There is a Latin saying: quis custodiet ipson custodies.
Who will be the custodian of the custodians?
This goes to the root of the present controversy concerning the CBI, which is a crucial investigative institution in the fight against corruption and other matters.
The CBI was created under the Delhi Police Establishment Act 1946.
Normally, CBI investigations require the consent of both the Union and the states.
But a ruling of the Supreme Court endowed the High Court and Supreme Court to order investigations.
Increasingly, the courts have turned to the CBI as an incorruptible agency in important cases even though Justice Lodha once called the CBI a 'caged parrot'.
The CBI was established in 1946. It was linked with the Central Vigilance Commission (CVC) in 2003 so that its investigation of offences came under superintendence.
Are the CBI and CVC both compromised and caged parrots? (Photo: PTI)
In 2003, and by the Lokpal Act 2013, it was declared that the Director of the CBI would be appointed by the PM, leader of Opposition or largest Opposition Party and the Chief Justice of India (CJI) or his nominee on the basis of “seniority, integrity and experience in anti-corruption cases” (Section 4B).
By contrast, the Director of Prosecution was appointed by the Central Government (Section 4B) and other officers by a committee of the Central government.
These processes are important.
The overall Director’s team upholds the democratic rule of law.
No other specialist agency exists in policing other than Special Investigative Teams (SIT), set up by State Police.
In the entire debates on the Lokpal from 2011 to 2013 and the Anna campaign, credence was given to the independence of the CBI.
Under the CVC Act, 2003, the CBI and CVC are independent powerhouses.
In the Hawala case (1998), the Supreme Court stressed on the independence of the CBI from the government and declared no prior permission was needed to investigate.
Under previous Lokpal Bills (1979-2010), bureaucrats tried very hard to evade the Lokpal’s jurisdiction.
Further, the Hawala case gave limited interpretation to the concept of superintendence: limited to investigations.
Throughout, the autonomy and independence of the CBI was protected.
What a mess: Officers in the CBI were arbitrarily appointed and removed. (Photo: India Today)
The present crisis was perpetuated on October 23, 2018, when the CVC divested the about-to-retire CBI director, Alok Verma, of all his powers and appointed Nageshwar Rao to take over.
Does the CVC have the power to do?
First, the director was appointed by a committee by the PM, the opposition leader, and the CJI or his nominee.
In the Thomas case, the Supreme Court emphasised on the scrupulous procedure. No short-cuts on appointment.
Second, the director has a tenure of two years.
Third, “superintendence” does not include suspension (for which there is no power) divesting of all duties.
Of course, if there is proved incapacity (illness) or proved misbehaviour, the original appointing committee should be empowered.
The divestiture of all duties was clearly illegal exposing a lacuna in the legislature.
But who takes over?
A battle is raging between Asthana, a special director, and the suspended overall director, Alok verma.
When room was made for Asthana to be appointed as the interim director on December 2, 2016, the Supreme Court asked for proper procedures to be followed.
Meanwhile, Verma became CBI director based on the unanimous choice of the CVC on February 1, 2017.
Asthana was Gujarat police cadre — apparently the blue-eyed boy of the Centre.
Verma had given a note on October 21, 2017, alleging that Asthana was paid Rs 3.68 crores by Sterling Biotech.
The CBI registered a case against Asthana on October 15, 2018 that he took a bribe of Rs 2 Crore to settle a case virtually in favour of Satish Sana, a business man from Hyderabad. Asthana had made allegations against Verma, which the CVC was probing.
Officers in the CBI were arbitrarily appointed and removed.
What a mess!
This is only half the story. It has resulted in a loss of faith in the CBI’s internal workings and external image.
On October 26, 2018, the Supreme Court implied lack of confidence in the CVC over the inquiry into Verma by appointing former SC judge AK Patnaik to supervise the inquiry “as a one-time exception”.
Nageshwar Rao who had replaced Verma on October 23 was also told “not to take any policy decision(s) or any major decision(s) and perform only routine tasks to keep the CBI functional” and later submit all decisions to the Court by November 12, 2018.
When a non-statutory CVC was appointed in 1964, it was considered as a soft achievement. Perceptions hardened to make it a statutory body in 2003.
During the Anna campaign (2011-2013), support was given to both the CVC and CBI.
But we see an institutional collapse in our premier institutions.
Are the CBI and CVC both compromised and caged parrots? Who will protect us from our protectors?
The Supreme Court has become a protector of the Rule of law. But how far and to what extent can it go?
(Courtesy of Mail Today)