The law minister along with law officers and officials of the PMO were virtually caught red-handed in attempting to doctor the CBI status report in the coal block allocation scam. The supreme court expressed its annoyance at what the government and the CBI had done. It has now called upon the government to file an affidavit detailing the steps that the government intends to take in order to immunize the CBI from political interference.

The weak-kneed UPA government constituted a group of ministers (GoM) to make appropriate recommendations with regard to the functioning of the CBI and the draft affidavit proposed to be filed before the supreme court. Media reports have now indicated that the cabinet has approved the GoM recommendations.  These recommendations include greater financial powers to the agency, a provision for time-bound sanctions to investigate government officials, appointment of a director by a collegium and the constitution of a panel of retired judges which will monitor investigations and ensure that there is no extraneous influence. 

The government made it appear as though some earth-shaking new decision had to be taken on basis of the recommendations of the GoM. The decision taken at the meeting of the cabinet does not in any way immunise the CBI from political interference. The issue of CBI’s functioning was debated in both houses of parliament and was a subject matter of public debate on the draft Lokpal legislation. An essential part of the legislative exercise was to ensure the independence of CBI and how to immunise it from political interference. The Lok Sabha passed the bill but the Rajya Sabha by majority insisted on certain meaningful amendments which resulted in the government getting the house adjourned. A select committee of the Rajya Sabha was constituted which worked for a reasonable period of time inviting public suggestions. On behalf of the Bharatiya Janata Party (BJP) three of us, Rajiv Pratap Rudy, Bhupender Yadav and myself made the following suggestions with regard to the functioning of the CBI: 

“…we are of the opinion that considering the enormous amount of misuse of political clout the CBI has lost its credibility. It has therefore become important to correct this aberration. The control of CBI thus requires to be transferred from the department of personnel to the Lokpal in relation to all corruption cases which are referred to Lokpal.  Alternatively in order to maintain independence of CBI and enable it to get immunity from political interference, we make the following suggestions amongst others:

• The CBI will have two wings. Director CBI will head the entire organisation. Under him a separate directorate of prosecution should function.
• The investigative wing and prosecution wing of the CBI should act independently.
• The director of CBI and director of prosecution should be appointed by a collegium comprising the prime minister, leader of opposition, Lok Sabha and chairman of Lokpal. 
• Both the director CBI and director of prosecution must have a fixed term. 
• Both director CBI and director prosecution shall not be considered for re-employment in government after retirement.
• The power of superintendence and direction of the CBI in relation to Lokpal referred cases must vest with the Lokpal. 
• If an officer investigating a case is sought to be transferred for any reason whatsoever, the prior approval of Lokpal should be required.
• The panel of advocates who appear for and advise the CBI should be independent of the government. They can be appointed by the director prosecution after obtaining prior approval of the Lokpal.”
 
From amongst the above suggestions the select committee accepted all except one relating to non-appointment of the director CBI and director prosecution after retirement in the government.  The said recommendations were placed before the cabinet on January 31, 2013 and were accepted subject to certain minor modifications. The select committee recommendations are a property of the house since the committee is constituted by the house. The government or any member can only move an amendment to it. Thus, when the supreme court passed an order asking the government to outline the steps that it intends to take in order to immunise the CBI from political interference the government ought to have placed the near-unanimous recommendations of the parliamentary select committee to which even the UPA members had consented along with the additional note of the BJP where some extra suggestions were made to aid the object of securing fairness in the functioning of the CBI. The entire package of arrangement would have ensured the appointment of a director by an independent process, separation of a directorate of prosecution which would function on an independent basis rather than just be an officer on deputation from the law ministry. It would have ensured a fixed term for these high offices; there would be no fear or favour inasmuch as  senior officers of the CBI are concerned since  besides enjoying  a fixed tenure they would not be eligible  for re-employment in the government. The power of superintendence and direction of the CBI would vest in the Lok Pal with the supreme court being the appellate authority. Officers investigating sensitive cases would not be transferred without the permission of the Lokpal. The panel of advocates who appear and advise the CBI would be independent of government lawyers since there has been a considerable politicisation in the appointment of government advocates and law officers. This was a recommendation of the select committee. It had been approved by the cabinet on January 31, 2013. Thus, when the supreme court asked the government to file an affidavit on the subject there was an existing decision which just had to be place before the supreme court. The GoM’s recommendation and its approval by the cabinet ignores all the above suggestions and now merely makes the CBI accountable to a panel of retired judges. 

Who will select these retired judges to whom the CBI will be accountable? There are retired judges and retired judges. Many are men integrity wedded to judicial values. Yet, there are many who are perpetually seeking post-retirement jobs. Retired judges are an unaccountable institution. Post-retirement jobs dished out to many retired judges have almost become an entitlement. Pre-retirement conduct at times has been influenced by the desire to get a post-retirement job. I have repeatedly said that this trend of giving post-retirement jobs to retiring judges requires to be discouraged if the independence of judiciary is to be strengthened. Government-selected retired judges do not inspire confidence.  A retired judge was recently appointed as a member of the National Human Rights Commission (NHRC) inviting a note of dissent from both Sushma Swaraj and myself. His performance as a judge did not justify the post-retirement appointment. The government appeared extra keen to appoint him.  Lalu Prasad Yadav as Railway Minister appointed a retired supreme court judge as an inquiry officer under the Railways Act to probe the burning of the Sabarmati Express coaches years after the actual incident. A retired judge disregarded the entire evidence in which the accused had been convicted and produced a report on how the karsevaks by accident could have burnt the train from within. Yet another retired judge was asked to head the prime minister’s working group on the constitutional relationship between India and the state of Jammu & Kashmir.  I was a member of the working group.  A report was produced in the name of the working group even without a meeting of the working group. The state of health of the judge when the report was published did not inspire confidence that the report had actually been authored by him. One cannot forget the learned judge who headed the commission of inquiry into the alleged demolition of the disputed structure at Ayodhya on December 6, 1992. The commission was converted into a self-perpetuating employment for 17 years. It produced a report which was not implementable and hence not implemented. Such a list is unending.

To create an institutional mechanism of unaccountable retired judges  appointed  by the government to whom the CBI would be accountable will only result in the government perpetuating its political control over the CBI by removing itself from the scene and creating a proxy institution which will act  on its behalf. This move should be opposed by one and all.

The UPA has ensured its longevity by misusing the CBI. The role of the CBI in investigating corruption cases against the leaders of SP and BSP had only ensured that these parties continue to support the UPA. The role of the CBI in framing charges against BJP leaders in Gujarat and Rajasthan has demonstrated that the CBI is acting in order to serve the dictates of the party in power. The recent decision of the union cabinet based on the GoM recommendations is a camouflage. It creates an illusion by removing the political executive and creating a proxy institution instead. The government’s decision is a remedy worse than the existing problem. Let the government place before the supreme court the recommendations of the select committee, the cabinet decision of January 31, 2013 along with the suggestions of other political parties which would result in ensuring immunity of CBI from political interference.