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THE Government has been taking in stride the stinging observations from the judiciary on the functioning of Central Bureau of Investigation (CBI) in recent years till the other day.

In April last year, Rajasthan High Court reportedly observed: "The aims and objectives with which CBI was established have beencompromised and the CBI is proving counterproductive to these objects and it is high time when the agency needs to be shut down."

 

The day of final reckoning came on 6th November this year when Gauhati High Court (GHC) quashed an Executive Resolution, dated 1st April1963 to constitute CBI under Section 2 of the pre-Independence law named Delhi Special Police Establishment (DSPE) Act, 1946.

GHC concluded: "While we decline to hold and declare that the DSPE Act, 1946, is not a valid piece of legislation, we do hold that the CBI is neither an organ nor a part of the DSPE and the CBI cannot be treated as a 'police force' constituted under the DSPE Act, 1946."

CBI has now got a temporary reprieve from the shut-down of sorts with Supreme Court staying GHC judgment following submission of a special leave petition (SLP) by the Union Government. It is not clear when would the hearing on SLP would be completed and the verdict delivered.

SLP, among other issues, had contended that a writ petition raising similar issues challenged the Constitution of the CBI was dismissed by Rajasthan High Court in 1986. This perhaps emboldened the Government to abort the move to frame a law for CBI.

All eyes would till then remained glued to the apex court, which itself had queried the Government in May this year as to whether it intended to enact a law to provide independence to CBI and to insulate it from extraneous influences of any kind.

While hearing the Coalgate scam case, the Supreme court questioned CBI's so-called independence and called it a "caged parrot speaking in its master's voice".

Later, the Government constituted a group of ministers (GOM) to respond to SC's order to file an affidavit on this issue. GOM recommended amendments to DSPE Act, 1946. This archaic law has already been amended through Central Vigilance Commission (CVC) Act 2003. The Lokpal and Lokayuktas Bill 2012 also envisage certain amendments to DSPE Act, 1946.

A glance through a summary of the affidavit filed by the Government in apex court on this issue in July 2013 does not indicate as to whether the Government has revived the idea of enacting a law for CBI that was mooted perhaps first by the Estimates Committee way back in late sixties.

The Estimates Committee of the 4 th Lok Sabha (4th March 1967 to 27th December 1970), in its 78th Report recommended: "it is necessary to give a statutory basis to the CBI in order to place it on a firmer - and sounder footing".

The Estimates Committee of the 7th Lok Sabha (10th January 1980 to 31st December 1980) articulated its stance on CBI in its 49th Report: "The working of the CBI should be comprehensively reviewed and measures taken to tone up its working so as to make it an effective agency devoted interalia to the task of rooting out corruption in Administration."

Answering a question on CBI in Rajya Sabha in July 1989, the then Minister of State for Personnel, Public Grievances and Pensions P. Chidambaram stated: "The question of giving a statutory basis to the CBI is under preliminary examination. No conclusions have been arrived at. A brief mention was made about this by the Minister of State in the Ministry of Personnel, Public Grievances and Pensions, in his inauguralspeech at the conference of CBI officers on 30th May, 1989."

The proposal to enact a separate law to grant statutory status and real functional autonomy to CBI has been recommended time and again by different entities in subsequent years.

The 2 nd Administrative Reforms Commission, for instance, suggested enactment of a law for CBI in its two separate reports.

In its report on 'Combating Terrorism' submitted in June 2008, ARC noted: "The Commission learns that the need for a separate law for CBI was considered on earlier occasions during 1986-89 and a draft Bill was prepared. The Commission is of the view that enactment of a law using the 'residuary powers' and Entry 8, List I, to define the constitutionof CBI, its structure and jurisdiction is overdue and has to be enacted expeditiously. The changes made in the Delhi Special Police Establishment Act in 2003 should also be incorporated in the new law."

In its earlier report on 'Public Order' submitted in June 2007, ARC listed specific organized crimes and recommended: "A new law should be enacted to govern the working of the CBI. This law should also stipulate its jurisdiction including the power to investigate the new category of crimes."

T h e haughty UPA Government has not till today made public its decision on ARC's recommendations on these two reports as well as on the report on 'Refurbishing Personnel Administration – Scaling new Heights'. The Government had, however, issued action taken report on other ARCs a few years back.

T h e recommendation for a special legislative framework also found an echo in the Parliamentary Standing Committee (PSC) on Personnel, Public Grievances, Law and Justice.

In its report submitted in March 2008, PSC observed: "The powers given to CBI under the DSPE Act were not upgraded or amended after the commencement of the Constitution in tune with the corresponding Entries in the Union List, State List and Concurrent List. The Committee is of the opinion that not granting ample powers to CBI amount to degrading the status of the investigation agency that was enlisted in the Union List by the framers of our Constitution as Central Bureau of Intelligence and Investigation."

The Government brushed aside this recommendation by contending that "since a separate Act namely the DSPE Act is already in place for regulating the functioning of the CBI, it has so far not been felt necessary to have another statute for this purpose."

PSC took a similar stance on strengthening CBI to smother terrorism. It strongly felt that CBI is well equipped for such operations, investigation and prosecution. It thus recommended creation of a separate anti terrorism division in CBI. The proposed wing should be provided with highly advanced training and infrastructure.

The Executive has all along spurned such well-meaning advice from different quarters. It is even averse to granting CBI director the status of Secretary to Government of India.

The political executive, aided by IAS cadre, has misused CBI over the years for political motives. CBI has also been a victim of turf war with different Government entities controlling certain aspects of its working. It is precisely for these reasons that the Government has resisted grant of statutory status to CBI for several decades.

After the Mumbai terror attack, the Government should have set up a special anti-terrorism cell in CBI. The former should have also enacted a law to arm the latter to the teeth to undertake intelligence as well as investigative operations. Such a step would have been in line with the recommendation made by different committees over the years.

T h e Government, however, instead opted for enactment of a law to create National Investigative Agency (NIA). NIA Bill was hurriedly passed by Parliament by dispensing with the standard procedure of referring a bill to the relevant standing committee or a specially constituted select committee.

NIA bill shows that the Executive and Legislature can do wonders if they have the political will, which is missing when it comes to fighting corruption at high places. This explains the Government's feet-dragging over grant of statutory status to CBI. This explains why the Government has delayed enactment of Lokpal law.

Now that the issue of statutory status and autonomy has reached a point where the Government cannot just plead for status quo, it should resort to introspection and self- correction.

Let the Government prepare a white paper that should disclose what deterred it from enacting an enabling law for CBI right from the late sixties onward. If the Government does not come clean on hampering CBI empowerment, it runs the risk of getting decisive slap on its knuckles from the Supreme Court.

Will the Executive finally learn to be responsible and accountable? Will it give up its habit of creating a mess in different spheres and thus necessitate judicial intervention?

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