As the apex court put it in the coal block allocation case, independence of CBI functioning is of paramount importance and it must not move with the crutches of the executive. One wonders why CBI has then been put under superintendence of the government under the DSPE Act (more below).

The CBI, in its website clearly declares that:

“...the Superintendence of Delhi Special Police Establishment vests with the Central Government save investigations of offences under the Prevention of Corruption Act, 1988, in which, the superintendence vests with the Central Vigilance Commission…”

No wonder that the apex court’s observation of that CBI being the premier investigating agency must be credible and impartial, comes as a surprise to many who wonder what can the CBI do under the prevailing legal framework.

Why is the CBI being expected to conduct itself above board while discharging its functions if its very legal constitution is flawed by the government control on one hand and lack of accountability and oversight on the other.

While CBI is expected to investigate cases of national importance requiring it to be completely above board, its legal character has made it vulnerable to interference by the government raising doubts about its objectivity.

CBI’s present legal status has evolved as follows:

1941 Executive Order:
The Special Police Establishment (SPE) was set up by the government of India (GoI) in 1941 under an executive order to investigate cases of bribery and corruption in transactions concerning the War and Supply Department of the GoI. In 1942, the scope of the SPE was expanded to include cases of corruption in railways.

1943 & 1946 ordinances:
In 1943 (and again in 1946), GoI issued an ordinance an setting up a Special Police Force mandated to investigate cases of bribery in departments of the government.

1946 Delhi Special Police Act:
In 1946, the Delhi Special Police Establishment Act was passed giving DSPE the jurisdiction to investigate offences in the union territories only and empowering the government to extend its jurisdictions to other areas. The government is also empowered to notify cases for investigation by the DSPE.

1963 Resolution:
Vide a resolution dated April 1, 1963 the GoI set up the CBI under the 1946 DSPE Act with various divisions which have been expanded numerous times.

It is pertinent to note that as of now, the CBI does not have any structured legal constitution, accountability or oversight on its functioning.

This has led to allegations of very compromising and subjective conduct by CBI as a result of being directly under the control and dependence of the GoI.

In this light, the apex court has observed that the first thing to be done is to liberate the CBI from any extraneous considerations and interference of GoI – for which there is a dire need to make the agency autonomous, accountable and have a broad-based oversight over its functioning.

Some ideas on the best suited accountability and oversight structure on CBI can be taken from The Intelligence Services (Powers and Regulation) Bill, 2011 (164.100.24.219/BillsTexts/LSBillTexts/asintroduced/7185LS.pdf) [supported by an initiation of the Observer Research Foundation with active involvement of this writer]. They are:

*  GoI should make a legislative and regulatory framework for the CBI,

* CBI should be made accountable to a national oversight committee headed by a former chief justice of India, leaders of both houses of parliament and opposition leaders in both houses of parliament to ensure an effective oversight mechanism of CBI. 
   
The credibility of CBI had never been so low. GoI needs to put its act together to make CBI independent and autonomous and free it from its clutches.

In fact, the CBI chief’s affidavit before the apex court confirming the worst fears of the apex court about the sharing of the status report by the law minister only shows what effect strict accountability and oversight can have on the functioning of the agency.