and crimes committed by the mafia/the underworld.
CBI vs. State Police
Primarily, the state police are responsible to maintain law and order in the state. CBI may investigate:
Big cases of fraud, cheating, embezzlement and similar other cases when committed by organized gangs or professional criminals having ramifications in several States.
Cases in which the financial interests of the central government are involved.
Cases that are essentially against central government employees or concerning affairs of the Central government.
Cases relating to the breaches of central laws with the enforcement of which the government of India is mainly concerned
Cases having interstate and international ramifications and involving several official agencies where it is considered necessary that a single investigating agency should be in charge of the investigation.
JURISDICTION OF CBI vis-à-vis STATE POLICE:
The Special Police Establishment of CBI (Ant-Corruption Division) enjoys with the respective State Police Force concurrent powers of investigation and prosecution under the Code of Criminal Procedure, 1973.
SUPERINTENDENCE AND ADMINISTRATION OF CBI-
The genesis of superintendence of CBI has been laid down in the landmark decision of the Supreme Court delivered on 18th December 1997 in Vineet Narain Vs, UOI [1 SCC 226] case.
In this judgement, directions were issued that the CVC shall be responsible for the efficient functioning of the CBI. Forgiving effect to this direction, CVC Act, 2003 was enacted. Section 4 of Delhi Special Police Establishment Act, 1946 was also amended w.e.f. 01.09.2003.
The superintendence of the Delhi Special Police Establishment insofar as it relates to the investigation of offences alleged to have been committed under the Prevention of Corruption Act, 1988, shall vest in the Commission.
Similar provisions are also there in Clause (a) and (b) of sub-section (1) of section 8 of CVC Act, 2003.
“Sec. 8(1): The functions and powers of the Commission shall be to exercise superintendence over the functioning of the Delhi Special Police Establishment in so far as it relates to the investigation of offences alleged to have been committed under the Prevention of Corruption Act, 1988 or an offence with which a public servant specified in sub-section (2) may, under the Code of Criminal Procedure,1973, be charged at the same trial.
Notwithstanding anything contained in section 4 of the DSPE Act, 1946 and section 8 of the CVC Act, 2003, the Lokpal shall have powers of superintendence over, and to give direction to the DSPE in respect of matters referred by it for preliminary inquiry or Investigation to the DSPE under the Lokpal and Lokayuktas Act, 2013.
Provided that while exercising powers of superintendence or giving a direction under this subsection, the Lokpal shall not exercise powers in such a manner to require any agency (including the Delhi Special Police Establishment) to whom the investigation has been given, to investigate and dispose of any case in a particular manner.
APPOINTMENTS IN CBI -
The Director of the CBI is appointed by the Central Government on the recommendations of a committee comprising of Prime Minister— Chairperson, Leader of Opposition in Lok Sabha—Member and Chief Justice of India or a judge of the Supreme Court nominated by him— Member.
The Central Government appoints the Director of Prosecution in CBI on the recommendation of the Central Vigilance Commission.
The Central Government shall appoint officers to the positions of the level of Superintendent of Police and above except Director and recommend the extension or curtailment of the tenure of such officers in the Delhi Special Police Establishment.
The CBI Director is appointed, for not less than a term of 2 years, by the Appointment Committee on the recommendation of Selection Committee as mentioned in DSPE Act 1946 amended through the Lokpal & Lokayukta Act 2013 and CVC Act, 2003 respectively. The Appointment Committee consists of:
Prime Minister – Chairperson
Leader of Opposition of Loksabha or the Leader of the single largest opposition party in the Lok Sabha, if the former is not present due to lack of mandated strength in the Lok Sabha - member
Chief Justice of India or a Supreme Court Judge recommended by the Chief Justice – member
When making recommendations, the committee considers the views of the outgoing director.
