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Freeing the caged parrot

Vineet Narain writes: CBI,ED must be reformed if they are not to be used as instruments of intimidation, blackmail by governments

It is for the nation to demand that the country's premier investigating agencies like the CBI, income tax authorities and the ED are not used as instruments of blackmail and intimidation by the government of the day.

Despite several observations made by the Supreme Court of India (SC) against the inefficient functioning of the CBI nothing has happened to improve the situation. The recent investigative series in The Indian Express indicates a continuing bias in the functioning of the CBI and the ED.

It has been almost 30 years since I petitioned the SC regarding the criminal negligence of the CBI in a militancy and corruption related matter. The case is popularly known as the Jain Hawala case. My expectation was that under the monitoring of the apex court, the CBI, DRI and income tax agencies would do their duty, ensure proper investigations and take the case to its logical conclusion. It was a difficult fight against the 115 most powerful people in the country, who had allegedly taken money in a clandestine manner from the same source, which was funding Hizbul Mujahideen in J&K. Due to the initiative of the SC the matter did progress to some extent but for various reasons, could not reach its logical conclusion.

In 2013, the SC once again made strong observations against the functioning of the CBI and referring to the “Vineet Narain” judgment, said that nothing had improved since 1997, when this judgment was delivered. Encouraged by this remark, I again petitioned the SC, reminding them that 22 names mentioned in the Jain Diary had not been decoded/deciphered by the CBI till that date. Who knows whether these payees were hardened militants, narcotic operators or anti-national people? Doesn’t it prove that there was criminal neglect on the part of the CBI?

Despite the hype around the Jain Hawala case, the CBI acted in an irresponsible manner. During the course of that case, I had filed two affidavits on April 8, 1995 and January 9, 1996, in which I had given the numbers of the case files that were not presented by the CBI to the apex court. These files would have exposed the chronology of the suppression of this case and those in the CBI responsible for the said suppression. The evidence regarding the dilution of investigation and how the beneficiaries mentioned in the diary were spared is available but not a single delinquent CBI official, responsible for the inaction from June 1991 to March 1995, was even asked to explain his conduct. Despite the intervention of the SC, the CBI kept the investigation in cold storage for more than 40 months and all the accused persons were spared. However, the “famous” judgment was pronounced in 1997, which gave hope to the nation that things may change in the future.

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Had the offenders been punished, the misconduct may not have been repeated. In the absence of any deterrence, the agency continued to disregard the directions of the SC with impunity.

In the same petition in 2013, I gave a series of suggestions for the improvement of the functioning of the CBI under the supervision of the CVC. Those recommendations are still relevant.

One, the CVC Act should be amended, providing for a five/seven member Central Vigilance Commission, which could broadly assume the role visualised for the Lokpal. The selection process of the CVC members should be more broad based to prevent favouritism or from controversial persons being appointed. Presently, three members are drawn from the IAS, IPS and the Banking services. It should include one retired judge of the Supreme Court appointed by the CJI in consultation with the next four senior most judges. Since the legislative wing of our democracy is crucial for matters of governance, it would be worthwhile to include one Member of Parliament, selected from those who have been members of either House for the longest duration. In addition, two to three members should have engineering expertise, to assess the scams like the Commonwealth Games and one person should have a chartered accountancy background to examine financial scams. These selections should be made as transparent as possible.

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Two, the CVC should constitute an advisory committee of at least 11 members drawn from criminologists and forensic science experts. This will augment the professional input in its functioning. Further, to reduce the burden on the CVC, it should be given the power to go to any expert or professional to assist it in screening complaints.

Three, the jurisdiction of CVC, which presently covers all employees of the central government and the CPSUs, should remain unchanged. There is already an administrative arrangement to delegate the vigilance administration over class II and lower formations to the ministries/departments concerned. However, if the lower formations are involved with the class I officers in a composite case, the CVC exercises a natural jurisdiction over all of them. To make this arrangement more effective, it would be important that the CVC exercises complete control over the selection, appointment and functioning of the CVOs.

Four, the CVC should have an adequately experienced team to technically examine and assess the gravity of a complaint, which can then be assigned to the CBI for investigation or can be investigated by this team. After assessing a complaint by this broad-based CVC, there should be no need to seek prior permission from the government.

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Five, in the cases assigned to it by the CVC, the CBI should be made functionally and financially independent of the controls of any government ministry/department. The professional supervision over the investigations of the CBI should rest only with the CVC.

Six, the manner of the appointment of the CBI Director should be broadbased as in the case of the CVC members, whereas the other inductions/appointments in the CBI should be brought under the overarching supervision of the CVC.

Seven, to achieve better synergy between anti-corruption laws and grievance handling, the laws relating to the whistleblowers and grievance redressal should be placed within the jurisdiction of the CVC.

Eight, effective administration of anti-corruption laws at the grass roots is the key to responsible governance. The state and their anti-corruption agencies would, therefore, need to be equally insulated from the state government’s interference on similar lines.

It is for the nation to demand that the country’s premier investigating agencies like the CBI, income tax authorities and the ED are not used as instruments of blackmail and intimidation by the government of the day. Rather they should work with complete objectivity and in the interest of the nation. The question is: Who will bell the cat?

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The writer is a senior journalist and was petitioner in the Jain Hawala case

First published on: 23-09-2022 at 04:04 IST
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