As the two sides fight it out through affidavits and counter-affidavits, with conflicting views on the probe agency’s cry for autonomy, ball is in SC’s court now
Ajay Singh | August 16, 2013
A major turf war seems to have broken out between the UPA government and the Central Bureau of Investigation (CBI) whose arbitration finally rests with the supreme court. In a series of affidavits and counter-affidavits filed by the government and the country's premier investigative agency, neither side seems ready for conciliation.
Given the impasse, there is little doubt that the apex court would tread on a delicate edge when it takes up on August 27the issue of breaking CBI free from the government's "cage". The positions taken by the government and the CBI are totally at variance, and conflicting in some cases, citing legal reasons and constitutional positions.
A study of the two affidavits and positions taken by the government and the CBI would highlight the undercurrent of tension. For instance, CBI has recommended that views of the outgoing CBI chief should be considered while selecting the new CBI chief by a committee headed by the prime minister, and comprising the leader of opposition in Lok Sabha and the chief justice of India as members. But in an affidavit filed on August 2, the government rejected the proposal and suggested that views of the outgoing CBI chief can be incorporated in executive instruction (seen through the personnel department).
This has triggered a war of words as the CBI is learnt to have raised objection over the government's hesitation in institutionalising the process of considering views of the outgoing director through a statute. The CBI's plea to choose the director as an IPS officer trained and experienced in handling investigation of corruption cases is also brushed aside by the government on the ground that it will limit the talent pool of existing police officers.
What has emerged as a major bone of contention is a determined move by the CBI director to extend his fixed term of service from two years to three years. The government has cited SC judgment in the Vineet Narain case, which fixed the CBI director's term to two years, as the primary reason for its inability to accept the suggestion. However, in its affidavit, the government is not averse to extending a longer term to the director through an executive order – and not by legislation. According to CBI, such a scenario would make the CBI chief vulnerable to the government and political executive on whose mercy the extension of the director's term would depend.
The fact that the government is still keen to retain its power to take disciplinary action against the CBI director has rattled the agency. The CBI has steadfastly maintained that any disciplinary action initiated against the director must have approval of the high-powered committee headed by the prime minister. The government, however, proposed that such disciplinary action can be initiated following inquiry by the CVC on complaints of misbehaviour or incapacity. If the charges are proven, services of the director can be terminated by the president, the affidavit says.
The CBI finds this proposition unacceptable for its autonomy.
What is seen as the government's stubbornness to concede ground to the CBI is reflected in the denial of the CBI chief to choose officers up to the rank of SP. In fact, the CBI has asked for autonomy of the director to fill vacancy through the existing pool of officers available for central deputation without going through the process of clearance and appointment from the department of personnel and training (DoPT).
But in its affidavit, the government has declined the proposal and pointed out that such a procedure of appointment would promote arbitrariness and opaqueness in appointments in CBI. The agency found the government's logic – that a CBI chief appointed by high-level exclusive collegiums is not trusted for impartial inductions of deputy SP, additional SP and SP-level officers – "strange".
What appears to have stirred the hornet’s nest in the government is the CBI director’s demand to put him at par with secretary, government of India. In its affidavit, the CBI says, “It is necessary that the director, CBI, should be vested with ex-officio powers of secretary, government of India, reporting directly to the Hon'ble minister without having to go through the DoPT.”
In effect, the CBI has been demanding financial autonomy to the agency by earmarking a separate budget that can be regulated by the finance ministry. “A director, CBI, who is dependent on (the) ministry for routine administrative and financial approvals is not best placed to take independent and objective decisions," the CBI affidavit avers.
However, the government rejected the CBI's contention by pointing that it was untenable on the ground that “an all-powerful director, CBI, without adequate checks and balances would not be consonant with settled constitutional principle".
As of now, the CBI has stuck to its guns by pointing out "absurdity of the logic" – that merely by granting the status of ex-officio secretary would entitle unbridled authority to the CBI chief.
What is curious is the reluctance of the government to allow investigation and prosecution of officials of joint secretary-level and above without approval of the ministry concerned. The CBI has proposed that a committee headed by the CVC, with the cabinet secretary and CBI director as members, be empowered to take decisions on such cases to facilitate investigation and prosecution. The government has rejected the proposal on the ground that the departments with which such officials are engaged are best suited to take a final decision.
Once again, the CBI is set to ridicule the government's position in the next hearing of the supreme court.
The role of the directorate of prosecution within the CBI has also been a serious bone of contention. The CBI has suggested that the director, prosecution, be made independent of the law and justice ministry and made accountable to the probe agency. The CBI was particularly insistent that instead of the contract system of hiring prosecutors, efficient law officers should be recruited to expedite trials and reduce pendency of the cases. The government has shown its unwillingness to grant power to the CBI to prevail in the event of any differences on manner of prosecution.
Going by the text of the successive affidavits and the CBI's responses, it seems quite evident that the turf war between the government and the CBI is unlikely to abate till the supreme court finally takes up the issue and devises ways to give freedom to the agency. In the meantime, the CBI, defined metaphorically as "parrot" by the apex court, has been showing its feline characteristics.
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