INTRODUCTION

The twain objectives of a strong criminal justice system in any country have been retribution and deterrence. The two sequential concepts are regarded as vital to the maintenance of law and order in a State since it is thought necessary to appropriately punish those found to be guilty and, thereby, send out a strong symbolic message to other potential violators of the consequences of their intended actions. As violations of law become more sophisticated and intricate, a greater need to expedite the processes of investigation and prosecution leading to retribution and the ensuing deterrence is seriously felt. Far from the relatively simplistic crimes of the past, financial irregularities and sophisticated corruption with the aid of technology tend to have inbuilt features that can sufficiently wipe off incriminating evidence in quick time. When such actions are committed by members of the Executive, a unique alibi they can use is that they were “merely executing policies”. In such instances, the need to have a strong and well-equipped investigation and prosecution team is trite. However, law and order (and, therefore, investigation and prosecution) is the primary responsibility of the State led by the Executive. Some countries recognize the need for a structural dissociation of institutions in-charge of maintaining law and order from the Government earlier than others, but the umbilical relationship between such institutions and the Executive has continually been taken advantage of by guile politicians. The true yardstick for the rule of law, i.e. the the right to equality before the law, is bent, at times under valid laws, to favor the powerful.

Instances of abuse of power in India have escalated blatantly in the past two decades and have rarely seen any institutional efforts in remedying the plague. A continuing inertia on the part of the Legislature, despite the adversarial nature of confrontationist politics, reflects unnerving unity across the political spectrum in diluting the investigative and prosecutorial strength of law enforcement institutions, thus raising serious doubts about the nation’s prosecutorial abilities. If a rapidly growing economy like India sees its country’s top leaders and politicians make fortunes and yet remain in power, the tendency on the part of the common public to fill all layers of power and authority with corruption in daily lives is not hard to see. To alleviate some of these infirmities, the Court, in Vineet Narain vs.  Union of India, felt it necessary that the Judiciary step to provide a solution till such time as the legislature acts to perform its role by enacting proper legislation. The Court saw a “serious human rights aspect involved in such a proceeding because the prevailing corruption in public life, if permitted to continue unchecked, had ultimately the deleterious effect of eroding the Indian polity”. The Court thereby delineated the structure of the investigating agencies like CBI, Enforcement Directorate and the Central Vigilance Commission and also created the authority for exercising “continuing mandamus” on agencies investigating special violations of law. This right, exercised on a regular basis by the Court, has been invoked once again in the ongoing investigations by the CBI and Enforcement Directorate in the alleged irregularities in allocation of 2G spectrum, also referred to as the “2G spectrum scam”.

In paragraph 59 of Vineet Narain, the Court rejected a recommendation for establishing an independent entity akin to the Office of Independent Counsel in the United States to investigate such cases where interference by the Executive is not only natural, but a certainty in this awkward era of relatively unstable coalition governments. The Court considered the recommendation “drastic” and, in rejecting it, felt confident of the impact of the right of continuing mandamus it created. Based on the situation today, it can hardly be denied that the time for such a step has come. The step is more “preventive” than “drastic”.

STRUCTURAL INFIRMITIES IN THE CBI

Before I delineate the structure of the proposed independent prosecutorial agency, some structural infirmities in the CBI’s functioning, in addition to the ones mentioned in my previous essay, need special mention.

a)      The CBI does not have statutory status as of today and legal commentators have raised doubts about the valid legal existence of the CBI explained at length in the Research Paper.

b)      Under Section 6A of the DSPE Act, 1946, the CBI is prohibited from conducting any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 by (a) the employees of the Central Government of the level of Joint Secretary and above; and (b) officers in government companies, societies and local authorities owned or controlled by that Government, without the approval of the Central Government. The legislative history indicates that the Parliament introduced this provision despite the Court holding an executive directive, similar in effect, null and void. Indeed, the Parliament of India has the prerogative to pass laws even if it means overturning a judgment, but the impact of this change can be reflected in the dissenting note by a member of the Joint Committee who lamented the fact that pliable public servants “who carry out the errands of the political masters will go scot free” and “corrupt officers will rule the roost due to their proximity to the seats of power”.

