Instead of giving the agencies a free hand, the Government is bending over backwards to increase bureaucratic control over their functioning.

By Sumit  Mitra

The CBI has spent eight years investigating the Bofors and the HDW submarine cases and sat for six years on the Jain hawala case, but nobody has been brought to the trial court. The Enforcement Directorate (ED), though armed with the draconian Foreign Exchange Regulation Act (FERA) that allows imprisonment of a man for possessing a few dollar bills, has so far failed to secure the conviction of any VIP, be it in politics, the bureaucracy or business. So, when a three-judge bench of the Supreme Court began hearing in August a petition seeking the Court's direction to make the Central investigative agencies work independently, all eyes were on the judgement.

While the judgement of Chief Justice J.S. Verma, Justice S.P. Bharucha and Justice S.C. Sen are expected this week (to be delivered before the retirement of Justice Sen on December 21), the caretaker Government of I.K. Gujral, in its role as respondent, is bending over backwards to not only deny independence to the various Central investigative agencies but to instead tighten bureaucratic control over them. The attitude of the United Front (UF) Government to the crucial anti-corruption issue is all the more perplexing because most of the UF constituents are also habitual users of the morality plank in their anti-Congress and anti-BJP electoral campaign. The Government has not only exhibited its pro-status quo bias but has employed dilatory tactics to its best advantage. If the judgement favours de-linking of the executive and the investigative agencies, the Government may seek a review within the statutory 30 days. That can push the review too close to the date of retirement of Chief Justice Verma, January 18; the review bench will then have only one member, Bharucha, who was there in the earlier bench also. Whether even Bharucha shall remain on the bench depends on the next chief justice of India. Since judicial perception is not impersonal, review by a significantly altered bench can well imply reopening of the case.

The submission of the UF Government on the petition, filed by Anil Divan, friend-of-the-court in the Jain hawala case, is centered on the report of an Independent Review Committee (IRC) on the structure and functioning of the CBI and the ED. The report also deals with the controversial Single Directive of the Union Government which forces the investigative agency to secure prior permission of high-ranking officers before initiating even a preliminary enquiry into charges against an officer of the rank of joint secretary or above. The IRC, comprising former cabinet secretary B.G. Deshmukh, Principal Secretary to the Prime Minister N.N. Vohra and Central Vigilance Commissioner S.V. Giri, handed over its report to the Court on December 2 in a sealed cover. The report, obtained by India Today from Government sources, recommends:

• The Central Vigilance Commission (CVC) shall oversee CBI's functioning;
• The Single Directive will continue, with only a stricter enforcement of the existing time limit (of two months) for secretaries to either allow or disallow anti-corruption investigation against junior officers;
• Bringing all cases of disproportionate assets of Central Government officers within the ambit of the Single Directive;
• Disallowing reference to the CBI of cases that fall within the jurisdiction of a state police and do not have inter-state ramifications;
• Bringing the revenue secretary firmly into the picture for the enforcement of FERA;
• Transferring ED's power to fight stay orders to the Revenue Department in consultation with the attorney-general.

Divan, in his written submission, has said that the report side-steps the main issue referred to it, which is how to ensure the enforcement of criminal laws against high authorities and to prevent external pressures and influences on investigating officers. The submission also says that "the report supports the status quo and is a special pleading for the Government's case on the Single Directive. It is a report to perpetuate the existing control of the politicians and the top bureaucrats on the investigative agencies". The eagerness of the committee to make the CVC boss over the CBI is understandable; while committee member Giri is in charge of the CVC himself, the commission is a nest of IAS officers who would crave for a piece of the action at the CBI, an IPS-ridden agency.

What is indeed surprising is the composition of the IRC, reportedly under direct instruction of the Prime Minister's Office. Deshmukh is the only member of the committee who is presently not in direct employment of the Government and may therefore claim some sort of independence for himself. However, he currently holds the post of chairman of TimesBank, which belongs to the Times of India Group. Besides, the committee has no representative of either the police or the revenue service even though they form the front line of the anti-corruption officials. The all-IAS committee has not shown an iota of interest in making the investigative agencies independent. On the contrary, it wants that the power to recommend names for the selection of the CBI director should rest with a committee consisting of the central vigilance commissioner, home secretary and personnel secretary -- all ias officers. It wants the final selection from the committee's short-list to be made by the Appointments Committee of the Cabinet, the short-hand for political control. Divan has suggested in his petition that the task of selecting the CBI director be left to an "independent body" comprising a mix of judicial, political and constitutional representatives.

The IRC's keenness to retain the immunity enjoyed by civil servants under the Single Directive is consistent with the uf Government's past attitude. In December last year, when the Indian Bank scam was unearthed, the Government even amended the existing order to include in the list of executives eligible for the immunity the directors and highly placed officials of nationalised banks. This amendment was crucial for the survival of the uf Government as leaders of one of the constituent parties of the coalition were among the suspects. With state protection extended to the bank's officials, the trail of investigation soon got cold. However, beyond the limited interest of the uf, the irc's defence of the Single Directive reflects the strong self-preserving instinct of the civil servants. The report says, "The objective of the Directive is obviously intended to protect decision-making-level officers from the threat and ignominy of malicious and vexatious enquiry/investigation. Such protection to officers ... is essential." The argument arises from the "power of superintendence" of the Central Government over the Delhi Police under the Delhi Police Establishment Act of 1946, a legislation from which the CBI draws its charter. The Single Directive stretches this superintending power to interfere with the anti-corruption functions of the CBI, defeating the very public purpose for which the investigative agencies have been set up.

The debate over autonomy of the CBI is two decades old, having begun with the Shah Commission on the Emergency excesses. The nation was appalled by the rampant misuse of police and revenue personnel during the 1975-77 Emergency, but the successor Janata Party regime took only limited lessons from the past. It used the CBI in a witch-hunt against Mrs Gandhi and paid the price as she stormed back to power in 1980. The interference went on unabated through successive regimes. In the more recent Jain hawala case, the CBI was made to drag its feet for nearly three years until the Supreme Court, on December 5, 1994, gave a special order to the CBI director to personally take charge of the investigation and report. Many leaders of the present uf were then crying hoarse over the "cover up" by the then Congress government. Now it is the turn of the uf to keep the investigative agencies on a short leash. The irony is that the Gujral Government sketched out before the apex court its regressive ideas on tackling corruption on December 2, four days after Gujral had resigned and his Cabinet had become a mere caretaker.

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