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CBI is between Scylla and Charybdis




(This is a guest post. If you want to do a guest post on this blog, please refer the following link – Write Here)

The much-maligned ‘caged parrot’, the Central Bureau of Investigation (CBI) has acted with alacrity lately, belying its image of being a handmaiden of the Central government of the day doing its dirty political bidding. We are referring here to the recent booking by the CBI of the former Secretary of the Coal ministry, Mr. P C Parakh and the industrialist Mr. Kumar Mangalam Birla and raising questions about the role of the Prime Minister’s Office (PMO), in particular, the prime minister, being the ‘competent authority’, in according the final approval of the change in the allocation pattern, apparently favoring the Birla group.

 

CBI has a case in that the reason why the decision of the all powerful screening committee, chaired by Mr Parakh, to reject Birla’s request for fresh allocation, in view of the incomplete utilization of their earlier allocation, was overturned after a personal meeting between Mr. Birla and Mr. Parakh is not cogent and completely transparent. At best it appeared to be a subjective decision, an arbitrary use or misuse of power vested with the Coal Secretary, at worst there might have been quid pro quo. To be fair to CBI, they have indicated the former as a possible instance of wrongdoing inviting culpability and not the latter which they have scrupulously avoided bringing up considering the widely acknowledged personal integrity of Mr. Parakh vouched by many in the civil service.

 

Although CBI left it open, the scandalized and flummoxed Mr Parakh had himself brought up the issue of effective, not just constructive, responsibility of the prime minister in approving the Secretary’s eventual proposal for allocation as the competent signing authority on behalf of the government. Since then, of course, the PMO has clarified with a forthright statement that the final allocation and the prime minister’s approval of the same were based on a specific recommendation of the allocation to Birla by no less than the Chief Minister of Odisha, Mr. Naveen Patnaik making a case for this. This was done after making an appropriate judgment that the concerned public sector unit (PSU) would not be adversely impacted by this reallocation while upholding the federal spirit in acceding to this recommendation by Patnaik, apart from sending a right message of business friendliness to all concerned.  

 

Predictably, CBI’s allegation of wrongdoing against Parakh and Birla has raised a storm of controversy in the country, with first of all the bureaucracy up in arms against CBI foisting a wrong case against an upright and honest government officer for taking decisions and making determinations while discharging his official duties. No less upset were the corporates and the business world due to the direct finger pointing to one of the most respected and a very big industrialist in the country. How will the government function, they ask, if the babus will be mortally afraid to make decisions or take actions for fear of being suspected of a malpractice, corruption or even misuse of discretionary powers and be charged, post retirement, with some wrong doing ? Will not the corporates lose all their faith in the government and confidence with the political system if they are hounded thus for proactively but legally (through proper written requests to the Coal ministry and the PM himself) lobby for government’s assistance in trying to acquire scarce national resources so that they can contribute to the nation’s economic development? And indeed what wrong did the Prime Minister (or his office) commit in respecting and giving due weightage to the Odisha Chief Minister’s considered assessment that allotting coal blocks to Birla for the proposed aluminium manufacturing plant partially bypassing the needs of a power plant will be better for employment generation ? 

 

Since the heavy censure it received from the Supreme Court a few months back for the de facto doctoring of the CBI’s status report on the progress of the court monitored investigation of the Coal block allocation scam, the government at the Center is, at least, pretending to be neutral for the time being. And sections in top brass in CBI, having been kept under leash through out its existence and smarting under constant public humiliation about the compromises the organization is generally supposed to make under political compulsions of its employer, the government of the day, might have sensed an opportune time and felt they had a case to illustrate to the whole country its ability and intent to act independently. Whether or not CBI will be able to sustain this case and whether they may not be obliged, under the withering scrutiny of the Supreme Court, to withdraw or close the same, their actions have, unwittingly, reopened some disturbing questions about the advisability of autonomy and the extent of independence of a government’s own investigating agency. Is a political suzerainty over CBI after all not a lesser evil than to subject our democracy to arbitrary impetuous decisions by a bureaucratic organization not quite accountable to the people? 

 

The issue of functional autonomy and the extent of independence that can and should be granted to CBI, its accountability is a thorny one for whoever occupies the seat of power at the center, as much as the question of independence of the police force at the state level in all parts of the country. Unfortunately, in India, this question is almost inextricably connected to politics or rather the culture of politics that the political parties of all hues have been practising for all these years since India became independent. The boil has come to a head in recent times due to the extensive access given to the criminal elements by the parties for winning elections (actual professional criminals or politicians indulging in criminal actions) and then holding and consolidating the state power as long as possible. To sustain this unholy nexus they need money, huge amount of money which the parties, or rather those who really manage the parties, try to earn as quickly as possible in the intervening period between elections by using their access to the levers and powers of the state leading to a trail of corruption cases. Many of these cases relate, as we have seen during the last few years, to huge financial scams involving, sometimes, corporates (‘crony capitalists’) and businessmen out to make a fast buck using their political connections. Cases are often quite complex, requiring technical knowledge and competence apart from investigative skills for uncovering sophisticated economic offences (that often extend across state borders) and an element of neutrality and objectivity almost impossible to expect from state police forces. Thus a competent federal investigative agency like CBI should have exactly fitted the job description.

 

But in practice CBI has rarely been seen to be acting independently of its political masters of the day coming under the influence of the ruling party ministers, in particular, the law ministry and the prime minister’s office. In recent times at least two major corruption investigations by CBI have been or are still being monitored by the Supreme Court. So much for their neutrality and objectivity! Very similar public perceptions about the state police force have forced the highest court to keep on monitoring, for the past few years, investigations of several important criminal cases in Gujarat by CBI or by some special investigation teams (SIT) constituted at the Court’s instance.

 

CBI’s institutional framework is fundamentally weak and, as recently pointed out in the Guwahati High Court judgment, probably even lacks a legal status as a properly empowered police force. At the time of writing, the government of India has obtained a stay on the High Court’s order. But the issue about its legal status will remain and may undermine its authority even further. Until the government comes out with a new CBI act which is hanging fire for several years (and not try continuing its messy effort to use the DSPE act to resurrect CBI) and squarely face the issue of the functional autonomy and define the parameters of its independence in a transparent and verifiable manner, we will probably continue to see the organization floundering between two equally unacceptable extremes.  It will either abjectly surrender its initiative to the political executive (like allowing its Coal gate investigation status report to the Supreme Court to be vetted by a partisan law minister or some overzealous senior bureaucrats in the PMO) or tend to criminalize an executive decision by a senior bureaucrat or a minister who believed that they had acted on the basis of a legitimate politico-economic judgment.




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