The Official Interpol Unit for India and the Apex Court – Part I

Kartikeya Tanna analyses the Central Bureau of Investigation and the Supreme Court of India and the interface between the two through a detailed study of the structure and functioning of the CBI along with its dealing with the Supreme Court..When there exists a perilous lack of structural autonomy and when fallibility is tainted – a study of the recent interface between the two and its impact on the notion of law, order and justice. (This article is the first part of the two part analysis on the Central Bureau of Investigation and the Supreme Court of India and the interface between the two.) .INTRODUCTION.The ability to pass “such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it” has been one of the most significant powers conferred upon the apex court of our country, the Supreme Court of India, in the eventual conception of the principle of separation of powers enshrined in the Constitution. This power contained in Article 142 has, many times, been used in conjunction with another crucial power to move the apex court directly in an original jurisdiction petition under Article 32 for enforcement of Fundamental Rights of the Constitution. This is specifically significant in order for, in Churchill’s words, even the “little man with a little pencil with a little ballot to vote” to avail direct attention of the ‘final arbiter of justice’ and consequently prevent unbridled execution of powers by either the Legislature or the Executive. Because each official action affecting an individual can be traced back to some kind of permission, express or tacit, given by either wing of the country, resort to judicial remedies to preserve and protect the basic principles of our nation’s Governing Document is crucial to maintain proper checks and balances. The essence is that no one participant at the very top of the process should be able to hold a carte blanche in exercise of its powers that potentially affects more than a billion lives. This tenet has given rise to a rich treasure of several enunciations of this doctrine and remarkable incidents and confrontations in the 62 years of our nation with the most recent one being Dr. Manmohan Singh’s daring and condescending remark to the Supreme Court not to interfere in the “policy decision” of distributing the rotting food grains lying in governmental godowns. Indeed, the Supreme Court cannot be and is not the sarvasva – be all and end all of everything – and paying due heed to the spirit behind separation of powers, it must exercise great responsibility in the extent to which it goes about doing complete justice. The apex court has itself noted that such powers must be exercised along recognized lines and be subject to certain self-imposed limitations. What happens when such responsibility is not exercised with the highest threshold of care it merits? There is an option to review a particular order of the apex court as well as file a curative petition as established by the Court itself in Rupa Ashok Hurra vs. Ashok Hurra [(2002) 4 SCC 338]. But at times, the damage is already done before a curative petition is filed. Also, the grounds of filing such a petition are very limited as shall be seen below..The official Interpol unit for India is the primary and most significant agency for criminal investigations. On it lays confidence of more than a billion lives. In an era where a notable number of officers in the state police live with constant fear from the ruling class governing their area of jurisdiction, the Delhi Special Police Establishment (DSPE), unofficially known as the Central Bureau of Investigation (CBI), must offer real hope of an independent investigation. However, if the very structural existence and functioning of the DSPE lacks real autonomy and independence, how can faith be placed in investigations in its hands even if the officers of the DSPE are extremely upright and honest and all members of the Government of the day are non-interfering and of the highest integrity. This structural abyss is so revealing that it is almost shocking that no heed has been paid for various attempts to reform the agency. What happens when, despite the increasing frequency with which the DSPE is asked to investigate extremely sensitive and high profile matters, one hand of this body is tied behind its back? While law enforcement agencies and entities are a part of the Executive, they are not, in the words of Lord Denning, “subject to the orders of the Secretary of State”. As Lord Denning continues, “ […] in all these things [of how to investigate, who to prosecute] he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone”. How can one be satisfied of an impartial thorough investigation if, under the DSPE Act, the superintendence of the DSPE is with the Ministry of Personnel, Public Grievances and Pension of the Government of India that reports directly to the Prime Minister of the nation in an era of coalition dharma and awkward equations?.The interface between the apex court and DSPE has been extremely interesting ever since the landmark judgment of Vineet Narain vs. Union of India [(1998) 1 SCC 226] and the establishment of the concept of “continuing mandamus”, a process where the apex court continuously monitors and supervises some high profile criminal investigations conducted by the DSPE till a charge-sheet is filed in a trial court. That such a concept had to be created speaks volumes about the nation’s trust, the lack