c)       The law officers of the Government of India often represent the CBI in cases against politicians or members of Executive. If, in the 2G scam matter, the Solicitor General of India is asked to defend the policies and execution thereof in the 2G spectrum allocation and the CBI is being represented by the Additional Solicitor General of India (who presents the action taken reports of the CBI to the Court and receives them after review), this reflects a serious conflict of interest despite the highest personal integrity of an extremely talented and devoted team of law officers since Independence.

d)      Moreover, the statutory inability on the part of the CBI to investigate alleged offenses exercising its powers and jurisdiction in a state of India due to tense central-state relations is well-known.

e)      Additionally, there remain serious limitations on the part of the CBI to pursue all remedies available for prosecution. The choice to appeal an acquittal by a lower court rests on the Central Government as was observed in the Central Government’s refusal to allow the CBI to appeal against an acquittal by the CBI-designated court despite the CBI stating that it had a strong case against Mr. Yadav.

INDEPENDENT PROSECUTORIAL AGENCY

It is noteworthy and ironical that despite political parties aggressively accusing each other of misusing the CBI when in government, no serious attempt has been made to introduce structural reforms in the functioning of the CBI, for example, by adopting various committee recommendations and a private members’ Bill aimed at reducing the dependence of the CBI from the Executive. The United States Office of Independent Counsel was established by the U.S. Congress pursuant to the high-handed abrasive corruption and misuse of power by President Nixon and several officials of the Executive in the Watergate episode. It is widely believed that the FBI tampered the evidence against officials of the Nixon Administration. Such misuse of power led to an ever resolute U.S. Congress that would enact a legislation creating the office of independent counsel to investigate and recommend impeachment of members of the Executive including the President.

The independent counsel has full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice. Notable powers of the independent counsel include: (a) conducting investigations within its jurisdiction; (b) engaging in any litigation, including civil and criminal matters, thought necessary; (c) appealing any decision of a court in any case or proceeding within its jurisdiction; (d) making applications to courts for warrants, subpoenas, or other orders; (e) initiating and conducting prosecutions in any court of competent jurisdiction in the name of the United States (i.e. Executive); (f) investigate and prosecute federal crimes and misdemeanors that result from perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses. 

This wide-ranging authority did present a significant likelihood for misuse of power by such counsels preventing an objective investigation and prosecution of a high-ranking official. Ken Starr remained an active partner at a law firm that represented many clients in litigation with the government. He was also criticized and suspected by many to have aggressively demanded a wider scope of prosecutorial jurisdiction under the pretext of linking the Lewinsky scandal with the Whitewater scandal which turned out to be distinct from each other.

RECOMMENDATIONS

Structural changes to the Central Bureau of Investigation

In order to remedy the lack of independence and autonomy in investigating and prosecuting high-placed public officials and politicians, the following recommendations may be suggested to the Court:

a)      Appropriate directions may be issued to confer statutory status upon the CBI;

b)      The constitutional validity of Section 6A of the CVC Act, 2003 may be determined;

c)       Appropriate orders and directives may be issued under Articles 32 and 142 of the Constitution to permit the CBI to choose its own legal counsels;

d)      The law officers of the Government of India may be requested to recuse themselves from representing the CBI in cases against the members of the Executive and politicians under general powers of the Court;

e)      In the absence of statutory provisions stating to the contrary, appropriate directions may be issued prohibiting the Central Government from preventing the CBI to avail itself of all remedies available to it under the laws of India in its prosecution attempts against members of the Executive and politicians;

f)       Any unauthorized leak of the CBI’s investigation may be held as contempt of court serious punishment may be prescribed.

