Why the CBI should be insulated and not independent

'You just cannot let an institution go adrift and never reporting to any other institution and never submitting itself to any monitoring review or evaluation with regard to its functioning and particularly with regards to an institution which has dominion over the lives and liberties of citizens. That kind of total abdication of government responsibility with regard to that kind of an institution will be dangerous to democracy itself, to the people,' Bahukutumbi Raghavan tells Sheela Bhatt

Former Indian Administrative Service officer Bahukutumbi Raghavan dealt with policy and security planning for 10 years in the home ministry during the tenures of Prime Minister Jawaharlal Nehru, Lal Bahadur Shahstri and Indira Gandhi.

The first secretary of the National Integration Council, Raghavan dealt with internal security when the Chinese aggression took place in 1962 and during the war with Pakistan in 1965.

He was the leader of the delegation that went to Pakistan to settle certain loose points arising out of the 1965 war.

Importantly, in 1978, Raghavan was a member secretary of a commission set up to go into the recommendations given by the Justice J C Shah commission on abuse of power during the emergency and the misuse of institutions like the Intelligence Bureau and the Central Bureau of Investigation.

In the report, Raghavan went into the functioning of the IB and CBI to the greatest possible detail, including into the functioning of these institutions. But before any action could be initiated, Indira Gandhi came to power and the report was buried deep.

86-year-old Raghavan, elder brother of terrorism expert and rediff.com columnist B Raman who passed into the ages on June 16, spoke to Sheela Bhatt on why the CBI should not be made “completely independent.”

Recently the Supreme Court gave an order in the coal allotment scam case, directing the government to submit a plan to make the CBI independent. It has gone a step further from what it said in the Vineet Narain judgment. What is your take on this demand? Do you agree that the time has come to make CBI completely autonomous?

I am only in agreement with the view that an investigative agency, particularly a federal investigative agency, ought to be totally insulated from any kind of influence -- political, parliamentary or otherwise.

It should be allowed to carry out its investigations and arrive at its findings with regard to offences committed purely on the basis and strength of the facts it marshals and by going dispassionately into the merits and demerits of those facts.

I am entirely in agreement with that point of view. That is what is done in the United States. For instance, the US Justice Department and the Federal Bureau of Investigation work in tandem. The FBI is free to carry out investigations and the Justice Department does not interfere in the former’s day to day functioning.

So is the case in the United Kingdom. I think that kind of insulation from any kind of interference is absolutely vital for the working of an investigating agency which has to go purely by the laws, rules, regulations and procedures.

But I am completely confused as to what “total independence” means. You can never have total independence of any institution in a democracy because democracy itself implies checks and balances, and interdependencies of authorities and institutions in order to enforce transparency and accountability.

You just cannot let an institution go adrift and never reporting to any other institution and never submitting itself to any monitoring review or evaluation with regard to its functioning and particularly with regards to an institution which has dominion over the lives and liberties of citizens.

That kind of total abdication of government responsibility with regard to that kind of an institution will be dangerous to democracy itself, to the people.   

So what is your idea of dealing with the issue?

If, by independence, it means insulation from political interference, I agree. The CBI, at the moment, has no exclusive law to back it up. The first step towards making the CBI efficient, accountable and effective in carrying out its objectives is to have a law.

The CBI is still functioning under the authority vested by the Delhi Special Police Establishment Act formed before independence and there is no law governing the objectives and manner of its working.

Therefore, my first suggestion, if you want to make it independent, is to bring in a law mentioning specifically the jurisdiction, the objectives, the procedures to be adopted and the methodology to be adopted and how it should report, where it should report, in what manner, how the director should be selected, etc.

In that particular situation, I find the suggestions given by the Supreme Court in the Vineet Narain case to be extremely useful. But I might add that the suggestions given in Vineet Narain case are not a new discovery.

When we had the L P Singh commission in 1978 to go into the functioning of the CBI and IB, misuse of CBI and IB during emergency, this commission had made similar recommendation. In fact, the commission had gone further than the Vineet Narain case.

We had, of course, said that the CBI director should have a fixed tenure of four years. Also, the system of deputation in the CBI should be dispensed with because if you send people on deputation for five-six years or even 10 years with the prospect of the man having to go back to the state where he came from for the deputation, he has to live with them for the next 10-15 years and therefore he will never be strong enough to carry out investigation in cases affecting the big shots of the state because he has to ensure that he will not be victimised.

