LAW RESOURCE INDIA

Make CBI transparent

Posted in CORRUPTION, GOVERNANCE, RTI by NNLRJ INDIA on July 4, 2011
Central Bureau of Investigation

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The only explanation for the government’s decision to exempt the CBI from the ambit of the Right to Information Act is that the agency would not like to be accountable for its extra-Constitutional or discretionary activities.

B. R. Lall IN THE TRIBUNE

The Union Government’s decision to place the Central Bureau of Investigation (CBI) outside the ambit of the Right to Information Act has come under sharp criticism. They do not seem misplaced either.

However, bonafide protection in the field of investigation already exists under section 8 (h) of the Right to Information Act that provides “….there shall be no obligation to give any citizen information which would impede the process of investigation or apprehension or prosecution of offenders…” That applies not only to CBI or other central investigating agencies, but also to similar agencies of all the state governments as well.

The decision to exempt the CBI from the RTI Act is sought to be justified on the grounds of national security and possible impact on intelligence gathering. It must be made clear in no uncertain terms that the CBI is neither an intelligence gathering agency nor a security organisation. It is an investigative agency assigned legally the job of exposing rather than concealing.

By the very nature of its work, the CBI has to be an open organisation notwithstanding the sensitive cases that it may be dealing with. The sensitivity in the context of the CBI is when it deals with cases against the high and the mighty “…in the investigations of which one was expected to conceal more and expose less…” It is precisely for this requirement on the ground, as against the legal or operational requirement of the CBI, that such secrecy is needed.

Functionally, as against an intelligence organisation that requires total protection from transparency, investigations actually require complete transparency after a certain stage. It is only the premature disclosure of information during the investigation that usually gives undue advantage to the accused, who may cover his tracks, destroy the evidence and scuttle the investigation.

Transparent investigation

But once the charge sheet has been filed, there is no requirement for any further protection. Incidentally, all the evidence to be relied upon is communicated to the accused person so that he may prepare his defence. Once it is filed in the court of law, the charge sheet also becomes a public document.

Some of the information collected during investigations and contained in the case diaries of the agencies may not be shown in the charge sheet as that may be related to the security of the witness or of the accused and, therefore, not advisable to be brought in the public domain. Such information and documents, on which the prosecution does not rely, are already protected under the Criminal Procedure Code and the Evidence Act.

However, to meet with the ends of justice and to ensure that nothing is held back, the court trying the case has a right to look into all these documents and to use them as per its discretion.

The prevalent laws are quite adequate. Further secrecy, particularly for the CBI in corruption cases, is designed only to protect the people in high places. As such there is no necessity for any further privilege for any investigating agency in the country under the Right to Information Act. As a former CBI officer having fought the corrupt system from inside the government, I concluded that the CBI under the control of the government has to conceal more than reveal, against its lawful role of collection of facts truthfully and impartially without any fear or favour.

The exemption given to the CBI is an extremely retrograde step; it is going backwards and is completely undesirable and redundant. This will only encourage criminality and corruption in the government and may not leave even the CBI untouched as more you keep things under wraps, the more liable the process is likely to be misused by everyone.

Tradition to protect the powerful

This will only create another class of privileged people who would be beyond the operation of laws. Coming to the experience of other countries, such kind of protection has never been given to any agency in those countries that boast of the Rule of Law or uphold Human Rights.

Are we going to negate the rule of law that our constitution enshrines? In India, however, such steps by the governments to protect the high and mighty have been fairly common.

I am tempted to cite two instances. First, the directive that was issued in the eighties to protect politicians and officers beyond the rank of Joint Secretary against any inquiry or investigation. The direction was quashed by the Supreme Court as discriminatory and illegal in the famous Jain Hawala case in December 1997. But lo and behold, in 1998 itself it was placed back on the statute book through an ordinance and later enacted into the CVC Act in 2003. ( Significantly, the NDA government was in power in both 1998 and 2003)

The other instance is an investigation abroad that was to be conducted against a highly placed accused. That required a Letter Rogatory from the Indian Court to the court of the country where the investigations were intended to be conducted.

Under section 166 of the Criminal Procedure Code, any officer in charge of a police station can apply for such a letter. In 1993, a VVIP was to be protected, so the government modified the procedures by an executive order that the CBI should apply to the court for the LR only after obtaining permission from the government, thereby the possibilities of investigation abroad against any influential person were virtually closed, as the government could deny and did deny such permission indefinitely.

