THE CBI Director in a presentation before the Standing Committee of Parliament, now deliberating over the Lokpal Bill, has strongly argued against the vivisection of the CBI and merger of its anti-corruption wing with the Lokpal. He and his senior officers strongly feel that this will seriously cripple the core functioning of the CBI and reduce it to irrelevance. An organization built over the last 60 years should not be subsumed under the Lokpal.

CBI officers concede that in some sensitive political cases there is, of course, interference from the government, but in respect of an overwhelming majority of cases the CBI functions unfettered and uninfluenced by extraneous considerations. For this reason there is an ever-increasing demand for CBI investigation from all over the country in respect of important cases.

Under the Jana Lokpal Bill, drafted by Anna Hazare and his team, the Lokpal will have its own investigation wing for going into acts of corruption by public servants as well as private entities which are parties to the Act. It will also enquire into public grievances and investigate complaints by whistleblowers. For this, the Lokpal needs a powerful investigation wing manned by tested and tried professionals.

According to Team Anna’s view, the lower bureaucracy should also come under the Lokpal because the common man is more affected by corruption at the lower level. Only Group-A officers are covered by the Lokpal Bill drafted by the government. Anna’s team wants the anti-corruption wing of the CBI to be merged with the Lokpal. The CBI’s point of view is that to hive off the anti-corruption wing of the CBI will cripple it grievously and make it effete and irrelevant. Though the CBI at present takes up investigation of various other types of cases like economic offences, violent crime, organized crime, crime having inter-state and international ramifications, the anti-corruption probe continues to be the core function of the CBI.

The CBI’s paper argues that its Director should be made an ex-officio Lokpal member entrusted with control and investigations undertaken by the Lokpal. The Lokpal will exercise general supervision and control in anti-corruption cases through the CBI Director. In respect of corruption cases, after investigation the CBI will file a final report in competent courts. Investigation and prosecution will remain in the hands of the CBI. Thus, there will be no vivisection of the CBI and no need for a separate investigation wing under the Lokpal.

Creation of two investigating wings — one under the CBI and another under the Lokpal with the same mandate is likely to lead to the overlapping of work, conflict of jurisdictions, and the demand for more resources. Functional autonomy of the CBI as well as its credibility has been eroded over the years, and effective steps are necessary to restore its full functional autonomy.

However, the hard fact that cannot be wished away is that no powerful and effective anti-corruption body can function without an investigation wing. Otherwise, it will be a toothless tiger. The proposal to induct the CBI Director after a very careful selection as ex-officio Lokpal is likely to encounter opposition from the legal and judicial fraternity and other members of the institution of Lokpal some of whom are likely to be judges and Chief Justices of the Supreme Court and high courts.

So, instead of toying with the idea of bringing the anti-corruption wing of the CBI under the Lokpal, a better and more pragmatic alternative will be to entrust the CBI with the investigation of corruption cases referred to it by the Lokpal.

This measure will ensure avoidance of the vivisection of the CBI and consequent weakening of its core competence, and, at the same time insulate it from extraneous pressures, at least in respect of anti-corruption cases referred to it by the Lokpal. The Lokpal will closely monitor the cases investigated by the CBI. This will enable the Lokpal to utilize all the resources of the CBI towards anti-corruption work and not the resources of the anti-corruption wing only. The CBI’s anti-corruption unit will be ineffective without the support of the other units of the CBI. For effectively combating corruption, the CBI and the Lokpal should act in tandem and the similar model can be replicated in respect of the state Lok Ayuktas.

Of course, the Lokpal can build up gradually its own investigation wing by getting officers on deputation from the police and the CBI. This will be a time-consuming affair. Further, transfer of officers lock, stock and barrel from the CBI will not be possible without the consent of individual officers. There will be reluctance on the part of officers to opt for service under the Lokpal as this will not be under the state, and officers of the Lokpal will not enjoy rights under Articles 309 and 311 of the Constitution.

The need of the hour is to invigorate the CBI and give it a statutory basis, strengthen its functional autonomy and insulate it from extraneous pressures and influences. This was the recommendation of the L.P. Singh Reform Committee in 1978 and of the Parliament Standing Committee on Personnel, Pubic Grievances, Law and Justice in 2008. The committee was against the creation of another anti-corruption agency because this will lead to the overlapping of jurisdiction, conflict of interests, and lack of synergy. In the proposed anti-corruption architecture, the CBI has to play an important role, and for this purpose it should be strengthened by giving functional autonomy and not divided by taking away its anti-corruption wing.

However, the larger issue to be borne in mind is that the creation of a powerful institution of Lokpal, though a very important measure, is not the only antidote to corruption. China has severest punishment (execution) for those charged with corruption after running summary trials. But this has not resulted in reduced corruption there. If there are sufficient gains from a transaction, the bribe-giver will seek to tempt the bribe-taker by increasing the size of the bribe and the latter may feel that the risk is worth accomplishing. This will be a paradoxical and unintended outcome of having a strong anti-corruption agency.

Further, the Lokpal Bill should be one of the electoral and governance reforms that should be on the agenda of Parliament. Implementation of the Supreme Court’s directives on police reforms brooks no delay. For the delivery of swift and fair justice, the Judicial Standards and Accountability and Rights to Justice Bill is equally vital. There is also need for electoral reforms so that legislators with a criminal background and antecedents cannot contest elections. A Lok Sabha having 76 MPs with criminal background diminishes parliamentary democracy and sullies the Constitution.

The writer, a Senior Fellow at the Institute of Social Sciences, New Delhi, is a former Director-General, National Human Rights Commission.