Is The CBI Being Misused?
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Is The CBI Being Misused?

Aristotle once said, that man is by nature, a political animal. The need for political, survival and commercial morals, in our country are not only a food for laughter, but a banquet of the same.

 

 

It is seen that all over the world, the politicians and governments have learnt nothing from history or acted on principles except when it suited their political convenience.

Our democracy has become a free for all and every person has a prescription as to how the country or the CBI should be run. It is perhaps, too bad, that all the persons who really claim to know how to run the country are out of jobs, or are selling vegetables or cutting hair or running taxis. The current flavour of the season is that CBI has become the whipping boy for its alleged misuse. The opposition has alleged that CBI, has become the Congress Bureau of Investigation. Before we proceed further, it will be worthwhile to examine the factual and legal position.

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

Infact 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 coextensive 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 Governments.

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 had fighting 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. Once I had an occasion to discuss the issue of independence of the CBI, and giving it full autonomy, with the highest in the Government. I was clearly told, that why should government of the day lose its control. It is exactly in the thinking of the British, who wanted to rule and who did not believe in losing control over the police, as it was the instrument, which could keep them in power. CBI is the nearest to the Police force, for the Central Government.

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 Law Ministry.

Apart from this, it is the Government and Not 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 it isn't 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 adapted'

Another former legal luminary and a former top judicial functionary,  has laid the blame for criminalisation 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 5900 with 30% vacancies at any given time. The Government and not the CBI is responsible for quick justice

The strength of the judiciary and CBI has remained almost the same for years, except for marginal increase here and there. The result is that cases take anything between 5 to 183 years ( the oldest case In Kolkatta High Court). A former Director gave the following additional information two years back, out of the total number of 1,557 cases under investigations in CBI, only 157 were over two years old, while the total number of 6,414 cases pending trial in the courts, 2300 were over eight years old and 198 were  over 20 years old.'

A Cabinet note of the Delhi government of Pending CBI cases, described the sit­uation as 'alarming' and said that charges have not been framed in 119 cases and re­quired immediate corrective action.

The Cabinet note on the issue  warned: 'Further delay in disposal of cases would em­bolden the criminal to continue with their nefarious activities'.

An official in the Law Department said that in some cases the accused have died as 'guilty' while their cases were still pending in the courts. In one particular instance, the allegation was that a clerk had received a bribe of merely Rs 10, more than 20 years ago in the MCD.          

Detail Break up of the cases in Delhi  reveal a sorry state of affairs

1- 389 CBI CASES  under Prevention of Corruption Act 1998

2- 39 ceases have been pending for more than 8 years

3- 51 cases have been pending for more  than 15 years

4-
171 eases have been pending for more than 18 years

Look at the cases of political class

The Taj investigation of 2003, had led, to the Supreme Court ordering the registration of the cases against the former Chief Minister of UP. However, the Governor of UP refused to accord sanction for prosecution of Mayawati, who had become the Chief Minister in 2007. Here party was supporting the Central Government coalition at that time

CBI in September 1996, had  registered 15 cases against the then Petroleum Minister Satish Sharma from January 19, 1993 to May 15, 1996, and the allottees under Section 120 B (criminal conspiracy), Section 409 (criminal breach of trust by public servant) of IPC and  Prevention of Corruption Act. The Supreme Court, too, had ordered a CBI probe into the allotments after finding Mr Sharma's conduct 'unjustified' in a 1996 judgment.

The CBI  received a letter of the Home Ministry, in 2006 which  said: 'The matter has been considered carefully, in this ministry, in all aspects, in consultation with the law ministry. After considering all the factors in totality, including  Supreme Court's review judgment dated August 3, 1999, it has been decided with the approval of the Home Minister, not to grant sanction for prosecution of Satish Sharma. In this case the Supreme Court had directed Mr Sharma to pay, Rs 50 lakh as exemplary damages, for irregularities in allotment. But, three-years later, the Apex Court accepted a review petition from Mr Sharma to waive off the penalty imposed on him.

In almost a  similar case, in 2004 itself,  the CBI was also not allowed, to  file an appeal, in the Delhi High Court, against a lower court verdict acquitting JMM chief Shibu Soren in a disproportionate assets case, arising out of the JMM bribery case. JMM  was  an ally of the then  Central Government and was also briefly a Minister in the Central Government.

Similarly in Bofors case, Quottrochi’s counsel was able to produce the internal file noting in his defence. Despite the fact, that CBI does not have an independent status under the Constitution and is a wing of the Government, it has done a commendable job in the cases entrusted to it, though some of them have been stymied by the Government.

According to the Report of Delhi High Court for the year 2008: 'Whether it is acceptable or not, the statistical observation at the present rate of disposal, assuming the filing of new cases to be the same, it would take the court approximately 466 years to wipe out the pendency of the 2,324 appeals.

Amongst 2,324 criminal appeals three were waiting for justice since 20 years.

According to same  the report, amongst the pending criminal appeals 34 cases were more than 15 years old and three of them are 20 years old. Another revelation was  that more than half of the pending appeals were over five years old.

In this scenario, not only  the big fish, but all kinds of fish get away. There is a culture of  an unabashed favouritism  by the Political Masters. A Minister in the Government wanted the gas supplied to his companies and he managed to get the same, Only when Tamilnadu Power Producers Association went to court, both in Delhi and Madras, against the allocation, both courts stayed the allocation. Caught by surprise, Baalu, then a Minister  confessed and unabashedly claimed that there was nothing wrong if he had 'requested the Union petroleum minister' to provide gas to a company (His family company).

The misuse of power, is more frequent and common. Our leaders believe that  God is on everyone's side... and in the last analysis, he is on the side with plenty of money and large armies

According to  groups working on electoral reform, 84 of the newly elected Congress party and Bharatiya Janata Party (BJP) politicians in India’s 2009 general elections have criminal cases pending.

BJP has the highest number of members of parliament (MPs) facing criminal charges at 43, while the  Congress party has 41. The groups claim that a further 69 MPs from minor parties are also facing criminal cases. In a scathing observation made on 27th of August, 2009, the Supreme Court of India said 'Those in power have come forward to protect the wrong doers either by issuing admin­istrative orders or (by) enact­ing laws for regularisation of illegal and unauthorised con­structions in the name of com­passion and hardship...Such actions have done irreparable harm to the concept of planned development of cities and urban areas,' it added that 'It is high time that executive and the political apparatus of the State take serious view of the men­ace of illegal and unauthorized constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions.'

What can be more stark, than what Supreme Court has said, about the misuse of Government agencies,  by the political and executive apparatus,  for the their best interests, and for the reasons best known to them.

Congress general secretary Rahul Gandhi conceded, on 5th MAY, 2009 that political parties tend to misuse CBI. 'Every party in power can pressure institutions. Every government tries to push its people into such agencies. It is a fact, it is a reality of Indian politics.'

BJP has described Mr Gandhi’s comments as a 'confessional statement' on the misuse of CBI. The Opposition has been steadfast in its charge that CBI was being manipulated by the ruling Congress. Of late, even parties viewed as friendly to Congress have accused CBI of calibrating its probe in sensitive cases to suit the whims of the forces in power. To say that  CBI has been misused, can be answered with the reply, that No question is so difficult, to answer, as that, to which, the answer is obvious.

 

 

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