The Selection Committee constituted under Delhi Special Police Establishment Act 1946 nominates a certain number of names to the Appointment Committee, one among whom the Appointment Committee appoints as the CBI director. The Selection Committee consists of-
Central Vigilance Commissioner
Secretary to the Government of India in charge of the Ministry of Home Affairs in the Central Government
Secretary, Co-ordination and Public Grievances, Cabinet Secretariat
In 2013, Judge of the Supreme Court of India (and later Chief Justice of India) R. M. Lodha criticized the CBI for being a "caged parrot speaking in its master's voice", due to its excessive political interference irrespective of which party happened to be in power.
Because of the CBI's political overtones, it has been exposed by former officials such as Joginder Singh and B. R. Lall (director and joint director, respectively) as engaging in nepotism, wrongful prosecution and corruption.
In Lall's book, Who Owns CBI, he details how investigations are manipulated and derailed. Corruption within the organisation has been revealed in information obtained under the RTI Act, and RTI activist Krishnanand Tripathi has alleged harassment from the CBI to save itself from exposure via RTI.
Normally, cases assigned to the CBI are sensitive and of national importance. It is standard practice for state police departments to register cases under their jurisdiction; if necessary, the central government may transfer a case to the CBI.
The agency has been criticised for its mishandling of several scams. It has also been criticized for dragging its feet investigating prominent politicians, such as P. V. Narasimha Rao, Jayalalithaa, Lalu Prasad Yadav, Mayawati and Mulayam Singh Yadav; this tactic leads to their acquittal or non-prosecution.
In January 2006 it was discovered that the CBI had quietly unfrozen bank accounts belonging to Italian businessman Ottavio Quattrocchi, one of those accused in the 1986 Bofors scandal which tainted the government of Rajiv Gandhi. The CBI was responsible for the inquiry into the Bofors case. Associates of then-prime minister Rajiv Gandhi were linked to alleged payoffs made during the mid-1980s by Swedish arms firm AB Bofors, with US million in kickbacks moved from Britain and Panama to secret Swiss banks. The 410 howitzers purchased in the US million arms sale were reported to be inferior to those offered by a French competitor.
The CBI, which unfroze ?21 crores (US$2.8 million) in a London bank in accounts held by Bofors, accused Quattrocchi and his wife Maria in 2006 but facilitated his travel by asking Interpol to take him off its wanted list on 29 April 2009. After communications from the CBI, Interpol withdrew the red corner notice on Quattrocchi.
Bhopal gas tragedy
The CBI was publicly seen as ineffective in trying the 1984 Bhopal disaster case. Former CBI joint director B. R. Lall has said that he was asked to remain soft on extradition for Union Carbide CEO Warren Anderson and drop the charges (which included culpable homicide). Those accused received two-year sentences.
2G spectrum case
The UPA government has been accused of allocating 2G spectrum to corporations at very low prices through corrupt and illegal means. The Supreme Court cited the CBI many times for its tardiness in the investigations; high-profile arrests were made only after the court began monitoring its investigations.
2008 Noida double murder case
This is a double murder case of 14-year-old girl Aarushi Talwar and 45-year-old Hemraj Banjade from Noida, India. On 26 November 2013, Parents of girls named Rajesh and Nupur Talwar were sentenced to life imprisonment for the twin murders. In January 2014, the Talwars challenged the decision in the Allahabad High Court. The High Court's acquitted them of all charges on 12 October 2017 because of the lack of 'irresistible proof'. The Allahabad HC in its verdict said that there were loopholes in the evidence that found the parents not guilty. Court also said that CBI tampered evidence and tutored witnesses. Questions arose by the nation on investigation and judgement given by the CBI court.
Challenges of CBI-
The Supreme Court of India has criticised the CBI by calling it a "caged parrot speaking in its master's voice", due to excessive political interference in its functioning.
It has often been used by the government of the day to cover up wrongdoing, keep coalition allies in line and political opponents at bay.
It has been accused of enormous delays in concluding investigations - For example, the inertia in its probe against the high dignitaries in the Jain hawala diaries case [of the 1990s].
Loss of Credibility: Improving the image of the agency is one of the biggest challenges till now as the agency has been criticised for its mismanagement of several cases involving prominent politicians and mishandling of several sensitive cases like the Bofors scandal; Hawala scandal, Sant Singh Chatwal case, Bhopal gas tragedy, 2008 Noida double murder case(Aarushi Talwar).
