The Director of the CBI spilled the beans when he frankly admitted that the autonomy of the CBI is a myth and the organization functions constantly under extraneous pulls and pressures. In important and politically sensitive cases there is tremendous pressure on CBI to toe the line indicated by the government. It has often been found that in sensitive cases the outcome of CBI’s investigation invariably depends upon the political equation of the accused with the ruling power and it changes with the change in that equation.

Indeed CBI has been functioning under successive central governments as the eminent jurist Fali Nariman has put it, “not by notes on files but on nods and winks of the Minister or senior officers in charge of administrative ministries”. Hence, though unfortunate, it is not surprising that the Director CBI has shown the status report on the investigation in the coal block allocation scam to the Law Minister and officials of the Coal Ministry and Prime Ministers’ office. The court has justifiably rapped the Law Minister and senior law officers for making deletions and additions which virtually changed the heart of the status report. It dubbed the CBI as “Caged Parrot” and held that showing status report in a case involving the people of the ministries and the PMO subverted the integrity of investigation. Indeed, it was highly improper on the part of the law minister to call the Director CBI to discuss the status report. The Director also should have stood firm and refused to show the report to the Minister.

The apex court called the CBI a “caged parrot” which has to be liberated. It has directed the government to bring laws within two months to restore the functional autonomy of the CBI. Some critics have viewed this direction of the court as a “judicial overreach”. But liberating the CBI from the thralldom of the government is the prime need of the hour. With an emasculated and politicized CBI fight against corruption will never be successful. CBI has lost credibility as an independent investigating agency and this unfortunate development is seriously impeding any meaningful endeavour to combat corruption.

The CBI was set up under the Delhi Police Establishment Act in 1946. During its early years under able Directors like D.P. Kohli, F Arul, the organization enjoyed enviable reputation for transparency and technical competence. Decline of the CBI started during the emergency and the organization became gradually politicized. Shah Commission of Enquiry which looked into the excesses perpetrated during the emergency severely indicted the role of the CBI in a number of cases and perceptively observed that the fairness and objectivity with which an organization functions depends much on the extent to “which the higher executives of the organization are allowed to function freely and objectively and at the same time ensuring its accountability to the statutorily constituted bodies”.

Section 4 of the Delhi Police Act provides that CBI must function under the “superintendence of the central government”. Superintendence does not mean interference or control in the cases investigated by the CBI. In the case of Vineet Narain better known as Hawala case the apex court clearly said that superintendence cannot be construed as interference in the investigation of an offence by the CBI and the central government is precluded from issuing any “directions to the CBI to curtail or inhibit its jurisdiction in investigation of offences”. In the Hawala case, the apex court adopted the procedure of “continuing mandamus” that allowed it to issue interim orders from time to time. In his judgment Justice Verma put the Central Vigilance Commission in superintendence over the CBI. But, the CVC Act 2003, provided that the CVC will exercise superintendence over the CBI only regarding cases registered under Prevention of Corruption Act. Thus the control of the CVC over the CBI is partial and shared. Recording of the ACR’s is with the government and the superintendence of the CBI in all other cases is with the government.

Some of the vigilance commissioners have conceded that the maximum the CVC can do is to ask the CBI to register a FIR. In the 2G’s case the CVC asked the CBI to register a FIR and the CBI did nothing after that for two years until the Supreme Court started monitoring the case. The CBI has indeed multiple bosses. The government exercises administrative control over the CBI through the DOPT. Control is exercised by the government through the administrative power of transfer, promotion, posting and disciplinary control. But the opinion of Ministry of Law determines the fate of the CBI cases. It is the Ministry of Law which manipulates the final decision in any case of interest to the government through the Director of Prosecution of the CBI who works under its control. The closure of the Bofors case is an example.

Under fire from the Supreme Court the government is now planning to resurrect the Central Bureau of Investigation Act, 2010, which has been gathering dust. But it has to be drastically revised. A purposeful legislation must lay down a transparent procedure for the selection of the Director CBI as against the existing practice of the Director being selected by a panel comprising Central Vigilance Commissioner as Chairperson, vigilance Commissioners, Secretary Home and Secretary Personnel as members. The selection should be done by a panel comprising the Prime Minister, Leader of Opposition, Chief Justice of India, or a judge nominated by him. The CBI should be led by competent self respecting officers known for their concern for the interest of the citizens and the country. Lesser men as heads of the organization, as emphasized in the report of the Shah Commission, will be a disaster.

At present the Director of the CBI as per the directives of the courts in the Vineet Narain case has a fixed tenure of 2 years from the date on which he assume office. This can be made for three or five years. The Director FBI in USA has tenure of ten years. But there will be clear stipulation that on retirement he will be debarred from holding any office under the government. Appointment of the CBI Director as a Governor of a state or Member of the NHRC is a very wrong and undesirable precedent. This enables the government to dangle carrots before the incumbents to win their allegiance.

The law expressly enacted by the Parliament should insulate the CBI from extraneous pressures and make it functionally independent. For this there are models in other countries which can be suitably adopted. There are suggestions that the Director CBI could be given an independent constitutional status. He should function independently like the CAG and his report will be laid before the Parliament so that it is kept informed of the activities of the Chief Investigating authority of the country.

Another alternative is to keep the CBI under Parliamentary control and the Parliament should oversee the functioning of the CBI through a Committee. The CBI on the pattern of Australian model could be made accountable and answerable to the committee as adapted to Indian conditions. Parliamentary control will give the CBI certain advantages. The committee will represent all or at least all the major parties both from the treasury and opposition benches so that it will be difficult for the committee to give illegal or irregular orders to the CBI. It will also make the functioning of the CBI more transparent. Without extraneous interference the CBI has done laudable investigation in cases relating to the assassination of Rajiv Gandhi in 1991, Mumbai blast of 1993, and many other cases. Time has come to restore the credibility of the CBI and make it an effective instrument for combating corruption. The caged parrot must start singing again.

However, for combating corruption vigorous and thorough investigation of cases by an independent and competent agency is an important requirement but not the only one. It has to be followed by quick trial and stern and realistic punishment of the venal public servants. Cases of many corrupt politicians are meandering along for decades in the courts of law with consequent erosion of public confidence in the criminal justice system.