Only law can make CBI independent of politics

Joginder Singh ji,
( Former Director – CBI )
It is fashionable to criticise the Central Bureau of Investigation (CBI) for any reason, valid or invalid. This is a result of ignorance of the nature, working and constraints faced by the CBI. A fiction seems to have grown around the CBI about it being an independent agency.
The CBI – the Central government’s premier investigating agency – was given this name by an executive order on April 1, 1963. Legally, however, it is the Delhi Special Police Establishment which was originally founded in 1941. The Delhi Special Police Establishment Act 1946 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 CBI cannot investigate or function in any state without the consent of the state government.
In fact, in legal parlance, there is no such thing as the CBI. The matter pertaining to the formation of a CBI Act has been gathering dust for over three decades.
The CBI is not a constitutional institution like the Election Commission or the judiciary. The truth is that catching and punishing criminals involved in CBI cases is the last priority of any government, notwithstanding the proclamation of the high and mighty of zero-toleration for corruption.
Even for these elections, fighting corruption has not been listed in the manifesto of any political party.
The main strength of the CBI is its legal department which critically examines the standards of investigation. It also sees whether the investigation will stand the test of legal scrutiny. While some of its staff are from the CBI cadre, the top people are representatives of the law ministry. These officers see their future with the law ministry and not the CBI.
Apart from this, it is the government and not the CBI which decides who will represent it in the constitutional courts.
Fali Nariman, an eminent jurist, recently said: “In the 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”.
A former Chief Justice of India has laid the blame for criminalisation and corruption at the door of the CBI. He has also said that its credibility has suffered and people are frustrated.
The total strength of the CBI is about 5,900 with 25 per cent vacancies at any given time. A staggering 2.92 crore cases remain pending in various courts of the country, according to the government’s answer to a Parliament question in 2008. It said that while the subordinate courts are still hearing 2.52 crore cases, 38.82 lakh cases are pending in the high courts. About 48,838 cases 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.
In Delhi alone there are a total of 1,389 CBI cases pending in courts. Of which the ones pendening in the six courts of special judges total 927. And of these about 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. Apart from this, charges have not yet been framed in 119 CBI cases.
About the overall pendency, in 2006 a total number of 6,414 CBI cases were pending trial in the courts, 2,300 were over eight years old and 198 were over 20 years old.
Surely, for the collapse of the criminal justice system, the CBI is not responsible. Despite having the best legal brains and a Permanent Law Commission, successive governments have failed to discharge their fundamental duty of ensuring justice for all. Not only that, no state government has implemented the Supreme Court judgment on police reform, delivered more than two years ago, for the simple reason that it will take away their authority to manipulate the police and its agencies to suit their political requirements. 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. But how can it be independent unless a specific law is passed?
It is always possible to have two different and complete opposite opinions in law. Once, while working at a junior level, I wanted legal opinion on a case from a friendly legal officer. Before sending the file to him, I rang him up and asked what his legal view was. He asked me which opinion I wanted, for or against.
There is no doubt that no government wants to lose its control on the CBI or the state police, notwithstanding the fact that “justice for all” is a 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 s/he can muster. S/he cannot be hauled for contempt of the CBI. Some, to express their resentment, toss shoes.
I do not say that the CBI has no faults. Like all institutions, it is subject to pulls and pressures. But despite the constraints it has done very well. It is time to strengthen it and that can be done only by giving it independent status. We must remember that many good intentions die because of inaction. If, through carelessness, indolence or selfishness, good intention is not put into effect, we will have lost an opportunity, demoralised ourselves and stolen from the pile of possible good. For in the end we shall be judged, not alone by what we have done, but also by what we could have done.