Lack of Accountability: CBI is exempted from the provisions of the Right to Information Act, thus, lacking public accountability.
Acute shortage of personnel: A major cause of the shortfall is the government's sheer mismanagement of CBI's workforce, through a system of inefficient, and inexplicably biased, recruitment policies - used to bring in favoured officers, possibly to the detriment of the organisation.
Limited Powers: The powers and jurisdiction of members of the CBI for investigation are subject to the consent of the State Govt., thus limiting the extent of an investigation by CBI.
Restricted Access: Prior approval of the Central Government to conduct inquiry or investigation on the employees of the Central Government, of the level of Joint Secretary and above is a big obstacle in combating corruption at higher levels of bureaucracy.
Other Problems associated with CBI:
The agency is dependent on the home ministry for staffing since many of its investigators come from the Indian Police Service.
The agency depends on the law ministry for lawyers and also lacks functional autonomy to some extent.
The CBI, run by IPS officers on deputation, is also susceptible to the government’s ability to manipulate the senior officers because they are dependent on the Central government for future postings.
Another great constraint on the CBI is its dependence on State governments for invoking its authority to investigate cases in a State, even when such investigation targets a Central government employee.
Since police is a State subject under the Constitution, and the CBI acts as per the procedure prescribed by the Code of Criminal Procedure (CrPC), which makes it a police agency, the CBI needs the consent of the State government in question before it can make its presence in that State. This is a cumbersome procedure and has led to some ridiculous situations.
EDITORIAL- Exception to the rule
Allowing yearly extensions to heads of CBI, ED will compromise their autonomy
The new law authorising an extension of the services of the heads of the Central Bureau of Investigation and the Enforcement Directorate until they complete a total tenure of five years will seriously compromise the autonomy of those agencies.
It goes against the spirit of the Supreme Court judgment in Vineet Narain vs Union of India (1997) which laid down a dictum that the Directors of the CBI and the ED should have a minimum tenure of two years.
This was to prevent their sudden transfer out of office if their functioning goes against the interests of the regime of the day. While it did not specifically bar longer terms or extensions, the prospect of getting an annual extension can be an incentive for displaying regime loyalty in the discharge of their duties.
Significantly, in the case of the present Director of Enforcement, S.K. Mishra was appointed for two years in November 2018, his services were extended by an order on November 13, 2020, which amended the original term of appointment from two years to three years.
That the changes were brought in through the ordinance route in November raises a doubt whether the Government is keen on retaining him at the helm.
Given that the central agencies have drawn much criticism for their focus on personages linked to Opposition parties, such a measure will be seen as a reward for guided functioning instead of a necessity to keep ongoing investigations on track.
As it is, the fixed tenure for certain posts means their superannuation within that period will not end their term. In effect, there is an implied extension for an officer appointed to one of these protected posts if the appointment comes within two years of retirement.
A further extension that will take the officers’ services well beyond superannuation, that too one year at a time, will render the heads of two investigating agencies unacceptably beholden to the Government.
Also, in Mr Mishra’s case, the Supreme Court declined to interfere with the one-year addition to his original term of appointment, but also said that “extension of tenure granted to officers who have attained the age of superannuation should be done only in rare and exceptional cases”.
And that the further extension should only be for “a short period”. It also made it clear that no further extension shall be granted to him. The Government may abide by this order and not give the benefit of the amendment to Mr Mishra, but it does not render the act of authorising year-on-year extensions to future appointees any less detrimental to the public interest.
The protection is given by a fixed tenure and the use of a high-ranking committee to recommend appointments and transfers were meant to dilute the ‘doctrine of pleasure’ implicit in civil service. However, it may be breached, if the extension allowed in exceptional circumstances becomes the rule.
EDITORIAL- Longer term, better impact
The recent ordinance that allows the Centre to extend the tenure of the Director of the CBI is timely and merited
R.K. Raghavan is a former CBI Director who is currently Professor of Criminal Justice at the Jindal Global University, Haryana.