of it, in the existing structure of the DSPE. Even more unfortunate was the fact that it took 35 odd years since the expansion of the powers of the DSPE, and that too for a body like the apex court, to change, by an Article 32 order, the supervision of the DSPE in its investigation of corruption offences by the Central Vigilance Commissioner. The interface between the two highest agencies responsible for law, order and justice has, on most occasions, been very healthy for the nation. The Court has issued notices to the Department of Telecommunication, the Union Telecom Minister A. Raja and the DSPE to reply to charges that the Minister occasioned huge losses running up to Rs. 60,000 crore (approximately $13 billion) in a likely mishandling of the 2G spectrum allocation to mobile operators in that 2G mobile telecom licenses were allegedly awarded to parties at below-market prices without competitive bidding. This notice was issued by the apex court in a public interest litigation alleging that the DSPE is deliberately slowing down the investigation due to political pressures. This is positive news that reinstates some confidence in the public, but what happens when the apex court makes some perplexing observations in its orders that can seriously prejudice ongoing investigations?.I attempt to address these questions through various perspectives so that readers may know certain critical issues that affect law, order as well as justice in the country. In my attempt to lay out facts before readers, I question and challenge the structure and the system; not any individual in the hope the focus shall remain on enforcing tighter mechanisms and reforming structures rather than expressing frustration at what is trite about human nature. Abyss in the structures and systems cannot be adequately pointed out without individual examples; yet, even though counter-intuitively, the focus must always remain on the systems and their reforms..THE DSPE (CBI).An article by Arati Jerath in the Times of India poignantly summarizes the research I started doing a couple of months ago in the wake of the aftermath of the Sohrabuddin fake encounter. I started studying the detailed structure of the CBI, how it gets its existence and authority and how it is allowed to function. Because these issues have been covered in various parliamentary committee reports and by Ms. Jerath, the length of my analysis gets shorter. I shall make only a few, though significant, points here. Firstly, the structural existence of the Central Bureau of Investigation is under an Act titled the Delhi Special Police Establishment Act, 1961. For legal and official purposes, the CBI is called DSPE. Mr. Manish Tewari, the Congress MP, moved a private members’ Bill last month seeking statutory status for the CBI. This initiative got a quick response from the Minister of Personnel, Public Grievances and Pensions (the Ministry that has superintendence over the CBI) that there is no legal infirmity and the CBI is “working well”. The fear emanating out of the fragile centre-state relations under our federalist structure has been so strong that any attempt to enlarge the scope of a central investigating agency has been met with fierce opposition by the States. Therefore, under the resolution that created the CBI in the 1963, it cannot, on its own motion, take cognizance of a crime. The Central Government has to refer a criminal investigation to the CBI only with the consent of the concerned State Government(s). Only in the last two decades, the appellate courts of India, including the apex court, have begun handing over many such investigations to the CBI without consent of either Government. Regardless of complaints from either section of the Parliament alleging “misuse” of the CBI, no heed has been given to several reports and committee findings by parliamentarians across the spectrum. In the wake of the embarrassing situation that the country’s apex court has to assume, though on its own volition, the role of monitoring and supervising investigation by the CBI under the “continuing mandamus” principle, Mr. Tewari suggested a parliamentary oversight of the CBI through a committee rather than the Ministry. If the people of the nation must have a sustainable faith in the CBI’s functioning, it needs a structural overhaul. In addition to those features of the structure of CBI that are anomalous to autonomy already mentioned in reports, two deserving special attention are as under:.A) The Director of the CBI and other officers are appointed under the process outlined in the CVC Act, 2003 by the Central Government and a Committee consisting of the Central Vigilance Commissioner, other Vigilance Commissioners, Home Secretary and Coordination and Public Grievances Secretary that recommends the appointment of the Director. The Director is generally of the rank of Inspector General of Police of a State and other officers are of the rank of Superintendent of Police and above. Note that neither the Director nor any other officer is a permanent recruit of the CBI. All officers are on deputation. Indeed, they have a protection of tenure of at least two years and cannot be transferred except with the previous consent of the Committee. The interesting thing to note is that after they finish the minimum tenure of two years, they are transferrable and do hold posts either in the State they were prior to their appointment or at the Centre. The post they have after their tenure, as it is known, depends on