Panacea that isn’thttps://indianexpress.com/article/opinion/columns/alok-verma-supreme-court-cbi-controversy-rakesh-asthana-5492699/

Panacea that isn’t

CBI imbroglio has spurred the Supreme Court to fast-track the setting up of the Lokpal. But an unaccountable ombudsman is no solution.

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(Illustration by CR Sasikumar)

The CBI’s image has taken a severe battering. The inglorious public washing of dirty linen by the CBI top brass has not only dented its reputation but also eroded the public faith in our premier investigating agency. But though its aura may have dimmed, the CBI’s professionalism should see it weather this crisis and regain credibility.

At this critical juncture, it is crucial that the governing class avoids knee-jerk reactions that could irretrievably damage an organisation that has, despite misadventures, been reasonably effective in its ordained task of combating corruption and malfeasance in high places. The CBI, as structured today, has served the nation well over the decades. But it is now evident that the days of the CBI as we know it are numbered. The present imbroglio has already spurred the Supreme Court to fast-track the setting up of the Lokpal. The notice issued by the SC to the Union government on December 10 on a petition for treating the leader of the single-largest party as the leader of the Opposition for the purpose of appointment of the Lokpal is a clear move in this direction. Is the Lokpal the panacea for the current ills and the magic wand that will sweep away all corruption? My studied view is the ill-conceived Lokpal will not only adversely impact existing institutions of governance but irretrievably damage the country’s capacity to fight corruption.

The raison d’etre for the Lokpal Bill of 2013 was the widespread but deeply flawed belief that the bureaucracy, including the CBI, is hobbled by the political executive. The Supreme Court famously referred to the CBI as a caged parrot, an appellation which has become its nom de plume. Nothing could be further from the truth, as the revelations in the ongoing CBI fracas have amply revealed. If indeed the government was imperious conductor of the CBI orchestra, the on-going ugly rumpus would never have happened. The perception that the CBI is a caged victim of an overbearing political executive is a complete misreading of the relationship. One might recall that in the UPA regime, the CBI was instrumental in the arrest of a cabinet minister and the resignation of Prime Minister Manmohan Singh’s favourite ministers — Pawan Bansal and Ashwani Kumar — for wrongdoing. Clearly, when it chooses to exercise its power, the CBI has the heft even in the present system to bring wrongdoers to book, irrespective of political pressure.

Ever since the Anna Hazare movement of 2011, there has been a demand for freeing the CBI from the political executive on the grounds that without the shackles, the investigating agency will be non-partisan and more effective in rooting out corruption. However, the recent allegations of corruption and motivated investigations against the top two CBI officers should cause a rethink on giving greater autonomy to the police bureaucracy, which is essentially what the CBI is. In this context, the highest court’s dismissal of the single directive (which prohibits the CBI from initiating inquiry/investigation against joint secretaries and above without the prior permission of the government) needs review as it betrays insensitivity to the requirements of running an administration and also to the basic tenets of justice. To allow the CBI to unilaterally register a case against a senior government official without the second opinion of the alleged offender’s disciplinary authority is not only unjust but seriously jeopardises fearless decision-making. It is clarified that the single directive was never applicable in cases where an official was caught in the act of taking a bribe or indulging in other wrongdoing.

The recent happenings in the CBI have shown that an organisation can be only as good as its personnel. Rather than tinker with the powers of the CBI, we need to evolve a much better system of appointments at all levels in the organisation. If the individuals manning the CBI are unworthy, even the most radical structural changes serve little purpose. Like in other spheres, the CBI needs individuals of high integrity rather than more powers or freedom. One should heed the advice of a former CBI director, P C Sharma, who has warned that an independent CBI “would be like a bull in a china shop”. An unfettered CBI would run amok. But that is precisely what will happen if the moribund Lokpal becomes a reality!

The present government, aware of the incalculable damage that the envisaged Lokpal would wreak on the body politic, has wisely kept it on hold for the last four years. In parallel, Parliament has tried to reduce the damage with amendments to the more draconian clauses of the original Act. However, the ugly turf war in the CBI has ensured that the Lokpal will happen sooner than later. It is fait accompli that whichever party/formation comes to power in 2019 will be under tremendous pressure to resuscitate the Lokpal. An unaccountable entity monitoring the integrity of millions of government, public sector and statutory body employees, apart from the entire political class from the PM downwards, is absurdly impractical and a bad joke. But, unfortunately, it is also a serious reality ratified by Parliament.

The Lokpal will have inquiry and prosecution wings invested with greater powers than presently exercised by the CBI. As both prosecutor and judge, a marauding Lokpal would adversely impact all institutions of governance, stifle decision-making and further slow down a lumbering government machinery, apart from creating a potential new fountainhead of corruption. One foresees gang wars breaking out between Lokpal officials and government law enforcement agencies, including a shrunken, demoralised CBI. Coordination in corruption cases involving government officials and private players will be a never-ending headache. With the anti-corruption mantle usurped by the Lokpal, government management will no longer feel it is their duty to ensure the integrity of their organisations. And finally, how does one ensure the impartiality of a Lokpal armed with police powers that functions free of political regulation? Power without the proper checks and balances can be calamitous to democratic institutions

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The Lokpal is a monstrosity that should not be allowed to happen.