The Central government’s decision to give a five-year tenure to heads of the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED) has drawn a lot of flak.
The Opposition smells a rat in the ordinances issued a few days ago. This is unsurprising. Any governmental move to strengthen a powerful law enforcement agency is bound to invite questions and raise suspicion. And the CBI’s track record for objectivity and neutrality is anything but straightforward.
It is, however, preposterous to probe the intentions of this major move.
How can we suspect the bonafide of the government until we have evidence to prove that the decision was motivated by dishonest intentions? No government is a saint, but to question the intentions behind an administrative decision right after it is made seems unfair. If one perceives politics here, let us remember that only 5-10% of the cases registered by the CBI involve politicians.
When I assumed charge of the position 20 years ago, I was the first beneficiary of the apex court’s directive giving a mandatory two-year tenure to the Director of the CBI. This was a fallout of the Hawala scandal. I had an extra four months because my retirement age automatically gave me this benefit.
Before my appointment, the government was arbitrary and capricious in choosing the Director. It was not rare to see temporary appointments given to favour some individuals. Seniority was often ignored in appointments and Directors were removed frequently.
In 1987, C.M. Radhakrishnan Nair was appointed as the Director. This decision was rescinded within days to give an extension to the man holding the post, Mohan Katre. Could there be anything more demoralising to the officer concerned and the elite organisation?
The recent ordinances are timely and merited. A two-year tenure for a CBI head is too short for any officer to make an impact on the organisation.
USA Example-The Federal Bureau of Investigation chief in the U.S. gets a 10-year term. This provides them with the much-needed continuity that a Director needs in an outfit charged with the task of conducting highly sensitive investigations, which sometimes impinge on the longevity and stability of a democratically elected government.
We will have to wait for a few years to gauge the impact of the change in tenure rules. Any blatantly dishonest interference in the working of the organisation is bound to raise the hackles of those who believe in and carry out straightforward investigations. The government will therefore have to show enormous restraint in its interactions with the head of the CBI.
Of course, as a measure of accountability, the Director will have to keep the government informed of all major administrative decisions. He or she should inform the executive but not take orders from it.
The only problem with the latest ordinance is that, at the end of the mandatory two-year tenure, the government will have to issue orders granting one-year extensions at a time. It would have been better if there was a straight five-year term for the Director. The rule about three annual extensions can be misused by a tendentious government. It may be construed as a reward for ‘good behaviour’, which is a euphemism for an obliging Director.
Dependence on state governments
Successive chiefs have suggested the drafting of a CBI Act to ensure that the organisation is not dependent on the State governments, many of which have withdrawn consent for the CBI to function in that State. The Supreme Court has recently made caustic references to this objectionable development.
Eight States — West Bengal, Maharashtra, Kerala, Punjab, Rajasthan, Jharkhand, Chhattisgarh, and Mizoram — have withdrawn the general consent. The Court termed this a “serious issue”.
The CBI should be made to derive its authority for launching investigations from its statute instead of depending on the Criminal Procedure Code, which makes the CBI a police organisation.
Apt analogies are the Income Tax Act and the Customs Act, which enable the officers of the two mighty departments to act on their own, without being at the mercy of state governments.
Twenty-fourth report of Department related parliamentary standing committee on personnel, public grievances, law and justice on working of CBI recommended the following:
Strengthening human resources by increasing strength of CBI;
Better investments in infrastructural facilities;
Increased financial resource and administrative empowerment with accountability;
Give more Powers (related to Union, State and Concurrent list of the 7th schedule of Indian constitution), to the CBI;
Separate enactment under – "Central Bureau of Intelligence and Investigation Act" and replace the DSPE Act.
In 1978, the LP Singh committee recommended the enactment of a “comprehensive central legislation to remove the deficiency of not having a central investigative agency with a self-sufficient statutory charter of duties and functions”.
The Second Administrative Reforms Commission (2007) also suggested that “a new law should be enacted to govern the working of the CBI”.