Requests were made to the government in this case for issue of LR in May 1993, but the Government of India did not give the permission till December 1996, when this writer left the CBI. ( It was of course the Congress which was in the saddle in 1993 )

So, there could be no investigations abroad, though the VVIP was accused of receiving kickbacks, keeping huge balances in banks abroad and acquiring a number of firms, in India and abroad. So much so, that power to apply for letter rogatory, vested in the SHO under the Code of Criminal Procedure, was withdrawn from the CBI and concentrated in Government of India and that too in the PMO (as was informally learnt), leaving nothing to chance.

Though the papers were pending with the Union Government for years but still this fact could not be made public by the CBI, as that would have amounted to censuring the Government, which the CBI under the control of the government itself could not afford.

The writer is a retired DGP of Haryana and former Joint Director, CBI

What is there to hide?

Maja Daruwala & Venkatesh Nayak IN THE TRIBUNE

It is hard to understand why an agency concerned with investigating corruption should be exempted from the RTI Act. But the government has done just that: and done it against the protests of the strongest voices including people like a former Chief Information Commissioner.

The exemption is particularly disturbing because it signals the ability and the inexorable desire of the government to slowly but steadily nibble away at people’s right to know. Detractors can be forgiven for feeling that the exemption from disclosing information about its functioning now offers the government a fine convenience to protect ‘its own’: bureaucrats in high places, opponents inside and outside; disgruntled business rivals who would probe why another is the favourite of the day; politically useful friends whose messes embarrass the government all the time; the biased investigations that wax and wane in vigour.

With graft gnawing at the edifice of governance, squirreling away the CBI from the public eye adds one more excellent tool to the cause of the corrupt. It will join the already handsome protections provided to the bureaucracy through the law that say, you cannot even begin an investigation against senior officers without specific permissions, let alone prosecute them for corruption. This is in line with the protections that the seniors in the judiciary have built in for themselves. Even an FIR cannot be filed against a High Court or Supreme Court judge accused of corruption, without the sanction of the Chief Justice of India.

The CBI is a most powerful hound in the kennels of whoever has the lease of the house for the moment. So it is unlikely that the Opposition will create any great furore in defence of openness beyond making the right noises. More likely it will satisfy the obsession to always criticise every move of the government with a drizzle of tepid criticism on the mountain already being heaped on government because of its handling of the Anna-Ramdev affair.

There is no doubt that this latest attack on RTI is intended to stem the deluge of dirt that is gushing out as the public wants to know who has dirty hands, and want to be governed by only those with clean ones. But with corruption being now such a complex cloth of connections, revelations tumbling out one after the other about powerful individuals are likely to threaten not only the government of the day but the whole edifice of governance. Perhaps this is exactly the catharsis that is needed but in all likelihood may never be allowed to happen. The chaos is too hard to even contemplate, let alone prepare for controlling it.

There is no rational argument for taking the CBI out from under the RTI Act. It is not an intelligence agency nor is it guarding national security like the armed forces. It is essentially an anti-corruption watch dog and prosecutor which has, over time, been subverted into a catch-all agency governed by whoever is ruling at the Centre.

Nothing in the RTI Act hampers its working. If a particular disclosure has the possibility of adversely affecting its investigations, it can simply fall back on one of the many exemptions that are readily available in the Act. But going through that process would mean that the refusal to disclose could be challenged before the Central Information Commission and the Bureau would have to give an account of itself; its actions, its reasons for secrecy and its progression of each case.

It is this accountability that it wants to avoid perhaps because it knows a lot of its discretionary actions will not stand up to scrutiny. A blanket ban for an agency like the CBI is so useful for hiding inconvenient truths. India’s national motto –satyameva jayate- goes for a toss when dark deeds are rewarded with opaque robes of impunity. By retracting its decision to insulate the CBI, the Centre might like to give itself a fig leaf of a chance at running a decently transparent government.

Maja Daruwala is Director and Venkatesh Nayak is Programme Coordinator of Commonwealth Human Rights Initiative, New Delhi

http://www.tribuneindia.com/2011/20110704/edit.htm#6

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