the respective State or Central Government. In criminal investigations involving high profile political people who may be directly or indirectly issuing orders for posting of such officers, certain uncomfortable equations that may arise in the future may vitiate the independence of investigations. While the CBI has acted strictly in certain high profile cases involving politicians, its lackadaisical and perplexing investigation in other high profile cases like the Bofors scandal, the disproportionate asset cases against top leaders, the fodder scam and various others indicate not only the use of CBI as a convenient tool, but the likely acquiescence of its officers in this exercise of convenience due to potential future benefits. .B) The CBI cannot select its own legal representative in the courts of India. The DSPE Act does not outline the process of selection of legal counsel, but the Annual Reports of the CBI carry details of the functioning of the CBI. Paragraph 3.1 of the 2008 Report states that the Director of Prosecution in CBI is selected and appointed by the Government of India. The Director tenders legal advice and conducts and monitors prosecution of matters under CBI jurisdiction as well as is in charge of matters relating to the appointment of retainer counsels and special counsels. Paragraph 3.5 further states that suitable and competent advocates are engaged as counsels representing CBI with the approval of the Department of Personnel and Training and Ministry of Law. Paragraph 3.6 states that in cases of significance where it is felt that CBI should be represented by a Senior Counsel, CBI may request Solicitor General or Additional Solicitor General (ASG) to appear and argue on behalf of the CBI. Readers shall recall that the Solicitor General and the ASGs are law officers of the Central Government and appear in courts on behalf of the Government of India. Before I dwell more into the appointment of Solicitor General and the Additional Solicitor Generals, an important implication of this is that the Director of Prosecution and/or the legal counsel retained by the CBI including the law officers of the Government of India advise the CBI on a variety of legal issues pertaining to the investigation including the legal tenability or otherwise of pursuing a criminal investigation against any suspect. Such counsels also regularly advise the CBI on the lack of a tenable case or, in recent words of the CBI in its follow-up on Justice Tarun Chatterjee’s role in the Ghaziabad provident fund scam, lack of “prosecutable evidence”. For example, in the follow up of this scam, the Attorney General Mr. Vahnavati has recently told the apex court that “there is no sufficient evidence to prosecute 24 judicial officers but findings against them are of a serious nature”. Justice Chatterjee is one of the 24 officers..Pursuant to an RTI application, the procedure for appointment of law officers has been mentioned on the website of Ministry of Law and Justice. It states that “the proposal for appointment of Law Officers viz. Attorney General, Solicitor General, Additional Solicitor General is generally moved at the, level of Joint secretary/Law Secretary and after obtaining the approval of the Hon’ble Minister of Law & Justice, the proposal is sent to the Appointments Committee of the Cabinet for its approval”. If the CBI is to conduct its investigation independent of the Executive or even, in some instances, against some members of the Executive and is expected by the nation to withstand very likely pressures or influence the Executive may be able to bear upon the CBI, representation through political appointments like the Solicitor General or ASGs or even the Attorney General defeats the purpose. In every criminal investigation, particularly of a high profile nature, impartiality must not only be done, but must be seen to be done..At this stage, it is important to point out a very crucial conflict of interest that has occurred in representation of CBI by a senior advocate in the follow up cases pursuant to the Sohrabuddin fake encounter cases. In the proceedings before the Supreme Court in the 2007 Sohrabuddin fake encounter case [(2007) 4 SCC 318], the senior advocate represented the State of Gujarat in the case and, coincidentally, submitted in the court that the body of Kausarbi was disposed of by burning it in Sabarkantha district. He was clearly privy to certain confidential and sensitive information of his client – the State of Gujarat. It seems perplexing how the senior advocate can now represent the CBI in criminal proceedings. While technically the former Supreme Court case did not then discover the alleged involvement of two more high placed public officials, the criminal proceedings arise out of the same alleged fake encounter of Sohrabuddin and his wife Kausarbi..To reiterate the basic purpose behind my exercise through this article, the focus must continue to be on the deficiencies of the structure and the system. Human nature is, more or less, susceptible to opportunities for greed or blatant exercise of power. If effective checks are kept in the system itself, the scope for wrongdoings reduces considerably..Part II will cover an analysis on how the Supreme Court has dealt with the CBI and concluding thoughts that explain the line of thought behind the article..Kartikeya is a corporate transactional partner at Tanna Associates, a multi-practice law firm in Ahmedabad. He can be contacted at kartikeya@tannaassociates.com.