New law makes appointments of CBI chiefs murkier

The devil is in the detail. Outcry ensued, yesterday and day before, while the Delhi Special Police Establishment (Amendment) Bill, 2014, was being discussed in Parliament.

The Bill was passed in the Lok Sabha on November 26 and the Rajya Sabha the next day. It comprises two key amendments to how the CBI Director is to be appointed:

1. It provides that the committee recommending the CBI head to the Central Government will be made up of the prime minister, the Chief Justice of India (or a Supreme Court judge nominated by him) and the leader of the single largest Opposition party. The key change, a welcome one, is that, formerly, the leader of the Opposition was to be the third member of this committee.

2. The second amendment reads: "No appointment of a director shall be invalid merely by reason of any vacancy or absence of a member in the committee." The key word here is "absence". The law, previously, had said that a "vacancy" could not stall the selection process. There was no mention of what to do if a member were "absent".

This basically means that if one member on the committee is absent, the other two can recommend a CBI director among themselves.

What happens if two of the members are absent? Can just one member, say the prime minister, recommend the new director? The new law is silent on this.

Congress MP Veerappa Moily called this "a criminally motivated act on the part of the government". He went on to draw parallels between South and North Korea, implying that this amendment would take us away from the former, and towards the latter, i.e. towards "anarchy" and "maladministration".

Mallikarjun Kharge, leader of the Congress in the Lok Sabha, described the amendment as a "double-edged sword" which "poses a great danger". He went on to say, rather dramatically: "We may be 10, 20, 40 or 50, (but) we are not going to bow down, even if we have to get ourselves beheaded."

Let's breathe a little.

Their heart-felt protests in parliament notwithstanding, it's true that the Congress, while in government, had presided for long over a system whereby CBI directors were chosen on the recommendation of a committee comprising the central vigilance commissioner, vigilance commissioners and key government secretaries. This allowed no say to the opposition in the process and led to the CBI being called the "Congress bureau of investigation".

The Congress led UPA 2 then brought about a landmark amendment by which the job of recommending the CBI chief fell upon a committee comprising the prime minister, the chief justice (or his nominee) and the leader of Opposition (a situation where the largest Opposition party would not have even 55 Lok Sabha seats had not been foreseen). However, this came shortly after the appointment of the current CBI Head, Ranjit Sinha, a product of the former system.

The current CBI head, slyly remarked this February, when one could sense clearly that the tide was turning, that the UPA Government would "have been very happy" if Amit Shah had been chargesheeted in the Ishrat Jahan case.

Sinha, has gotten himself embroiled in a long list of colourful controversies. Take the case of CBI's u-turns, during his tenure, with regard to charges against industrialist Kumar Mangalam Birla and former Coal Secretary PC Parakh, that they have colluded, criminally, to secure for Birla mining rights in Orissa, through dubious means. These charges were raised, then dropped-because the "evidence" didn't "substantiate the allegations", then raised again. Then there is the case of the visitor's diary at Sinha's official residence. Two Anil Dhirubhai Ambani Group executives visited 50 times in 15 months, while the CBI was looking into 2G spectrum allocations to the group. After this, the CBI had allegedly attempted to water down charges against the group. Another visitor was alleged hawala operator Moin Akhtar Qureshi. 90 times in 15 months, reports say.

It was then revealed, during a Supreme Court hearing, that conversations between Qureshi and Sinha's predecessor were pretty much carried out on a "day-to-day basis" as well.

There's much more. But in short, neither the tenure of the current CBI chief, to end on December 2, nor that of his recent predecessors, can be said to have been ideal.

Which is why this amendment acquires great significance.

Of all the statements against doing away with the requirement for quorum, the one that stands out is Moily's: "You know that some time a short notice is given, some time no notice is given, some time (a) meeting is called suddenly and (the) entire process is short-circuited," he said referring to the likely manner in which the committee which selects one of the country's most powerful bureaucrats will be conducted.

Leader of the house in Rajya Sabha, Arun Jaitley, assured its members that all three members would be duly informed of the meeting where such a decision would take place. That their conveniences would be ascertained before fixing the meeting. "In all organisations (where) collegium makes appointment, identical provision exists," he said.

This isn't entirely true. Other laws for appointment too, like the previous law in this regard, provide for an appointment not being invalid "merely by reason of any vacancy". But not "absence". It stands to reason that important appointments shouldn't be held up because the proposed committee members do not exist in the first place. But if they are around, why should we presume it will be impossible to get them together?

To this, Jaitley said: "If somebody boycotts the CBI director's selection meeting, then the member cannot hold the decision to ransom."

True. But, if a full quorum isn't made mandatory, why should a set manner of giving notice and a minimum number of days (be it, say, a week or 15 or 30 days) after which this meeting will be held, not be laid out, as it has been in some other legislations? Why should the leader of the largest Opposition party and the PM not have a right to delegate someone of a certain stature to represent them when they cannot attend, as the chief justice can?

There is also a larger ambiguity. How are these three committee members to decide on their recommendation for CBI director (provided they're all "present")? Will it be by consensus (unanimously)? Or by majority (two out of three members)? The law has been silent on such procedures earlier as well, but since this amendment is being projected as a step towards greater accountability, shouldn't this have been addressed?

The way in which this amendment has been pushed through the parliament, without answering crucial questions, reminds one of the manner in which the National Judicial Appointments Commission Bill was passed during the last parliament session. Contradicting the essential principle of separation of executive and judiciary, that has seen us through so much, the bill offers veto power over the appointment of a judge to a member of the executive.

There too, the devil was in the detail.