Creation of an independent prosecution agency

Despite the exercise of continuing mandamus on the CBI and likely issuance of the recommendations enlisted above, there remains a cogent possibility of the Legislature diluting the impact of some directives through legislation. This is where a truly independent agency is required to strengthen the prosecutorial abilities of India. A direct application of the structure of the Office of Independent Counsel in the United States is certainly not suggested. It may be stressed, however, that the need for independent counsels was felt in the United States despite a vigilant Legislature making all possible attempts to curb excessive abuse of power by the country’s Executive. In that context, there is an advantage of roughly twenty years of the reasonably successful operation of a structure that can serve as a useful guide both for its utility and inherent as well as practical deficiencies. In the recommendations that follow, I have taken due consideration of the Indian legal setup.

Appropriate directions may be issued by the Court for the creation of an independent prosecuting entity under ‘continuing mandamus’ by the Court till appropriate legislation is passed. The structure of the U.S. Independent Counsel Office may be adopted at the basic level with the following changes:

a)      Under the Indian setup, the discretionary power may be given to a specially constituted bench of the Court unlike to the Attorney General as in the United States. Such a Bench may receive satisfactorily credible and specific information of alleged violations of the criminal laws or anti-corruption laws by the members of the Executive including politicians from a variety of sources through legal counsel or a public interest litigation suit filed by any person. The Bench may, if it deems necessary, direct the independent prosecutor to take charge of the matter.

b)      The independent prosecutor may be an Indian citizen possessing impeccable integrity with no political affiliation of any nature whether in the past or present. Examples include a senior advocate with requisite experience as a trial lawyer, a retired judge with extensive trial experience or an eminent jurist with a long-standing engagement in the study of criminal investigation and prosecution.

c)       The Bench may exercise “continuing mandamus” on the investigation done by the independent prosecutor.

d)      The independent prosecutor may be conferred the authority to interrogate any Minister or official of the Central Government including the Prime Minister and any Minister or official in State Government(s) including the Chief Minister. The Attorney General or the Advocate General, as the case may be, may be notified of such intention to interrogate and may also remain present during the interrogation.

e)      The Parliamentary Accounts Committee may be asked to exercise oversight on the costs and expenditures of the National Independent Prosecuting Agency.

CONCLUSION

In midst of the inertia and nonchalance by the elected parliamentarians and the abrasiveness on the part of the governments formed out of this elected pool, the Judiciary has, through its activism, provided a direct access route to one billion people in the nation to appeal to the courts for justice. Originalists and critics of judicial activism do express valid concerns about the possibility of the Judiciary crossing the lakhsman rekha of its authority in the conception of the principle of separation of powers. Yet, even the fiercest critics of judicial activism agree that extraordinary times demand extraordinary measures. The current situation may not be a time-ticking bomb that has “danger” written conspicuously over it, nor a period where civil liberties are suspended and people are arrested en masse. But there is an India in her farthest corners that is vividly dissatisfied with the deep-rooted corruption that has metastasized into our society and is waging armed rebellion in some pockets. At times, “the will of the people” can be undesirably restricted in scope or unduly muted, particularly in a majoritarian democracy. The need for the Judiciary to step in is reflected in the frank words of the founding fathers of the United States - “unfettered by political interests or popular prejudices, the judiciary can penetrate to the true meaning of the Constitution and the subtle requirements of its principled commitments. Some questions—questions of justice and rights—are too important to be left in the hands of legislative majorities or ‘the people themselves’.” Though not a time-ticking bomb, this self-availed right to corruption, gradually seeping through the nation’s way of life, will result in a loss perhaps more lasting than a bomb. The united fabric of India is at threat with the increasing power of few elected people in New Delhi to make a fortune out of India’s wealth. This is an extraordinary situation which calls for some serious measures to reinforce the notion of fairness among the most affected which, if not heeded to, might witness drastic challenges to the authority of the State. Whether such a challenge takes the form of Mahatma’s scrupulous satyagraha or violent extremism desirous of overthrowing the Indian State is besides the point. The Supreme Court seems the only institution powerfully placed to introduce extraordinary measures as prayed for in this article and the Paper.

This article contains excerpts from the Research Paper drafted by Kartikeya.

Kartikeya is a transactional partner at Tanna Associates, a multi-practice law firm in Ahmedabad. He holds a law license in India and the State of New York and can be contacted at kartikeya@tannaassociates.com.

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