So you are in short saying that the CBI should not become as independent contrary to popular demand…

The popular understanding of the independence of the CBI, cutting it adrift from all control, monitoring, evaluation, etc is out from my judgement. 

I propose the total banning of further employment of the CBI director even after retirement by way of allurement as governor, membership of commissions, etc, dispensing with the system of deputation and ensuring that the CBI chief is selected, as mentioned by the Supreme Court in the Vineet Narain case, in a methodology which is open and in which the leader of the opposition party participates.  

These are the issues discussed even in the Lokpal debate during the meeting where P Chidambaram, Pranab Mukherjee and Kapil Sibal talked to activists Anna Hazare, Prashant Bhushan, Arvind Kejriwal, Shanti Bhushan and others. Don’t you think that the Lokayukta is the right act that should replace the Delhi Police Act to govern the CBI?

The Lokpal is overarching. I was about to say that the CBI should not be kept adrift. There should be monitoring and review of how the CBI functions, to what effect it functions.

For that, there are two approaches. One, you make the Lokpal under a Central Act or Lokayukta when we are talking about states.

Make the Lokpal the overarching authority to review, monitor, evaluate and keep tabs on the performance of the CBI so that there is some accountability built into the system.

The other method is what the National Police Commission’s members like former CBI chief C V Narasimhan, and Dharamveera had recommended.

They said we should have a National Security Commission, which will consist of eminent, independent, respected professionals.

Experienced, knowledgeable professionals in crime investigations and public affairs (three or four of them) should constitute the commission and they will keep the CBI under some kind of an overview, oversight.

A Group of Ministers has been formed under Chidambaram’s leadership to reply to the Supreme Court. If, just if, you are asked for your advice what will it be?

One, go into how these machineries and devices have been set up in the US and UK, and borrow as many features of those institutions and devices as possible. 

Second, remove all the impediments for the people in the CBI to function in a self-respecting manner and insulate them from all external influence for which I have been saying, I am repeating, though they are in public domain, they are worth repeating.

Fixed tenure, no job after retirement, no deputation and ensuring that they are bought under Lokpal or National Security Commission, whichever you prefer -- I have no objection if it is under Lokpal.

And number three, nurture the culture, as has been done in the UK over decades, of independence, and in the US. Nurture the culture of preserving the sanctity of the institution.

In India, there is a crisis of character and the institutions themselves are somewhat subverted because India, throughout its history, has depended on the cult of personality rather than doing things by institutional devices.

That was the case in the time of Vikramaditya and Lord Ram and so on. So, the personality cult has been dominant in Indian culture. That’s why we are finding it difficult to nurture the sanctity of the institution.

So what should the UPA government and Chidambaram’s answer to the Supreme Court be in a nutshell?

Produce a draft law incorporating in it the best features of what you find in the Justice Department and FBI nexus in the US and the Director of Prosecution and other devices in the UK, weave them, mesh them into the law and bill all the other safeguards and produce it before the SC.

But instead of this exercise, why not give Lokpal Bill a new life?

The Lokpal will not be able to carry out investigations of the scale and magnitude that an institution like the CBI has built over the years. The CBI has developed a culture. You cannot entrust the Lokpal with a countrywide investigative process.

The Lokpal will be a monitoring, evaluating, reviewing and overseeing authority. He will not be an authority to take over entire investigative responsibility.

So where is this entire issue of investigation of corruption vis-a-vis the CBI and this court case going towards?

Eventually, nothing but good will happen. I have seen it. I have seen situations where in my home ministry -- 40 years ago -- people said this is the end of the world. I find that I am still living and the world is still going on. Therefore, don’t panic. All these things -- the troubles -- are of a nation that is finding its feet. Things will work out.

But in UPA 2, the credibility of CBI has been hit hard in various ways

Well, there has been messy political management. At the moment, I am an old retired man. So I will not come out with sound bites which would be catchy and sexy and so on. 

There is messy communication management. There are good people in the UPA as in every other government. There are atrocious people in the UPA as in any other government. There were atrocious people in the NDA. There are good and atrocious people everywhere. Therefore, instead of making a global judgement that UPA 1 and 2 have completely taken India down the drains and to the dogs and to the cleaners and so on, I will simply say that messiness has been the hallmark of UPA 1 and UPA 2.

Clumsiness, messiness, lack of communicating ability and total disarray in the way they shoot their mouth off in every direction has been the hallmark. But, we will learn. The world has not ended. The world will not end with this either.