Proposed CBI Reforms: Will the Central Bureau of Investigation remain a “caged parrot”?

The Central government recently set up a Group of Ministers to propose reforms and ensure the functional independence of the CBI. This came in the wake of the Supreme Court criticizing the government for its interference in the Coal blocks allocation scam. The Court had asked the government to “come out with a law to insulate the agency from external influence and intrusion”. The government has recently cleared the suggestions of the GoM on ensuring the independence of the CBI. This post examines the proposed reforms, their critique, and other areas of CBI’s functioning which need urgent attention.

Legal and administrative background

(Sourced from here)

The CBI has its origins in a special order of the British Government in the early stages of World War II:

“An executive order was…passed by the Government of India in 1941, setting up the Special Police Establishment (SPE) under a Deputy Inspector General in the then Department of War with mandate to investigate cases of bribery and corruption in transactions with which War and Supply Department of the Government of India was concerned.”

The activities of the SPE were then extended to the Railways, and in 1946, the Delhi Special Police Establishment Act was passed. The Central Bureau of Investigation was set up by a resolution dated April 1, 1963. The CBI would investigate not only cases of bribery and corruption, but also major financial law violations, and other serious crimes. The CBI’s power to investigate crimes currently arises from Section 2 of the DSPE Act, 1946.

Administrative supervision over the CBI is divided between the Ministry for Home Affairs, and the Ministry of Personnel. The overall supervision of work, and budgetary control over the CBI is exercised through the Ministry of Personnel.

Recent proposed reforms

Over the years, the CBI has understandably come in for a lot of criticism regarding its functioning. It has been commonly derided as a “political tool” in the hands of the Central government. The recent criticism by the Supreme Court spurred the government into setting up a GoM to propose reforms to make the functioning of the CBI independent. The GoM consisted of:

1. Shri P Chidambaram, Minister of Finance;
2. Shri Sushilkumar Shinde, Minister of Home Affairs;
3. Shri Kapil Sibal, Minister of Communications and Information Technology and Minister of Law and Justice;
4. Shri Salman Khurshid, Minister of External Affairs; and
5. Shri V Narayanasamy, Minister of State in the Ministry of Personnel, Public Grievances and Pensions; and Minister of State in the Prime Minister’s Office.

The GoM recommended that a panel of retired judges will monitor the investigations being undertaken by the CBI to ensure that the investigations are conducted without any external interference. In addition, it also recommended an increase in the financial powers of the CBI Director, and a new mechanism for the appointment of the Director (Prosecution) which is a Law Ministry appointee at present. These changes will be brought about by way of amendments to the DSPE Act.

These changes were heavily criticized by Leader of Opposition, Rajya Sabha, Mr. Arun Jaitley:

“The recent decision of the Union Cabinet based on GoM recommendations is a camouflage. It creates an illusion by removing the political executive and creating a proxy institution instead. The government’s decision is a remedy worse than the existing problem”

As reforms go, the above-mentioned reforms proposed by the government seem fairly innocuous. Merely appointing a panel of retired judges may not ensure the CBI’s independence. This panel has to have the right incentives to perform their role efficiently. If such incentives are not in place, even their independence will eventually be compromised. This is so, especially since the panel itself will be selected by the Central government. Second, and on a related note, this move could well become just a post-retirement benefit for retired judges. Enlisting them on this panel could have the effect of co-opting them into the process of subverting the CBI’s independence rather than enhancing it. Third, there are a number of other areas of reform of the CBI which are urgently required. Without these, the CBI will struggle to become truly independent of the government.

Other required reforms

A Select Committee of the Rajya Sabha to look into the Lokpal Bill had suggested much more drastic reforms to the CBI in order to ensure its independence (Summary here). Some of these are:

• The CBI Director would be appointed by a panel consisting of the Prime Minister, the Leader of Opposition, Lok Sabha, and the Chief Justice of India.
• The CBI would be under the superintendence of the Lokpal.
• The CBI should have an independent Directorate of Prosecution, who shall be recommended by the Central Vigilance Commission.
• The CBI Director, and Director of Prosecution shall have a fixed term of two years.

In addition, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice had examined the functioning of the CBI and presented a detailed report in 2008. Their main recommendations regarding the working of the CBI were:

• The number of officers placed within the CBI on deputation should be reduced. Greater emphasis should be placed on direct recruitment of CBI officers, and service conditions such as promotions should be incentivised for direct recruits.
• The Committee noted that there was a large number of vacancies in the CBI. “It is of the opinion that the large number of vacancies is bound to result in severe strain on the existing manpower who are hard pressed to deliver positive results and that it is detrimental to professional excellence and efficiency.” It recommended that steps should be taken on a “war-footing” to fill up existing vacancies within three months.
• Shockingly, the Committee also noted a 27% shortage in residential accommodation for CBI personnel. Furthermore, as of 2008, investigating officers had not been provided with mobile phones or laptops!
• The Committee had also recommended greater financial powers for the CBI Director.

The problem of vacancies

The problem of vacancies within the CBI is indeed acute. A recent press release highlighted more than 800 existing vacancies within the organization. The relevant information is given below:

(Sourced from here)

The CBI needs to work independently of the government. Yet, it is a government department, and has to be accountable to democratically elected officials. The reforms proposed by the GoM do not balance this tension between independence and accountability. Unless this is done, the CBI cannot become a well functioning organization.