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We need measures to evaluate how transparent and fair our investigative agencies are.

Written by Janmejaya Sinha |
November 8, 2013 12:36:38 am

We need measures to evaluate how transparent and fair our investigative agencies are.

Of late,investigative agencies have been in the news for the first information reports (FIRs) they have filed against many top industrialists,including Kumar Mangalam Birla and Naveen Jindal. Last year,all of Delhi was preoccupied with the agitation to pass a Lokpal bill with overwhelming power invested in said Lokpal and a (naive) belief that its introduction would stem corruption in India. There seemed to be a belief that a super-powerful investigative agency could stem political corruption in India and be a force for good. That,in fact,the investigative agencies can prevent the spread of crony capitalism in

India. However,all this begs the question — how good are our investigative agencies? How might we measure their performance?

I cite three quotes from Lord Acton. Two offer cautionary advice,while the third points towards some simple suggestions on accountability of investigative agencies. The basic premise is to ask how we might evaluate the guardians.

Lord Acton is famous for his remark,“Power tends to corrupt,and absolute power corrupts absolutely.” The remark is often misquoted as “power corrupts,and absolute power corrupts absolutely”,but the brevity does not do justice to his insight,as Acton’s point was that absolute power cannot but corrupt absolutely. Thus he was averse to giving anyone absolute power. He is also known to have said that “great men are almost always bad men”. Now,the second quote doesn’t necessarily have universal applicability,and we in India have certainly seen exceptions. But it sounds a required note of caution about not getting carried away and believing that those we see as great cannot also be bad. So there is a need to recognise that unchecked power can be easily misused.

In India,one of the areas where such power can be easily misused is in the investigation of crimes. Who the investigative agencies file a charge against and who they don’t,when they file a charge and what charge they file are all critical choices that can lead to deep variations in outcomes. On the other hand,the need for these agencies in any effective democracy cannot be understated. They embody,in certain ways,the very essence of “one person,one vote” and that everyone is equal in the eyes of the law. So then,what is the cornerstone of the structure we need?

Perhaps Lord Acton can offer some direction. Certainly,he identified the seeds of a partial solution when he said,“Everything secret degenerates,even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity.” In India,we have wisely enacted

a law to the right to information which can be used to protect people. One of the central tenets of what Acton says can apply to investigative agencies as well.

Investigative agencies in India can arrest people,try them and deny them bail,sully their reputations via their comments to the press and even destroy lives. Undoubtedly,they pursue the wrongdoers in many cases. But how do we know in what proportion of cases and with what results?

For commercial institutions,measuring for desired outcomes is easy. Profit,growth and other indicators capturing a return on capital can be found. It is,of course,more difficult to set the right targets for institutions like the CVC and the CBI. Broad,diffuse goals are always difficult to measure and reward. However,it is important for these agencies to be measured against some transparent metrics. This is critical,otherwise their efforts will lead to sub-optimal results for the overall system.

The power an investigating officer from one of these agencies enjoys when investigating a case is enormous,and his incentive for speed in investigation is weak. Many investigators appear to enjoy that sense of power and attempt to prolong the process. So,the task of the investigative agencies needs to be aligned with the overall system. Let us be guided by Acton’s third quote. What can we do to introduce more transparency in their activity?

For starters,we could ask them to report the following every year to the Lok Sabha. One,an inventory of cases. Details of open cases on the first of each year,fresh cases added in the year,cases closed during the year and open cases at the beginning of the following year should be provided. Two,for all cases closed,they should provide the outcome and the time taken. Three,for cases opened,they should provide the commercial value (be it Rs 5 lakh or Rs 50 crore) of the case in cases of economic offence,the start date,and the year to which the alleged crime relates. Four,they should provide a portfolio analysis of their cases (like a bank credit portfolio analysis of outstanding loans),which would entail information such as the number of open economic cases,average value,average length of case,outcome by case category and exception reporting (measuring all deviations from norms). All cases taking over a certain pre-determined timeframe should be explained.

Five,investigative agencies may also impose standard norms for different types of cases and report performance against those. They should also report the number of officers in the agency and the number of cases per officer. Finally,for its internal consumption (and this is information it need not disclose),the agency should also keep a record by the investigative officer,time taken per case and outcome.

If,for starters,we could just introduce transparency,we would make progress. We could continue our deliberations on the reporting structure of these agencies. It is difficult to see how they would not report to the executive,but transparency on their portfolio and an open debate in Parliament would certainly be a great first step towards cleansing the stables.

The writer is chairman,Asia-Pacific,the BostonConsulting Group. Views are personal.

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