Central Bureau of Investigation – A Need for Overhaul

The Central Bureau of Investigation (CBI), India’s premier anti-corruption watchdog, is currently suffering from diminishing credibility due to the tug-of-war between the Centre and states. As many as 7 states have revoked general consent because the agency is accused of being a “caged parrot” that sings the Centre’s tune. Yet, the CBI remains the first port of call for governments to signal that they favour fair probe insulated from politics that may hinder the local police. To strengthen this aspect of the agency, reforms must be made to enable it to be transparent, accountable and autonomous.

What is the Central Bureau of Investigation?

• The Central Bureau of Investigation (CBI) is the main investigating agency of the Central Government.
• It plays a critical role in anti-corruption activities and maintains the integrity of the administration.
• It is not a statutory body. It derives its power from the Delhi Police Establishment Act, 1946.

How did the CBI come to be?

• The CBI traces its origin from the Special Police Establishment (DSPE), a central government police force that was established in 1941 to investigate bribery and corruption in transactions within the War and Supply Department.
• Following the end of the war, the War and Supply Department was transferred to the Home Department after the enactment of the Delhi Special Police Establishment Act, 1946.
• The DSPE later became the Central Bureau of Investigation following a Home Ministry resolution (executive order).
• It was later transferred to be under the administrative control of the Department of Personnel and Training (DoPT) of the Ministry of Personnel.
• The Bureau was set up based on the recommendations by the Santhanam Committee on Prevention of Corruption (1962-65).
• Over the past decades, the organisation has evolved from the anti-corruption agency to a multi-faceted, multi-disciplinary central police law enforcement agency with capability, credibility and legal mandate to investigate and prosecute offences anywhere in India.

What is the composition of the CBI?

• The CBI consists of following divisions:

1. Anti-Corruption Division
2. Economic Offences Division
3. Special Crimes Division
4. Directorate of Prosecution
5. Administrative Division
6. Policy and Coordination Division
7. Central Forensic Science Laboratory

• The Director of CBI as the Inspector-General of Police, Delhi Special Police Establishment, is in charge of the administration of the overall organisation.
• He comes under the authority of the Central government, except while investigating offences under the Prevention of Corruption Act, 1988, in which, the superintendence vests with the Central Vigilance Commission.
• The CVC Act, 2003 provides the security of 2-year tenure in office for the director.
• The Director of the CBI is assisted by a special director or an additional director.
• The bureau also has joint directors, deputy inspector generals, superintendents of police and all other usual ranks of police personnel.
• The Lokpal and Lokayukta Act, 2013 had amended the Delhi Special Police Establishment Act 1946 to allow the Central government to:

1. Appoint the CBI director on the recommendation of the 3-member committee chaired by Prime Minister. The other two members include the leader of opposition in the Lok Sabha and the Chief Justice of India or a Supreme Court Judge nominated by him. This committee’s approval is mandatory for the transfer of an incumbent CBI director.
2. Appoint officers of the rank of Superintendent of the Police and above to the CBI on the recommendation of the committee chaired by the Central Vigilance Commissioner. The other members of this committee would include the Vigilance Commissioners and the secretaries of the home ministry and department of personnel.

• Following the amendment of the Delhi Special Police Establishment Act in 2014, the committee of the appointment of the CBI Director was allowed to include the leader of the single largest opposition party in Lok Sabha as a member if there is no recognised leader of the opposition.

What are the functions of the CBI?

• The CBI normally investigates cases related to corruption, bribery and misconduct against the employees of the central government, the union territories and public sector undertakings.
• It also investigates conventional crimes like murder, kidnapping, rape etc., on reference from the state government or when directed by the Supreme Court or High Courts.
• It also investigates cases involving the violation of laws concerning export and import control, customs and central excise, income tax, foreign exchange regulations etc.
• It investigates cases of violence like murder, crimes related to internal security like espionage, narcotics and banned substances etc.
• It coordinates activities of the anti-corruption agencies and various state police forces.
• It is also involved in maintaining crime statistics and disseminating criminal information.
• It acts as the National Central Bureau of the Interpol in India. The Interpol wing of the CBI coordinates the requests for the investigation-related activities from law enforcement agencies in India and other member countries.
• It also assists Lokpal and Central Vigilance Commission

What is consent?

• The CBI is governed by the DPSE Act. This law makes the CBI as a special wing of the Delhi Police and thus, its original jurisdiction was confined to Delhi.
• Later, this jurisdiction was expanded to allow investigation of the Central government employees without seeking consent.
• However, on other matters, the CBI requires the concerned state government’s consent for investigating in its jurisdiction.
• This is unlike the other central government agencies like NIA that enjoys an all-India jurisdiction.
• Consent requirement is not necessary for investigations directed by the SC and HCs.
• There are two types of consent for a probe by the CBI in states’ jurisdiction – general and specific.
• If the state government provides general consent to the CBI, the agency need not seek fresh permission every time it enters the state in connection with investigation or for every case.
• If the general consent is withdrawn, the CBI needs to seek case-wise consent for investigation from the concerned state government. This is called specific consent.
• If the specific consent is not granted, the CBI officials will not have the power of police personnel when they enter the state.
• Thus, the withdrawal of general consent hinders seamless investigation by the CBI.
• It also means that the agency must seek permission before it can register a case against an individual or an entity based in that state.
• As of now, at least 7 states have withdrawn general consent to the CBI, requiring the agency to seek case-specific permission.
• Punjab, while not withdrawing general consent, has withdrawn specific consent for a bunch of cases linked to sacrilege.
• The reason behind the consent withdrawal is due to the state governments’ suspicion that the CBI is acting as per the directions of the centre.
• However, withdrawal of general consent does not stop the agency from investigating old cases unless specifically taken away by the state government.
• The CBI can challenge the withdrawal of the general consent in courts.
• Furthermore, according to a provision in the CrPC, the CBI can search and investigate in a state after it gets permission and search warrant from a local court.

