‘Unless there’s an independent agency, CBI personnel will always think of their career prospects’

The other is on investigation and prosecution being entrusted to the Delhi Special Police Establishment (CBI). Even the power of superintendence by the CVC has been diluted.

Clause 6A added to the Bill says: “The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988, except with the previous approval of the Central Government where such allegation relates to:-

(a) the employees of the Central Government of the level of the Joint Secretary and above; and

(b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Government…’

In its judgement on December 18, 1997, delivered in the Jain Hawala Case, the Supreme Court struck down what had come to be known as the Single Directove. It meant that the CBI could begin investigation or inquiry against high-level bureaucrats without previous sanction from the head of the concerned department.

Our experience shows how the heads of departments have delayed permission for years. There has been no way to know why permission was granted in one case and rejected in another. The head of the concerned department has no guidelines from the government to follow. The entire process is ad hoc, capricious and whimsical.

The Joint Committee in its wisdom has rejected the Supreme Court’s decision and restored the status quo ante. The result is that the government will once again acquire powers to shield a delinquent officer, pliable and like-minded. Such public servants who carry out the errands of political masters will go scot-free because the permission for the prosecution will not be forthcoming.

Some sort of quid pro quo may come to be established. The officer concerned may be making money on one side but the political bosses will keep their eyes shut because of the `services’ he renders to them. In due course, the general run of public servants may cease to be aware of what is right and may not even desire to act accordingly to what is right.

We have seen how ethical considerations inherent in public behavior became dim during the Emergency (1975-77). Government servants became willing tools of tyranny. They followed the dictates of rulers and their extra-constitutional accomplices. The N. N. Vohra Committee has pointed out the existence of a nexus between politicians, civil servants and criminals, a parallel mafia to the Government. Corrupt deals, dishonest decisions and wrong methods are the fallout. By reverting to the old method of prior sanction, the Joint Committee has overlooked the problems which the investigating agencies faced. The premium will be for dishonesty.

My other objection is to entrust investigation and prosecution to the same old machinery, which has been found wanting. The CBI has a dismal track record. It has been reduced to the status of a government department, which political bosses run in the way they like. The very exercise began because the Supreme Court found the CBI wanting in both the fields of investigation and prosecution. What is the purpose of going over the same exercise again?

There are instances where directors of the CBI were punished when they dared to peruse some VIPs. In one case, a CBI officer was instructed by one Prime Minister on the phone not to put questions to an accused. The officer was transferred. One CBI director got marching orders on the airport itself.

It would have been far better if the CBI had been put under the CVC. It would function more independently. But the Joint Committee has rejected even the recommendation of an Independent Review Committee that in order to insulate the CBI from all pressures and from other considerations, the superintendence would vest with an independent agency like the CVC.

Instead, the Committee has said that “The Commission shall not exercise its powers in such a manner so as to require the Delhi Special Police Establishment to investigate or dispose of a case only in a particular manner.”

The CBI’s `interest’ in the Jain Hawala Case is apparent from the remarks by the Special Judge, Shri V.B.Gupta, who threw out the prosecution. He said: “I fail to understand what prevented the prosecution from conducting investigation under Section 13(1)(e) of the Act against the accused when the allegations made in the chargesheet prima facie show the commission of offence under this sub-section. (S.13(;)(e) deals with assets disproportionate to income).

Personnel of CBI primarily belong to IPS and other investigative services. Such personnel will be beholden to the political executive and higher echelons of bureaucracy. Unless an independent agency is established, the personnel will always think of their career prospects.

Like the judiciary, the Comptroller and Auditor General of India and the Chief Election Commission, this agency must be completely autonomous and independent of the political executive and the bureaucracy. This independent autonomous agency should have a constitutional status in the long run but must be immediately given a statutory status. Such an independent agency… should be headed by a person of the highest integrity and should have a protected tenure.

The Independent Commission Against Corruption (ICAC), established by Hong Kong, is an autonomous agency with internal checks. It has proved to be successful. Set up in February 1974, the ICAC is independent of the police and the rest of the civil service. It has three departments. The Operations Department which handles investigations and arrests, the Corruption Prevention Department which studies and recommends improvements in the department and the Community Relations Department which educate the public.

I have nothing against the Central Chief Commissioner being in government service. I am of the opinion that the vicissitudes which the American citizen faced and the manner in which the country met the challenge of official corruption is worth emulating.

President Nixon’s attempt to break in at the Watergate Complex triggered an upheaval in American politics. Congress adopted the Ethics in Government Act of 1978. The long title of the Act is worth reproducing: “To establish certain Federal Agencies, effect certain reorganisations of the Federal Government, to implement certain reforms in the operation of the Federal Government and to preserve and promote the integrity of public officials and institutions and for other purposes.”

The statute provided for extensive financial disclosures and filings by legislative personnel by executive personnel, by judicial personnel. It also established an office of government ethics and provided for post-retirement conflict of interest provisions and provisions as to a Special Prosecutor, later amended and designated as Independent Counsel.

The judicial officers covered by the financial disclosure provisions included the Chief Justice of United States Supreme Court and his Associate Justices and most of the judges of various federal Courts. Legislative personnel included members of the Senate and House of Representatives. Thus the highest in the land were subject to very detailed annual financial disclosure including their wealth, assets and gifts received. Such filings were also open to public inspection.

What has pained me most is the absence of any reference to politicians, including Members of Parliament, in the report. At one time, the Committee had decided to remind the government about the Lokpal Bill, which has been hanging fire for more than a decade. It was also agreed that the Committee would underline the importance of clean public life, to ensure the nation that politicians do not want to be treated as a class apart and they want the corrupt among them to be brought to a limp…

Every politician in India pays lip service to eradicating corruption. By and large, the politicians of the country are so enmeshed in corruption that the citizen cannot expect any response from people in power, whether in Government or in Opposition.

I give below the letter I wrote to the Chairman of the Joint Committee after its meeting: “As a member of the Vigilance Commission Bill Committee, I feel that some step should be taken by the Committee itself to give a lead to the members of both Houses of Parliament. I suggest that the Committee members declare their assets and those of their spouses every year. I, for one, have been doing it since my nomination of the Rajya Sabha.”

Bribery and corruption are not fringe issues. They have to be dealt with openly, decisively and courageously. Any compromise will only harm the nation.