SEEING IS NOT BELIEVING

Joginder Singh,
IPS (RETD.) Former Director CBI

It has become fashionable to bash CBI for any reason, whether deserved or undeserved. This is the result of the ignorance of the nature, working and constraints faced by the CBI. A fiction has grown up about its being an independent agency.

The Central Bureau of Investigation, the Central Government's premier investigating agency, was given this name by an Executive Order on 1 st April, 1963 , though legally, it is the Special Police Establishment which was originally founded in 1941.

In fact, in legal parlance, there is no such thing as CBI. The matter pertaining to the formation of a CBI Act has been gathering dust for the last over three decades. The SPE Act confers concurrent and co-extensive powers, duties, privileges and liabilities on the members of Delhi Special Police Establishment (CBI) along with Police Officers of the Union Territories . The Central Government, can extend to any area, besides Union Territories , the powers and jurisdiction of members of the CBI for investigation, with the consent of the concerned State Governments. The CBI cannot either investigate or function in any State without the consent of the State Government.

CBI cannot draw a road map for its functioning as it is not a constitutional institution, like the Election Commission or the Judiciary. The truth is that catching and punishing the criminals involved in CBI cases, whether of corruption or other cases, is the last priority of any Government, notwithstanding the proclamation of the high and mighty, for a zero toleration for corruption.

The correct position is that there is a zero intolerance for dishonesty and corruption. Even for the elections, no political party has included fighting against corruption, even as a sub-item in its manifesto.

The plain truth is that no government, irrespective of the party in power, wants an independent investigating agency, or for that matter any independent institution, which may not be willing to toe its line. The Government has more than one way to disable the independent functioning. It is not only through checks and balances but through delays and manipulations exercised in different ways.

The main strength of the CBI is the Legal Department, which critically examines the standards of investigation and whether it will stand the test of legal scrutiny. While some staff is borne on the cadres of the CBI, the top people are representatives of the Law Ministry, who look to their future not from the CBI but to the Law Ministry.

Apart from this, it is the Government and not the CBI which decides as to who will represent it in the constitutional courts.

An eminent jurist says: “Tytler drama (and the trauma accompanying it) - the more important question is a general one, viz . whether isn't it time that the CBI be made institutionally independent of pressures and pulls from within the government or without. I believe we must have in place an Independent Bureau of Investigation (an IBI). But this can only be by law expressly enacted by Parliament. There are models in the US which are available which could and should be adopted.”

Another former legal luminary and a former top judicial functionary has laid the blame for criminalization and corruption on the door of the CBI. He has also said that its credibility has suffered and people are frustrated. It is for these reasons that people take to extra legal methods to seek the redressal of their grievances. But the fact remains, that though lip service is paid to the good governance, it appears to be the least of the priorities of the Government. The total strength of the CBI is about 5,900 with 30% vacancies at any given time. The Government and not the CBI is responsible for quick justice.

A staggering 2.92 crore cases remain pending in various courts of the country as per the admission made by the government in an answer to Par-liament question in 2008.

While the subordinate courts are still hearing 2.52 crore cases, 38.82 lakh cases are pending in the State High Courts. There were 48,838 cases that were still ongoing in the Supreme Court by the end of August 2008.

Out of the total pending cases in the lower courts, 1.85 crore involve criminal provisions of the law and 6.75 lakh cases are of civil nature.

The pendency is highest in UP where the courts are still to adjudicate in 19.88 lakh cases and Maharashtra fares the second worst with 34.45 lakh cases still to see closure.

This means that criminals are free to continue with their activities for years, as their cases would not come up. In Delhi alone, there are a total of 1,389 CBI cases pending in courts, out of which the pendency in the six courts of special judges is 927. Out of this 171 cases were pending in courts for more than eight years, 51 cases for more than 15 years and 39 cases were pending for more than 20 years. Adding plight to the situation, even charges have not been framed in 119 CBI cases and in cases of other branches too. About the overall pendency, in 2006, out of the total number of 1,557 cases under investigation in CBI, only 157 were over two years old. While the total number of 6,414 cases are pending trial in the courts, 2,300 are over eight years old and 198 are over 20 years old.

Surely for the collapse of the criminal justice system, CBI is not responsible. Despite, having the best legal brains and a Permanent Law Commission, the successive Governments have failed to discharge their fundamental duty of ensuring justice for all. Not only that, no State Government has carried out the Supreme Court judgment delivered more than two years ago, for police reform, for the simple reason that it will take away their authority to manipulate the police or its agencies to suit their political requirements. The Central Government could have passed a Model Police or a CBI Reforms Bill and directed the State Government to fall in line. Not only that, to weaken the CBI, the Government has decided to have a separate prosecution department, which will have nothing to do with the CBI. The Government calls it the Independent Department. How can it be independent, unless a specific law is passed? It will be an extension of the Law Ministry.

It is always possible to have two different and completely opposite opinions in law. Once while working at a junior level, I wanted to have a legal opinion about a case from a friendly legal officer. Before sending the file to him, I rang him up and asked him about the case. He asked as to what opinion I wanted, whether for or against.

There is no doubt that no Government wants to loose its control on the CBI or the State Police, notwithstanding that ‘Justice for All' is the slogan of all political parties. Anybody who is involved in a CBI or a Police case will use all means, both fair and foul, and all possible influence, he or she can muster. He cannot be hauled for contempt of CBI. Some, to express their resentment, use the trick of throwing shoes and others use other means, like of force. We must remember that many a good intention dies from inattention. I do not say that CBI has no faults. Like all human institutions, it is subject to pulls and pressures, but has done very well despite constraints. It is time to strengthen it and it can be done only by giving it an independent status.

It will be vital to keep in view what Abraham Lincoln once said; “I sometimes wish that people would put a little more emphasis upon the observance of the law than they do upon its enforcement. We live in a stage of politics, where legislators seem to regard the passage of laws as much more important than the results of their enforcement.”