To discharge its true function as an efficient instrument of investigation of sensitive crimes with the impartiality and integrity expected from it, it is necessary that the CBI should have the requisite independence and autonomy with insulation from extraneous influences. It is my firm belief that this characteristic is as essential in all the law enforcement agencies as it is for the Judiciary. For upholding the Rule of Law, most often the role of the Judiciary comes in much later, after the other agencies have performed their task of detection, investigation and prosecution of the crime. Unless the earlier involved agencies are equally impartial and independent in the performance of their task, the Judiciary coming in later in the process of administration of justice can do no better. The BMW and the Priyadarshini Mattoo cases are such examples. All the agencies involved in law enforcement are vital links in the integrated process of the Rule of Law. A fortiori, all aspects of autonomy and independence, including accountability and immunity from internal infirmities as well, which apply to the Judiciary, must equally apply to all of them. This is the character which the CBI as the premier investigating agency must possess and reflect. It must be remembered that the strength of the law enforcement agencies derives from the people’s faith in them, because of their performance and work for public good to improve the quality of governance. Good governance can alone assure peace and tranquillity in the community. An effective mechanism to enforce the Rule of Law, and to act as the watchdog of justice would promote a sense of security and justice required for global peace. The CBI is a vital cog in the wheel of justice, a concomitant of good governance. The perceived inertia of the CBI to investigate accusations of corruption against the powerful resulted in the violation of people’s right, inter alia the right to equality, which led to intervention by the Supreme Court in a PIL known as the Hawala case (AIR 1998 SC 889). Fuller reference to the case is made later. The performance of the CBI would require scrutiny in this context as well. .It is generally believed that corruption in India has become a low-risk, high-profit business. This is a sad reflection on the performance of all the law enforcement agencies. It must be remembered that unless acts of corruption are promptly detected, properly investigated and followed by diligent prosecution, the desired end result of punishing the guilty in the justice delivery system cannot be achieved. The CBI has not only to perform well itself, but it must also become a role model for the corresponding State agencies. The issue of ‘‘autonomy’’ of the CBI and of its ‘‘independence’’ has been extensively dealt with in the Hawala case (AIR 1998 SC 889). Meaning of the word ‘‘superintendence’’ in Section 4(1) of the Delhi SPE Act, 1946 becomes significant in this context. The Supreme Court held that exercise of the power of investigation by the CBI is governed by statutory provisions under the general law applicable to investigation of crimes, which cannot be subjected to any Executive control; the general superintendence of the Central Government is distinct from, and does not extend to influence the actual investigation of an offence; and instructions or directions cannot be issued to restrain the CBI from initiating investigation against certain category of officers at the ‘‘decision-making level’’ without prior permission of the government. On this basis, the ‘‘Single Directive’’ issued by the government, which required prior sanction of the designated authority to initiate investigation against officers of that category was quashed. I am aware that a subsequent legislation to overcome the judicial verdict by substituting the Executive fiat with Legislative flavour is on the anvil, and its validity is being debated in the Supreme Court. I refrain from making a public comment on the legality of the legislation, which is pending judicial scrutiny. However, the significance of the issue of ‘‘autonomy’’ and ‘‘independence’’ of the CBI must not be confused with the debate on this question, which does not comprehend the whole issue. In the year 1968, two important judgments, one by the Supreme Court of India and the other by the Court of Appeal in UK, dealt with this issue. The Supreme Court of India, in Abhinandan Jha (AIR 1968 SC 117) held that the exercise of statutory power of investigation of a crime according to the Code of Criminal Procedure by a police officer could not be controlled by any other authority, including a superior in the hierarchy; and the Minister’s powers in these matters were circumscribed by the limitations under the law. Lord Denning in R vs Metropolitan Police Commissioner (1968-1 All E R 763) took a similar view. It was held that a police officer is independent of the Executive and of his superiors in his duty to enforce the law of the land; that in all these things he is not the servant of anyone, save of the law itself; the responsibility of law enforcement lies on him and he is answerable to the law and to the law alone. This is the obligation of every law enforcement agency in our constitutional scheme. No CBI officer can afford to forget it at any time. The directions given for compliance, in respect of the CBI, CVC and the Enforcement Directorate, in the Hawala case were to ensure the autonomy and independence of these law enforcement agencies, and to insulate them from any extraneous influence or political or bureaucratic interference in their duty of enforcing the law of the land. The resistance to full and faithful implementation of the judgment because of the lack of political will is evident. The ultimate result will depend on the commitment and moral fibre of the personnel of these institutions. The law courts are not the final arbiters in such matters to achieve the desired result. It is the ‘‘conscience’’ of those who operate the machinery of these institutions, which is decisive. Mahatma Gandhi had said that ‘‘there is a higher court than courts of justice and that is the court of conscience’’. Similar was the sentiment of Judge Learned Hand, who cautioned ‘‘not to rest our hopes too much upon Constitutions, upon laws and upon courts’’, adding that ‘‘liberty lies in the hearts of men; when it dies there, no court can do much to help it.’’ Dr Rajendra Prasad gave the same message at the concluding session of the Constituent Assembly by saying that the worth of the Constitution will depend on the worth of the men who work it. Half a century of the working of the Constitution has proved his words to be prophetic. The conscience always shows the right path. That is the lodestar. Do not ignore it or mortgage the mind to immoral considerations! In this exercise of stocktaking, the debit entries must be focused. I cannot avoid reference to the failures in the sequel to the Hawala case, which caused disappointment to the people by the discharge of the accused at the threshold. Apart from the fact that the case helped to develop the scope of judicial review and to forge the new tool of ‘‘continuing mandamus’’, it also gave rise to hope instead of despair in the public mind that the guilty, even if powerful, cannot escape the Rule of Law. Against this positive outcome, the other message is that unless the law enforcement agencies are willing, even full autonomy will not help; and the requisite independence cannot be achieved without insulation from the internal infirmities of individuals, which are outside the domain of law. The monitoring by the Supreme Court in the Hawala case provided full autonomy to the CBI in the conduct of investigations by it, with the authority to prosecute all those found guilty by it. The monitoring process did not interfere with, or direct, the course of investigation so that the CBI had full independence in its work. In spite of this freedom, the level of its performance can be gauged from the fact that chargesheets filed did not make out a prima facie case to frame the charge in any case, and all the accused were discharged by the court. The impression is that the purpose of filing half-baked chargesheets was only to get rid of the monitoring by the Supreme Court led by me. That general impression needs correction by adopting the corrective measures even now. The chargesheets in those cases were based only on entries in the Jain diaries, which alone were insufficient, being mere corroborative evidence under Section 34 of the Evidence Act, without any substantive evidence collected during investigation. The fallacy and the lacuna should have been apparent even to an ordinary law student. No effort was made to investigate and collect evidence of, at least the disproportionate assets of any accused, which would be the substantive evidence for that offence under the Prevention of Corruption Act to make the diary entries corroborative evidence to support the charge. In that event, the tax laws with their penal provisions would also be attracted. It is difficult for any reasonable person to believe that the premier investigating agency, with all its ability was unaware of the correct legal position before submitting the chargesheets in the trial court for proceeding with the matter in accordance with the law. The question is: why did this happen? The answer does not require much imagination. It is obvious that in practice, there was the lack of needed will to avail the advantage of full autonomy and independence provided by the Judiciary, because accountability of high public men had to be enforced. The very justification for judicial intervention in the Hawala case was frustrated. Indeed, these are harsh words but they reflect my deep anguish, which I must share with you on this occasion. Was it because of any internal infirmity, which weakened the will to enforce the Rule of Law? I leave it to you to find the answer. If it were so, you must develop the requisite internal mechanism for insulation from the personal infirmities. Full independence cannot be achieved without conquering personal weaknesses. Future career prospects and post-retirement benefits are known to weaken the will of many a good man. These pitfalls must be avoided. I must also draw attention to another important aspect highlighted in the Hawala judgment. The episode commenced with the arrest of a terrorist, which led to certain raids wherein the Jain diaries were seized. This led to discovery of financial support through Hawala transactions and a nexus between politicians, bureaucrats and criminals. The nexus between crime and corruption at high places in public life posed serious threats, inter alia to the integrity, security and economy of the nation. The resultant threat is to the Rule of Law and preservation of democracy. The magnitude of the obligation of all law enforcement agencies in the performance of their task needs no emphasis. Frustration of that exercise by the deficiency in the investigation into these crimes deservedly attracts the people’s consternation. It remains a live issue due to the prevailing endemic corruption. The CBI must work to erase this impression from the public mind by its performance. It is well to remember that ‘‘discharge’’ is not ‘‘acquittal’’ to bar further investigation under Section 178(3) of the CrPC and a fresh trial based on the additional substantive evidence collected therein. The need is to justify the demand of autonomy for the institution and independence in its functioning by correcting past mistakes. My abiding faith in the competence and integrity of CBI is evident from the fact that as the Chair of the NHRC, I strongly recommended investigation by the CBI in all sensitive cases relating to the recent communal violence in Gujarat, which has facilitated the Supreme Court in making a similar direction for fresh investigation in the Best Bakery case. Other such matters are pending consideration in the Supreme Court. Do not erode the people’s faith and hope! As a sequel to the Hawala judgment, the institution of the Central Vigilance Commission has been strengthened, despite some political and bureaucratic attempts to dilute the effect of that decision. Attempts to misread and misconstrue some parts of the decision were frustrated by the needed vigilance. It is generally believed that the CVC, within the available scope of its powers, is making a difference in the right direction. Ultimately it is the quality of the personnel in the CVC and the personality of the Central Vigilance Commissioner which will be decisive of the quality of its performance. Fortunately, the incumbents so far have inspired the desired public confidence by their performance. The recent Government of India resolution, issued on April 21, 2004 pending enactment of a suitable legislation, in deference to the desire of the Supreme Court empowers the CVC to act on the complaints of the whistle-blowers and to protect them. This is an indication of the prestige and reputation earned by the institution of CVC within a short duration. Involvement of the CVC in the functioning of the CBI is, therefore, another factor to assure the insulation from extraneous influences. Protecting future Satyendra Dubeys will depend not only on the enactment of an effective whistle-blower legislation, but even more on the performance of the law enforcement agencies under the supervision of the CVC to act on the complaints of corruption. Generation of public confidence in the working of the system will encourage the people to perform their participatory role in governance by giving information needed to detect corruption and to enforce accountability of those who are guilty. Many acts of corruption go unpunished because of people’s lack of faith in the will and efficacy of the law enforcement agencies to perform their task. The public faith in them must be restored. In conclusion, I would like to remind the law enforcement agencies of the prophetic precept of Dr Rajendra Prasad that the worth of the Constitution (I would add also the laws) would depend on the worth of the men who work it. I am sure the entire establishment would strive to prove worthy of the trust reposed in it, and of the honour attached to the public office held by its men. In the ultimate analysis, our conscience is the true guide. Let us preserve our conscience, which is more effective than all the laws. This will be the honest homage to the memory of Shri D P Kohli and his tribe. Excerpts from the speech delivered by the former Chief Justice of India and Chairperson, National Human Rights Commission, at the Fifth D P Kohli Memorial Lecture on May 5. The topic: Role of law enforcement agencies under the Rule of Law.