What are the issues with the CBI?

Lack of functional autonomy:

• The CBI relies on the Ministry of Home Affairs for staffing as many of its investigators come from the Indian Police Service.
• It also depends on the Ministry of Law and Justice for lawyers.
• Thus, this agency does not enjoy functional autonomy as these investigators and lawyers of the central ministries depend on the Central Government for future postings.
• Since CBI is a police agency that works as per the provision of Code of Criminal Procedure (CrPC) and police is a state subject, the CBI is dependent on the consent of the state governments.
• This can lead to certain cases not being investigated or being delayed and seeing a silent impasse.
• This power is often misused by the state and central governments to put pressure on the CBI.
• Some of the prominent instances where CBI was misused are Hawala scandal, Bofors scandal, 2G spectrum scam, coal scam etc.

RTI:

• The CBI is exempted from the RTI scrutiny as per the Schedule 2, section 24 along with several intelligence and security organisations.
• Since CBI does not collect or maintain strategically important information like Research and Analysis Wing (RAW) and Intelligence Bureau (IB), it does not ensure the accountability of the government.
• In this regard, the Central Information Commission held that the CBI, while being exempted from the RTI ambit, does not have immunity from disclosing records related to allegations of corruption and human rights violation held by it.

Lack of statutory status:

• There lacks all-India legislation to give the CBI statutory power over central government employees posted anywhere in the country.
• However, no such law has been passed because the state government objected that it might take away the powers of policing vested in them.

Lack of human skills:

• The CBI lacks sufficient human and other resources.
• Most of the officers and staff in the CBI are on deputation from the state police forces – the same forces that are considered as inferior to the CBI in investigation work.
• The organisation, in fact, has a high reliance on officers and others to serve in the CBI on deputation and is unwilling to reduce this dependence.
• This reduces the smooth functioning of the agency as the deputationists, after getting sufficient expertise, return to their parent organisations after their term of deputation is over.
• Experts recommend lesser dependence on deputation and more dependence on the departmental cadre.

Lack of public’s trust:

• The CBI is meant to be an impartial and objective investigator that ensures the credibility of the cases’ conclusion.
• However, it has a poor record in this regard, especially with regards to those crimes committed by the ruling party politicians and other influential persons.
• In some cases, the agency has shown reluctance towards taking up an investigation against these people.
• It was often accused of being used by the political parties to harass and intimidate their opponents.

What can be the way forward?

The CBI is critical for ensuring corruption-free governance that guarantees transparency and accountability of the government. For this to happen, the following measures need to be taken:

Statutory status:

• The CBI currently works under the colonial-era Delhi Special Police Establishment Act, 1946.
• The size and scope of the agency have been expanded, the pattern and incidence of crime investigated by it have also changed and people’s expectation of this agency increased.
• A new law must be enacted to ensure that these aspects are taken into account.
• The Lokpal Act calling of the 3-member committee to appoint the CBI director is insufficient to administratively protect the CBI from the political influence.
• This law must recognise the CBI’s obligation towards the Indian Constitution and promote the rule of law.
• The new law must specify the criminal culpability for government interference.
• It must provide for institutional arrangements to insulate the organisation from undesirable and illegal external interferences.
• It must ensure that the central government’s control over the agency is exercised as per the law.
• It should also set objectives to define the performance standards and establish monitoring instruments to ensure accountability.

CBI cadre:

• The CBI must develop its own dedicated cadre of officers who are not bothered about deputation and abrupt transfers.
• The agency did recruit some officers in the past to its cadre. However, this effort failed and all senior posts are held by the IPS officers.
• The induction process must be revamped to enable an empowered selection committee, assisted by independent experts, to screen eligible officers.
• This is to ensure that the recruitment process is based on elaborate background checks on integrity and professional competence of the officers.
• Similarly, the CVC-led committee meant for the selection of supervisory officers should be assisted by a body of independent professionals.
• The selected senior officers must meet the well-defined standards of professional acumen.

Accountability:

• A statutory body without accountability is dangerous for democracy.
• CBI and other federal investigative agencies must be made accountable to parliament – as in the case of the Comptroller and Auditor General.
• An efficient parliamentary oversight over the federal criminal and intelligence agencies is a need of the hour, though there is a possibility of misuse of this oversight by the political parties.
• It should also be made accountable to the National Human Rights Commission and the executive to ensure that there are multiple lines of accountability.
• This ensures that the agency attains the much-needed autonomy and accountability at the same time, while also holding the executive accountable.

Conclusion

There is no single solution for the reformation of CBI to make it an independent and efficient anti-corruption agency. However, any and all reforms of this key agency require the political will of the government make itself accountable to the people for corruption within.

Practice question for mains:

The reformation of the Central Bureau of Investigation (CBI) is vital to ensure the accountability of the government. Comment (250 words)